<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
___
OccuSystems, Inc.
--------------------------------------------
(Name of Issuer)
Common Stock, $.01 par value per share
---------------------------------------
(Title of Class of Securities)
67462310
--------------
(CUSIP Number)
Donald J. Larson
CRA Managed Care, Inc., 312 Union Wharf, Boston, MA 02109
---------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 21, 1997
----------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box [ ].
Check the following box if a fee is being paid with the statement [ x ]. (A
fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class.) (See Rule 13d-7).
<PAGE>
SCHEDULE 13D
CUSIP No. 67462310 Page 2 of 8 Pages
- --------------------------------------------------------------------------------
1. NAME OF REPORTING PERSON - CRA Managed Care, Inc.
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON - 04-2658593
- --------------------------------------------------------------------------------
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [X]
- --------------------------------------------------------------------------------
3. SEC USE ONLY
- --------------------------------------------------------------------------------
4. SOURCE OF FUNDS
WC or BK
- --------------------------------------------------------------------------------
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Massachusetts
- --------------------------------------------------------------------------------
7. SOLE VOTING POWER
2,157,990
NUMBER OF
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 0
OWNED BY
EACH 9. SOLE DISPOSITIVE POWER
REPORTING 2,157,990
PERSON WITH
10. SHARED DISPOSITIVE POWER
0
- --------------------------------------------------------------------------------
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,157,990
- --------------------------------------------------------------------------------
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
[ ]
- --------------------------------------------------------------------------------
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.1%
- --------------------------------------------------------------------------------
14. TYPE OF REPORTING PERSON
CO
<PAGE>
Item 1. Security and Issuer.
The class of equity securities to which this statement relates is the
common stock, $.01 par value (the "Common Stock"), of OccuSystems, Inc., a
Delaware corporation (the "Company"). The principal executive offices of the
Company are located at 3010 LBJ Freeway, Suite 400, Dallas, Texas 75234.
Item 2. Identity and Background.
On April 21, 1997, CRA Managed Care, Inc. ("CRA"), the Company and
Concentra Managed Care, Inc. ("Concentra") entered into an Agreement and Plan
of Reorganization (the "Reorganization Agreement") pursuant to which the
Company will merge with and into Concentra with Concentra surviving (the
"OccuSystems Merger"), and CRA will merge with and into a wholly owned
subsidiary of the Company with CRA surviving (the "CRA Merger," and together
the "Mergers"). The Mergers will occur simultaneously. At the time of the
Mergers, the outstanding stock of Concentra will be canceled, and the
stockholders of CRA and the Company will receive stock of Concentra in
exchange for their stock in CRA and the Company respectively. Following the
Mergers, the former stockholders of CRA will hold approximately 42.7% of the
outstanding stock of Concentra, and the former stockholders of the Company
will hold approximately 57.3% of the outstanding stock of Concentra (assuming
no dissenters' rights of appraisal are exercised).
In connection with the transactions described above, the parties entered
into two stock option agreements. Pursuant to the OccuSystems, Inc. Stock
Option Agreement (the "Company Option Agreement"), CRA has the right to
acquire up to 2,157,990 shares of the Company at a price of $21.21 per share,
upon the occurrence of certain conditions. CRA may exercise this option if
an OccuSystems Alternative Proposal (as defined in the Reorganization
Agreement) is made and thereafter the Reorganization Agreement is terminated
(i) by action of the Company Board of Directors in the exercise of its
fiduciary duties by reason of such OccuSystems Alternative Proposal or (ii)
by action of CRA if the Company Board of Directors has withdrawn or
modified in a manner materially adverse to CRA its approval or recommendation
of the Reorganization Agreement or the Mergers. Pursuant to the CRA Managed
Care, Inc. Stock Option Agreement (the "CRA Option Agreement") the Company
has the right to acquire up to 896,199 shares of CRA at the price of $37.875
per share, upon terms substantially similar to the Company Option Agreement.
This Schedule 13D is being filed by CRA as a result of its entry into
the Company Option Agreement. CRA's right to acquire equity securities of
the Company pursuant to the Company Option Agreement is contingent upon the
occurrence of certain significant conditions not within CRA's control,
<PAGE>
including a third party making an OccuSystems Alternative Proposal and a
subsequent termination of the Reorganization Agreement. CRA disclaims
beneficial ownership of the equity securities of the Company for which this
Schedule 13D is filed.
Reporting Person
Name. CRA Managed Care, Inc.
State of Organization. Massachusetts
Principal Business. CRA provides field case management
and specialized cost containment
services designed to reduce
workers' compensation costs.
Address of Principal Business. 312 Union Wharf, Boston,
Massachusetts 02109
Address of Principal Office. 312 Union Wharf, Boston,
Massachusetts 02109
See Schedule 1 attached hereto (which is incorporated herein by
reference) for responses to Item 2, sections (a)-(c), and (f) for the
Reporting Person's executive officers, directors and controlling persons.
(d) During the last five years, neither the Reporting Person nor, to
the knowledge of the Reporting Person, any of such person's respective
executive officers, directors or controlling persons, has been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) During the last five years, neither the Reporting Person nor, to
the knowledge of the Reporting person, any of such person's respective
executive officers, directors or controlling persons, has been a party to a
civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is subject to a
judgement, decree or final order enjoining future violations of or
prohibiting or mandating activities subject to, United States federal or
state securities laws or finding any violations with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
No consideration was paid by CRA in connection with its entry into the
Company Option Agreement, other than CRA's execution and delivery of the
Reorganization Agreement and the CRA Option Agreement. If CRA exercises its
option to acquire shares of the Company pursuant to the Company Option
Agreement, CRA expects that the consideration will be paid from CRA's cash on
hand or bank borrowings in the amount of $21.21 per share, totaling up to
$45,770,946.
<PAGE>
Item 4. Purpose of Transaction.
The information set forth in Item 2 above is incorporated herein by
reference.
(a) Pursuant to the Company Option Agreement, CRA has certain rights to
compel the Company to repurchase its shares as well as certain registration
rights. Additionally, there is a restriction on transfer of the shares
acquired by CRA. The information set forth in Sections 7, 10 and 11 of the
Company Option Agreement, attached hereto as Exhibit 99.3, is incorporated
herein by reference.
(b) The Company will merge with and into Concentra with Concentra
surviving. The information set forth in Item 2 above and the Reorganization
Agreement attached hereto as Exhibit 99.1, is incorporated herein by reference.
(c) Not applicable.
(d) The Board of Directors of Concentra, the surviving corporation
after the OccuSystems Merger, shall include four individuals appointed by CRA
and four individuals appointed by the Company. The information set forth in
Article 3 of the Reorganization Agreement, attached hereto as Exhibit 99.1, is
incorporated herein by reference.
(e) The charter of Concentra will be the charter of the surviving
corporation of the OccuSystems Merger. The information set forth in Item 2
above and the Reorganization Agreement, attached hereto as Exhibit 99.1, is
incorporated herein by reference.
(f) The surviving corporation of the OccuSystems Merger will be the
holding company for CRA. The information set forth in Item 2 above and the
Reorganization Agreement, attached hereto as Exhibit 99.1, is incorporated
herein by reference.
(g) The charter of Concentra will be the charter of the surviving
corporation of the OccuSystems Merger. The information set forth in Item 2
above and the Reorganization Agreement, attached hereto as Exhibit 99.1, is
incorporated herein by reference.
(h) Upon consummation of the transactions contemplated by the
Reorganization Agreement, the Company's common stock will no longer be issued
or outstanding. At such time, Concentra's Common Stock will be quoted on the
Nasdaq National Market.
(i) Upon consummation of the transactions contemplated by the
Reorganization Agreement, the Company's common stock will no longer be issued
or outstanding. At such time, approximately 58% of Concentra's Common Stock
will be owned by the former stockholders of the Company.
(j) Not applicable.
<PAGE>
5. Interest in Securities of the Issuer.
(a) CRA currently owns no shares of the Company's Common Stock. CRA
has the option to acquire up to 2,157,989 shares of common stock of the
Company pursuant to the Company Option Agreement which equals approximately
9.1% of the Company's total outstanding shares.
(b) CRA currently owns no shares of the Company's Common Stock. Upon
exercise of the option under the Company Option Agreement, CRA will have the
sole power to vote up to 2,157,989 shares of the Company (subject to the
restrictions contained in the Company Option Agreement), the shared power to
vote 0 shares of the Company, the sole power to dispose of 2,157,989 shares
of the Company (subject to the restrictions contained in the Company Option
Agreement) and the shared power to dispose of 0 shares of the Company.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of the Issuer.
The information set forth in Item 2 above, the Reorganization Agreement
attached hereto as Exhibit 99.1, the CRA Option Agreement attached hereto as
Exhibit 99.2 and the Company Option Agreement attached hereto as Exhibit 99.3
are each hereby incorporated herein by reference.
7. Material to be filed as Exhibits.
Exhibit 99.1 Agreement and Plan of Reorganization among CRA Managed
Care, Inc., OccuSystems, Inc. and Concentra Managed Care,
Inc. dated as of April 21, 1997.
Exhibit 99.2 CRA Managed Care, Inc. Stock Option Agreement between CRA
Managed Care, Inc. and OccuSystems, Inc. dated as of April
21, 1997.
Exhibit 99.3 OccuSystems, Inc. Stock Option Agreement between CRA
Managed Care, Inc. and OccuSystems, Inc. dated as of
April 21, 1997.
* * * * * * * * * * *
<PAGE>
SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
CRA MANAGED CARE, INC.
Dated: May 1, 1997 By: /s/ Donald J. Larson
--------------------------
Donald J. Larson
President and Chief Executive Officer
<PAGE>
Schedule 1
Executive Officers
<TABLE>
<CAPTION>
(b) Business (c) Present Principal
(a) Name Address Occupation or Employment (f) Citizenship
<S> <C> <C> <C>
Donald J. Larson 312 Union Wharf, President and Chief Executive USA
Boston, Ma 02109 Officer of CRA
Joseph F. Pesce 312 Union Wharf, Senior Vice President of CRA USA
Boston, Ma 02109
John A. McCarthy, Jr. 312 Union Wharf, Senior Vice President of CRA USA
Boston, Ma 02109
Peter R. Gates 312 Union Wharf, Senior Vice President of CRA USA
Boston, Ma 02109
Anne E. Kirby 312 Union Wharf, Vice President of CRA USA
Boston, Ma 02109
Directors
(b) Business (c) Present Principal
(a) Name Address Occupation or Employment (f) Citizenship
Donald J. Larson 312 Union Wharf, President and Chief USA
Boston, Ma 02109 Executive Officer of CRA
Lois E. Silverman 312 Union Wharf, Chairman of the Board of CRA USA
Boston, Ma 02109
George H. Conrades BBN Corporation, President and Chief USA
150 Cambridge Park Executive Officer of BBN
Drive, Cambridge, Corporation
MA 02140
Jeffery R. Jay, M.D. J.H. Whitney & Co., General Partner of J.H. USA
177 Broad Street, Whitney & Co.
Stamford, CT 06901
Mitchell T. Rabkin, Beth Israel Hospital, Professor of Medicine USA
M.D. 330 Brookline, MA
02215
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit 99.1 Agreement and Plan of Reorganization among CRA Managed
Care, Inc., OccuSystems, Inc. and Concentra Managed Care,
Inc. dated as of April 21, 1997.
Exhibit 99.2 CRA Managed Care, Inc. Stock Option Agreement between CRA
Managed Care, Inc. and OccuSystems, Inc. dated as of April
21, 1997.
Exhibit 99.3 OccuSystems, Inc. Stock Option Agreement between CRA
Managed Care, Inc. and OccuSystems, Inc. dated as of
April 21, 1997.
* * * * * * * * * * *
<PAGE>
EXHIBIT 99.2
------------------------------------
AGREEMENT AND PLAN OF REORGANIZATION
AMONG
CRA MANAGED CARE, INC.
OCCUSYSTEMS, INC.
AND
CONCENTRA MANAGED CARE, INC.
April 21, 1997
------------------------------------
<PAGE>
Table of Contents
Page
----
ARTICLE I
FORMATION OF HOLDING COMPANY AND SUBSIDIARIES......................- 2 -
1.1. Holding Company..............................................- 2 -
1.2. Directors and Officers of Holding Company....................- 2 -
1.3. Organization of CRA Merger Subsidiary........................- 2 -
1.4. Actions of Directors and Officers............................- 2 -
1.5. Actions of CRA and OSI.......................................- 3 -
ARTICLE 2
THE MERGERS; CLOSING...............................................- 3 -
2.1. The Mergers..................................................- 3 -
2.2. The Closing..................................................- 4 -
ARTICLE 3
DIRECTORS AND OFFICERS OF CRA MERGER SUB
AND SURVIVING CORPORATIONS.........................................- 4 -
3.1. Directors....................................................- 4 -
3.2. Officers.....................................................- 4 -
ARTICLE 4
EFFECT OF THE MERGERS ON SECURITIES OF
CRA, OSI, HOLDING COMPANY AND THE
CRA MERGER SUB.....................................................- 5 -
4.1. CRA Merger Sub Stock........................................- 5 -
4.2. Holding Company Capital Stock................................- 5 -
4.3. Conversion of CRA Stock......................................- 5 -
4.4. Conversion of OSI Common Stock...............................- 6 -
4.5. Fractional Shares, Etc.......................................- 7 -
4.6 Exchange Fund Exchange Procedures, Etc.......................- 8 -
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF OSI.............................- 11 -
5.1. Existence; Good Standing; Corporate Authority...............- 11 -
5.2. Authorization, Validity and Effect of Agreements............- 11 -
5.3. Capitalization..............................................- 11 -
- i -
<PAGE>
5.4. Subsidiaries................................................- 12 -
5.5. Other Interests.............................................- 13 -
5.6. No Conflict; Required Filings and Consents..................- 13 -
5.7. Compliance..................................................- 14 -
5.8. SEC Documents...............................................- 14 -
5.9. Litigation..................................................- 15 -
5.10. Absence of Certain Changes..................................- 15 -
5.11. Taxes.......................................................- 15 -
5.12 Employee Benefit Plans......................................- 16 -
5.13. Labor Matters...............................................- 18 -
5.14. No Brokers..................................................- 18 -
5.15. Opinion of Financial Advisor................................- 18 -
5.16 Preliminary Pooling Letter..................................- 18 -
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF CRA.............................- 19 -
6.1. Existence; Good Standing; Corporate Authority...............- 19 -
6.2. Authorization, Validity and Effect of Agreements............- 19 -
6.3. Capitalization..............................................- 20 -
6.4. Subsidiaries................................................- 20 -
6.5. Other Interests.............................................- 20 -
6.6. No Conflict; Required Filings and Consents..................- 21 -
6.7. Compliance..................................................- 22 -
6.8. SEC Documents...............................................- 22 -
6.9. Litigation..................................................- 23 -
6.10. Absence of Certain Changes..................................- 23 -
6.11. Taxes.......................................................- 23 -
6.12 Employee Benefit Plans......................................- 24 -
6.13. Labor Matters...............................................- 26 -
6.14. No Brokers..................................................- 26 -
6.15. Opinion of Financial Advisor................................- 26 -
6.16 Preliminary Pooling Letter..................................- 26 -
ARTICLE 7
COVENANTS.........................................................- 27 -
7.1. Alternative Proposals.......................................- 27 -
7.2. Interim Operations..........................................- 29 -
7.3. Meetings of Stockholders....................................- 34 -
7.4. Filings, Other Action.......................................- 35 -
7.5. Inspection of Records.......................................- 35 -
- ii -
<PAGE>
7.6. Publicity...................................................- 36 -
7.7. Registration Statement......................................- 36 -
7.8. Listing Application.........................................- 37 -
7.9. Further Action..............................................- 37 -
7.10. Affiliate Letters...........................................- 37 -
7.11. Expenses....................................................- 38 -
7.12. Insurance; Indemnity........................................- 38 -
7.13. Takeover Statute............................................- 39 -
7.14. Conduct of Business by Holding Company and CRA Merger
Sub Pending the Mergers.....................................- 39 -
7.15. Employee Benefits...........................................- 40 -
7.16. Conveyance Taxes............................................- 40 -
7.17 Incentive Plan..............................................- 40 -
ARTICLE 8
CONDITIONS........................................................- 40 -
8.1. Conditions to Each Party's Obligation to Effect the Mergers.- 40 -
8.2. Conditions to Obligation of OSI to Effect the Mergers.......- 41 -
8.3. Conditions to Obligation of CRA to Effect the Mergers.......- 42 -
ARTICLE 9
TERMINATION.......................................................- 43 -
9.1. Termination by Mutual Consent...............................- 43 -
9.2. Termination by Either CRA or OSI............................- 43 -
9.3. Termination by OSI..........................................- 44 -
9.4. Termination by CRA..........................................- 44 -
9.5. Effect of Termination and Abandonment.......................- 45 -
9.6. Extension, Waiver...........................................- 46 -
ARTICLE 10
GENERAL PROVISIONS................................................- 46 -
10.1. Nonsurvival of Representations, Warranties and Agreements...- 46 -
10.2. Notices.....................................................- 46 -
10.3. Assignment; Binding Effect..................................- 48 -
10.4. Entire Agreement............................................- 48 -
10.5. Amendment...................................................- 48 -
10.6. Governing Law...............................................- 48 -
10.7. Counterparts................................................- 48 -
10.8. Headings....................................................- 49 -
- iii -
<PAGE>
10.9. Interpretation..............................................- 49 -
10.10.Waivers.....................................................- 49 -
10.11.Incorporation of Exhibits...................................- 49 -
10.12.Severability................................................- 49 -
10.13.Enforcement of Agreement....................................- 49 -
10.14.Subsidiaries................................................- 49 -
- iv -
<PAGE>
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement"), dated as of April
21, 1997, among CRA Managed Care, Inc., a Massachusetts corporation ("CRA"),
OccuSystems, Inc., a Delaware corporation ("OSI"), and Concentra Managed Care,
Inc., a Delaware corporation ("Holding Company").
RECITALS
A. The Boards of Directors of CRA, OSI and Holding Company have approved,
and deem it advisable and in the best interests of their respective companies
and stockholders, to consummate the reorganization (the "Reorganization")
provided for herein, pursuant to which (i) Holding Company will acquire all of
the common stock of CRA through the merger of a Subsidiary (as defined in
Section 10.14) of Holding Company with and into CRA and (ii) OSI will be merged
with and into Holding Company.
B. For federal income tax purposes, it is intended that the CRA Merger (as
hereinafter defined) will qualify as an exchange under the provisions of Section
351 of the United States Internal Revenue Code of 1986, as amended (the "Code"),
a tax free reorganization under Section 368(a) of the Code or both, and that the
OSI Merger (as hereafter defined) will qualify as a tax free reorganization
under Section 368(a) of the Code.
C. CRA and OSI desire to make certain representations, warranties,
covenants and agreements in connection with the transactions contemplated
hereby.
D. Simultaneously with the execution and delivery of this Agreement CRA
has entered into a certain CRA Managed Care, Inc. Stock Option Agreement (the
"CRA Stock Option Agreement) pursuant to which OSI has the right to acquire
certain shares of CRA Common Stock subject to and in accordance with the terms
and conditions of said Agreement and simultaneously with the execution and
delivery of this Agreement OSI has entered into a certain OccuSystems, Inc.
Stock Option Agreement (the "OSI Stock Option Agreement") pursuant to which CRA
has the right to acquire certain shares of OSI Common Stock subject to and in
accordance with the terms and conditions of said Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
<PAGE>
ARTICLE I
FORMATION OF HOLDING COMPANY AND SUBSIDIARIES
1.1. Holding Company. Holding Company is a corporation newly formed for
the purpose of entering into this Agreement and effecting the transactions
contemplated hereby. Holding Company has undertaken no actions and has incurred
no liabilities other than in connection with this Agreement and the transactions
contemplated hereby. The Certificate of Incorporation and By-laws of Holding
Company are set forth on Exhibit A attached hereto. The Certificate of
Incorporation of Holding Company will be amended prior to the Effective Time to
provide that (a) the authorized capital stock of Holding Company shall consist
of 100,000,000 shares of common stock, $.01 par value (the "Holding Company
Common Stock") and 20,000,000 shares of blank check preferred stock, $.01 par
value, (b) Holding Company shall have a staggered board of directors, (c) no
action required to be taken or that may be taken at any meeting of common
stockholders of Holding Company may be taken without a meeting, and the power of
common stockholders to consent in writing, without a meeting, to the taking of
any action is specifically denied, and (d) special meetings of the stockholders
of Holding Company, and any proposals to be considered at such meetings, may be
called and proposed exclusively by Holding Company's Board of Directors, and the
stockholders of Holding Company shall not have the right to call special
meetings of the stockholders or to propose business at a special meeting thereof
(in each of cases (b), (c) and (d), on terms substantially similar to the forms
of such provisions previously reviewed by the parties hereto). Immediately prior
to the Effective Time there shall be no more than 100 shares of Holding Company
Common Stock outstanding.
1.2. Directors and Officers of Holding Company. Immediately following the
execution and delivery of this Agreement the directors and officers of Holding
Company shall be as set forth on Schedule 1.2 attached hereto. Each such officer
and director shall remain in office until his or her successors are elected.
1.3. Organization of CRA Merger Subsidiary. As promptly as practicable
following the execution of this Agreement, Holding Company shall cause CRA
Merger Corp., a corporation organized under the laws of the Commonwealth of
Massachusetts ("CRA Merger Sub") to be organized for the sole purpose of
effectuating the CRA Merger contemplated herein. The Articles of Organization
and By-laws of CRA Merger Sub are and at Closing shall be substantially in the
forms attached hereto as Exhibit B. The authorized capital stock of CRA Merger
Sub are and shall at Closing consist of 100 shares of common stock, par value
$.01 per share, all of which are and at Closing shall be owned by Holding
Company.
1.4. Actions of Directors and Officers. As promptly as practicable
following the execution of this Agreement, Holding Company shall cause (a) the
directors of CRA Merger Sub to ratify and approve the Merger Agreement (as
defined in Section 2.1) to be executed on behalf of the CRA Merger Sub, and (b)
the directors and officers of the CRA Merger Sub to
- 2 -
<PAGE>
take such steps as may be necessary or appropriate to complete the organization
of the CRA Merger Sub and to approve the Merger Agreement (as defined in Section
2.1).
1.5. Actions of CRA and OSI. CRA and OSI, as the holders of all of the
outstanding shares of capital stock of Holding Company, have ratified and
approved this Agreement, and Holding Company, as the sole shareholder of CRA
Merger Sub, has ratified and approved the Merger Agreement. CRA, OSI and Holding
Company agree that they shall not rescind, revoke, condition or impair any such
ratification or approval. CRA and OSI shall cause Holding Company and CRA Merger
Sub to perform their respective obligations under this Agreement and the Merger
Agreements.
ARTICLE 2
THE MERGERS; CLOSING
2.1. The Mergers. Pursuant to Plans of Merger substantially in the forms
attached as Exhibits C and D (sometimes hereinafter referred to individually as
the "CRA Merger Agreement" and the "OSI Merger Agreement", respectively, and
collectively as the "Merger Agreements"), upon the terms and subject to the
conditions set forth in this Agreement and in the Merger Agreements:
(a) CRA Merger Sub shall be merged with and into CRA (the "CRA
Merger") in accordance with the applicable provisions of the laws of the
Commonwealth of Massachusetts. CRA shall be the surviving corporation in
the CRA Merger and shall continue its corporate existence under the laws
of the Commonwealth of Massachusetts. As a result of the CRA Merger, CRA
shall become a wholly owned Subsidiary of Holding Company. The effects and
consequences of the CRA Merger shall be as set forth in the CRA Merger
Agreement and as provided by the laws of the Commonwealth of
Massachusetts.
(b) OSI will be merged with and into Holding Company (the "OSI
Merger"), in accordance with the applicable provisions of the laws of the
State of Delaware. Holding Company shall be the surviving corporation in
the OSI Merger and shall continue its corporate existence under the laws
of the State of Delaware. The effects and consequences of the OSI Merger
shall be as set forth in the OSI Merger Agreement and as provided by the
laws of the State of Delaware. The term "Mergers" shall mean the CRA
Merger and the OSI Merger.
(c) The term "Effective Time" shall mean the time and date which is
(A) the later of (i) the date and time of the filing of the articles of
merger relating to the CRA Merger with the Secretary of State of the
Commonwealth of Massachusetts (or such other date and time as may be
specified in such certificate as may be permitted by law) and (ii) the
date and time of the filing of a certificate of merger with the Secretary
of
- 3 -
<PAGE>
State of the State of Delaware with respect to the OSI Merger (or such
other date and time as may be specified in such certificate as may be
permitted by law) or (B) such other time and date as CRA and OSI may
agree.
2.2. The Closing. Subject to the terms and conditions of this Agreement,
the closing of the transactions contemplated by this Agreement and the Merger
Agreements (the "Closing") shall take place (a) at the offices of Hutchins,
Wheeler & Dittmar, A Professional Corporation, Boston, Massachusetts at 10:00
a.m., local time, on the third business day following the day on which the last
to be fulfilled or waived of the conditions set forth in Article 8 shall be
fulfilled or waived in accordance herewith or (b) at such other time, date or
place as CRA and OSI may agree. The date on which the Closing occurs is
hereinafter referred to as the "Closing Date."
ARTICLE 3
DIRECTORS AND OFFICERS OF CRA MERGER SUB
AND SURVIVING CORPORATIONS
3.1. Directors. The persons listed on Schedule 3.1(a) shall be the
directors of the surviving corporation of the CRA Merger as of the Effective
Time and until their successors are duly appointed or elected in accordance with
applicable law. The directors of the surviving corporation of the OSI Merger as
of the Effective Time shall include four (4) individuals appointed by CRA and
four (4) individuals appointed by OSI. The persons listed on Schedule 3.1(b)
shall be the directors of OccuCenters, Inc. ("OCI"), a wholly owned subsidiary
of Holding Company, as of the Effective Time and until their successors are duly
appointed or elected in accordance with applicable law. The Board of Directors
of the surviving corporation of the OSI Merger as of the Effective Time shall
establish the following committees: (i) a Compensation Committee consisting of
three (3) members including one independent director; (ii) an Audit Committee
consisting of two (2) members; and (iii) a Nominating Committee consisting of
two (2) members.
3.2. Officers. The persons listed on Schedules 3.2(a) and 3.2(b) shall be
the officers of the surviving corporations of the CRA Merger and the OSI Merger,
respectively, as of the Effective Time and until their successors are duly
appointed or elected in accordance with applicable law. The persons listed on
Schedule 3.2(c) shall be the officers of OCI as of the Effective Time and until
their successors are duly appointed or elected in accordance with applicable
law.
- 4 -
<PAGE>
ARTICLE 4
EFFECT OF THE MERGERS ON SECURITIES OF
CRA, OSI, HOLDING COMPANY AND THE
CRA MERGER SUB
4.1. CRA Merger Sub Stock. At the Effective Time, each share of the common
stock of CRA Merger Sub outstanding immediately prior to the Effective Time
shall be converted into and shall become one share of common stock of the
surviving corporation of the CRA Merger.
4.2. Holding Company Capital Stock. At the Effective Time, each share of
the capital stock of Holding Company issued and outstanding immediately prior to
the Effective Time shall be canceled and retired without payment of any
consideration therefor.
4.3. Conversion of CRA Stock. (a) Subject to Section 4.3(b), at the
Effective Time, each share of common stock, par value $0.01 per share, of CRA
("CRA Common Stock") issued and outstanding at the Effective Time shall be
converted into the right to receive 1.786 (the "CRA Ratio") shares of Holding
Company Common Stock, payable upon the surrender of the certificates formerly
representing CRA Common Stock pursuant to Section 4.6.
(b) As a result of the CRA Merger and without any action on the part of
the holder thereof, at the Effective Time all shares of CRA Common Stock shall
cease to be outstanding and shall be canceled and retired and shall cease to
exist, and each holder of shares of CRA Common Stock shall thereafter cease to
have any rights with respect to such shares of CRA Common Stock, except the
right to receive the number of shares of Holding Company Common Stock determined
in accordance with Section 4.3(a), cash without interest, for fractional shares
of Holding Company Common Stock in accordance with Section 4.5 and dividends or
other distributions, if any, in accordance with Section 4.5 upon the surrender
of a certificate representing such shares of CRA Common Stock (a "CRA
Certificate").
(c) At the Effective Time, each share of CRA Common Stock which is held in
the treasury of CRA immediately prior to the Effective Time shall, by virtue of
the Mergers, cease to be outstanding and shall be canceled and retired without
payment of any consideration therefor.
(d) Notwithstanding anything in this Section 4.3 to the contrary, shares
of CRA Common Stock which are issued and outstanding immediately prior to the
Effective Time and which are held by stockholders who have not voted such shares
in favor of the CRA Merger and who shall have properly exercised their rights of
appraisal for such shares in the manner provided by the Massachusetts General
Business Corporation Law, Chapter 156B (the "MBCL") (the "CRA Dissenting
Shares"), shall not be converted into the right to receive the Holding Company
Common Stock, unless and until such holder shall have failed to perfect or
- 5 -
<PAGE>
shall have effectively withdrawn or lost his right to appraisal and payment, as
the case may be. If such holder shall have so failed to perfect or shall have
effectively withdrawn or lost such right, his shares shall thereupon be deemed
to have been converted into, at the Effective Time, the right to receive the
Holding Company Common Stock plus cash in accordance with Section 4.5 and
Section 4.6. CRA shall give OSI prompt notice of any CRA Dissenting Shares (and
shall also give OSI prompt notice of any withdrawals of such demands for
appraisal rights) and Holding Company shall have the right to direct all
negotiations and proceedings with respect to any such demands. Neither CRA nor
the surviving corporation of the CRA Merger shall, except with the prior written
consent of Holding Company, voluntarily make any payment with respect to, or
settle or offer to settle, any such demand for appraisal rights.
(e) At the Effective Time, each outstanding option or right to purchase
shares of CRA Common Stock (a "CRA Option") shall be assumed by Holding Company
in such manner that it is converted into an option to purchase shares of Holding
Company Common Stock, as provided below. Following the Effective Time, each such
CRA Option shall be exercisable upon the same terms and conditions as then are
applicable to such CRA Option, except that (i) each such CRA Option shall be
exercisable for that number of shares of Holding Company Common Stock equal to
the product of (x) the number of shares of CRA Common Stock for which such CRA
Option was exercisable and (y) the CRA Ratio and (ii) the exercise price of such
option shall be equal to the exercise price of such option as of the date hereof
divided by the CRA Ratio. It is the intention of the parties that, to the extent
that any such CRA Option constituted an "incentive stock option" (within the
meaning of Section 422 of the Code) immediately prior to the Effective Time,
such option continue to qualify as an incentive stock option to the maximum
extent permitted by Section 422 of the Code, and that the assumption of CRA
Stock Options provided by this Section 4.3(e) satisfy the conditions of Section
424(a) of the Code. From and after the date of this Agreement, no additional
options to purchase shares of CRA Common Stock shall be granted under the CRA
1994 Time Accelerated Restricted Stock Option Plan, the CRA 1994 Non-Qualified
Stock Option Plan for Non-Employee Directors, the CRA 1997 Stock Option Plan or
any other CRA option, stock or other benefit plan or agreement (collectively,
the "CRA Stock Option Plans") (other than (i) the grant of options to
individuals other than executive officers of CRA to acquire up to 15,000 shares
of CRA Common Stock pursuant to the terms of the CRA Stock Option Plans at an
exercise price of not less than the fair market value of the CRA Common Stock on
the date of grant and (ii) the option granted to OSI on the date hereof).
4.4. Conversion of OSI Common Stock. (a) Subject to Sections 4.4(c) and
4.4(d), at the Effective Time each issued and outstanding share of Common Stock,
$.01 par value of OSI (the "OSI Common Stock"), shall be converted into the
right to receive one (the "OSI Ratio") share of Holding Company Common Stock,
payable upon the surrender of the certificates formerly representing OSI Common
Stock pursuant to Section 4.6.
(b) As a result of the OSI Merger and without any action on the part of
the holders thereof, at the Effective Time all shares of OSI Common Stock shall
cease to be outstanding
- 6 -
<PAGE>
and shall be canceled and retired and shall cease to exist, and each holder of
shares of OSI Common Stock shall thereafter cease to have any rights with
respect to such shares of OSI Common Stock, except the right to receive the
number of shares of Holding Company Common Stock determined in accordance with
Section 4.4(a), cash, without interest, for fractional shares of Holding Company
Common Stock in accordance with Section 4.5 and dividends or other
distributions, if any, in accordance with Section 4.5 upon the surrender of a
certificate representing such shares of OSI Common Stock (an "OSI Certificate").
(c) Notwithstanding anything contained in this Section 4.4 to the
contrary, each share of OSI Common Stock issued and held in OSI's treasury
immediately prior to the Effective Time shall, by virtue of the OSI Merger,
cease to be outstanding and shall be canceled and retired without payment of any
consideration therefor.
(d) At the Effective Time, each outstanding option or right to purchase
shares of OSI Common Stock (a "OSI Option") shall be assumed by Holding Company
in such manner that it is converted into an option to purchase shares of Holding
Company Common Stock, as provided below. Following the Effective Time, each such
OSI Option shall be exercisable upon the same terms and conditions as then are
applicable to such OSI Option, except that (i) each such OSI Option shall be
exercisable for that number of shares of Holding Company Common Stock equal to
the product of (x) the number of shares of OSI Common Stock for which such OSI
Option was exercisable and (y) the OSI Ratio and (ii) the exercise price of such
option shall be equal to the exercise price of such option as of the date hereof
divided by the OSI Ratio. It is the intention of the parties that, to the extent
that any such OSI Option constituted an "incentive stock option" (within the
meaning of Section 422 of the Code) immediately prior to the Effective Time,
such option continue to qualify as an incentive stock option to the maximum
extent permitted by Section 422 of the Code, and that the assumption of OSI
Options provided by this Section 4.4(d) satisfy the conditions of Section 424(a)
of the Code. From and after the date of this Agreement, no additional options to
purchase shares of OSI Common Stock shall be granted under the OSI 1995
Long-Term Incentive Plan, the First Amended and Restated OSI and its
Subsidiaries and Affiliates Stock Option and Restricted Stock Purchase Plan, the
currently existing stock option agreements of OSI not governed by such plans or
any other OSI option, stock or other benefit plan or agreement (collectively,
the "OSI Stock Option Plans") (other than (i) the grant of options to
individuals other than executive officers of OSI to acquire up to 15,000 shares
of OSI Common Stock pursuant to the terms of the OSI Stock Option Plans at an
exercise price of not less than fair market value of the OSI Common Stock on the
date of grant and (ii) the option granted to CRA on the date hereof).
4.5. Fractional Shares, Etc. No certificate or scrip representing
fractional shares of Holding Company Common Stock shall be issued upon the
surrender for exchange of Certificates (as hereinafter defined) except pursuant
to this Section 4.5, no dividend or other distribution, stock split or interest
shall relate to any such fractional shares, and such fractional shares shall not
entitle the holder thereof to vote or to any rights of a security holder of
Holding Company. In lieu of any fractional shares, each holder of shares of
Converted Stock (as
- 7 -
<PAGE>
hereinafter defined) who would otherwise have been entitled to a fraction of a
share of Holding Company Common Stock upon surrender of Certificates for
exchange pursuant to this Article 4 will be paid an amount of cash (without
interest) equal to such holder's proportionate interest in the sum of (i) the
gross proceeds from the sale or sales by the Exchange Agent (as hereinafter
defined) in accordance with the provisions of this Section 4.5, on behalf of all
such holders of shares of Converted Stock, of the aggregate fractional shares of
Holding Company Common Stock issued pursuant to this Article 4 and (ii) the
aggregate dividends or other distributions that are payable to holders of shares
of Converted Stock with respect to such shares of Holding Company Common Stock
pursuant to Section 4.6(c) (such dividends and distributions being herein called
the "Fractional Dividends"). As soon as practicable following the Effective
Time, the Exchange Agent shall determine the excess of (x) the number of full
shares of Holding Company Common Stock delivered to the Exchange Agent by
Holding Company pursuant to Section 4.6(a) over (y) the aggregate number of full
shares of Holding Company Common Stock to be distributed to the holders of
Converted Stock pursuant to Section 4.3 (with respect to CRA Common Stock) and
Section 4.4 (with respect to OSI Common Stock) (such excess being herein called
the "Excess Securities") and the Exchange Agent, as agent for the former holders
of Converted Stock, shall sell the Excess Securities at the prevailing prices on
the Nasdaq National Market. The sale of the Excess Securities by the Exchange
Agent shall be executed on the Nasdaq National Market through one or more member
firms of the National Association of Securities Dealers, Inc. Holding Company
shall pay all commissions, transfer taxes and other out-of-pocket transaction
costs, including the expenses and compensation of the Exchange Agent, incurred
in connection with such sale of Excess Securities. Until the gross proceeds of
such sale of Excess Securities and the Fractional Dividends, if any, have been
distributed to the former holders of shares of Converted Stock, the Exchange
Agent will hold such proceeds and dividends in trust for such former holders.
4.6 Exchange Fund Exchange Procedures, Etc. (a) At or prior to the
Effective Time, Holding Company shall deposit, or cause to be deposited, with a
bank or trust company designated by Holding Company (the "Exchange Agent"), for
the benefit of the holders of CRA Common Stock and OSI Common Stock which were
outstanding immediately prior to the Effective Time, for exchange in accordance
with this Section 4.6, through the Exchange Agent, (i) certificates evidencing a
number of shares of Holding Company Common Stock equal to the aggregate number
issuable to holders of CRA Common Stock pursuant to Section 4.3, together with
any dividend or distribution with respect thereto and (ii) certificates
evidencing a number of shares of Holding Company Common Stock equal to the
aggregate number issuable to holders of OSI Common Stock pursuant to Section
4.4, together with any dividend or distribution with respect thereto. The
certificates and cash deposited with the Exchange Agent in accordance with this
subsection 4.6(a) are hereinafter referred to as the "Exchange Fund." The
Exchange Agent shall, pursuant to irrevocable instructions, deliver Holding
Company Common Stock and cash, as described above, in exchange for surrendered
certificates representing CRA Common Stock and OSI Common Stock pursuant to the
terms of this Agreement out of the Exchange Fund.
- 8 -
<PAGE>
(b) As soon as practicable after the Effective Time, Holding Company shall
cause the Exchange Agent to send to each record holder of a certificate or
certificates which, at the Effective Time, represent outstanding shares of CRA
Common Stock or OSI Common Stock (the "Certificates"), which holder's shares of
CRA Common Stock or OSI Common Stock were converted into the right to receive
shares of Holding Company Common Stock (the "Converted Stock") pursuant to
Section 4.3 and 4.4, respectively, (i) a letter of transmittal (which shall
specify that delivery shall be effected, and risk of loss and title to the
certificates theretofore representing the Converted Stock shall pass, only upon
delivery of the Certificates to the Exchange Agent and shall be in such form and
contain such other provisions as Holding Company shall reasonably determine),
and (ii) instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing shares of Holding Company Common Stock.
Upon surrender of a Certificate for cancellation to the Exchange Agent, together
with such letter of transmittal, duly executed, the holder of such Certificate
shall be entitled to receive in exchange therefor a certificate representing
that number of whole shares of Holding Company Common Stock and cash in lieu of
fractional shares as contemplated by Section 4.5, if any, which such holder has
the right to receive pursuant to the provisions of this Article 4, and the
Certificate so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of Converted Stock which is not registered in the transfer
records of the Company, a certificate evidencing the proper number of shares of
Holding Company Common Stock may be issued to the transferee if the certificate
evidencing the Converted Stock, as the case may be, shall be surrendered to the
Exchange Agent, accompanied by all documents required to evidence and effect
such transfer and by evidence that any applicable stock transfer taxes have been
paid. Until surrender for exchange in accordance with the provisions of Section
4.6 of this Agreement, each Certificate theretofore representing shares of
Converted Stock (other than any CRA Dissenting Shares) shall from and after the
Effective Time represent for all purposes only the right to receive the number
of shares of Holding Company Common Stock and cash in lieu of fractional shares,
if any, as set forth in this Agreement. If any holder of Converted Stock shall
be unable to surrender such holder's Certificates because such Certificates have
been lost or destroyed, such holder may deliver in lieu thereof an affidavit and
indemnity bond in the form and substance and with surety reasonably satisfactory
to Holding Company.
(c) No dividends or other distributions with respect to Holding Company
Common Stock declared or made after the Effective Time with a record date after
the Effective Time shall be paid to the holder of any unsurrendered Certificate
with respect to the right to receive shares of Holding Company Common Stock
represented thereby, and no cash payment in lieu of fractional shares shall be
paid to any such holder pursuant to Section 4.5, until the holder of such
Certificate shall surrender such Certificate in accordance herewith. Subject to
the effect of applicable laws, following the surrender of any such Certificate,
there shall be paid to the holder thereof, without interest: (i) at the time of
such surrender, the amount of any cash payable in lieu of a fractional share of
Holding Company Common Stock to which such holder is entitled pursuant to
Section 4.5 and the amount of dividends or distributions with a record date
after the Effective Time theretofore paid with respect to such whole shares of
Holding
- 9 -
<PAGE>
Company Common Stock, if any; and (ii) at the appropriate payment date, the
amount of dividends or other distributions with a record date after the
Effective Time but prior to such surrender and a payment date subsequent to such
surrender payable with respect to such whole shares of Holding Company Common
Stock, if any.
(d) All shares of Holding Company Common Stock issued upon surrender for
exchange of shares of Converted Stock in accordance with the terms hereof
(including any cash paid pursuant to Section 4.5) shall be deemed to have been
issued in full satisfaction of all rights pertaining to such shares of Converted
Stock.
(e) Any portion of the Exchange Fund that remains unclaimed by the former
holders of Converted Stock on the first anniversary of the Closing Date shall be
delivered to Holding Company upon demand, and any former holders of Converted
Stock who have not theretofore complied with this Article 4 shall thereafter
look only to Holding Company for the number of shares of Holding Company Common
Stock and cash in lieu of fractional shares, if any, as set forth in this
Agreement. Holding Company shall not be liable to any former holder of Converted
Stock for any Holding Company Common Stock or cash delivered to a public
official pursuant to any applicable abandoned property, escheat or similar law.
(f) Holding Company (or any affiliate thereof) shall be entitled to deduct
and withhold from the consideration otherwise payable pursuant to this Agreement
to any former holder of Converted Stock such amounts as Holding Company (or any
affiliate thereof) is required to deduct and withhold with respect to the making
of such payment under the Code or any other provision of federal, state, local
or foreign tax law and Holding Company agrees to remit to the proper taxing
authority such amounts so withheld. To the extent that amounts are so withheld
by Holding Company, such withheld amounts shall be treated for all purposes of
this Agreement as having been paid to the former holder of Converted Stock in
respect of which such deduction and withholding was made by Holding Company.
Holding Company shall, within a reasonable period of time prior to withholding
any such amount, inform CRA and OSI of its intent to deduct and withhold any
amounts pursuant to this Section 4.6(d) and will cooperate with CRA and OSI in
taking commercially reasonable actions necessary to avoid and/or minimize the
amounts required to be deducted and withheld from the consideration payable
pursuant to this Agreement. Holding Company agrees to promptly pay to the former
holders of Converted Stock any refunded amounts received by Holding Company that
are attributable to such withholding.
(g) Certificates surrendered for exchange by any person constituting an
"affiliate" of CRA or OSI for purposes of Rule 145(c) under the Securities Act
of 1933, as amended (the "Securities Act"), shall not be exchanged until Holding
Company has received a written agreement from such person as provided in Section
7.10.
- 10 -
<PAGE>
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF OSI
Except as set forth in the disclosure letter delivered at or prior to the
execution hereof to CRA (the "OSI Disclosure Letter") or in OSI Reports (as
defined below), OSI represents and warrants to CRA as of the date of this
Agreement as follows:
5.1. Existence; Good Standing; Corporate Authority. OSI is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation. OSI is duly licensed or qualified to do business
as a foreign corporation and is in good standing under the laws of any other
state of the United States in which the character of the properties owned or
leased by it or in which the transaction of its business makes such
qualification necessary, except where the failure to be so qualified or to be in
good standing would not have a material adverse effect on the business, results
of operations, financial condition or prospects of OSI and its Subsidiaries
taken as a whole (an "OSI Material Adverse Effect"). OSI has all requisite
corporate power and authority to own, operate and lease its properties and carry
on its business as now conducted. Each of OSI's Significant Subsidiaries (as
defined in Section 10.14 hereof) is a corporation, partnership or limited
liability company duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation or organization, has the
corporate, partnership or other similar power and authority to own its
properties and to carry on its business as it is now being conducted, and is
duly qualified to do business and is in good standing in each jurisdiction in
which the ownership of its property or the conduct of its business requires such
qualification, except for jurisdictions in which such failure to be so qualified
or to be in good standing would not have an OSI Material Adverse Effect. The
copies of OSI's Certificate of Incorporation and Bylaws previously made
available to CRA are true and correct.
5.2. Authorization, Validity and Effect of Agreements. OSI has the
requisite corporate power and authority to execute and deliver this Agreement
and all agreements and documents contemplated hereby. Subject only to the
approval of this Agreement and the transactions contemplated hereby by the
holders of a majority of the outstanding shares of OSI Common Stock, the
consummation by OSI of the transactions contemplated hereby has been duly
authorized by all requisite corporate action. This Agreement constitutes, and
all agreements and documents contemplated hereby (when executed and delivered
pursuant hereto for value received) will constitute, the valid and legally
binding obligations of OSI, enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, moratorium or other similar
laws relating to creditors' rights and general principles of equity.
5.3. Capitalization. The authorized capital stock of OSI consists of
50,000,000 shares of OSI Common Stock and 20,000,000 shares of preferred stock,
no par value (the "OSI Preferred Stock"). As of March 31, 1997, (a) 21,579,898
shares of OSI Common Stock
- 11 -
<PAGE>
were issued and outstanding, (b) no shares of preferred stock were issued and
outstanding, (c) 2,518,094 shares of OSI Common Stock were reserved for issuance
pursuant to the OSI Stock Option Plans, (d) there were no shares of OSI Common
Stock held in OSI's treasury, (e) 200,000 shares of OSI Common Stock were
reserved for issuance pursuant to certain warrants issued by OSI, (f) 3,291,246
shares of OSI Common Stock were reserved for issuance upon conversion of the 6%
Convertible Subordinated Notes due 2001 of OSI in the aggregate principal amount
of $97,750,000 (the "OSI Convertible Notes") and (g) 26,482 shares of OSI Common
Stock were reserved for issuance upon conversion of that certain 6% Convertible
Promissory Note dated October 1, 1993 issued by OSI to John Anderson, D.O. in
connection with the Stock Purchase Agreement dated October 1, 1993 between an
OSI Subsidiary and John Anderson, D.O. (the "Anderson Note"). Since March 31,
1997, (i) no additional shares of capital stock of OSI have been issued, except
pursuant to the terms existing on the date hereof of the OSI Stock Option Plans
and (ii) no options or other rights to acquire shares of OSI's capital stock
have been granted (other than (i) options that have been or may be granted after
March 31, 1997 to individuals other than executive officers of OSI to acquire up
to 15,000 shares of OSI Common Stock pursuant to the terms of the OSI Stock
Option Plans at an exercise price of not less than the fair market value of the
OSI Common Stock on the date of grant and (ii) the option granted to CRA on the
date hereof). Other than the OSI Convertible Notes and the Anderson Note, OSI
has no outstanding bonds, debentures, notes or other obligations the holders of
which have the right to vote (or which are convertible into or exercisable for
securities having the right to vote) with the stockholders of OSI on any matter.
All issued and outstanding shares of OSI Common Stock are duly authorized,
validly issued, fully paid, nonassessable and free of preemptive rights. There
are not at the date of this Agreement any existing options, warrants, calls,
subscriptions, convertible securities, or other rights, agreements or
commitments which obligate OSI or any of its Subsidiaries to issue, transfer or
sell any shares of capital stock of OSI or any of its Subsidiaries (other than
under the OSI Stock Option Plans, the OSI Convertible Notes and the Anderson
Note).
5.4. Subsidiaries. OSI owns directly or indirectly each of the outstanding
shares of capital stock (or other ownership interests having by their terms
ordinary voting power to elect a majority of directors or others performing
similar functions with respect to such OSI Significant Subsidiary) of each of
OSI's Significant Subsidiaries. Each of the outstanding shares of capital stock
of each of OSI's Significant Subsidiaries is duly authorized, validly issued,
fully paid and nonassessable, and is owned, directly or indirectly, by OSI. Each
of the outstanding shares of capital stock of each Significant Subsidiary of OSI
is owned, directly or indirectly, by OSI free and clear of all liens, pledges,
security interests, claims or other encumbrances other than liens in favor of
Creditanstalt-Bankverein, as agent, under OSI's existing Loan and Security
Agreement therewith and liens imposed by local law which are not material. The
following information for each Significant Subsidiary of OSI has been previously
provided to CRA, if applicable: (i) its name and jurisdiction of incorporation
or organization; (ii) its authorized capital stock or share capital; and (iii)
the number of issued and outstanding shares of capital stock or share capital.
All of the Subsidiaries of OSI other
- 12 -
<PAGE>
than the Significant Subsidiaries, when taken together, do not in the aggregate
constitute a Significant Subsidiary of OSI.
5.5. Other Interests. Except for interests in OSI Subsidiaries, neither
OSI nor any OSI Significant Subsidiary owns directly or indirectly any interest
or investment (whether equity or debt) in any corporation, partnership, joint
venture, business, trust or entity (other than investments of less than
$1,000,000 in the aggregate).
5.6. No Conflict; Required Filings and Consents. (a) The execution and
delivery of this Agreement by OSI do not, and the consummation by OSI of the
transactions contemplated hereby will not, (i) conflict with or violate the
certificate of incorporation or by-laws or equivalent organizational documents
of (x) OSI or (y) any OSI Significant Subsidiary, (ii) subject to making the
filings and obtaining the approvals identified in Section 5.6(b) hereof,
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to OSI or any OSI Subsidiary or by which any property or asset of OSI
or any OSI Subsidiary is bound or affected, or (iii) subject to making the
filings and obtaining the approvals identified in Section 5.6(b) hereof, result
in any breach of or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, result in the loss of a material
benefit under, or give to others any right of purchase or sale, or any right of
termination, amendment, acceleration, increased payments or cancellation of, or
result in the creation of a lien or other encumbrance on any property or asset
of OSI or any OSI Subsidiary pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which OSI or any OSI Subsidiary is a party or by which OSI or any
OSI Subsidiary or any property or asset of OSI or any OSI Subsidiary is bound or
affected, except, in the case of clauses (i)(y), (ii) and (iii), for any such
conflicts, violations, breaches, defaults or other occurrences which would not
prevent or delay consummation of any of the transactions contemplated hereby in
any material respect, or otherwise prevent OSI from performing its obligations
under this Agreement in any material respect, and would not, individually or in
the aggregate, have an OSI Material Adverse Effect. The execution and delivery
of this Agreement by OSI do not, and the consummation by OSI of the transactions
contemplated hereby will not, result in any material breach of or constitute a
material default (or an event which with notice or lapse of time or both would
become a material default) under, result in the loss of a material benefit
under, or give to others any right of purchase or sale, or any right of
termination, amendment, acceleration, increased payments or cancellation of, or
result in the creation of a lien or other encumbrance on any property or asset
of OSI or any OSI Subsidiary pursuant to, any Material Contract to which OSI or
any OSI Subsidiary is a party or by which OSI or any OSI Subsidiary or any
property or asset of OSI or any OSI Subsidiary is bound or affected. For the
purposes hereof, "Material Contract", as such term relates to OSI, shall mean
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation that is required to be
listed as an Exhibit to OSI's Form 10-K filed with the SEC (as hereinafter
defined) with respect to its year ended December 31, 1996.
- 13 -
<PAGE>
(b) The execution and delivery of this Agreement by OSI do not, and the
performance of this Agreement and the consummation by OSI of the transactions
contemplated hereby will not, require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or regulatory
authority, domestic or foreign (each a "Governmental Entity"), except (i) for
(A) applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Securities Act of 1933, as amended (the
"Securities Act"), state securities or "blue sky" laws ("Blue Sky Laws") and
state takeover laws, (B) the pre-merger notification requirements of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules
and regulations thereunder (the "HSR Act"), (C) filing and recordation of
appropriate merger and similar documents as required by Delaware law and
Massachusetts law and (D) applicable requirements, if any, of the Code and
state, local and foreign tax laws, and (ii) where failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay consummation of any of the
transactions contemplated hereby in any material respect, or otherwise prevent
OSI from performing its obligations under this Agreement in any material
respect, and would not, individually or in the aggregate, have an OSI Material
Adverse Effect.
5.7. Compliance. Neither OSI nor any OSI Subsidiary is in conflict with,
or in default or violation of, (i) any law, rule, regulation, order, judgment or
decree applicable to OSI or any OSI Subsidiary or by which any property or asset
of OSI or any OSI Subsidiary is bound or affected, or (ii) any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which OSI or any OSI Subsidiary is a party or
by which OSI or any OSI Subsidiary or any property or asset of OSI or any OSI
Subsidiary is bound or affected, in each case except for any such conflicts,
defaults or violations that would not, individually or in the aggregate, have an
OSI Material Adverse Effect. OSI and its Subsidiaries have obtained all
licenses, permits and other authorizations and have taken all actions required
by applicable law or governmental regulations in connection with their business
as now conducted, where the failure to obtain any such item or to take any such
action would have, individually or in the aggregate, an OSI Material Adverse
Effect.
5.8. SEC Documents. (a) OSI has filed all forms, reports and documents
required to be filed by it with the Securities and Exchange Commission ("SEC")
since May 8, 1995 (collectively, the "OSI Reports"). As of their respective
dates, the OSI Reports and any such reports, forms and other documents filed by
OSI with the SEC after the date of this Agreement (i) complied, or will comply,
as to form in all material respects with the applicable requirements of the
Securities Act, the Exchange Act, and the rules and regulations thereunder and
(ii) did not, or will not, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading. The representation in clause (ii) of the preceding
sentence shall not apply to any misstatement or omission in any OSI Report filed
prior to the date of this Agreement which was superseded by
- 14 -
<PAGE>
a subsequent OSI Report filed prior to the date of this Agreement. No OSI
Subsidiary is required to file any report, form or other document with the SEC.
(b) Each of the consolidated balance sheets of OSI included in or
incorporated by reference into OSI Reports (including the related notes and
schedules) fairly presents the consolidated financial position of OSI and OSI
Subsidiaries as of its date, and each of the consolidated statements of income,
retained earnings and cash flows of OSI included in or incorporated by reference
into OSI Reports (including any related notes and schedules) fairly presents the
results of operations, retained earnings or cash flows, as the case may be, of
OSI and the OSI Subsidiaries for the periods set forth therein (subject, in the
case of unaudited statements, to normal year-end audit adjustments which would
not be material in amount or effect), in each case in accordance with generally
accepted accounting principles consistently applied during the periods involved,
except as may be noted therein. Neither OSI nor any of the OSI Subsidiaries has
any liabilities or obligations of any nature (whether accrued, absolute,
contingent or otherwise) that would be required to be reflected on, or reserved
against in, a balance sheet of OSI or in the notes thereto, prepared in
accordance with generally accepted accounting principles consistently applied,
except for (i) liabilities or obligations that were so reserved on, or reflected
in (including the notes to), the consolidated balance sheet of OSI as of
December 31, 1996; (ii) liabilities or obligations arising in the ordinary
course of business since December 31, 1996 and (iii) liabilities or obligations
which would not, individually or in the aggregate, have an OSI Material Adverse
Effect.
5.9. Litigation. There are no actions, suits or proceedings pending
against OSI or the OSI Subsidiaries or, to the actual knowledge of the executive
officers of OSI, threatened against OSI or the OSI Subsidiaries, at law or in
equity, or before or by any federal or state commission, board, bureau, agency
or instrumentality, that are reasonably likely to have an OSI Material Adverse
Effect.
5.10. Absence of Certain Changes. Except as specifically contemplated by
this Agreement, since December 31, 1996, there has not been (i) any OSI Material
Adverse Effect; (ii) any declaration, setting aside or payment of any dividend
or other distribution with respect to its capital stock; or (iii) any material
change in its accounting principles, practices or methods.
5.11. Taxes. (a) OSI and each of the OSI Subsidiaries has filed all
material tax returns and reports required to be filed by it, or requests for
extensions to file such returns or reports have been timely filed and granted
and have not expired, and all tax returns and reports are complete and accurate
in all respects, except to the extent that such failures to file, have
extensions granted that remain in effect or be complete and accurate in all
respects, as applicable, individually or in the aggregate, would not have an OSI
Material Adverse Effect. OSI and each of the OSI Subsidiaries have paid (or OSI
has paid on its behalf) all taxes shown as due on such tax returns and reports.
The most recent financial statements contained in the OSI Reports reflect an
adequate reserve for all taxes payable by OSI and the OSI Subsidiaries
- 15 -
<PAGE>
for all taxable periods and portions thereof accrued through the date of such
financial statements, and no deficiencies for any taxes have been proposed,
asserted or assessed against OSI or any OSI Subsidiary that are not adequately
reserved for, except for inadequately reserved taxes and inadequately reserved
deficiencies that would not, individually or in the aggregate, have an OSI
Material Adverse Effect. No requests for waivers of the time to assess any taxes
against OSI or any OSI Subsidiary have been granted or are pending, except for
requests with respect to such taxes that have been adequately reserved for in
the most recent financial statements contained in the OSI Reports, or, to the
extent not adequately reserved, the assessment of which would not, individually
or in the aggregate, have an OSI Material Adverse Effect.
(b) Neither OSI nor any OSI Subsidiary has taken any action or has any
knowledge of any fact or circumstance that is reasonably likely to prevent the
OSI Merger from qualifying as a reorganization governed by Section 368(a) of the
Code.
(c) As used herein,"taxes" shall include all Federal, state, local and
foreign income, franchise, property, sales, use, excise and other taxes, fees,
assessments or charges of any kind or nature whatsoever imposed by any
governmental authority, including obligations for withholding taxes from
payments due or made to any other person and any interest, penalties or
additions to tax.
5.12 Employee Benefit Plans.
(a) The OSI Disclosure Letter lists each of the following which is
sponsored, maintained, or contributed to by OSI or any OSI
Subsidiary for the benefit of any current or former employees,
officers, or directors of OSI or any OSI Subsidiary or for which OSI
or any OSI Subsidiary has any liability or contingent liability;
(i) each "employee benefit plan," as such term is defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") (each an "OSI ERISA Plan");
(ii) each employment, severance, termination, retention, stay-with-bonus,
or change-of-control agreement or understanding (each an "OSI
Employment Agreement"), except that the OSI Disclosure Letter only
lists OSI Employment Agreements with OSI's executive officers; and
(iii) each personnel policy, stock option or purchase plan, collective
bargaining agreement, bonus plan or arrangement, incentive award
plan or arrangement, vacation policy, deferred compensation
agreement or arrangement, executive compensation or supplemental
income arrangement, and each other employee benefit plan, agreement,
arrangement, program, practice or understanding
- 16 -
<PAGE>
(each, an "OSI Benefit Program"), except that the OSI Disclosure
Letter only lists OSI Benefit Programs that are for the exclusive
benefit of one or more of OSI's executive officers. The OSI ERISA
Plans, the OSI Employment Agreements and the OSI Benefit Programs
are sometimes collectively hereinafter referred to as the "OSI
Plans".
(b) True, correct and complete copies of each of the OSI ERISA Plans,
and related trusts, if applicable, including all amendments thereto,
have been furnished to CRA. There has also been furnished to CRA,
with respect to each OSI ERISA Plan required to file such report and
description, the most recent report on Form 5500 and the summary
plan description. True, correct and complete copies or descriptions
of all OSI Benefit Programs and Employment Agreements that are for
the exclusive benefit of, or are with, OSI's executive officers have
also been furnished to CRA. Each of the OSI ERISA Plans intended to
be qualified under Section 401(a) of the Code satisfies the
requirements of such section, and has received a favorable
determination letter from the Internal Revenue Service regarding
such qualified status (a copy of which has been provided to CRA) and
has not, since receipt of the most favorable determination letter,
been amended or, to the knowledge of OSI, operated in a way which
would adversely affect such qualified status.
(c) Each of the OSI Plans is in compliance in all material respects with
all applicable requirements of law, including ERISA and the Code,
and all reports and disclosures relating to the OSI Plans required
to be filed with or furnished to governmental agencies, OSI Plan
participants or OSI Plan beneficiaries have been filed or furnished
in accordance with applicable law (except where the failure to file
or furnish would not have an OSI Material Adverse Effect), and there
are no actions, suits or claims pending (other than routine claims
for benefits) or, to the knowledge of OSI, threatened against, or
with respect to, any of the OSI Plans or their assets.
(d) All contributions required to be made to the OSI Plans pursuant to
their terms or provisions have been timely made (except where the
failure to make such contributions would not have an OSI Material
Adverse Effect).
(e) None of the OSI Plans is a "defined benefit pension plan" within the
meaning of section 3(35) of ERISA or is a "multiemployer plan"
(within the meaning of section 3(37) of ERISA) without regard to
whether any such plans are subject to Title IV of ERISA.
(f) None of OSI or any OSI Subsidiary has made any payments, is
obligated to make any payments, or is a party to any agreement that
could obligate it to make any payments, that would not be deductible
by reason of section 280G of
- 17 -
<PAGE>
the Code or that would be subject to an excise tax under section
4999 of the Code or, except as previously disclosed in writing to
CRA, that would not be deductible by reason of section 162 of the
Code.
(g) Except as disclosed in the OSI Disclosure Letter, the execution of,
and performance of the transactions contemplated in this Agreement
will not (either alone or upon the occurrence of any additional or
subsequent events) constitute an event under any OSI Plan or any
trust or loan that will or may result in any payment (whether of
severance pay or otherwise), acceleration, forgiveness of
indebtedness, vesting, distribution, increase in benefits or
obligations to fund benefits with respect to any current or former
employee, officer, or director.
(h) Other than coverage mandated by applicable statute, none of OSI or
any OSI Subsidiary is under any obligation or liability to provide
medical benefits or death benefits (including through insurance) to
retirees or to former employees, officers, or directors of OSI or
any OSI Subsidiary.
5.13. Labor Matters. There is no labor strike, labor dispute, work
slowdown, stoppage or lockout actually pending, or to the knowledge of the
executive officers of OSI, threatened against or affecting OSI or any OSI
Subsidiary, except as would not, individually or in the aggregate, have an OSI
Material Adverse Effect. There is no unfair labor practice or labor arbitration
proceeding pending or, to the knowledge of the executive officers of OSI,
threatened against OSI or its Subsidiaries relating to their business, except
for any such proceeding which would not have an OSI Material Adverse Effect.
5.14. No Brokers. OSI has not entered into any contract, arrangement or
understanding with any person or firm which may result in the obligation of OSI,
Holding Company or CRA to pay any finder's fees, brokerage or agent's
commissions or other like payments in connection with the negotiations leading
to this Agreement or the consummation of the transactions contemplated hereby,
except that OSI has retained Donaldson, Lufkin & Jenrette Securities Corporation
("DLJ") as its financial advisor, the arrangements with which have been
disclosed in writing to CRA prior to the date hereof. Other than the foregoing
arrangements, OSI is not aware of any claim for payment of any finder's fees,
brokerage or agent's commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the transactions
contemplated hereby.
5.15. Opinion of Financial Advisor. OSI has received the opinion of DLJ to
the effect that, as of the date hereof, the Exchange Ratio is fair to the
holders of OSI Common Stock from a financial point of view. As used herein, the
"Exchange Ratio" means the quotient of the OSI Ratio divided by the CRA Ratio.
5.16 Preliminary Pooling Letter. OSI has received an opinion, dated as of
the date of this Agreement, from its independent accountants, Arthur Andersen,
L.L.P., to the effect that if
- 18 -
<PAGE>
the business combination to be effected by the Mergers were to occur on the date
hereof they would be properly accounted for as a pooling-of-interests. OSI is
aware of no reasons why the transactions contemplated hereby would not be
properly accounted for as a pooling-of-interests.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF CRA
Except as set forth in the disclosure letter delivered at or prior to the
execution hereof to OSI (the "CRA Disclosure Letter") or in CRA Reports (as
defined below), CRA represents and warrants to OSI as of the date of this
Agreement as follows:
6.1. Existence; Good Standing; Corporate Authority. CRA is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation. CRA is duly licensed or qualified to do business
as a foreign corporation and is in good standing under the laws of any other
state of the United States in which the character of the properties owned or
leased by it or in which the transaction of its business makes such
qualification necessary, except where the failure to be so qualified or to be in
good standing would not have a material adverse effect on the business, results
of operations, financial condition or prospects of CRA and its Subsidiaries
taken as a whole (a "CRA Material Adverse Effect"). CRA has all requisite
corporate power and authority to own, operate and lease its properties and carry
on its business as now conducted. Each of CRA's Significant Subsidiaries (as
defined in Section 10.14 hereof) is a corporation or partnership duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation or organization, has the corporate or partnership power and
authority to own its properties and to carry on its business as it is now being
conducted, and is duly qualified to do business and is in good standing in each
jurisdiction in which the ownership of its property or the conduct of its
business requires such qualification, except for jurisdictions in which such
failure to be so qualified or to be in good standing would not have a CRA
Material Adverse Effect. The copies of CRA's Articles of Organization and Bylaws
previously made available to OSI are true and correct.
6.2. Authorization, Validity and Effect of Agreements. CRA has the
requisite corporate power and authority to execute and deliver this Agreement
and all agreements and documents contemplated hereby. Subject only to the
approval of this Agreement and the transactions contemplated hereby by the
holders of two-thirds of the outstanding shares of CRA Common Stock, the
consummation by CRA of the transactions contemplated hereby has been duly
authorized by all requisite corporate action. This Agreement constitutes, and
all agreements and documents contemplated hereby (when executed and delivered
pursuant hereto for value received) will constitute, the valid and legally
binding obligations of CRA, enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, moratorium or other similar
laws relating to creditors' rights and general principles of equity.
- 19 -
<PAGE>
6.3. Capitalization. The authorized capital stock of CRA consists of
40,000,000 shares of CRA Common Stock and 1,000,000 shares of preferred stock,
$.01 par value (the "CRA Preferred Stock"). As of March 31, 1997, (a) 8,961,985
shares of CRA Common Stock were issued and outstanding, (b) no shares of
preferred stock were issued and outstanding, (c) 1,070,000 shares of CRA Common
Stock were reserved for issuance pursuant to CRA Stock Option Plans and (d)
there were no shares of CRA Common Stock held in CRA's treasury. Since such
date, (i) no additional shares of capital stock of CRA have been issued, except
pursuant to the terms existing on the date hereof of the CRA Stock Option Plans
and (ii) no options or other rights to acquire shares of CRA's capital stock
have been granted (other than (i) options that have been or may be granted after
March 31, 1997 to individuals other than to executive officers of CRA to acquire
up to 15,000 shares of CRA Common Stock pursuant to the terms of the CRA Stock
Option Plans at an exercise price of not less than the fair market value of the
CRA Common Stock on the date of grant and (ii) the option granted to OSI on the
date hereof). CRA has no outstanding bonds, debentures, notes or other
obligations the holders of which have the right to vote (or which are
convertible into or exercisable for securities having the right to vote) with
the stockholders of CRA on any matter. All issued and outstanding shares of CRA
Common Stock are duly authorized, validly issued, fully paid, nonassessable and
free of preemptive rights. There are not at the date of this Agreement any
existing options, warrants, calls, subscriptions, convertible securities, or
other rights, agreements or commitments which obligate CRA or any of its
Subsidiaries to issue, transfer or sell any shares of capital stock of CRA or
any of its Subsidiaries (other than under the CRA Stock Option Plans).
6.4. Subsidiaries. CRA owns directly or indirectly each of the outstanding
shares of capital stock (or other ownership interests having by their terms
ordinary voting power to elect a majority of directors or others performing
similar functions with respect to such CRA Significant Subsidiary) of each of
CRA's Significant Subsidiaries. Each of the Outstanding shares of capital stock
of each of CRA's Significant Subsidiaries is duly authorized, validly issued,
fully paid and nonassessable, and is owned, directly or indirectly, by CRA. Each
of the outstanding shares of capital stock of each Significant Subsidiary of CRA
is owned, directly or indirectly, by CRA free and clear of all liens, pledges,
security interests, claims or other encumbrances other than liens imposed by
local law which are not material. The following information for each Significant
Subsidiary of CRA has been previously provided to OSI, if applicable: (i) its
name and jurisdiction of incorporation or organization; (ii) its authorized
capital stock or share capital; and (iii) the number of issued and outstanding
shares of capital stock or share capital. All of the Subsidiaries of CRA other
than the Significant Subsidiaries, when taken together, do not in the aggregate
constitute a Significant Subsidiary of CRA.
6.5. Other Interests. Except for interests in CRA Subsidiaries, neither
CRA nor any CRA Significant Subsidiary owns directly or indirectly any interest
or investment (whether equity or debt) in any corporation, partnership, joint
venture, business, trust or entity (other than investments of less than
$1,000,000 in the aggregate).
- 20 -
<PAGE>
6.6. No Conflict; Required Filings and Consents. (a) The execution and
delivery of this Agreement by CRA do not, and the consummation by CRA of the
transactions contemplated hereby will not, (i) conflict with or violate the
certificate of incorporation or by-laws or equivalent organizational documents
of (x) CRA or (y) any CRA Significant Subsidiary, (ii) subject to making the
filings and obtaining the approvals identified in Section 6.6(b) hereof,
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to CRA or any CRA Subsidiary or by which any property or asset of CRA
or any CRA Subsidiary is bound or affected, or (iii) subject to making the
filings and obtaining the approvals identified in Section 6.6(b) hereof, result
in any breach of or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, result in the loss of a material
benefit under, or give to others any right of purchase or sale, or any right of
termination, amendment, acceleration, increased payments or cancellation of, or
result in the creation of a lien or other encumbrance on any property or asset
of CRA or any CRA Subsidiary pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which CRA or any CRA Subsidiary is a party or by which CRA or any
CRA Subsidiary or any property or asset of CRA or any CRA Subsidiary is bound or
affected, except, in the case of clauses (i)(y), (ii) and (iii), for any such
conflicts, violations, breaches, defaults or other occurrences which would not
prevent or delay consummation of any of the transactions contemplated hereby in
any material respect, or otherwise prevent CRA from performing its obligations
under this Agreement in any material respect, and would not, individually or in
the aggregate, have a CRA Material Adverse Effect. The execution and delivery of
this Agreement by CRA do not, and the consummation by CRA of the transactions
contemplated hereby will not, result in any material breach of or constitute a
material default (or an event which with notice or lapse of time or both would
become a material default) under, result in the loss of a material benefit
under, or give to others any right of purchase or sale, or any right of
termination, amendment, acceleration, increased payments or cancellation of, or
result in the creation of a lien or other encumbrance on any property or asset
of CRA or any CRA Subsidiary pursuant to, any Material Contract to which CRA or
any CRA Subsidiary is a party or by which CRA or any CRA Subsidiary or any
property or asset of CRA or any CRA Subsidiary is bound or affected. For the
purposes hereof, "Material Contract", as such term relates to CRA, shall mean
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation that is required to be
listed as an Exhibit to CRA's Form 10-K filed with the SEC with respect to its
year ended December 31, 1996.
(b) The execution and delivery of this Agreement by CRA do not, and the
performance of this Agreement and the consummation by CRA of the transactions
contemplated hereby will not, require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or regulatory
authority, domestic or foreign (each a "Governmental Entity"), except (i) for
(A) applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Securities Act of 1933, as amended (the
"Securities Act"), state securities or "blue sky" laws ("Blue Sky Laws") and
state takeover laws, (B) the pre-merger notification requirements of the
Hart-Scott-Rodino
- 21 -
<PAGE>
Antitrust Improvements Act of 1976, as amended, and the rules and regulations
thereunder (the "HSR Act"), (C) filing and recordation of appropriate merger and
similar documents as required by Delaware law and Massachusetts law and (D)
applicable requirements, if any, of the Code and state, local and foreign tax
laws, and (ii) where failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, would not prevent or delay
consummation of any of the transactions contemplated hereby in any material
respect, or otherwise prevent CRA from performing its obligations under this
Agreement in any material respect, and would not, individually or in the
aggregate, have a CRA Material Adverse Effect.
6.7. Compliance. Neither CRA nor any CRA Subsidiary is in conflict with,
or in default or violation of, (i) any law, rule, regulation, order, judgment or
decree applicable to CRA or any CRA Subsidiary or by which any property or asset
of CRA or any CRA Subsidiary is bound or affected, or (ii) any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which CRA or any CRA Subsidiary is a party or
by which CRA or any CRA Subsidiary or any property or asset of CRA or any CRA
Subsidiary is bound or affected, in each case except for any such conflicts,
defaults or violations that would not, individually or in the aggregate, have a
CRA Material Adverse Effect. CRA and its Subsidiaries have obtained all
licenses, permits and other authorizations and have taken all actions required
by applicable law or governmental regulations in connection with their business
as now conducted, where the failure to obtain any such item or to take any such
action would have, individually or in the aggregate, a CRA Material Adverse
Effect.
6.8. SEC Documents. (a) CRA has filed all forms, reports and documents
required to be filed by it with the Securities and Exchange Commission ("SEC")
since May 3, 1995 (collectively, the "CRA Reports"). As of their respective
dates, the CRA Reports and any such reports, forms and other documents filed by
CRA with the SEC after the date of this Agreement (i) complied, or will comply,
as to form in all material respects with the applicable requirements of the
Securities Act, the Exchange Act, and the rules and regulations thereunder and
(ii) did not, or will not, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading. The representation in clause (ii) of the preceding
sentence shall not apply to any misstatement or omission in any CRA Report filed
prior to the date of this Agreement which was superseded by a subsequent CRA
Report filed prior to the date of this Agreement. No CRA Subsidiary is required
to file any report, form or other document with the SEC.
(b) Each of the consolidated balance sheets of CRA included in or
incorporated by reference into the CRA Reports (including the related notes and
schedules) fairly presents the consolidated financial position of CRA and the
CRA Subsidiaries as of its date, and each of the consolidated statements of
income, retained earnings and cash flows of CRA included in or incorporated by
reference into the CRA Reports (including any related notes and schedules)
- 22 -
<PAGE>
fairly presents the results of operations, retained earnings or cash flows, as
the case may be, of CRA and the CRA Subsidiaries for the periods set forth
therein (subject, in the case of unaudited statements, to normal year-end audit
adjustments which would not be material in amount or effect), in each case in
accordance with generally accepted accounting principles consistently applied
during the periods involved, except as may be noted therein. Neither CRA nor any
of the CRA Subsidiaries has any liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise) that would be required to
be reflected on, or reserved against in, a balance sheet of CRA or in the notes
thereto, prepared in accordance with generally accepted accounting principles
consistently applied, except for (i) liabilities or obligations that were so
reserved on, or reflected in (including the notes to), the consolidated balance
sheet of CRA as of December 31, 1996; (ii) liabilities or obligations arising in
the ordinary course of business since December 31, 1996 and (iii) liabilities or
obligations which would not, individually or in the aggregate, have a CRA
Material Adverse Effect.
6.9. Litigation. There are no actions, suits or proceedings pending
against CRA or the CRA Subsidiaries or, to the actual knowledge of the executive
officers of CRA, threatened against CRA or the CRA Subsidiaries, at law or in
equity, or before or by any federal or state commission, board, bureau, agency
or instrumentality, that are reasonably likely to have a CRA Material Adverse
Effect.
6.10. Absence of Certain Changes. Except as specifically contemplated by
this Agreement, since December 31, 1996, there has not been (i) any CRA Material
Adverse Effect; (ii) any declaration, setting aside or payment of any dividend
or other distribution with respect to its capital stock; or (iii) any material
change in its accounting principles, practices or methods.
6.11. Taxes. (a) CRA and each of the CRA Subsidiaries has filed all
material tax returns and reports required to be filed by it, or requests for
extensions to file such returns or reports have been timely filed and granted
and have not expired, and all tax returns and reports are complete and accurate
in all respects, except to the extent that such failures to file, have
extensions granted that remain in effect or be complete and accurate in all
respects, as applicable, individually or in the aggregate, would not have a CRA
Material Adverse Effect. CRA and each of the CRA Subsidiaries have paid (or CRA
has paid on its behalf) all taxes shown as due on such tax returns and reports.
The most recent financial statements contained in the CRA Reports reflect an
adequate reserve for all taxes payable by CRA and the CRA Subsidiaries for all
taxable periods and portions thereof accrued through the date of such financial
statements, and no deficiencies for any taxes have been proposed, asserted or
assessed against CRA or any CRA Subsidiary that are not adequately reserved for,
except for inadequately reserved taxes and inadequately reserved deficiencies
that would not, individually or in the aggregate, have a CRA Material Adverse
Effect. No requests for waivers of the time to assess any taxes against CRA or
any CRA Subsidiary have been granted or are pending, except for requests with
respect to such taxes that have been adequately reserved for in the most recent
financial statements contained in the CRA Reports, or, to the extent not
adequately
- 23 -
<PAGE>
reserved, the assessment of which would not, individually or in the aggregate,
have a CRA Material Adverse Effect.
(b) Neither CRA nor any CRA Subsidiary has taken any action or has any
knowledge of any fact or circumstance that is reasonably likely to prevent the
CRA Merger from qualifying as a reorganization or an exchange governed by
Section 368(a) or Section 351(a) of the Code.
(c) As used herein, "taxes" shall include all Federal, state, local and
foreign income, franchise, property, sales, use, excise and other taxes, fees,
assessments or charges of any kind or nature whatsoever imposed by any
governmental authority, including obligations for withholding taxes from
payments due or made to any other person and any interest, penalties or
additions to tax.
6.12 Employee Benefit Plans.
(a) The CRA Disclosure Letter lists each of the following which is
sponsored, maintained, or contributed to by CRA or any CRA
Subsidiary for the benefit of any current or former employees,
officers, or directors of CRA or any CRA Subsidiary or for which CRA
or any CRA Subsidiary has any liability or contingent liability:
(i) each "employee benefit plan," as such term is defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") (each a "CRA ERISA Plan");
(ii) each employment, severance, termination, retention, stay-with-bonus,
or change-of-control agreement or understanding (each a "CRA
Employment Agreement"), except that the CRA Disclosure Letter only
lists CRA Employment Agreements with CRA's executive officers; and
(iii) each personnel policy, stock option or purchase plan, collective
bargaining agreement, bonus plan or arrangement, incentive award
plan or arrangement, vacation policy, deferred compensation
agreement or arrangement, executive compensation or supplemental
income arrangement, and each other employee benefit plan, agreement,
arrangement, program, practice or understanding (each, a "CRA
Benefit Program"), except that the CRA Disclosure Letter only lists
CRA Benefit Programs that are for the exclusive benefit of one or
more of CRA's executive officers. The CRA ERISA Plans, the CRA
Employment Agreements and the CRA Benefit Programs are sometimes
collectively hereinafter referred to as the "CRA Plans".
- 24 -
<PAGE>
(b) True, correct and complete copies of each of the CRA ERISA Plans,
and related trusts, if applicable, including all amendments thereto,
have been furnished to OSI. There has also been furnished to OSI,
with respect to each CRA ERISA Plan required to file such report and
description, the most recent report on Form 5500 and the summary
plan description. True, correct and complete copies or descriptions
of all CRA Benefit Programs and Employment Agreements that are for
the exclusive benefit of, or are with, CRA's executive officers have
also been furnished to OSI. Each of the CRA ERISA Plans intended to
be qualified under Section 401(a) of the Code satisfies the
requirements of such section, and has received a favorable
determination letter from the Internal Revenue Service regarding
such qualified status (a copy of which has been provided to OSI) and
has not, since receipt of the most favorable determination letter,
been amended or, to the knowledge of CRA, operated in a way which
would adversely affect such qualified status.
(c) Each of the CRA Plans is in compliance in all material respects with
all applicable requirements of law, including ERISA and the Code,
and all reports and disclosures relating to the CRA Plans required
to be filed with or furnished to governmental agencies, CRA Plan
participants or CRA Plan beneficiaries have been filed or furnished
in accordance with applicable law (except where the failure to file
or furnish would not have a CRA Material Adverse Effect), and there
are no actions, suits or claims pending (other than routine claims
for benefits) or, to the knowledge of CRA, threatened against, or
with respect to, any of the CRA Plans or their assets.
(d) All contributions required to be made to the CRA Plans pursuant to
their terms or provisions have been timely made (except where the
failure to make such contributions would not have a CRA Material
Adverse Effect).
(e) None of the CRA Plans is a "defined benefit pension plan" within the
meaning of section 3(35) of ERISA or is a "multiemployer plan"
(within the meaning of section 3(37) of ERISA) without regard to
whether any such plans are subject to Title IV of ERISA.
(f) None of CRA or any CRA Subsidiary has made any payments, is
obligated to make any payments, or is a party to any agreement that
could obligate it to make any payments, that would not be deductible
by reason of section 280G of the Code or that would be subject to an
excise tax under section 4999 of the Code or, except as previously
disclosed in writing to OSI, that would not be deductible by reason
of section 162 of the Code.
(g) Except as disclosed in the CRA Disclosure Letter, the execution of,
and performance of the transactions contemplated in this Agreement
will not (either
- 25 -
<PAGE>
alone or upon the occurrence of any additional or subsequent events)
constitute an event under any CRA Plan or any trust or loan that
will or may result in any payment (whether of severance pay or
otherwise), acceleration, forgiveness of indebtedness, vesting,
distribution, increase in benefits or obligations to fund benefits
with respect to any current or former employee, officer, or
director.
(h) Other than coverage mandated by applicable statute, none of CRA or
any CRA Subsidiary is under any obligation or liability to provide
medical benefits or death benefits (including through insurance) to
retirees or to former employees, officers, or directors of CRA or
any CRA Subsidiary.
6.13. Labor Matters. There is no labor strike, labor dispute, work
slowdown, stoppage or lockout actually pending, or to the knowledge of the
executive officers of CRA, threatened against or affecting CRA or any CRA
Subsidiary, except as would not, individually or in the aggregate, have a CRA
Material Adverse Effect. There is no unfair labor practice or labor arbitration
proceeding pending or, to the knowledge of the executive officers of CRA,
threatened against CRA or its Subsidiaries relating to their business, except
for any such proceeding which would not have a CRA Material Adverse Effect.
6.14. No Brokers. CRA has not entered into any contract, arrangement or
understanding with any person or firm which may result in the obligation of CRA,
Holding Company or OSI to pay any finder's fees, brokerage or agent's
commissions or other like payments in connection with the negotiations leading
to this Agreement or the consummation of the transactions contemplated hereby,
except that CRA has retained Alex. Brown & Sons Incorporated as its financial
advisor, the arrangements with which have been disclosed in writing to OSI prior
to the date hereof. Other than the foregoing arrangements, CRA is not aware of
any claim for payment of any finder's fees, brokerage or agent's commissions or
other like payments in connection with the negotiations leading to this
Agreement or the consummation of the transactions contemplated hereby.
6.15. Opinion of Financial Advisor. CRA has received the opinion of Alex.
Brown & Sons Incorporated to the effect that, as of the date hereof, the CRA
Ratio to be applied to the exchange of CRA Common Stock in the CRA Merger and
the OSI Ratio to be applied to the exchange of OSI Common Stock in the OSI
Merger are fair to the holders of CRA Common Stock from a financial point of
view.
6.16 Preliminary Pooling Letter. CRA has received an opinion, dated as of
the date of this Agreement, from its independent accountants, Arthur Andersen,
L.L.P., to the effect that if the business combination to be effected by the
Mergers were to occur on the date hereof they would be properly accounted for as
a pooling-of-interests. CRA is aware of no reasons why the transactions
contemplated hereby would not be properly accounted for as a
pooling-of-interests.
- 26 -
<PAGE>
ARTICLE 7
COVENANTS
7.1. Alternative Proposals.
(a) OSI Alternative Proposals.
(i) From and after the date hereof, OSI will not, and will not authorize
or (to the extent within its control) permit any of its officers,
directors, employees, agents, Affiliates and other representatives or
those of any of its Subsidiaries (collectively, "OSI Representatives") to,
directly or indirectly, solicit or encourage (including by way of
providing information) any prospective acquiror or the invitation or
submission of any inquiries, proposals or offers or any other efforts or
attempts that constitute, or may reasonably be expected to lead, to any
OSI Acquisition Proposal (as hereinafter defined) from any person or
engage in any discussions or negotiations with respect thereto or
otherwise cooperate with or assist or participate in, or facilitate any
such proposal; provided, however, that, notwithstanding any other
provision of this Agreement (i) OSI's Board of Directors may take and
disclose to the stockholders of OSI a position contemplated by Rule
14e-2(a) promulgated under the Exchange Act and (ii) following receipt
from a third party, without any solicitation, initiation or encouragement,
directly or indirectly, by OSI or any OSI Representative, of a bona fide
OSI Acquisition Proposal, (x) OSI may engage in discussions or
negotiations with such third party and may furnish such third party
information concerning it, and its business, properties and assets if such
third party executes a confidentiality agreement in reasonably customary
form and (y) the Board of Directors of OSI may withdraw, modify or not
make its recommendation referred to in Section 7.3 or terminate this
Agreement in accordance with Article 9, but in each case referred to in
the foregoing clauses (i) and (ii), only to the extent that OSI's Board of
Directors shall conclude in good faith based on the advice of OSI's
outside counsel that such action is necessary in order for OSI's Board of
Directors to act in a manner that is consistent with its fiduciary
obligations under applicable law.
(ii) OSI shall immediately cease and cause to be terminated any existing
solicitation, initiation, encouragement, activity, discussion or
negotiation with any parties conducted heretofore by OSI or any OSI
Representatives with respect to any OSI Acquisition Proposal existing on
the date hereof.
(iii) Not less than one business day prior to taking any action referred
to in Section 7.1(a)(i), if OSI intends to participate in any such
discussions or negotiations or provide any such information to any such
third party, OSI shall give written notice to CRA of such intended action.
OSI will promptly notify CRA of such requests of such information or the
receipt of any OSI Acquisition Proposal, including the identity of the
- 27 -
<PAGE>
person or group engaging in such discussions or negotiations, requesting
such information or making such OSI Acquisition Proposal, and the material
terms and conditions of any OSI Acquisition Proposal.
(iv) As used in this Agreement, "OSI Acquisition Proposal" means any
proposal or offer made by a person or group of persons other than a
proposal or offer by CRA or any of its Affiliates (which person or group
has, in the good faith determination of the Board of Directors of OSI, the
financial ability to consummate such proposal or offer), for, or that
could be reasonably expected to lead to, a tender or exchange offer, a
merger, consolidation or other business combination involving such person
or group and OSI or any OSI Significant Subsidiaries or any proposal from
any such person or group to acquire in any manner a substantial equity
interest in, or any substantial portion of the assets of, OSI or any OSI
Significant Subsidiaries.
(b) CRA Alternative Proposal.
(i) From and after the date hereof, CRA will not, and will not authorize
or (to the extent within its control) permit any of its officers,
directors, employees, agents, Affiliates and other representatives or
those of any of its Subsidiaries (collectively, "CRA Representatives") to,
directly or indirectly, solicit or encourage (including by way of
providing information) any prospective acquiror or the invitation or
submission of any inquiries, proposals or offers or any other efforts or
attempts that constitute, or may reasonably be expected to lead, to any
CRA Acquisition Proposal (as hereinafter defined) from any person or
engage in any discussions or negotiations with respect thereto or
otherwise cooperate with or assist or participate in, or facilitate any
such proposal; provided, however, that, notwithstanding any other
provision of this Agreement (i) CRA's Board of Directors may take and
disclose to the stockholders of CRA a position contemplated by Rule
14e-2(a) promulgated under the Exchange Act and (ii) following receipt
from a third party, without any solicitation, initiation or encouragement,
directly or indirectly, by CRA or any CRA Representative, of a bona fide
CRA Acquisition Proposal, (x) CRA may engage in discussions or
negotiations with such third party and may furnish such third party
information concerning it, and its business, properties and assets if such
third party executes a confidentiality agreement in reasonably customary
form and (y) the Board of Directors of CRA may withdraw, modify or not
make its recommendation referred to in Section 7.3 or terminate this
Agreement in accordance with Article 9, but in each case referred to in
the foregoing clauses (i) and (ii), only to the extent that CRA's Board of
Directors shall conclude in good faith based on the advice of CRA's
outside counsel that such action is necessary in order for CRA's Board of
Directors to act in a manner that is consistent with its fiduciary
obligations under applicable law.
(ii) CRA shall immediately cease and cause to be terminated any existing
solicitation, initiation, encouragement, activity, discussion or
negotiation with any
- 28 -
<PAGE>
parties conducted heretofore by CRA or any CRA Representatives with
respect to any CRA Acquisition Proposal existing on the date hereof.
(iii) Not less than one business day prior to taking any action referred
to in Section 7.1(b)(i), if CRA intends to participate in any such
discussions or negotiations or provide any such information to any such
third party, CRA shall give written notice to OSI of such intended action.
CRA will promptly notify OSI of such requests of such information or the
receipt of any CRA Acquisition Proposal, including the identity of the
person or group engaging in such discussions or negotiations, requesting
such information or making such CRA Acquisition Proposal, and the material
terms and conditions of any CRA Acquisition Proposal.
(iv) As used in this Agreement, "CRA Acquisition Proposal" means any
proposal or offer made by a person or group of persons other than a
proposal or offer by OSI or any of its Affiliates (which person or group
has, in the good faith determination of the Board of Directors of CRA, the
financial ability to consummate such proposal or offer), for, or that
could be reasonably expected to lead to, a tender or exchange offer, a
merger, consolidation or other business combination involving such person
or group and CRA or any CRA Significant Subsidiaries or any proposal from
any such person or group to acquire in any manner a substantial equity
interest in, or any substantial portion of the assets of, CRA or any CRA
Significant Subsidiaries.
7.2. Interim Operations. (a) Prior to the Effective Time, except as set
forth in the OSI Disclosure Letter or as contemplated by any other provision of
this Agreement, unless CRA has consented in writing thereto, OSI:
(i) Shall, and shall cause each of its Significant Subsidiaries to,
conduct its operations according to their usual, regular and ordinary
course in substantially the same manner as heretofore conducted;
(ii) Shall use its commercially reasonable efforts, and shall cause each
of its Significant Subsidiaries to use its commercially reasonable
efforts, to preserve intact their business organizations and goodwill,
keep available the services of their respective officers and employees and
maintain satisfactory relationships with those persons having business
relationships with them;
(iii) Shall not amend its Certificate of Incorporation or Bylaws or
comparable governing instruments (other than Bylaw amendments which are
not material to OSI or to the consummation of the transactions
contemplated by this Agreement);
(iv) Shall promptly notify CRA of any breach of any representation or
warranty of OSI of which OSI becomes aware contained herein or any OSI
Material Adverse Effect;
- 29 -
<PAGE>
(v) Shall promptly deliver to CRA true and correct copies of any report,
statement or schedule filed with the SEC subsequent to the date of this
Agreement;
(vi) Shall not (w) except pursuant to the conversion of the OSI
Convertible Notes, the conversion of the Anderson Note, and the exercise
of options, warrants, conversion rights and other contractual rights
existing on the date hereof and disclosed pursuant to this Agreement or in
the OSI Reports, issue any shares of its capital stock, effect any stock
split or otherwise change its capitalization as it existed on the date
hereof, (x) grant, confer or award any option, warrant, conversion right
or other right not existing, on the date hereof to acquire any shares of
its capital stock (other than the grant of options to acquire an aggregate
of up to 15,000 shares of OSI Common Stock pursuant to the terms of the
OSI Stock Option Plans at an exercise price of not less than the fair
market value of the OSI Common Stock on the date of grant) or grant,
confer or award any bonuses or other forms of cash incentives to any
officer, director, or employee except consistent with past practice, (y)
increase any compensation of its present or future officers, directors, or
employees (except for normal increases consistent with past practice or as
required under the written terms of an OSI Employment Agreement in effect
on or before December 31, 1996); enter into any employment agreement with
any present or future employee, officer, or director, or amend any such
agreement in any material respect; grant any severance or termination pay
to any officer, director or employee other than pursuant to existing
severance arrangements and policies of OSI or (z) adopt any new OSI Plan
or amend any existing OSI Plan in any material respect;
(vii) Shall not (i) declare, set aside or pay any dividend or make any
other distribution or payment with respect to any shares of its capital
stock or other ownership interests, (ii) directly or indirectly redeem,
purchase or otherwise acquire any shares of its capital stock or capital
stock of any of its Subsidiaries, or make any commitment for any such
action or (iii) split, combine or reclassify any of its capital stock or
issue or authorize or propose the issuance of any other securities in
respect of, in lieu of or in substitution for shares of its capital stock;
(viii) Shall not, and shall not permit any of its Subsidiaries to (A)
sell, lease or otherwise dispose of any of its assets (including capital
stock of Subsidiaries) except in the ordinary course of business, or (B)
acquire any business or any substantial portion of the assets of any
person except as identified in the OSI Disclosure Letter and acquisitions
involving the payment of consideration by OSI not in excess of $10,000,000
for any single acquisition or $25,000,000 in the aggregate (it being
understood that OSI will give CRA not less than fifteen (15) days prior
notice of the proposed acquisition of any business or any substantial
portion of the assets of any person; if such acquisition requires the
written consent of CRA under this clause (viii), consent shall not be
unreasonably withheld; and CRA shall be deemed to have given such consent
if it does not respond within ten (10) days of receipt of the notice
contemplated hereby);
- 30 -
<PAGE>
(ix) Shall not incur any material amount of indebtedness for borrowed
money or make any loans, advances or capital contributions to, or
investments (other than non-controlling investments in the ordinary course
of business or other investments permitted pursuant to clause (viii)
above) in, any other person other than a wholly owned Subsidiary, or issue
or sell any debt securities, other than borrowings under existing lines of
credit in the ordinary course of business, in each case in an amount
exceeding $1,000,000;
(x) Shall not, except as previously approved by the Board of Directors of
OSI and identified to CRA prior to the date hereof, or except in the
ordinary course of business, make or commit to make capital expenditures
other than (A) capital expenditures budgeted for the fiscal year ending
December 31, 1997, and (B) capital expenditures (not otherwise included in
budgeted capital expenditures referred to in clause (A) above) that may be
made by OSI in connection with the acquisitions by OSI or its Subsidiaries
permitted under subsection (viii) above; provided such acquisitions would
have been permitted under such subsection (viii) if such capital
expenditures were deemed to be payment of consideration by OSI in
connection therewith;
(xi) Shall not mortgage or otherwise encumber or subject to any lien any
properties or assets except as would not be reasonably likely to have an
OSI Material Adverse Effect;
(xii) Shall not make any change to its accounting (including tax
accounting) methods, principles or practices, except as may be required by
generally accepted accounting principles and except, in the case of tax
accounting methods, principles or practices, in the ordinary course of
business of OSI or any of its Subsidiaries;
(xiii)Shall not and shall not permit any of its Subsidiaries to, enter
into any agreement or arrangement with any of their respective Affiliates,
other than with wholly-owned Subsidiaries of OSI, on terms less favorable
to OSI or such Subsidiary, as the case may be, than could be reasonably
expected to have been obtained with an unaffiliated third party on an
arm's-length basis;
(xiv) Shall, and shall cause its Subsidiaries to, use commercially
reasonable efforts to maintain with financially responsible insurance
companies insurance in such amounts and against such risks and losses as
are customary for companies engaged in their respective businesses; and
(xv) Shall not (i) make or rescind any material express or deemed election
relating to taxes, unless it is reasonably expected that such action will
not result in an OSI Material Adverse Effect, (ii) settle or compromise
any material claim, action, suit, litigation, proceeding, arbitration,
investigation, audit or controversy relating to taxes, except where such
settlement or compromise will not result in an OSI Material Adverse
Effect, or (iii)
- 31 -
<PAGE>
change in any material respect any of its methods or reporting income or
deductions for federal income tax purposes from those employed in the
preparation of its federal income tax returns that have been filed for
prior taxable years, except as may be required by applicable law or except
for changes that are reasonably expected not to result in an OSI Material
Adverse Effect.
(b) Prior to the Effective Time, except as set forth in the CRA Disclosure
Letter or as contemplated by this Agreement, unless OSI has consented in writing
thereto, CRA:
(i) Shall, and shall cause each of its Significant Subsidiaries to,
conduct its operations according to their usual, regular and ordinary
course in substantially the same manner as heretofore conducted;
(ii) Shall use its commercially reasonable efforts, and shall cause each
of its Significant Subsidiaries to use its commercially reasonable
efforts, to preserve intact their business organizations and goodwill,
keep available the services of their respective officers and employees and
maintain satisfactory relationships with those persons having business
relationships with them;
(iii) Shall not amend its Certificate of Incorporation or Bylaws or
comparable governing instruments (other than Bylaw amendments which are
not material to CRA or to the consummation of the transactions
contemplated by this Agreement);
(iv) Shall promptly notify OSI of any breach of any representation or
warranty of CRA of which CRA becomes aware contained herein or any CRA
Material Adverse Effect;
(v) Shall promptly deliver to OSI true and correct copies of any report,
statement or schedule filed with the SEC subsequent to the date of this
Agreement;
(vi) Shall not (w) except pursuant to the exercise of options, warrants,
conversion rights and other contractual rights existing on the date hereof
and disclosed pursuant to this Agreement or in the OSI Reports, issue any
shares of its capital stock, effect any stock split or otherwise change
its capitalization as it existed on the date hereof, (x) grant, confer or
award any option, warrant, conversion right or other right not existing,
on the date hereof to acquire any shares of its capital stock (other than
the grant of options to acquire an aggregate of up to 15,000 shares of CRA
Common Stock pursuant to the terms of the CRA Stock Option Plans at an
exercise price of not less than the fair market value of the CRA Common
Stock on the date of grant) existing on the date hereof of CRA's stock
option plan) or grant, confer or award any bonuses or other forms of cash
incentives to any officer, director, or employee except consistent with
past practice, (y) increase any compensation of its present or future
officers, directors, or employees, (except for normal increases consistent
with past practice or as
- 32 -
<PAGE>
required under the written terms of a CRA Employment Agreement in effect
on or before December 31, 1996); enter into any employment agreement with
any present or future employee, officer, or director or amend any such
agreement in any material respect; grant any severance or termination pay
to any officer, director or employee other than pursuant to existing
severance arrangements and policies of CRA or (z) adopt any new CRA Plan
or amend any existing CRA Plan in any material respect;
(vii) Shall not (i) declare, set aside or pay any dividend or make any
other distribution or payment with respect to any shares of its capital
stock or other ownership interests, (ii) directly or indirectly redeem,
purchase or otherwise acquire any shares of its capital stock or capital
stock of any of its Subsidiaries, or make any commitment for any such
action or (iii) split, combine or reclassify any of its capital stock or
issue or authorize or propose the issuance of any other securities in
respect of, in lieu of or in substitution for shares of its capital stock;
(viii) Shall not, and shall not permit any of its Subsidiaries to (A)
sell, lease or otherwise dispose of any of its assets (including capital
stock of Subsidiaries) except in the ordinary course of business, or (B)
acquire any business or any substantial portion of the assets of any
person except as identified in the CRA Disclosure Letter and acquisitions
involving the payment of consideration by CRA not in excess of $10,000,000
for any single acquisition or $25,000,000 in the aggregate (it being
understood that CRA will give OSI not less than fifteen (15) days prior
notice of the proposed acquisition of any business or any substantial
portion of the assets of any person; if such acquisition requires the
consent of OSI under this clause (viii), consent shall not be unreasonably
withheld; and OSI shall be deemed to have given such consent if it does
not respond within ten (10) days of receipt of the notice contemplated
hereby);
(ix) Shall not incur any material amount of indebtedness for borrowed
money or make any loans, advances or capital contributions to, or
investments (other than non-controlling investments in the ordinary course
of business or other investments permitted pursuant to clause (viii)
above), in each case in an amount exceeding $1,000,000;
(x) Shall not, except as previously approved by the Board of Directors of
CRA and identified to OSI prior to the date hereof, or except in the
ordinary course of business, make or commit to make capital expenditures
other than (A) capital expenditures budgeted for the fiscal year ending
December 31, 1997 and (B) capital expenditures (not otherwise included in
budgeted capital expenditures referred to in clause (A) above) that may be
made by CRA in connection with the acquisitions by CRA or its Subsidiaries
permitted under subsection (viii) above; provided such acquisitions would
have been permitted under such subsection (viii) if such capital
expenditures were deemed to be payment of consideration by CRA in
connection therewith.
- 33 -
<PAGE>
(xi) Shall not mortgage or otherwise encumber or subject to any lien any
properties or assets except as would not be reasonably likely to have a
CRA Material Adverse Effect;
(xii) Shall not make any change to its accounting (including tax
accounting) methods, principles or practices, except as may be required by
generally accepted accounting principles and except, in the case of tax
accounting methods, principles or practices, in the ordinary course of
business of CRA or any of its Subsidiaries;
(xiii) Shall not and shall not permit any of its Subsidiaries to, enter
into any agreement or arrangement with any of their respective Affiliates,
other than with wholly-owned Subsidiaries of CRA, on terms less favorable
to CRA or such Subsidiary, as the case may be, than could be reasonably
expected to have been obtained with an unaffiliated third party on an
arm's-length basis;
(xiv) Shall, and shall cause its Subsidiaries to, use commercially
reasonable efforts to maintain with financially responsible insurance
companies insurance in such amounts and against such risks and losses as
are customary for companies engaged in their respective businesses; and
(xv) Shall not (i) make or rescind any material express or deemed election
relating to taxes, unless it is reasonably expected that such action will
not result in a CRA Material Adverse Effect, (ii) settle or compromise any
material claim, action, suit, litigation, proceeding, arbitration,
investigation, audit or controversy relating to taxes, except where such
settlement or compromise will not result in a CRA Material Adverse Effect,
or (iii) change in any material respect any of its methods or reporting
income or deductions for federal income tax purposes from those employed
in the preparation of its federal income tax returns that have been filed
for prior taxable years, except as may be required by applicable law, or
except for changes that are reasonably expected not to result in a CRA
Material Adverse Effect.
7.3. Meetings of Stockholders. Each of CRA and OSI will take all action
necessary in accordance with applicable law and its Articles of Organization or
Certificate of Incorporation, as the case may be, and Bylaws to convene a
meeting of its stockholders as promptly as practicable to consider and vote upon
(i) in the case of CRA, the approval of this Agreement, the CRA Merger Agreement
and the CRA Merger and (ii) in the case of OSI, the approval of this Agreement
and the OSI Merger. Subject to the exercise of the fiduciary duties of the
Boards of Directors of CRA and OSI, the Board of Directors of each of CRA and
OSI shall recommend such approval (and shall not revoke or withdraw such
recommendation) and CRA and OSI shall each take all lawful action to solicit
such approval, including, without limitation, timely mailing the Proxy
Statement/Prospectus (as defined in Section 7.7).
- 34 -
<PAGE>
7.4. Filings, Other Action. (a) Each party hereto shall file or cause to
be filed with the Federal Trade Commission (the "FTC") and the Antitrust
Division of the Department of Justice (the "Antitrust Division") any
notification required to be filed by their respective "ultimate parent"
companies under the HSR Act and the rules and regulations promulgated thereunder
with respect to the transactions contemplated hereby. Such parties will use all
commercially reasonable efforts to make such filings promptly and to respond on
a timely basis to any requests for additional information made by either of such
agencies. Each of the parties hereto agrees to furnish the others with copies of
all correspondence, filings and communications (and memorandum setting forth the
substance thereof) between it and its Affiliates and their respective
representatives, on the one hand, and the FTC, the Antitrust Division or any
other court, governmental, regulatory or administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign (a
"Governmental Entity"), or members or their respective staffs, on the other
hand, with respect to this Agreement and the transactions contemplated hereby,
other than personal financial information filed therewith. Each party hereto
agrees to furnish the others with such necessary information and reasonable
assistance as such other parties and their respective affiliates may reasonably
request in connection with their preparation of necessary filings, registrations
or submissions of information to any Governmental Entities, including without
limitation any filings necessary under the provisions of the HSR Act.
(b) Each party hereto shall cooperate and use its reasonable best efforts
to promptly prepare and file all necessary documentation to effect all necessary
application, notices, petitions, filings and other documents, and use all
commercially reasonable efforts to obtain (and will cooperate with each other in
obtaining) any consent, acquiescence, authorization, order or approval of, or
any exemption or nonopposition by, any Governmental Entity required to be
obtained or made by OSI or CRA or any of their respective Significant
Subsidiaries in connection with the Mergers or the taking of any action
contemplated thereby or by this Agreement; and
(c) Subject to the terms and conditions herein provided, including the
exercise of the fiduciary duties of the Boards of Directors of CRA and OSI, the
parties hereto shall use all commercially reasonable efforts to take, or cause
to be taken, all other action and do, or cause to be done, all other things
necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement.
7.5. Inspection of Records. From the date hereof to the Effective Time,
each of OSI and CRA shall (i) allow all designated officers, attorneys,
accountants and other representatives of the other reasonable access at all
reasonable times to the offices, records and files, correspondence, audits and
properties, as well as to all information relating to commitments, contracts,
titles and financial position, or otherwise pertaining to the business and
affairs, of OSI and CRA and their respective Subsidiaries, as the case may be,
(ii) furnish to the other, the other's counsel, financial advisors, auditors and
other authorized representatives such financial and operating data and other
information as such persons may
- 35 -
<PAGE>
reasonably request and (iii) instruct the employees, counsel and financial
advisors of OSI or CRA, as the case may be, to cooperate with the other in the
other's investigation of the business of it and its Subsidiaries.
7.6. Publicity. The initial press release relating to this Agreement shall
be a joint press release and thereafter OSI and CRA shall, subject to their
respective legal obligations (including requirements of stock exchanges,
quotation or trading systems and other similar regulatory bodies), consult with
each other, and use commercially reasonable efforts to agree upon the text of
any press release, before issuing any such press release or otherwise making
public statements with respect to the transactions contemplated hereby and in
making any filings with any federal or state governmental or regulatory agency
or with any national securities exchange or quotation or trading system with
respect thereto.
7.7. Registration Statement. CRA and OSI shall cooperate and promptly
prepare and Holding Company shall file with the SEC as soon as practicable a
Registration Statement on Form S-4 (the "Form S-4") under the Securities Act,
with respect to the Holding Company Common Stock issuable in the Mergers, a
portion of which Registration Statement shall also serve as the joint proxy
statement with respect to the meetings of the stockholders of OSI and of CRA in
connection with the Mergers (the "Proxy Statement/Prospectus"). The respective
parties will cause the Proxy Statement/Prospectus and the Form S-4 to comply as
to form in all material respects with the applicable provisions of the
Securities Act, the Exchange Act and the rules and regulations thereunder.
Holding Company shall use all commercially reasonable efforts, and CRA and OSI
will cooperate with Holding Company, to have the Form S-4 declared effective by
the SEC as promptly as practicable and to keep the Form S-4 effective as long as
is necessary to consummate the Mergers. Holding Company shall, as promptly as
practicable, provide copies of any written comments received from the SEC with
respect to the Form S-4 to CRA and OSI and advise CRA and OSI of any verbal
comments with respect to the Form S-4 received from the SEC. Holding Company
shall use its reasonable best efforts to obtain, prior to the effective date of
the Form S-4, all necessary state securities law or "Blue Sky" permits or
approvals required to carry out the transactions contemplated by this Agreement
and will pay all expenses incident thereto. Holding Company agrees that (i) the
S-4 will not, at the time it is filed with the Commission and the time it
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (ii) the Proxy
Statement/Prospectus and each amendment or supplement thereto at the time of
mailing thereof and at the time of the respective meetings of stockholders of
OSI and CRA will not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the foregoing shall not apply to the
extent that any such untrue statement of a material fact or omission to state a
material fact was made by Holding Company in reliance upon and in conformity
with written information concerning CRA or OSI furnished to Holding Company by
CRA or OSI specifically for use in the Proxy Statement/Prospectus. CRA and OSI
each agrees that the
- 36 -
<PAGE>
written information provided by it for inclusion in the S-4 and each amendment
or supplement thereto, at the time it is filed with the Commission and the time
it becomes effective under the Securities Act, will not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. CRA
and OSI each agrees that the written information provided by it for inclusion in
the Proxy Statement/Prospectus and each amendment or supplement thereto, at the
time of mailing thereof, and at the time of the respective meetings of
stockholders of OSI and CRA will not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. No amendment or supplement to the Proxy
Statement/Prospectus will be made by Holding Company without the approval of CRA
and OSI. Holding Company will advise CRA and OSI, promptly after it receives
notice thereof, of the time when the Form S-4 has become effective or any
supplement or amendment has been filed, the issuance of any stop order, the
suspension of the qualification of Holding Company Common Stock issuable in
connection with the Mergers for offering or sale in any jurisdiction, or any
request by the SEC for amendment of the Proxy Statement/Prospectus or the Form
S-4 or comments thereon and responses thereto or requests by the SEC for
additional information.
7.8. Listing Application. Holding Company shall promptly prepare and
submit to the Nasdaq National Market a listing application covering the shares
of Holding Company Common Stock issuable in the Mergers, and shall use
commercially reasonable efforts to obtain, prior to the Effective Time, approval
for the quotation, of such Holding Company Common Stock, subject to official
notice of issuance, on the Nasdaq National Market.
7.9. Further Action. Each party hereto shall, subject to the fulfillment
at or before the Effective Time of each of the conditions of performance set
forth herein or the waiver thereof, perform such further acts and execute such
documents as may be reasonably required to effect the Mergers, including in the
case of CRA and OSI causing their designees on the Holding Company Board of
Directors to cause Holding Company to perform such acts and execute such
documents.
7.10. Affiliate Letters. At least 30 days prior to the Closing Date, CRA
and OSI shall deliver to Holding Company a list of names and addresses of those
persons who were, in CRA's and OSI's reasonable judgment, at the record date for
its stockholders' meeting to approve the Mergers, "affiliates" (each such
person, an "Affiliate") of CRA or OSI within the meaning of Rule 145 of the
rules and regulations promulgated under the Securities Act. OSI shall use all
commercially reasonable efforts to deliver or cause to be delivered to Holding
Company, prior to the Closing Date, from each of the Affiliates of OSI
identified in the foregoing list, an Affiliate Letter in the form attached
hereto as Exhibit E. CRA shall use all commercially reasonable efforts to
deliver or cause to be delivered to Holding Company, prior to the Closing Date,
from each of the Affiliates of CRA identified in the foregoing list, an
Affiliate Letter in the form attached hereto as Exhibit E. Holding Company shall
be entitled to place legends as specified in such Affiliate Letters on the
certificates evidencing any Holding
- 37 -
<PAGE>
Company Common Stock to be received by such Affiliates pursuant to the terms of
this Agreement, and to issue appropriate stop transfer instructions to the
transfer agent for the Holding Company Common Stock, consistent with the terms
of such Affiliate Letters.
7.11. Expenses. Whether or not the Mergers are consummated, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses except as
expressly provided herein and except that (a) the filing fee in connection with
the HSR Act filing, (b) the filing fee in connection with the filing of the Form
S-4 or Proxy Statement/Prospectus with the SEC, (c) the reasonable expenses of
Holding Company and (d) the expenses incurred in connection with printing and
mailing the Form S-4 and the Proxy Statement/Prospectus, shall be shared equally
by OSI and CRA. OSI and CRA each agree to pay one-half of any such expenses
promptly upon written request therefor by Holding Company or by any other
person, including OSI or CRA, paying on behalf of, or providing credit with
respect thereto to, Holding Company.
7.12. Insurance; Indemnity. (a) From and after the Effective Time, Holding
Company shall indemnify, defend and hold harmless to the fullest extent that CRA
or OSI would have been permitted under applicable law each person who is now, or
has been at any time prior to the date hereof, an officer or director of CRA or
OSI (individually, an "Indemnified Party" and collectively, the "Indemnified
Parties"), against all losses, claims, damages, liabilities, costs or expenses
(including attorneys' fees), judgments, fines, penalties and amounts paid in
settlement in connection with any claim, action, suit, proceeding or
investigation arising out of or pertaining to acts or omissions, or alleged acts
or omissions, by them in their capacities as such occurring at or prior to the
Effective Time. In the event of any such claim, action, suit, proceeding, or
investigation (an "Action"), (i) any Indemnified Party wishing to claim
indemnification shall promptly notify Holding Company thereof, (ii) Holding
Company shall pay the reasonable fees and expenses of counsel selected by the
Indemnified Party, which counsel shall be reasonably acceptable to Holding
Company, in advance of the final disposition of any such Action to the full
extent permitted by applicable law, upon receipt of any undertaking required by
applicable law, and (iii) Holding Company will cooperate in the defense of any
such matter; provided, however, that Holding Company shall not be liable for any
settlement effected without its written consent and provided, further, that
Holding Company shall not be obligated pursuant to this Section to pay the fees
and disbursements of more than one counsel for all Indemnified Parties in any
single Action except to the extent that, in the opinion of counsel for the
Indemnified Parties, two or more of such Indemnified Parties have conflicting
interests in the outcome of such action.
(b) Holding Company shall keep in effect, and shall cause the surviving
corporation of the CRA Merger to keep in effect, provisions in its Articles or
Certificate of Incorporation or Organization and Bylaws providing for
exculpation of director and officer liability and its indemnification of the
Indemnified Parties to the fullest extent permitted under applicable law, which
provisions shall not be amended except as required by applicable law or except
to make
- 38 -
<PAGE>
changes permitted by law that would enlarge the Indemnified Parties' rights of
exculpation and indemnification.
(c) For a period of six years after the Effective Time, Holding Company
shall cause to be maintained officers' and directors' liability insurance
covering the Indemnified Parties who are currently covered, in their capacities
as officers and directors, by CRA's or OSI's existing officers' and directors'
liability insurance policies on terms materially no less advantageous to the
Indemnified Parties than such existing insurance; provided, however, that
Holding Company shall not be required in order to maintain or procure such
coverage to pay an annual premium for either CRA or OSI in excess of one and
one-half times the current annual premium paid by OSI for its existing coverage
(the "Cap") (which current annual premium is approximately $110,000); and
provided, further, that if equivalent coverage cannot be obtained for CRA or
OSI, or can be obtained only by paying an annual premium in excess of the Cap,
Holding Company shall only be required to obtain as much coverage for CRA or OSI
as can be obtained by paying an annual premium equal to such Cap.
(d) In the event that Holding Company or any of its successors or assigns
(i) consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or
(ii) transfers all or substantially all of its properties and assets to any
person, then, in each such case, proper provisions shall be made so that the
successors and assigns of Holding Company shall assume the obligations set forth
in this Section 7.12.
(e) The provisions of this Section shall survive the consummation of the
Mergers and expressly are intended to benefit each of the Indemnified Parties.
The foregoing provisions of this Section 7.12 shall not limit or impair the
rights of the Indemnified Parties arising under any indemnification or other
agreements to which they are a party, the charter, bylaws or other
organizational documents of CRA and OSI and their respective Subsidiaries or
applicable laws.
7.13. Takeover Statute. If any "fair price", "moratorium", "control share
acquisition" or other form of antitakeover statute or regulation shall become
applicable to the transactions contemplated hereby, CRA and OSI and the members
of the Boards of Directors of CRA and OSI shall grant such approvals and take
such actions as are reasonably necessary so that the transactions contemplated
hereby may be consummated as promptly as practicable on the terms contemplated
hereby and otherwise act to eliminate or minimize the effects of such statute or
regulation on the transactions contemplated hereby.
7.14. Conduct of Business by Holding Company and CRA Merger Sub Pending
the Mergers. Prior to the Effective Time and subject to any applicable
regulatory approvals, CRA and OSI shall cause Holding Company and CRA Merger Sub
to (a) perform their respective obligations hereunder and under this Agreement
and the Merger Agreements in accordance with the terms hereof and thereof and
take all other actions necessary or appropriate for the
- 39 -
<PAGE>
consummation of the transactions contemplated hereby and thereby, (b) not incur
directly or indirectly any liabilities or obligations except those incurred in
connection with the consummation of this Agreement and the Merger Agreements and
the transactions contemplated hereby and thereby, (c) not engaged directly or
indirectly in any business or activities of any type or kind whatsoever and not
enter into any agreements or arrangements with any person or entity, or be
subject to or be bound by any obligation or undertaking which is not
contemplated by this Agreement or the Merger Agreements and (d) not create,
grant or suffer to exist any lien upon their respective properties or assets
which would attach to any properties or assets of CRA or OSI after the Effective
Time.
7.15. Employee Benefits. Immediately following the Effective Time, Holding
Company will cause employee benefit plans to be in effect for the benefit of
CRA's and OSI's employees that are reasonably comparable in the aggregate to the
employee benefit plans that were in effect immediately prior to the Effective
Time.
7.16. Conveyance Taxes. OSI and CRA shall cooperate in the preparation,
execution and filing of all returns, questionnaires, applications or other
documents regarding any real property transfer or gains, sales, use, transfer,
value added, stock transfer and stamp taxes, any transfer, recording,
registration and other fees, and any similar taxes which become payable in
connection with the transactions contemplated by this Agreement that are
required or permitted to be filed on or before the Effective Time.
7.17 Incentive Plan. Holding Company shall promptly adopt an executive
long term incentive plan reasonably acceptable to both CRA and OSI.
ARTICLE 8
CONDITIONS
8.1. Conditions to Each Party's Obligation to Effect the Mergers. The
respective obligation of each party to effect the Mergers shall be subject to
the fulfillment at or prior to the Closing Date of the following conditions:
(a) This Agreement and the transactions contemplated hereby shall have
been approved in the manner required by applicable law or by the applicable
regulations of the Nasdaq National Market, any stock exchange or other
regulatory body, as the case may be, by the holders of the issued and
outstanding shares of capital stock of OSI and CRA, respectively.
(b) The waiting period applicable to the consummation of the Mergers under
the HSR Act shall have expired or been terminated and all filings required to be
made prior to the Effective Time with, and all consents, approvals, permits and
authorizations required to be obtained prior to the Effective Time from, any
Governmental Entity in connection with the execution and delivery of this
Agreement and the consummation of the transactions
- 40 -
<PAGE>
contemplated hereby shall have been made or obtained (as the case may be),
except for such consents, approvals, permits or authorizations the failure of
which to be obtained would not, in the aggregate, be reasonably likely to have,
a Material Adverse Effect on Holding Company (assuming the Mergers have taken
place) or to materially adversely affect the consummation of the Mergers, and no
such consent, approval, permit or authorization shall impose terms or conditions
that would have, or would be reasonably likely to have, a Material Adverse
Effect on Holding Company (assuming the Mergers have taken place).
(c) No temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction, no order of any
Governmental Entity having jurisdiction over any party hereto, and no other
legal restraint or prohibition shall be in effect (an "Injunction") preventing
or making illegal the consummation of the Mergers. In the event any such
Injunction shall have been issued, each party agrees to use its reasonable best
efforts to have any such Injunction lifted.
(d) The Form S-4 shall have become effective and shall be effective at the
Effective Time, and no stop order suspending effectiveness of the Form S-4 shall
have been issued, no action, suit, proceeding or investigation by the SEC to
suspend the effectiveness thereof shall have been initiated and be continuing
or, to the knowledge of CRA or OSI, threatened.
(e) All consents, authorizations, orders and approvals of (or filings or
registrations with) any governmental commission, board or other regulatory body
required in connection with the execution, delivery and performance of this
Agreement shall have been obtained or made, except for filings in connection
with the Mergers and any other documents required to be filed after the
Effective Time and except where the failure to have obtained or made any such
consent, authorization, order, approval, filing or registration would not have a
material adverse effect on the business, results of operations or financial
condition of CRA and OSI (and their respective Subsidiaries), taken as a whole,
following the Effective Time.
(f) The Holding Company Common Stock to be issued to CRA and OSI
stockholders in connection with the Mergers shall have been approved for
quotation on the Nasdaq National Market, subject only to official notice of
issuance.
8.2. Conditions to Obligation of OSI to Effect the Mergers. The obligation
of OSI to effect the Mergers shall be subject to the fulfillment at or prior to
the Closing Date of the following conditions:
(a) CRA shall have performed in all material respects its agreements
contained in this Agreement required to be performed on or prior to the Closing
Date, the representations and warranties of CRA contained in this Agreement and
in any document delivered in connection herewith shall be true and correct in
all respects as of the Closing Date (other than those representations and
warranties which contain qualifications as to materiality, which shall be true
and correct in all respects as of the Closing Date), except (i) for changes
specifically
- 41 -
<PAGE>
permitted by this Agreement and (ii) that those representations and warranties
which address matters only as of a particular date shall remain true and correct
in all material respects as of such date (other than those representations and
warranties which contain qualifications as to materiality, which shall be true
and correct in all respects as of such date), and OSI shall have received a
certificate of the President or a Vice President of CRA, dated the Closing Date,
certifying to such effect.
(b) OSI and Holding Company shall have received the opinion of Vinson &
Elkins L.L.P., special counsel to OSI and Holding Company, based upon reasonably
requested representation letters and dated the Closing Date, to the effect that
the OSI Merger will be treated as a reorganization governed by Section 368(a) of
the Code; and that OSI will not recognize gain or income in the OSI Merger.
(c) From the date of this Agreement through the Effective Time, there
shall not have occurred any change in the financial condition, business or
operations of CRA and its Subsidiaries, taken as a whole, that would have or
would be reasonably likely to have a CRA Material Adverse Effect.
(d) Holders of not more than 5% of the CRA Common Stock outstanding
immediately preceding the Effective Time shall have perfected appraisal rights
under applicable law.
(e) At the Closing, OSI shall have received an opinion, dated the Closing
Date, from CRA's independent auditors, Arthur Andersen, L.L.P., to the effect
that the business combination to be effected by the Mergers would be properly
accounted for as a pooling-of-interests.
(f) The opinion of DLJ referred to in Section 5.15 herein shall have been
reissued at the time of mailing the Proxy Statement/Prospectus and shall not
have been withdrawn or materially modified by DLJ in a manner adverse to OSI's
stockholders.
8.3. Conditions to Obligation of CRA to Effect the Mergers. The obligation
of CRA to effect the Mergers shall be subject to the fulfillment at or prior to
the Closing Date of the following conditions:
(a) OSI shall have performed in all material respects its agreements
contained in this Agreement required to be performed on or prior to the Closing
Date, the representations and warranties of OSI contained in this Agreement and
in any document delivered in connection herewith shall be true and correct in
all material respects as of the Closing Date (other than those representations
and warranties which contain qualifications as to materiality, which shall be
true and correct in all respects as of the Closing Date), except (i) for changes
specifically permitted by this Agreement and (ii) that those representations and
warranties which address matters only as of a particular date shall remain true
and correct in all material
- 42 -
<PAGE>
respects as of such date (other than those representations and warranties which
contain qualifications as to materiality, which shall be true and correct in all
respects as of such date), and CRA shall have received a certificate of the
President or Vice President of OSI, dated the Closing Date, certifying to such
effect.
(b) CRA shall have received the opinion of Hutchins, Wheeler & Dittmar,
special counsel to CRA, based upon reasonably requested representation letters
and dated the Closing Date, to the effect that the CRA Merger will be treated as
a transfer of property to Holding Company by holders of CRA Common Stock
governed by Section 351(a) of the Code or a reorganization governed by Section
368(a) of the Code or both; and OSI and Holding Company shall have received the
opinion of Vinson & Elkins LLP described in Section 8.2(b) of this Agreement.
(c) From the date of this Agreement through the Effective Time, there
shall not have occurred any change in the financial condition, business or
operations of OSI and its Subsidiaries, taken as a whole, that would have or
would be reasonably likely to have an OSI Material Adverse Effect.
(d) Holders of not more than 5% of the OSI Common Stock outstanding
immediately preceding the Effective Time shall have perfected appraisal rights
under applicable law.
(e) At the Closing, CRA shall have received an opinion, dated the Closing
Date, from OSI's independent auditors, Arthur Andersen, L.L.P., to the effect
that the business combination to be effected by the Mergers would be properly
accounted for as a pooling-of-interests.
(f) The opinion of Alex. Brown & Sons Incorporated referred to in Section
6.15 herein shall have been reissued at the time of mailing the Proxy
Statement/Prospectus and shall not have been withdrawn or materially modified by
Alex. Brown & Sons Incorporated in a manner adverse to CRA's stockholders.
ARTICLE 9
TERMINATION
9.1. Termination by Mutual Consent. This Agreement may be terminated and
the Mergers may be abandoned at any time prior to the Effective Time, before or
after the approval of this Agreement by the stockholders of CRA or OSI, by the
mutual written consent of CRA and OSI.
9.2. Termination by Either CRA or OSI. This Agreement may be terminated
and the Mergers may be abandoned by action of the Board of Directors of either
CRA or OSI if (a) the
- 43 -
<PAGE>
Mergers shall not have been consummated by October 31, 1997, or (b) the approval
of OSI's stockholders required by Section 8.1(a) shall not have been obtained at
a meeting duly convened therefor or at any adjournment thereof, or (c) the
approval of CRA's stockholders required by Section 8.1(a) shall not have been
obtained at a meeting duly convened therefor or at any adjournment thereof, or
(d) a United States federal or state court of competent jurisdiction or United
States federal or state governmental, regulatory or administrative agency or
commission shall have issued an order, decree or ruling or taken any other
action permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such order, decree, ruling or
other action shall have become final and non-appealable; provided, that the
party seeking to terminate this Agreement pursuant to this clause (d) shall have
used all commercially reasonable efforts to remove such injunction, order or
decree; and provided, in the case of a termination pursuant to clause (a) above,
that the terminating party shall not have breached in any material respect its
obligations under this Agreement in any manner that shall have proximately
contributed to the failure to consummate the Mergers by October 31, 1997.
9.3. Termination by OSI. This Agreement may be terminated and the Mergers
may be abandoned at any time prior to the Effective Time, before or after the
adoption and approval by the stockholders of OSI referred to in Section 8.1(a),
by action of the Board of Directors of OSI, if (a) in the exercise of its good
faith judgment as to fiduciary duties to its stockholders imposed by law, as
advised by outside counsel, the Board of Directors of OSI determines that such
termination is required by reason of an OSI Alternative Proposal being made;
provided that OSI shall notify CRA promptly of its intention to terminate this
Agreement or enter into a definitive agreement with respect to any OSI
Alternative Proposal, but in no event shall notice be given less than one full
business day prior to the public announcement of OSI's termination of this
Agreement; or (b) there has been a breach by CRA of any representation or
warranty contained in this Agreement which would have or would be reasonably
likely to have a CRA Material Adverse Effect; or (c) there has been a material
breach of any of the covenants or agreements set forth in this Agreement on the
part of CRA, which breach is not curable or, if curable, is not cured within 30
days after written notice of such breach is given by OSI to CRA; or (d) the
Board of Directors of CRA shall have withdrawn or modified in a manner
materially adverse to OSI its approval or recommendation of this Agreement or
the Mergers. Notwithstanding the foregoing, OSI's ability to terminate this
Agreement pursuant to this Section 9.3 is conditioned upon the prior payment by
OSI of any amount owed by it pursuant to Section 9.5(a).
9.4. Termination by CRA. This Agreement may be terminated and the Mergers
may be abandoned at any time prior to the Effective Time, before or after the
approval by the stockholders of CRA referred to in Section 8.1(a), by action of
the Board of Directors of CRA, if (a) in the exercise of its good faith judgment
as to fiduciary duties to its stockholders imposed by law, as advised by outside
counsel, the Board of Directors of CRA determines that such termination is
required by reason of a CRA Alternative Proposal being made; provided that CRA
shall notify OSI promptly of its intention to terminate this Agreement or enter
into a
- 44 -
<PAGE>
definitive agreement with respect to any CRA Alternative Proposal, but in no
event shall notice be given less than one full business day prior to the public
announcement of CRA's termination of this Agreement; or (b) there has been a
breach by OSI of any representation or warranty contained in this Agreement
which would have or would be reasonably likely to have an OSI Material Adverse
Effect; or (c) there has been a material breach of any of the covenants or
agreements set forth in this Agreement on the part of OSI, which breach is not
curable or, if curable, is not cured within 30 days after written notice of such
breach is given by CRA to OSI; or (d) the Board of Directors of OSI shall have
withdrawn or modified in a manner materially adverse to CRA its approval or
recommendation of this Agreement or the Mergers. Notwithstanding the foregoing,
CRA's ability to terminate this Agreement pursuant to this Section 9.4 is
conditioned upon the prior payment by CRA of any amount owed by it pursuant to
Section 9.5(b).
9.5. Effect of Termination and Abandonment. (a) In the event that any
person shall have made an OSI Alternative Proposal for OSI and thereafter this
Agreement is terminated pursuant to Section 9.3(a) or Section 9.4(d), then OSI
shall pay to CRA a fee of $10 million, which amount shall be payable by wire
transfer of same day funds either on the date contemplated in the last sentence
of 9.3 if applicable or, otherwise, within two business days after such amount
becomes due. OSI acknowledges that the agreements contained in this Section
9.5(a) are an integral part of the transactions contemplated by this Agreement,
and that, without these agreements, CRA would not enter into this Agreement;
accordingly, if OSI fails to properly pay the amount due pursuant to this
Section 9.5(a) and, in order to obtain such payment, CRA commences a suit which
results in a judgment against OSI for the fee set forth in this Section 9.5(a),
OSI shall pay to CRA its costs and expenses (including attorneys' fees) in
connection with such suit, together with interest in the amount of the fee at
the rate of 12% per annum.
(b) In the event that any person shall have made a CRA Alternative
Proposal for CRA and thereafter this Agreement is terminated pursuant to Section
9.4(a) or 9.3(d), then CRA shall pay to OSI a fee of $10 million, which amount
shall be payable by wire transfer of same day funds either on the date
contemplated in the last sentence of 9.4 if applicable or, otherwise, within two
business days after such amount becomes due. CRA acknowledges that the
agreements contained in this Section 9.5(b) are an integral part of the
transactions contemplated by this Agreement, and that, without these agreements,
OSI would not enter into this Agreement; accordingly, if CRA fails to properly
pay the amount due pursuant to this Section 9.5(b) and, in order to obtain such
payment, OSI commences a suit which results in a judgment against CRA for the
fee set forth in this Section 9.5(b), CRA shall pay to OSI its costs and
expenses (including attorneys' fees) in connection with such suit, together with
interest in the amount of the fee at the rate of 12% per annum.
(c) In the event of termination of this Agreement and the abandonment of
the Mergers pursuant to this Article 9, all obligations of the parties hereto
shall terminate, except the obligations of the parties pursuant to this Section
9.5 and Section 7.11 and except for the
- 45 -
<PAGE>
provisions of Article 10. Moreover, in the event of termination of this
Agreement pursuant to Section 9.3 or 9.4, nothing herein shall prejudice the
ability of the non-breaching party from seeking damages from any other party for
any breach of this Agreement, including without limitation, attorneys' fees and
the right to pursue any remedy at law or in equity.
9.6. Extension, Waiver. At any time prior to the Effective Time, any party
hereto, by action taken by its Board of Directors, may, to the extent legally
allowed, (a) extend the time for the performance of any of the obligations or
other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties made to such party contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions for the benefit of such party contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
ARTICLE 10
GENERAL PROVISIONS
10.1. Nonsurvival of Representations, Warranties and Agreements. All
representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall be deemed to the extent
expressly provided herein to be conditions to the Mergers and shall not survive
the Mergers, provided, however, that the agreements contained in Article 4,
Section 7.11, Section 7.12, Section 7.15 and this Article 10 shall survive the
Mergers and Sections 7.11 and 9.5 shall survive termination.
10.2. Notices. Any notice or communication required or permitted hereunder
shall be in writing and either delivered personally, telegraphed or telecopied
or sent by next day delivery by a nationally recognized overnight delivery
service or by certified or registered mail, postage prepaid, and shall be deemed
to be given, dated and received (i) when so delivered personally, (ii) upon
receipt of an appropriate electronic answerback or confirmation when so
delivered by telegraph or telecopy (to such number specified below or another
number or numbers as such person may subsequently designate by notice hereunder)
or (iii) one business day after sending by overnight delivery, and five business
days after the date of mailing by certified or registered mail, to the following
address or to such other address or addresses as such person may subsequently
designate by notice given hereunder, if so delivered by mail:
- 46 -
<PAGE>
If to CRA:
CRA Managed Care, Inc.
312 Union Wharf
Boston, Massachusetts 02109
Attention: Chairman
Telecopier No.: (617) 720-1259
With copies to:
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, MA 02110
Attention: James Westra, Esq.
Telecopier No.: (617) 951-1295
If to OSI:
OccuSystems, Inc.
3010 LBJ Freeway
Suite 400
Dallas, TX 75234
Attention: General Counsel
Telecopier No.: (972) 243-7540
With copies to:
Vinson & Elkins L.L.P.
2001 Ross Avenue
Suite 3700
Dallas, TX 75201
Attention: Jeffrey A. Chapman
Telecopier No.: (214) 220-7716
If to Holding Company:
Concentra Managed Care, Inc.
c/o CRA in accordance with the provisions
of this Section 10.2 and to
Concentra Managed Care, Inc.,
c/o OSI in accordance with the provisions
of this Section 10.2
- 47 -
<PAGE>
or to such other address as any party shall specify by written notice so given.
10.3. Assignment; Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other parties. Subject to the preceding sentence, this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns. Notwithstanding anything
contained in this Agreement to the contrary, except for the provisions of
Section 7.12 and Section 7.15 nothing in this Agreement, expressed or implied,
is intended to confer on any person other than the parties hereto or their
respective heirs, successors, executors, administrators and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
10.4. Entire Agreement. This Agreement, the Exhibits, OSI Disclosure
Letter, CRA Disclosure Letter, the Confidentiality Agreement dated March 19,
1997, between OSI and CRA (except that the "standstill" provisions set forth in
such Confidentiality Agreement are hereby deemed to be superseded by Section 9
of each of the CRA Stock Option Agreement and the OSI Stock Option Agreement),
and any documents delivered by the parties in connection herewith constitute the
entire agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings among the parties with respect
thereto. No addition to or modification of any provision of this Agreement shall
be binding upon any party hereto unless made in writing and signed by all
parties hereto.
10.5. Amendment. This Agreement may be amended by the parties hereto, by
action taken by their respective Boards of Directors, at any time before or
after approval of matters presented in connection with Mergers by the
stockholders of OSI and CRA, but after any such stockholder approval, no
amendment shall be made which by law requires the further approval of
stockholders without obtaining such further approval. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto.
10.6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Delaware without regard to its rules of conflict of
laws, except that the provisions of Article 2 and Article 4 with respect to the
CRA Merger shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
10.7. Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
- 48 -
<PAGE>
10.8. Headings. Headings of the Articles and Sections of this Agreement
are for the convenience of the parties only, and shall be given no substantive
or interpretive effect whatsoever.
10.9. Interpretation. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and vice
versa, and words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and vice
versa.
10.10.Waivers. Except as provided in this Agreement, no action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties, covenants
or agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a waiver
of any prior or subsequent breach of the same or any other provision hereunder.
10.11.Incorporation of Exhibits. The OSI Disclosure Letter, CRA Disclosure
Letter and all Exhibits and Schedules attached hereto and referred to herein are
hereby incorporated herein and made a part hereof for all purposes as if fully
set forth herein.
10.12.Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
10.13.Enforcement of Agreement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement was
not performed in accordance with its specific terms or was otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any Federal or state court located in the
State of Delaware, this being in addition to any other remedy to which they are
entitled at law or in equity.
10.14.Subsidiaries. As used in this Agreement, the word "Subsidiary" when
used with respect to any party means any corporation or other organization,
whether incorporated or unincorporated, of which such party directly or
indirectly owns or controls at least a majority of the securities or other
interests having by their terms ordinary voting power to elect a majority of the
board of directors or others performing similar functions with respect to such
corporation or other organization, or any organization of which such party is a
general partner. When a reference is made in this Agreement to Significant
Subsidiaries, the words
- 49 -
<PAGE>
"Significant Subsidiaries" shall refer to Subsidiaries (as defined above) which
constitute "significant subsidiaries" under Rule 405 promulgated by the SEC
under the Securities Act.
[Remainder of this Page Intentionally Left Blank]
- 50 -
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year first written
above.
CRA MANAGED CARE, INC.
By: /s/ Donald J. Larson
-------------------------------------
President and Chief Executive Officer
OCCUSYSTEMS, INC.
By: /s/ John K. Carlyle
-------------------------------------
Chairman and Chief Executive Officer
CONCENTRA MANAGED CARE, INC.
By: /s/ John K. Carlyle
-------------------------------------
Chairman
- 51 -
<PAGE>
EXHIBIT A
to
Reorganization
Agreement
CERTIFICATE OF INCORPORATION
OF
CONCENTRA MANAGED CARE, INC.
FIRST: The name of the corporation is Concentra Managed Care, Inc.
SECOND: The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 in New
Castle County, Delaware. The name of its registered agent at such address is
The Corporation Trust Company.
THIRD: The nature of the business or purposes to be conducted or promoted
by the corporation is to engage in any lawful act or activity for which
corporations may be organized under the Delaware General Corporation Law.
FOURTH: The total number of shares of all classes of stock which the
corporation shall have authority to issue is One Hundred and Twenty (120), of
which (a) One Hundred (100) shares shall be designated as Common Stock, par
value $0.01 per share, and (b) Twenty (20) shares shall be designated as
Preferred Stock, par value $1.00 per share.
The following is a statement of the designations, preferences, limitations
and relative rights, including voting rights in respect of the classes of stock
of the Corporation and of the authority with respect thereto expressly vested in
the Board of Directors of the Corporation:
A. COMMON STOCK
1. Each share of Common Stock of the Corporation shall have identical
rights and privileges in every respect. The holders of shares of Common Stock
shall be entitled to vote upon all matters submitted to a vote of the
stockholders of the Corporation and shall be entitled to one vote for each share
of Common Stock held.
2. Subject to the prior rights and preferences, if any, applicable to
shares of the Preferred Stock or any series thereof, the holders of shares of
the Common Stock shall be entitled to receive such dividends (payable in cash,
stock or otherwise) as may be declared thereon by the Board of Directors at any
time and from time to time out of any funds of the Corporation legally available
therefor.
A-1
<PAGE>
3. In the event of any voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation, after distribution in full of the preferential
amounts, if any, to be distributed to the holders of shares of the Preferred
Stock or any series thereof, the holders of shares of the Common Stock shall be
entitled to receive all of the remaining assets of the Corporation available for
distribution to its stockholders, ratably in proportion to the number of shares
of the Common Stock held by them. A liquidation, dissolution or winding-up of
the Corporation, as such terms are used in this Paragraph (3), shall not be
deemed to be occasioned by or to include any merger of the Corporation with or
into one or more corporations or other entities, any acquisition or exchange of
the outstanding shares of one or more classes or series of the Corporation or
any sale, lease, exchange or other disposition of all or a part of the assets of
the Corporation.
B. PREFERRED STOCK
1. Shares of the Preferred Stock may be issued from time to time in one
or more series, the shares of each series to have such voting powers,
designations, preferences, rights and qualifications, limitations or
restrictions, as shall be stated and expressed herein or in a resolution or
resolutions providing for the issue of such series adopted by the Board of
Directors of the Corporation (or a duly authorized committee thereof). Each
such series of Preferred Stock shall be designated so as to distinguish the
shares thereof from the shares of all other series and classes. The Board of
Directors of the Corporation (or a duly authorized committee thereof) is hereby
expressly authorized, subject to the limitations provided by law, to establish
and designate series of the Preferred Stock, to fix the number of shares
constituting each series and to fix the voting powers, designations,
preferences, rights and qualifications, limitations or restrictions of the
shares of each series and the variations of the relative rights and preferences
as between series, and to increase and to decrease the number of shares
constituting each series, provided that the Board of Directors (or a duly
authorized committee thereof) may not decrease the number of shares within a
series to less than the number of shares within such series that are then
issued. The relative powers, preferences, rights and qualifications, limitation
or restrictions may vary between and among series of Preferred Stock in any and
all respects so long as all shares of the same series of identical in all
respects, except that shares of any such series issued at different times may
have different dates from which dividends thereon cumulate. The authority of
the Board of Directors of the Corporation (or a duly authorized committee
thereof) with respect to each series shall include, but shall not be limited to,
the authority to determine the following:
(a) The designation of such series;
(b) The number of shares initially constituting such series;
(c) The rate or rates and the time at which dividends on the shares of
such series shall be paid, the periods in respect of which dividends are
payable, the conditions upon such dividends, the relationship and
preferences, if any, of such dividends to dividends payable on any other class
or series of shares, whether or not such dividends shall be cumulative,
partially cumulative or
A-2
<PAGE>
noncumulative, if such dividends shall be cumulative or partially cumulative,
the date or dates from and after which, and the amounts in which, they shall
accumulate, whether such dividends shall be share dividends, cash or other
dividends or any combination thereof, and if such dividends shall include
share dividends, whether such share dividends shall be payable in shares of
the same or any other class or series of shares of the Corporation (whether
now or hereafter authorized), or any combination thereof and the other terms
and conditions, if any, applicable to dividends on shares of such series;
(d) Whether or not the shares of such series shall be redeemable or
subject to repurchase at the option of the Corporation or the holder thereof or
upon the happening of a specified event, if such shares shall be redeemable, the
terms and conditions or such redemption, including but not limited to the date
or dates upon or after which such shares shall be redeemable, the amount per
share which shall be payable upon such redemption, which amount may vary under
different conditions and at different redemption dates and whether such amount
shall be payable in cash, property or rights, including securities of the
Corporation or another corporation;
(e) The rights of the holders of shares of such series (which may vary
depending upon the circumstances or nature of such liquidation, dissolution or
winding up) in the event of the voluntary or involuntary liquidation,
dissolution or winding up of the Corporation and the relationship or preference,
if any, of such rights to rights of holders of stock of any other class or
series. A liquidation, dissolution or winding up of the Corporation, as such
terms are used in this subparagraph (e), shall not be deemed to be occasioned by
or to include any merger of the Corporation with or into one or more
corporations or other entities, any acquisition or exchange of the outstanding
shares of one or more classes or series of the Corporation or any sale, lease,
exchange or other disposition of all or a part of the assets of the
Corporation.
(f) Whether or not the shares of such series shall having voting powers
and, if such shares shall have such voting powers, the terms and condition
thereof, including, but not limited to, the right of the holders of such shares
to vote as a separate class either alone or with the holders of shares of one or
more other classes or series of stock and the right to have more (or less) than
one vote per shares;
(g) Whether or not a sinking fund shall be provided for the redemption of
the shares of such series and, if such a sinking fund shall be provided, the
terms and conditions thereof;
(h) Whether or not a purchase fund shall be provided for the shares of
such series and, if such a purchase fund shall be provided, the terms and
conditions thereof;
(i) Whether or not the shares of such series, at the option of either the
Corporation or the holder or upon the happening of a specified event, shall be
convertible into stock of any other class or series and, if such shares shall be
so convertible, the terms and conditions of conversion,
A-3
<PAGE>
including, but not limited to, any provision for the adjustment of the
conversion rate or the conversion price;
(j) Whether or not the shares of such series, at the option of either the
Corporation or the holder or upon the happening of a specified event, shall be
exchangeable for securities, indebtedness or property of the Corporation and, if
such shares shall be so exchangeable, the terms and conditions of exchange,
including, but not limited to, any provision for the adjustment of the exchange
rate or the exchange price; and
(k) Any other preferences, limitations and relative rights as shall not be
inconsistent with the provisions of this Article Fourth or the limitations
provided by law.
2. Except as otherwise provided herein, as required by law or in any
resolution of the Board of Directors (or a duly authorized committee thereof)
creating any series of Preferred Stock, the holders of shares of Preferred
Stock and all series thereof who are entitled to vote shall vote together with
the holders of shares of Common Stock, and not separately by class.
FIFTH: The name of the incorporator is Elizabeth S. Schue and her mailing
address is c/o Vinson & Elkins, 2001 Ross Avenue, Suite 3700, Dallas, Texas
75201.
SIXTH: The number of directors constituting the initial Board of Directors
is two (2), and the name of each person who is to serve as director until the
first annual meeting of stockholders or until his successor is elected and
qualified is John K. Carlyle and Donald J. Larson. The mailing address of each
of John K. Carlyle is 3010 LBJ Freeway, Suite 400, Dallas, Texas 75234, and the
mailing address of Donald J. Larson is 312 Union Wharf, Boston, Massachusetts
02109.
SEVENTH: Directors of the Corporation need not be elected by written
ballot unless the bylaws of the Corporation otherwise provide.
EIGHTH: In furtherance of, and not in limitation of, the powers conferred
by statute, the Board of Directors is expressly authorized to adopt, amend or
repeal the bylaws of the corporation.
NINTH: Whenever a compromise or arrangement is proposed between the
corporation and its creditors or any class of them and/or between the
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for the corporation under the provisions of Section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of the corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or
class of
A-4
<PAGE>
creditors, and/or of the stockholders or class of stockholders of the
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of the corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders, of the corporation, as the case may be,
and also on the corporation.
TENTH: No contract or transaction between the Corporation and one or more
of its directors, officers, or stockholders or between the Corporation and any
person (as used herein "person" means other corporation, partnership,
association, firm, trust, joint venture, political subdivision, or
instrumentality) or other organization in which one or more of the directors,
officers, or stockholders of the Corporation are directors, officers, or
stockholders, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the board or committee which authorizes the
contract or transaction, or solely because his, her, or their votes are counted
for such purpose, if: (1) the material facts as to his or her relationship or
interest and as to the contract or transaction are disclosed or are known to the
board of directors or the committee, and the board of directors or committee in
good faith authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested directors
be less than a quorum; or (2) the material facts as to his or her relationship
or interest and as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (3) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved, or ratified by the board of directors, a committee
thereof, or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors or
of a committee which authorizes the contract or transaction.
ELEVENTH: No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit. In addition to the circumstances in which a director of the
corporation is not personally liable as set forth in the preceding sentence, a
director of the corporation shall not be liable to the fullest extent permitted
by any amendment to the Delaware General Corporation Law hereafter enacted that
further limits the liability of a director.
TWELFTH: The corporation shall have the right, subject to any express
provisions or restrictions contained in this Certificate of Incorporation or
bylaws of the corporation, from time to time, to amend this certificate of
incorporation or any provision hereof in any manner now or hereafter provided by
law, and all rights and powers of any kind conferred upon a director or
A-5
<PAGE>
stockholder of this corporation by this Certificate of Incorporation or any
amendment hereof are subject to such right of the Corporation.
I, the undersigned, being the incorporator hereinbefore named, for the
purpose of forming a corporation pursuant to the Delaware General Corporation
Law, do make this certificate, hereby declaring that this is my act and deed and
that the facts herein stated are true, and accordingly have hereunto set my hand
this 21st day of April, 1997.
-----------------------------------------------
Elizabeth S. Schue
A-6
<PAGE>
BYLAWS
OF
CONCENTRA MANAGED CARE, INC.
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation
required by the General Corporation Law of the State of Delaware to be
maintained in the State of Delaware, shall be the registered office named in the
original Certificate of Incorporation of the Corporation (as the same may be
amended and restated from time to time, the "Certificate of Incorporation"), or
such other office as may be designated from time to time by the Board of
Directors in the manner provided by law. Should the Corporation maintain a
principal office within the State of Delaware such registered office need not be
identical to such principal office of the Corporation.
SECTION 2. OTHER OFFICES. The Corporation may also have offices at
such other places both within and without the State of Delaware as the Board of
Directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. All meetings of the stockholders shall
be held at the principal office of the Corporation, or at such other place
within or without the State of Delaware as shall be specified or fixed in the
notices or waivers of notice thereof.
SECTION 2. QUORUM; ADJOURNMENT OF MEETINGS. Unless otherwise required
by law or provided in the Certificate of Incorporation or these bylaws, the
holders of a majority of the stock issued and outstanding and entitled to vote
thereat, present in person or represented by proxy, shall constitute a quorum at
any meeting of stockholders for the transaction of business and the act of a
majority of such stock so represented at any meeting of stockholders at which a
quorum is present shall constitute the act of the meeting of stockholders. The
stockholders present at a duly organized meeting may continue to transact
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
Notwithstanding the other provisions of the Certificate of Incorporation or
these bylaws, the chairman of the meeting or the holders of a majority of the
issued and outstanding stock, present in person or represented by proxy, at any
meeting of stockholders, whether or not a quorum is present, shall have the
power to adjourn such meeting from time to time, without any notice other than
announcement at the meeting of the time and place of the holding of the
adjourned meeting;
-1-
<PAGE>
PROVIDED, HOWEVER, if the adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the adjourned meeting, a
notice of the adjourned meeting shall be given to each stockholder of record
entitled to vote at such meeting. At any such adjourned meeting at which a
quorum shall be present or represented any business may be transacted which
might have been transacted at the meeting as originally called.
SECTION 3. ANNUAL MEETINGS. An annual meeting of the stockholders, for
the election of directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held at such place, within or without the State of Delaware, on such
date, and at such time as the Board of Directors shall fix and set forth in the
notice of the meeting, which date shall be within thirteen (13) months
subsequent to the later of the date of incorporation or the last annual meeting
of stockholders.
SECTION 4. SPECIAL MEETINGS. Unless otherwise provided in the
Certificate of Incorporation, special meetings of the stockholders for any
purpose or purposes may be called at any time by the Chairman of the Board (if
any), by the President or by a majority of the Board of Directors, or by a
majority of the executive committee (if any), and shall be called by the
Chairman of the Board (if any), by the President or the Secretary upon the
written request therefor, stating the purpose or purposes of the meeting,
delivered to such officer, signed by the holder(s) of at least ten percent (l0%)
of the issued and outstanding stock entitled to vote at such meeting.
SECTION 5. RECORD DATE. For the purpose of determining stockholders
entitled to notice of or to vote at any meeting of stockholders, or any
adjournment thereof, or entitled to express consent to corporate action in
writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors of the Corporation
may fix, in advance, a date as the record date for any such determination of
stockholders, which date shall not be more than sixty (60) days nor less than
ten (l0) days before the date of such meeting, nor more than sixty (60) days
prior to any other action.
If the Board of Directors does not fix a record date for any meeting of the
stockholders, the record date for determining stockholders entitled to notice of
or to vote at such meeting shall be at the close of business on the day next
preceding the day on which notice is given, or, if in accordance with
Article VIII, Section 3 of these bylaws notice is waived, at the close of
business on the day next preceding the day on which the meeting is held. If, in
accordance with Section 12 of this Article II, corporate action without a
meeting of stockholders is to be taken, the record date for determining
stockholders entitled to express consent to such corporate action in writing,
when no prior action by the Board of Directors is necessary, shall be the day on
which the first written consent is expressed. The record date for determining
stockholders for any other purpose shall be at the close of business on the day
on which the Board of Directors adopts the resolution relating thereto.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
-2-
<PAGE>
SECTION 6. NOTICE OF MEETINGS. Written notice of the place, date and
hour of all meetings, and, in case of a special meeting, the purpose or purposes
for which the meeting is called, shall be given by or at the direction of the
Chairman of the Board (if any) or the President, the Secretary or the other
person(s) calling the meeting to each stockholder entitled to vote thereat not
less than ten (10) nor more than sixty (60) days before the date of the meeting.
Such notice may be delivered either personally or by mail. If mailed, notice is
given when deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the Corporation.
SECTION 7. STOCK LIST. A complete list of stockholders entitled to
vote at any meeting of stockholders, arranged in alphabetical order for each
class of stock and showing the address of each such stockholder and the number
of shares registered in the name of such stockholder, shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held. The stock list shall
also be produced and kept at the time and place of the meeting during the whole
time thereof, and may be inspected by any stockholder who is present.
SECTION 8. PROXIES. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to a corporate action in writing
without a meeting may authorize another person or persons to act for him by
proxy. Proxies for use at any meeting of stockholders shall be filed with the
Secretary, or such other officer as the Board of Directors may from time to time
determine by resolution, before or at the time of the meeting. All proxies
shall be received and taken charge of and all ballots shall be received and
canvassed by the secretary of the meeting who shall decide all questions
touching upon the qualification of voters, the validity of the proxies, and the
acceptance or rejection of votes, unless an inspector or inspectors shall have
been appointed by the chairman of the meeting, in which event such inspector or
inspectors shall decide all such questions.
No proxy shall be valid after three (3) years from its date, unless the
proxy provides for a longer period. Each proxy shall be revocable unless
expressly provided therein to be irrevocable and coupled with an interest
sufficient in law to support an irrevocable power.
Should a proxy designate two or more persons to act as proxies, unless such
instrument shall provide the contrary, a majority of such persons present at any
meeting at which their powers thereunder are to be exercised shall have and may
exercise all the powers of voting or giving consents thereby conferred, or if
only one be present, then such powers may be exercised by that one; or, if an
even number attend and a majority do not agree on any particular issue, each
proxy so attending shall be entitled to exercise such powers in respect of the
same portion of the shares as he is of the proxies representing such shares.
SECTION 9. VOTING; ELECTIONS; INSPECTORS. Unless otherwise required by
law or provided in the Certificate of Incorporation, each stockholder shall have
one vote for each share of stock entitled to vote which is registered in his
name on the record date for the meeting. Shares registered
-3-
<PAGE>
in the name of another corporation, domestic or foreign, may be voted by such
officer, agent or proxy as the bylaw (or comparable instrument) of such
corporation may prescribe, or in the absence of such provision, as the Board
of Directors (or comparable body) of such corporation may determine. Shares
registered in the name of a deceased person may be voted by his executor or
administrator, either in person or by proxy.
All voting, except as required by the Certificate of Incorporation or where
otherwise required by law, may be by a voice vote; provided, however, that upon
demand therefor by stockholders holding a majority of the issued and outstanding
stock present in person or by proxy at any meeting a stock vote shall be taken.
Every stock vote shall be taken by written ballots, each of which shall state
the name of the stockholder or proxy voting and such other information as may be
required under the procedure established for the meeting. All elections of
directors shall be by ballot, unless otherwise provided in the Certificate of
Incorporation.
At any meeting at which a vote is taken by ballots, the chairman of the
meeting may appoint one or more inspectors, each of whom shall subscribe an oath
or affirmation to execute faithfully the duties of inspector at such meeting
with strict impartiality and according to the best of his ability. Such
inspector shall receive the ballots, count the votes and make and sign a
certificate of the result thereof. The chairman of the meeting may appoint any
person to serve as inspector, except no candidate for the office of director
shall be appointed as an inspector.
Unless otherwise provided in the Certificate of Incorporation, cumulative
voting for the election of directors shall be prohibited.
SECTION 10. CONDUCT OF MEETINGS. The meetings of the stockholders shall
be presided over by the Chairman of the Board (if any), or if he is not present,
by the President, or if neither the Chairman of the Board (if any), nor
President is present, by a chairman elected at the meeting. The Secretary of
the Corporation, if present, shall act as secretary of such meetings, or if he
is not present, an Assistant Secretary shall so act; if neither the Secretary
nor an Assistant Secretary is present, then a secretary shall be appointed by
the chairman of the meeting. The chairman of any meeting of stockholders shall
determine the order of business and the procedure at the meeting, including such
regulation of the manner of voting and the conduct of discussion as seem to him
in order. Unless the chairman of the meeting of stockholders shall otherwise
determine, the order of business shall be as follows:
(a) Calling of meeting to order.
(b) Election of a chairman and the appointment of a secretary if
necessary.
(c) Presentation of proof of the due calling of the meeting.
(d) Presentation and examination of proxies and determination of a quorum.
(e) Reading and settlement of the minutes of the previous meeting.
(f) Reports of officers and committees.
(g) The election of directors if an annual meeting, or a meeting called
for that purpose.
(h) Unfinished business.
(i) New business.
(j) Adjournment.
-4-
<PAGE>
SECTION 11. TREASURY STOCK. The Corporation shall not vote, directly or
indirectly, shares of its own stock owned by it and such shares shall not be
counted for quorum purposes.
SECTION 12. ACTION WITHOUT MEETING. Unless otherwise provided in the
Certificate of Incorporation, any action permitted or required by law, the
Certificate of Incorporation or these bylaws to be taken at a meeting of
stockholders, may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than a unanimous written consent shall be given by the Secretary to those
stockholders who have not consented in writing.
ARTICLE III
BOARD OF DIRECTORS
SECTION 1. POWER; NUMBER; TERM OF OFFICE. The business and affairs of
the Corporation shall be managed by or under the direction of the Board of
Directors, and subject to the restrictions imposed by law or the Certificate of
Incorporation, they may exercise all the powers of the Corporation.
The number of directors of the Corporation shall be determined from time to
time by resolution of the Board of Directors, unless the Certificate of
Incorporation fixes the number of directors, in which case a change in the
number of directors shall be made only by amendment of the Certificate of
Incorporation. Each director shall hold office for the term for which he is
elected, and until his successor shall have been elected and qualified or until
his earlier death, resignation or removal.
Unless otherwise provided in the Certificate of Incorporation, directors
need not be stockholders nor residents of the State of Delaware.
SECTION 2. QUORUM. Unless otherwise provided in the Certificate of
Incorporation, a majority of the total number of directors shall constitute a
quorum for the transaction of business of the Board of Directors and the vote of
a majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
SECTION 3. PLACE OF MEETINGS; ORDER OF BUSINESS. The directors may
hold their meetings and may have an office and keep the books of the
Corporation, except as otherwise provided by law, in such place or places,
within or without the State of Delaware, as the Board of Directors may from time
to time determine by resolution. At all meetings of the Board of Directors
business shall be transacted in such order as shall from time to time be
determined by the Chairman of the Board (if any), or in his absence by the
President, or by resolution of the Board of Directors.
-5-
<PAGE>
SECTION 4. FIRST MEETING. Each newly elected Board of Directors may
hold its first meeting for the purpose of organization and the transaction of
business, if a quorum is present, immediately after and at the same place as the
annual meeting of the stockholders. Notice of such meeting shall not be
required. At the first meeting of the Board of Directors in each year at which
a quorum shall be present, held next after the annual meeting of stockholders,
the Board of Directors shall proceed to the election of the officers of the
Corporation.
SECTION 5. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held at such times and places as shall be designated from
time to time by resolution of the Board of Directors. Notice of such regular
meetings shall not be required.
SECTION 6. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board (if any), the President or,
on the written request of any two directors, by the Secretary, in each case on
at least twenty-four (24) hours personal, written, telegraphic, cable or
wireless notice to each director. Such notice, or any waiver thereof pursuant
to Article VIII, Section 3 hereof, need not state the purpose or purposes of
such meeting, except as may otherwise be required by law or provided for in the
Certificate of Incorporation or these bylaws.
SECTION 7. REMOVAL. Any director or the entire Board of Directors may
be removed, with or without cause, by the holders of a majority of the shares
then entitled to vote at an election of directors; provided that, unless the
Certificate of Incorporation otherwise provides, if the Board of Directors is
classified, then the stockholders may effect such removal only for cause; and
provided further that, if the Certificate of Incorporation expressly grants to
stockholders the right to cumulate votes for the election of directors and if
less than the entire board is to be removed, no director may be removed without
cause if the votes cast against his removal would be sufficient to elect him if
then cumulatively voted at an election of the entire Board of Directors, or, if
there be classes of directors, at an election of the class of directors of which
such director is a part.
SECTION 8. VACANCIES; INCREASES IN THE NUMBER OF DIRECTORS. Unless
otherwise provided in the Certificate of Incorporation, vacancies and newly
created directorships resulting from any increase in the authorized number of
directors may be filled by a majority of the directors then in office, although
less than a quorum, or a sole remaining director; and any director so chosen
shall hold office until the next annual election and until his successor shall
be duly elected and shall qualify, unless sooner displaced.
If the directors of the Corporation are divided into classes, any directors
elected to fill vacancies or newly created directorships shall hold office until
the next election of the class for which such directors shall have been chosen,
and until their successors shall be duly elected and shall qualify.
SECTION 9. COMPENSATION. Unless otherwise restricted by the
Certificate of Incorporation, the Board of Directors shall have the authority to
fix the compensation of directors.
SECTION 10. ACTION WITHOUT A MEETING; TELEPHONE CONFERENCE MEETING.
Unless otherwise restricted by the Certificate of Incorporation, any action
required or permitted to be taken at any meeting of the Board of Directors, or
any committee designated by the Board of Directors, may be
-6-
<PAGE>
taken without a meeting if all members of the Board of Directors or committee,
as the case may be consent thereto in writing, and the writing or writings are
filed with the minutes of proceedings of the Board of Directors or committee.
Such consent shall have the same force and effect as a unanimous vote at a
meeting, and may be stated as such in any document or instrument filed with
the Secretary of State of Delaware.
Unless otherwise restricted by the Certificate of Incorporation, subject to
the requirement for notice of meetings, members of the Board of Directors, or
members of any committee designated by the Board of Directors, may participate
in a meeting of such Board of Directors or committee, as the case may be, by
means of a conference telephone or similar communications equipment by means of
which all persons participating in the meeting can hear each other, and
participation in such a meeting shall constitute presence in person at such
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
SECTION 11. APPROVAL OR RATIFICATION OF ACTS OR CONTRACTS BY
STOCKHOLDERS. The Board of Directors in its discretion may submit any act or
contract for approval or ratification at any annual meeting of the stockholders,
or at any special meeting of the stockholders called for the purpose of
considering any such act or contract, and any act or contract that shall be
approved or be ratified by the vote of the stockholders holding a majority of
the issued and outstanding shares of stock of the Corporation entitled to vote
and present in person or by proxy at such meeting (provided that a quorum is
present), shall be as valid and as binding upon the Corporation and upon all the
stockholders as if it has been approved or ratified by every stockholder of the
Corporation. In addition, any such act or contract may be approved or ratified
by the written consent of stockholders holding a majority of the issued and
outstanding shares of capital stock of the Corporation entitled to vote and such
consent shall be as valid and as binding upon the Corporation and upon all the
stockholders as if it had been approved or ratified by every stockholder of the
Corporation.
ARTICLE IV
COMMITTEES
SECTION 1. DESIGNATION; POWERS. The Board of Directors may, by
resolution passed by a majority of the whole board, designate one or more
committees, including, if they shall so determine, an executive committee, each
such committee to consist of one or more of the directors of the Corporation.
Any such designated committee shall have and may exercise such of the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation as may be provided in such resolution, except that no
such committee shall have the power or authority of the Board of Directors in
reference to amending the Certificate of Incorporation, adopting an agreement of
merger or consolidation, recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's property and assets,
recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution of the Corporation, or amending, altering or
repealing the bylaws or adopting new bylaws for the Corporation and, unless such
resolution or the Certificate of Incorporation expressly so provides, no such
committee shall have the power or authority to declare a dividend or to
authorize the issuance of stock. Any such
-7-
<PAGE>
designated committee may authorize the seal of the Corporation to be affixed
to all papers which may require it. In addition to the above such committee or
committees shall have such other powers and limitations of authority as may be
determined from time to time by resolution adopted by the Board of Directors.
SECTION 2. PROCEDURE; MEETINGS; QUORUM. Any committee designated
pursuant to Section 1 of this Article shall choose its own chairman, shall keep
regular minutes of its proceedings and report the same to the Board of Directors
when requested, shall fix its own rules or procedures, and shall meet at such
times and at such place or places as may be provided by such rules, or by
resolution of such committee or resolution of the Board of Directors. At every
meeting of any such committee, the presence of a majority of all the members
thereof shall constitute a quorum and the affirmative vote of a majority of the
members present shall be necessary for the adoption by it of any resolution.
SECTION 3. SUBSTITUTION OF MEMBERS. The Board of Directors may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of such committee. In
the absence or disqualification of a member of a committee, the member or
members present at any meeting and not disqualified from voting, whether or not
constituting a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of the absent or disqualified
member.
ARTICLE V
OFFICERS
SECTION 1. NUMBER, TITLES AND TERM OF OFFICE. The officers of the
Corporation shall be a President, one or more Vice Presidents (any one or more
of whom may be designated Executive Vice President or Senior Vice President), a
Treasurer, a Secretary and, if the Board of Directors so elects, a Chairman of
the Board and such other officers as the Board of Directors may from time to
time elect or appoint. Each officer shall hold office until his successor shall
be duly elected and shall qualify or until his death or until he shall resign or
shall have been removed in the manner hereinafter provided. Any number of
offices may be held by the same person, unless the Certificate of Incorporation
provides otherwise. Except for the Chairman of the Board, if any, no officer
need be a director.
SECTION 2. SALARIES. The salaries or other compensation of the
officers and agents of the Corporation shall be fixed from time to time by the
Board of Directors.
SECTION 3. REMOVAL. Any officer or agent elected or appointed by the
Board of Directors may be removed, either with or without cause, by the vote of
a majority of the whole Board of Directors at a special meeting called for the
purpose, or at any regular meeting of the Board of Directors, provided the
notice for such meeting shall specify that the matter of any such proposed
removal will be considered at the meeting but such removal shall be without
prejudice to the contract rights, if any, of the person so removed. Election or
appointment of an officer or agent shall not of itself create contract rights.
-8-
<PAGE>
SECTION 4. VACANCIES. Any vacancy occurring in any office of the
Corporation may be filled by the Board of Directors.
SECTION 5. POWERS AND DUTIES OF THE CHIEF EXECUTIVE OFFICER. The
President shall be the chief executive officer of the Corporation unless the
Board of Directors otherwise unanimously designates the Chairman of the Board as
chief executive officer. Subject to the control of the Board of Directors and
the executive committee (if any), the chief executive officer shall have general
executive charge, management and control of the properties, business and
operations of the Corporation with all such powers as may be reasonably incident
to such responsibilities; he may agree upon and execute all leases, contracts,
evidences of indebtedness and other obligations in the name of the Corporation
and may sign all certificates for shares of capital stock of the Corporation;
and shall have such other powers and duties as designated in accordance with
these bylaws and as from time to time may be assigned to him by the Board of
Directors.
SECTION 6. POWERS AND DUTIES OF THE CHAIRMAN OF THE BOARD. If elected,
the Chairman of the Board shall preside at all meetings of the stockholders and
of the Board of Directors; and he shall have such other powers and duties as
designated in these bylaws and as from time to time may be assigned to him by
the Board of Directors.
SECTION 7. POWERS AND DUTIES OF THE PRESIDENT. Unless the Board of
Directors otherwise determines, the President shall have the authority to agree
upon and execute all leases, contracts, evidences of indebtedness and other
obligations in the name of the Corporation; and, unless the Board of Directors
otherwise determines, he shall, in the absence of the Chairman of the Board or
if there be no Chairman of the Board, preside at all meetings of the
stockholders and (should he be a director) of the Board of Directors; and he
shall have such other powers and duties as designated in accordance with these
bylaws and as from time to time may be assigned to him by the Board of
Directors.
SECTION 8. VICE PRESIDENTS. In the absence of the President, or in the
event of his inability or refusal to act, a Vice President designated by the
Board of Directors shall perform the duties of the President, and when so acting
shall have all the powers of and be subject to all the restrictions upon the
President. In the absence of a designation by the Board of Directors of a Vice
President to perform the duties of the President, or in the event of his absence
or inability or refusal to act, the Vice President who is present and who is
senior in terms of time as a Vice President of the Corporation shall so act.
The Vice Presidents shall perform such other duties and have such other powers
as the Board of Directors may from time to time prescribe.
SECTION 9. TREASURER. The Treasurer shall have responsibility for the
custody and control of all the funds and securities of the Corporation, and he
shall have such other powers and duties as designated in these bylaws and as
from time to time may be assigned to him by the Board of Directors. He shall
perform all acts incident to the position of Treasurer, subject to the control
of the chief executive officer and the Board of Directors; and he shall, if
required by the Board of Directors, give such bond for the faithful discharge of
his duties in such form as the Board of Directors may require.
-9-
<PAGE>
SECTION 10. ASSISTANT TREASURERS. Each Assistant Treasurer shall have
the usual powers and duties pertaining to his office, together with such other
powers and duties as designated in these bylaws and as from time to time may be
assigned to him by the chief executive officer or the Board of Directors. The
Assistant Treasurers shall exercise the powers of the Treasurer during that
officer's absence or inability or refusal to act.
SECTION 11. SECRETARY. The Secretary shall keep the minutes of all
meetings of the Board of Directors, committees of directors and the
stockholders, in books provided for that purpose; he shall attend to the giving
and serving of all notices; he may in the name of the Corporation affix the seal
of the Corporation to all contracts of the Corporation and attest the affixation
of the seal of the Corporation thereto; he may sign with the other appointed
officers all certificates for shares of capital stock of the Corporation; he
shall have charge of the certificate books, transfer books and stock ledgers,
and such other books and papers as the Board of Directors may direct, all of
which shall at all reasonable times be open to inspection of any director upon
application at the office of the Corporation during business hours; he shall
have such other powers and duties as designated in these bylaws and as from time
to time may be assigned to him by the Board of Directors; and he shall in
general perform all acts incident to the office of Secretary, subject to the
control of the chief executive officer and the Board of Directors.
SECTION 12. ASSISTANT SECRETARIES. Each Assistant Secretary shall have
the usual powers and duties pertaining to his office, together with such other
powers and duties as designated in these bylaws and as from time to time may be
assigned to him by the chief executive officer or the Board of Directors. The
Assistant Secretaries shall exercise the powers of the Secretary during that
officer's absence or inability or refusal to act.
SECTION 13. ACTION WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS.
Unless otherwise directed by the Board of Directors, the chief executive officer
shall have power to vote and otherwise act on behalf of the Corporation, in
person or by proxy, at any meeting of security holders of or with respect to any
action of security holders of any other corporation in which this Corporation
may hold securities and otherwise to exercise any and all rights and powers
which this Corporation may possess by reason of its ownership of securities in
such other corporation.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS
SECTION 1. RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she or a person
of whom he or she is the legal representative, is or was or has agreed to become
a director or officer of the Corporation or is or was serving or has agreed to
serve at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director or officer or in any other capacity while serving or having agreed to
serve as a director or officer, shall be
-10-
<PAGE>
indemnified and held harmless by the Corporation to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may
hereafter be amended, (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide
prior to such amendment) against all expense, liability and loss (including
without limitation, attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such indemnification shall
continue as to a person who has ceased to serve in the capacity which
initially entitled such person to indemnity hereunder and shall inure to the
benefit of his or her heirs, executors and administrators; PROVIDED, HOWEVER,
that the Corporation shall indemnify any such person seeking indemnification
in connection with a proceeding (or part thereof), other than a proceeding (or
part thereof) brought under Section 3 of this Article VI, initiated by such
person or his or her heirs, executors and administrators only if such
proceeding (or part thereof) was authorized by the board of directors of the
Corporation. The right to indemnification conferred in this Article VI shall
be a contract right and shall include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance of its final
disposition; PROVIDED, HOWEVER, that, if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a current, former or
proposed director or officer in his or her capacity as a director or officer
or proposed director or officer (and not in any other capacity in which
service was or is or has been agreed to be rendered by such person while a
director or officer, including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding, shall be
made only upon delivery to the Corporation of an undertaking, by or on behalf
of such indemnified person, to repay all amounts so advanced if it shall
ultimately be determined that such indemnified person is not entitled to be
indemnified under this Section or otherwise.
SECTION 2. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation
may, by action of its Board of Directors, provide indemnification to employees
and agents of the Corporation, individually or as a group, with the same scope
and effect as the indemnification of directors and officers provided for in this
Article.
SECTION 3. RIGHT OF CLAIMANT TO BRING SUIT. If a written claim
received by the Corporation from or on behalf of an indemnified party under
this Article VI is not paid in full by the Corporation within ninety days
after such receipt, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if successful
in whole or in part, the claimant shall be entitled to be paid also the
expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the
required undertaking, if any is required, has been tendered to the
Corporation) that the claimant has not met the standards of conduct which make
it permissible under the Delaware General Corporation Law for the Corporation
to indemnify the claimant for the amount claimed, but the burden of proving
such defense shall be on the Corporation. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or
its stockholders) to have made a determination prior to the commencement of
such action that indemnification of the claimant is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in the Delaware General Corporation Law, nor an actual determination by
the Corporation (including its Board of Directors, independent legal
-11-
<PAGE>
counsel, or its stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
SECTION 4. NONEXCLUSIVITY OF RIGHTS. The right to indemnification and
the advancement and payment of expenses conferred in this Article VI shall not
be exclusive of any other right which any person may have or hereafter acquire
under any law (common or statutory), provision of the Certificate of
Incorporation of the Corporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
SECTION 5. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any person who is or was serving as a director,
officer, employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the
Delaware General Corporation Law.
SECTION 6. SAVINGS CLAUSE. If this Article VI or any portion hereof
shall be invalidated on any ground by any court of competent jurisdiction, then
the Corporation shall nevertheless indemnify and hold harmless each director and
officer of the Corporation, as to costs, charges and expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement with respect
to any action, suit or proceeding, whether civil, criminal, administrative or
investigative to the full extent permitted by any applicable portion of this
Article VI that shall not have been invalidated and to the fullest extent
permitted by applicable law.
SECTION 7. DEFINITIONS. For purposes of this Article, reference to the
"Corporation" shall include, in addition to the Corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger prior to (or, in the case of an entity specifically
designated in a resolution of the Board of Directors, after) the adoption hereof
and which, if its separate existence had continued, would have had the power and
authority to indemnify its directors, officers and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under the provisions of this Article with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued.
ARTICLE VII
CAPITAL STOCK
SECTION 1. CERTIFICATES OF STOCK. The certificates for shares of the
capital stock of the Corporation shall be in such form, not inconsistent with
that required by law and the Certificate of Incorporation, as shall be approved
by the Board of Directors. The Chairman of the Board (if any), President or a
Vice President shall cause to be issued to each stockholder one or more
certificates, under the seal of the Corporation or a facsimile thereof if the
Board of Directors shall have provided
-12-
<PAGE>
for such seal, and signed by the Chairman of the Board (if any), President or
a Vice President and the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer certifying the number of shares (and, if the stock
of the Corporation shall be divided into classes or series, the class and
series of such shares) owned by such stockholder in the Corporation; provided,
however, that any of or all the signatures on the certificate may be
facsimile. The stock record books and the blank stock certificate books shall
be kept by the Secretary, or at the office of such transfer agent or transfer
agents as the Board of Directors may from time to time by resolution
determine. In case any officer, transfer agent or registrar who shall have
signed or whose facsimile signature or signatures shall have been placed upon
any such certificate or certificates shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued by the
Corporation, such certificate may nevertheless be issued by the Corporation
with the same effect as if such person were such officer, transfer agent or
registrar at the date of issue. The stock certificates shall be consecutively
numbered and shall be entered in the books of the Corporation as they are
issued and shall exhibit the holder's name and number of shares.
SECTION 2. TRANSFER OF SHARES. The shares of stock of the Corporation
shall be transferable only on the books of the Corporation by the holders
thereof in person or by their duly authorized attorneys or legal representatives
upon surrender and cancellation of certificates for a like number of shares.
Upon surrender to the Corporation or a transfer agent of the Corporation of a
certificate for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
SECTION 3. OWNERSHIP OF SHARES. The Corporation shall be entitled to
treat the holder of record of any share or shares of capital stock of the
Corporation as the holder in fact thereof and, accordingly, shall not be bound
to recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of the State of
Delaware.
SECTION 4. REGULATIONS REGARDING CERTIFICATES. The Board of Directors
shall have the power and authority to make all such rules and regulations as
they may deem expedient concerning the issue, transfer and registration or the
replacement of certificates for shares of capital stock of the Corporation.
SECTION 5. LOST OR DESTROYED CERTIFICATES. The Board of Directors may
determine the conditions upon which a new certificate of stock may be issued in
place of a certificate which is alleged to have been lost, stolen or destroyed;
and may, in their discretion, require the owner of such certificate or his legal
representative to give bond, with sufficient surety, to indemnify the
Corporation and each transfer agent and registrar against any and all losses or
claims which may arise by reason of the issue of a new certificate in the place
of the one so lost, stolen or destroyed.
-13-
<PAGE>
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 1. FISCAL YEAR. The fiscal year of the Corporation shall be
such as established from time to time by the Board of Directors.
SECTION 2. CORPORATE SEAL. The Board of Directors may provide a
suitable seal, containing the name of the Corporation. The Secretary shall have
charge of the seal (if any). If and when so directed by the Board of Directors
or a committee thereof, duplicates of the seal may be kept and used by the
Treasurer or by the Assistant Secretary or Assistant Treasurer.
SECTION 3. NOTICE AND WAIVER OF NOTICE. Whenever any notice is
required to be given by law, the Certificate of Incorporation or under the
provisions of these bylaws, said notice shall be deemed to be sufficient if
given (i) by telegraphic, cable or wireless transmission or (ii) by deposit of
the same in a post office box in a sealed prepaid wrapper addressed to the
person entitled thereto at his post office address, as it appears on the records
of the Corporation, and such notice shall be deemed to have been given on the
day of such transmission or mailing, as the case may be.
Whenever notice is required to be given by law, the Certificate of
Incorporation or under any of the provisions of these bylaws, a written waiver
thereof, signed by the person entitled to notice, whether before or after the
time stated therein, shall be deemed equivalent to notice. Attendance of a
person at a meeting shall constitute a waiver of notice of such meeting, except
when the person attends a meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders,
directors, or members of a committee of directors need be specified in any
written waiver of notice unless so required by the Certificate of Incorporation
or the bylaws.
SECTION 4. RESIGNATIONS. Any director, member of a committee or
officer may resign at any time. Such resignation shall be made in writing and
shall take effect at the time specified therein, or if no time be specified, at
the time of its receipt by the chief executive officer or Secretary. The
acceptance of a resignation shall not be necessary to make it effective, unless
expressly so provided in the resignation.
SECTION 5. FACSIMILE SIGNATURES. In addition to the provisions for the
use of facsimile signatures elsewhere specifically authorized in these bylaws,
facsimile signatures of any officer or officers of the Corporation may be used
whenever and as authorized by the Board of Directors.
SECTION 6. RELIANCE UPON BOOKS, REPORTS AND RECORDS. Each director and
each member of any committee designated by the Board of Directors shall, in the
performance of his duties, be fully protected in relying in good faith upon the
books of account or reports made to the Corporation by any of its officers, or
by an independent certified public accountant, or by an appraiser selected with
reasonable care by the Board of Directors or by any such committee, or in
relying in good faith upon other records of the Corporation.
-14-
<PAGE>
ARTICLE IX
AMENDMENTS
If provided in the Certificate of Incorporation of the Corporation, the
Board of Directors shall have the power to adopt, amend and repeal from time to
time bylaws of the Corporation, subject to the right of the stockholders
entitled to vote with respect thereto to amend or repeal such bylaws as adopted
or amended by the Board of Directors.
-15-
<PAGE>
| Exhibit B
| THE COMMONWEALTH OF MASSACHUSETTS to
- -----------| Exhibit 99.1
Examiner | WILLIAM FRANCIS GALVIN
| Secretary of the Commonwealth
| One Ashburton Place, Boston, Massachusetts 02108-1512
|
| ARTICLES OF ORGANIZATION
| (General Laws, Chapter 156B)
|
- -----------|
Named |
Approved |
| ARTICLE I
|
| The exact name of the corporation is:
|
| CRA MERGER CORP.
|
| ARTICLE II
|
| The purpose of the corporation is to engage in the following
| business activities:
|
| Any lawful act or activity for which corporations may be
| organized under the Massachusetts Business Corporation Law.
|
|
|
|
|
C / / |
P / / |
M / / |
R.A. / / |
|
|
|
|
|
|
|
|
|
| NOTE: IF THE SPACE PROVIDED UNDER ANY ARTICLE OR ITEM ON
- -----------| THIS FORM IS INSUFFICIENT, ADDITIONS SHALL BE SET FORTH
P.C. | ON ONE SIDE ONLY OF SEPARATE 8 1/2 X 11 SHEETS OF PAPER
| WITH A LEFT MARGIN OF A LEAST 1 INCH. ADDITIONS TO MORE
| THAN ONE ARTICLE MAY MADE ON A SINGLE SHEET SO LONG AS
EACH ARTICLE REQUIRING EACH ADDITION IS CLEARLY INDICATED.
(MASS. - 1635 - 9/25/95)
B-1
<PAGE>
ARTICLE III
STATE THE TOTAL NUMBER OF SHARES AND PAR VALUE, IF ANY, OF EACH CLASS OF
STOCK WHICH THE CORPORATION IS AUTHORIZED TO ISSUE.
WITHOUT PAR VALUE WITH PAR VALUE
TYPE NUMBER OF SHARES TYPE NUMBER OF SHARES PAR VALUE
Common: 0 Common 100 0.01
Preferred: 0 Preferred: 0 0.00
ARTICLE IV
If more than one class of stock is authorized, state a distinguishing
designation for each class. Prior to the issuance of any shares of a class,
if shares of another class are outstanding, the corporation must provide a
description of the preferences, voting powers, qualifications, and special or
relative rights or privileges of that class and of each other class of which
shares are outstanding and of each series then established within any class.
None
ARTICLE V
The restrictions, if any, imposed by the Articles of Organization upon the
transfer of shares of stock of any class are:
None
ARTICLE VI
**Other lawful provisions, if any, for the conduct and regulation of the
business and affairs of the corporation, for its voluntary dissolution, or
for limiting, defining, or regulating the powers of the corporation, or of
its directors or stockholders, or of any class of stockholders:
See Continuation Sheet VI
**IF THERE ARE NO PROVISIONS STATE "NONE".
NOTE: THE PRECEDING SIX (6) ARTICLES ARE CONSIDERED TO BE PERMANENT AND MAY
ONLY BE CHANGED BY FILING APPROPRIATE ARTICLES OF AMENDMENT.
B-2
<PAGE>
ARTICLE VII
The effective date of organization of the corporation shall be the date
approved and filed by the Secretary of the Commonwealth. If a LATER effective
date is desired, specify such date which shall not be more than thirty days
after the date of filing.
ARTICLE VIII
The information contained in Article VIII is not a permanent part of the
Articles of Organization.
a. The street address (post office boxes are not acceptable) of the principal
office of the corporation IN MASSACHUSETTS is:
312 Union Wharf, Boston, MA 02109
b. The name, residential address and post office address of each director and
officer of the corporation is as follows:
<TABLE>
<CAPTION>
<S> <C> <C>
NAME RESIDENTIAL ADDRESS POST OFFICE ADDRESS
President: Don Larson 55 North Main Street 312 Union Wharf
Cohasset, MA 02025 Boston, MA 02109
Treasurer: Joseph Pesce 52 Amberwood Drive 312 Union Wharf
Winchester, MA 01890 Boston, MA 02109
Clerk: Richard A. Parr II 5224 Beckington Lane 3010 LBJ Freeway, Suite 400
Dallas, TX 75287 Dallas, TX 75234
Directors: John K. Carlyle 4817 Augusta Drive 3010 LBJ Freeway, Suite 400
Frisco, TX 75034 Dallas, TX 75234
Don Larson 55 North Main Street 312 Union Wharf
Cohasset, MA 02025 Boston, MA 02109
</TABLE>
c. The fiscal year (i.e., tax year) of the corporation shall end on the last
day of the month of: December
d. The name and business address of the resident agent, if any, of the
corporation is: CT CORPORATION SYSTEM, 2 Oliver Street, Boston, Massachusetts
02109
ARTICLE IX
By-laws of the corporation have been duly adopted and the president,
treasurer, clerk and directors whose names are set forth above, have been duly
elected.
IN WITNESS WHEREOF AND UNDER THE PAINS AND PENALTIES OF PERJURY, I/we, whose
signature(s) appear below as incorporator(s) and whose name(s) and business
and residential address(es) are CLEARLY TYPED OR PRINTED beneath each
signature do hereby associate with the intention of forming this corporation
under the provisions of General Laws, Chapter 156B and do hereby sign these
Articles of Organization as incorporator(s) this ____ day of
______________, 19__,
/s/ Richard A. Parr II
_____________________________________________________________________________
Richard A. Parr II
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
NOTE: IF AN EXISTING CORPORATION IS ACTING AS INCORPORATOR, TYPE IN THE EXACT
NAME OF THE CORPORATION, THE STATE OR OTHER JURISDICTION WHERE IT WAS
INCORPORATED, THE NAME OF THE PERSON SIGNING ON BEHALF OF SAID CORPORATION
AND THE TITLE HE/SHE HOLDS OR OTHER AUTHORITY BY WHICH SUCH ACTION IS TAKEN.
(MASS. - 1635)
B-3
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
ARTICLES OF ORGANIZATION
(General Laws, Chapter 156B)
________________________________________________________________
________________________________________________________________
I hereby certify that, upon examination of these Articles of
Organization, duly submitted to me, it appears that the provisions
of the General Laws relative to the organization of corporations
have been complied with, and I hereby approve said articles; and
the filing fee in the amount of $_________ having been paid, said
articles are deemed to have been filed with me this ____ day of
_______________ 19___.
EFFECTIVE DATE: _________________________________________________
WILLIAM FRANCIS GALVIN
SECRETARY OF THE COMMONWEALTH
FILING FEE: One tenth of one percent of the total authorized
capital stock, but not less than $200.00. For the purpose of
filing, shares of stock with a par value less than $1.00, or no
par stock, shall be deemed to have a par value of $1.00 per share.
TO BE FILLED IN BY CORPORATION
PHOTOCOPY OF DOCUMENT TO BE SENT TO:
CT CORPORATION SYSTEM
---------------------------------------------------------------
2 Oliver Street
---------------------------------------------------------------
Boston, Massachusetts 02109
---------------------------------------------------------------
Telephone: (617) 482-4420
---------------------------------------------------
B-4
<PAGE>
CONTINUATION SHEET VI
Other lawful provisions, if any, for the conduct and regulation of the
business and affairs of the Corporation, for its voluntary dissolution, or
for limiting, defining, or regulating the powers of the Corporation, or of
its directors or stockholders, or of any class of stockholders:
I. GENERAL PROVISIONS
1. The Corporation eliminates the personal liability of each director to
the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director notwithstanding any provision of law imposing
such liability; provided, however, that, to the extent provided by applicable
law, this provision shall not eliminate or limit the liability of a director
(i) for any breach of the director's duty of loyalty to the Corporation or
its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 6 or 62 or successor provisions of the Massachusetts Business
Corporation Law, or (iv) for any transaction from which the director derived
an improper personal benefit. This provision shall not eliminate or limit the
liability of a director of the Corporation for any act or omission occurring
prior to the date on which this provision becomes effective. No amendment to
or repeal of this provision shall apply to or have any effect on the
liability or alleged liability of any director for or with respect to any
acts or omission of such director occurring prior to such amendment or repeal.
2. Meetings of the stockholders of the Corporation may be held anywhere
in the United States.
3. The directors of the Corporation may make, amend or repeal the
by-laws in whole or in part, except with respect to any provision thereof
which by law or the by-laws requires action by the stockholders.
4. The whole or any part of the authorized but unissued shares of
capital stock of the Corporation may be issued at any time or from time to
time by the Board of Directors without further action by the stockholders.
5. The Corporation may become a partner in any business.
B-5
<PAGE>
CRA MERGER CORP.
B Y - L A W S
ARTICLE I
OFFICES
Section 1. The principal office shall be located in Boston, Massachusetts.
Section 2. The Corporation may also have offices at such other places both
within and without the Commonwealth of Massachusetts as the board of
directors may from time to time determine or the business of the Corporation
may require.
ARTICLE II
ANNUAL MEETINGS OF STOCKHOLDERS
Section 1. All meetings of stockholders for the election of directors
shall be held in Boston, Commonwealth of Massachusetts, at such place as may
be fixed from time to time by the board of directors.
Section 2. Annual meetings of stockholders, commencing with the year 1998,
shall be held on such dated, at such place, within or without the Commonwealth
of Massachusetts, and at such time as the board of directors shall fix, at
which they shall elect by a plurality vote a board of directors and transact
such other business as may properly be brought before the meeting.
Section 3. Written or printed notice of the annual meeting stating the
place, day and hour of the meeting shall be given to each stockholder entitled
to vote thereat not less than seven days before the date of the meeting.
The notice shall also set forth the purpose or purposes for which the
meeting is called.
ARTICLE III
SPECIAL MEETINGS OF STOCKHOLDERS
Section 1. Special meetings of stockholders for any purpose other than the
election of directors may be held at such time and place within or without the
Commonwealth of Massachusetts as shall be stated in the notice of the meeting
or in a duly executed waiver of notice thereof.
1
<PAGE>
Section 2. Special meetings of stockholders may be called at any time, for
any purpose or purposes, by the board of directors or by such other persons as
may be authorized by law.
Section 3. Written or printed notice of a special meeting of stockholders,
stating the time, place and purpose or purposes thereof, shall be given to
each stockholder entitled to vote thereat, at least seven days before the date
fixed for the meeting.
ARTICLE IV
QUORUM AND VOTING OF STOCK
Section 1. The holders of a majority of the shares of stock issued and
outstanding and entitled to vote, represented in person or by proxy, shall
constitute a quorum at all meetings of the stockholders for the transaction of
business except as otherwise provided by statute or by the articles of
organization. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders present in person or
represented by proxy shall have power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented any business may be transacted which might
have been transacted at the meeting as originally notified.
Section 2. If a quorum is present, the affirmative vote of a majority of
the shares of stock represented at the meeting shall be the act of the
stockholders unless the vote of a greater number of shares of stock is
required by law or the articles of organization.
Section 3. Each outstanding share of stock, having voting power, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
stockholders. A stockholder may vote either in person or by proxy executed in
writing by the stockholder or by his duly authorized attorney-in-fact.
Section 4. Any action required to be taken at a meeting of the
stockholders may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the stockholders entitled
to vote with respect to the subject matter thereof.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be two (2). Directors need not
be residents of the Commonwealth of Massachusetts nor stockholders of the
Corporation. The directors, other than the first board of directors, shall be
elected at the annual meeting of the stockholders, and each director elected
shall serve until the next succeeding annual meeting and until his successor
shall have been elected and qualified. The first board of directors shall
hold office until the first annual meeting of stockholders.
2
<PAGE>
Section 2. Vacancies and newly created directorships resulting from any
increase in the number of directors may be filled by a majority of the
directors then in office, though less than a quorum, and the directors so
chosen shall hold office until the next annual election and until their
successors are duly elected and shall qualify.
Section 3. The business affairs of the Corporation shall be managed by its
board of directors which may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by statute or by the articles of
organization or by these by-laws directed or required to be exercised or done
by the stockholders.
Section 4. The directors may keep the books of the Corporation, except
such as are required by law to be kept within the state, outside of the
Commonwealth of Massachusetts, at such place or places as they may from time
to time determine.
Section 5. The board of directors, by the affirmative vote of a majority
of the directors then in office, and irrespective of any personal interest of
any of its members, shall have authority to establish reasonable compensation
of all directors for services to the Corporation as directors, officers or
otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular or special, may be
held either within or without the Commonwealth of Massachusetts.
Section 2. The first meeting of each newly elected board of directors
shall be held at such time and place as shall be fixed by the vote of the
stockholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place
and time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held upon
such notice, or without notice, and at such time and at such place as shall
from time to time be determined by the board.
Section 4. Special meetings of the board of directors may be called by the
president on five (5) days' notice to each director, either personally or by
mail or by telegram; special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of two
directors.
Section 5. Attendance of a director at any meeting shall constitute a
waiver of notice of such meeting, except where a director attends for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the
3
<PAGE>
business to be transacted at, nor the purpose of, any regular or special
meeting of the board of directors need be specified in the notice or waiver of
notice of such meeting.
Section 6. A majority of the directors shall constitute a quorum for the
transaction of business unless a greater number is required by law or by the
articles of organization. The act of a majority of the directors present at
any meeting at which a quorum is present shall be the act of the board of
directors, unless the act of a greater number is required by statute or by the
articles of organization. If a quorum shall not be present at any meeting of
directors, the directors present thereat may adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present.
Section 7. Any action required or permitted to be taken at a meeting of
the directors may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors entitled to
vote with respect to the subject matter thereof.
Section 8. Unless the articles of organization or the by-laws otherwise
provide, the members of the board of any Corporation or any committee
designated thereby may participate in a meeting of such board or committee by
means of a conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other at the
same time and participation by such means shall constitute presence in person
at a meeting.
ARTICLE VII
EXECUTIVE COMMITTEE
Section 1. The board of directors, by resolution adopted by a majority of
the number of directors fixed by the by-laws or otherwise, may designate two
or more directors to constitute an executive committee, which committee, to
the extent provided in such resolution, shall have and exercise all of the
authority of the board of directors in the management of the Corporation,
except as otherwise required by law. Vacancies in the membership of the
committee shall be filled by the board of directors at a regular or special
meeting of the board of directors. The executive committee shall keep regular
minutes of its proceedings and report the same to the board when required.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of organization or of these by-laws, notice is required to be given
to any director or stockholder, it shall not be construed to mean personal
notice, but such notice may be given in writing, by mail, addressed to such
director or stockholder, at his address as it appears on the records of the
Corporation, with postage thereon prepaid, and such notice shall be deemed to
be given at
4
<PAGE>
the time when the same shall be deposited in the United States mail. Notice
to directors may also be given by telegram.
Section 2. Whenever any notice whatever is required to be given under the
provisions of the statutes or under the provisions of the articles of
organization or these by-laws, a waiver thereof in writing signed by the
person or persons entitled to such notice, whether before or after the time
stated therein, shall be deemed equivalent to the giving of such notice.
ARTICLE IX
OFFICERS
Section 1. The initial officers shall be elected by the incorporators and
are set forth in the articles of organization. The officers of the
Corporation shall be a president, a treasurer and a clerk. The president
shall be chosen by the board of directors. The treasurer and the clerk shall
be elected by the shareholders. The board of directors may choose one or more
vice-presidents and one or more assistant treasurers and assistant clerks.
None of the officers need be members of the board nor stockholders of the
Corporation.
Section 2. The board of directors at its first meeting after each annual
meeting of stockholders shall choose the officers for the ensuing year.
Section 3. The board of directors may appoint such other officers and
agents as it shall deem necessary who shall hold their offices for such terms
and shall exercise such powers and perform such duties as shall be determined
from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the Corporation
shall be fixed by the board of directors.
Section 5. The officers of the Corporation shall hold office until their
successors are chosen and qualify. Any officer elected or appointed by the
board of directors may be removed at any time by the affirmative vote of a
majority of the board of directors. Any vacancy occurring in any office of
the Corporation shall be filled by the board of directors.
THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
Corporation, shall preside at all meetings of the stockholders and the board
of directors, shall have general and active management of the business of the
Corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts requiring
a seal, under the seal of the Corporation, except where required or permitted
by law to be otherwise signed
5
<PAGE>
and executed and except where the signing and execution thereof shall be
expressly delegated by the board of directors to some other officer or agent
of the Corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one, the
vice-presidents in the order determined by the board of directors, shall, in
the absence or disability of the president, perform the duties and exercise
the powers of the president and shall perform such other duties and have such
other powers as the board of directors may from time to time prescribe.
THE CLERK AND ASSISTANT CLERKS
Section 9. The clerk shall be a resident of the Commonwealth of
Massachusetts, provided however, he need not be such resident, if, and as long
as, the Corporation shall appoint and maintain a resident agent for service of
process within the Commonwealth. The clerk shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the board of directors
in a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall give, or cause to be given,
notice of all meetings of the stockholders and special meetings of the board
of directors, and shall perform such other duties as may be prescribed by the
board of directors or president, under whose supervision he shall be. He
shall have custody of the record books and of the corporate seal of the
Corporation and he, or an assistant clerk, shall have authority to affix the
seal to any instrument requiring it and when so affixed, it may be attested by
his signature or by the signature of such assistant clerk. The board of
directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by his signature. The office of
the clerk shall be deemed to be the office of the secretary of the Corporation
whenever such office is required for any purpose; and, whenever the signature
of the secretary of the Corporation is required on any instrument, or
document, by the laws of the United States, or of any other state, or in any
other manner whatsoever, the clerk shall have authority to affix his signature
in such capacity.
Section 10. The assistant clerk, or if there be more than one, the
assistant clerks in the order determined by the board of directors, shall, in
the absence or disability of the clerk, perform such other duties and have
such other powers as the board of directors may from time to time prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all
moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the board of
directors.
6
<PAGE>
Section 12. He shall disburse the funds of the Corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors,
at its regular meetings, or when the board of directors so requires, an
account of all his transactions as treasurer and of the financial condition of
the Corporation.
Section 13. If required by the board of directors, he shall give the
Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of
his death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in his possession
or under his control belonging to the Corporation.
Section 14. The assistant treasurer, or, if there shall be more than one,
the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the Corporation shall be represented by
certificates or shall be uncertificated shares. Each certificate shall be
signed by the chairman of the board of directors, the president or a
vice-president and the treasurer or an assistant treasurer of the Corporation,
and may be sealed with the seal of the Corporation or a facsimile thereof.
When the Corporation is authorized to issue shares of more than one class
there shall be set forth upon the face or back of the certificate, or the
certificate shall have a statement that the Corporation will furnish to any
stockholder upon request and without charge, a full statement of the
designations, preferences, limitations, and relative rights of the shares of
each class authorized to be issued and, if the Corporation is authorized to
issue any preferred or special class in series, the variations in the relative
rights and preferences between the shares of each such series so far as the
same have been fixed and determined and the authority of the board of
directors to fix and determine the relative rights of subsequent series.
Any shares subject to any restriction on transfer shall have the
restriction noted conspicuously on the certificate and shall also set forth on
the face or back of the certificate either the full text of the restriction,
or a statement of the existence of such restriction and a statement that the
Corporation will furnish a copy thereof to the holder of such certificate upon
written request and without charge.
Within a reasonable time after the issuance or transfer of uncertificated
stock, the Corporation shall send to the registered owner thereof a written
notice containing the
7
<PAGE>
information required to be set forth or stated on certificates pursuant to
Sections 19, 25-28 or 41A or a statement that the Corporation will furnish
without charge to each stockholder who so requests the powers, designations,
preferences and relative participating, optional or other special rights of
each class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights.
Section 2. The signatures of the officers upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the Corporation itself or an employee of
the Corporation. In case any officer who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such
officer before such certificate is issued, it may be issued by the Corporation
with the same effect as if he were such officer at the date of its issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate to be
issued in place of any certificate theretofore issued by the Corporation
alleged to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as
it deems expedient, and may require such indemnities as it deems adequate, to
protect the Corporation from any claim that may be made against it with
respect to any such certificate alleged to have been lost or destroyed.
TRANSFERS OF SHARES
Section 4. Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate representing shares duly endorsed or accompanied
by proper evidence of succession, assignment or authority to transfer, a new
certificate shall be issued to the person entitled thereto, and the old
certificate cancelled and the transaction recorded upon the books of the
Corporation.
FIXING OF RECORD DATE
Section 5. The board of directors may fix in advance a time which shall be
not more than sixty days before the date of any meeting of stockholders or the
date for the payment of any dividend or the making of any distribution to
stockholders or the last day on which the consent or dissent of stockholders
may be effectively expressed for any purpose, as the record date for
determining the stockholders having the right to notice of and to vote at such
meeting and any adjournment thereof or the right to receive such dividend or
distribution or the right to give such consent or dissent, and in such case
only stockholders of record on such record date shall have such right,
notwithstanding any transfer of stock on the books of the Corporation after
the record date; or without fixing such record date the board of directors may
for any of such purposes close the transfer books for all or any part of such
period.
8
<PAGE>
REGISTERED STOCKHOLDERS
Section 6. The Corporation shall be entitled to recognize the exclusive
right of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Massachusetts.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of organization
relating thereto, if any, dividends may be declared by the board of directors
at any regular or special meeting, pursuant to law. Dividends may be paid in
cash, in property or in shares of the capital stock, subject to any provisions
of the articles of organization.
Section 2. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
directors from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the Corporation, or for such other
purpose as the directors shall think conducive to the interest of the
Corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
CHECKS
Section 3. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the Corporation shall be fixed by resolution
of the board of directors.
9
<PAGE>
SEAL
Section 5. The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words "Corporate Seal,
Massachusetts". The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or in any manner reproduced.
/s/ John K. Carlyle
------------------------
John K. Carlyle
/s/ Donald J. Larson
------------------------
Donald J. Larson
10
<PAGE>
EXHIBIT C
to
Reorganization
Agreement
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is dated as of
_________, 1997, by and between CRA Merger Corp., a Massachusetts corporation
("CRA Merger Corp.") and a wholly-owned subsidiary of Concentra Managed Care,
Inc., a Delaware corporation ("Holding Company"), and CRA Managed Care, Inc.,
a Massachusetts corporation ("CRA"). CRA and CRA Merger Corp. are sometimes
referred to herein as the "Constituent Corporations."
RECITALS
A. This Agreement is being entered into pursuant to an Agreement and
Plan of Reorganization dated as of April 21, 1997 (the "Reorganization
Agreement"), by and among CRA, OccuSystems, Inc., a Delaware corporation
("OccuSystems"), and Holding Company. The Reorganization Agreement provides
for, among other things, (i) the merger of OccuSystems with and into Holding
Company and (ii) the merger of CRA Merger Corp. with and into CRA. All
defined terms that are not otherwise defined herein shall have the meaning
ascribed to such terms in the Reorganization Agreement.
B. The number of outstanding shares of common stock, par value $.01 per
share, of CRA Merger Corp. is 100, all of which shares are of one class and
all of which shares are entitled to vote. The number of outstanding shares of
the common stock, par value $.01 per share, of CRA (the "CRA Common Stock") is
_______, all of which shares are of one class and all of which shares are
entitled to vote.
C. The respective Boards of Directors of CRA Merger Corp. and CRA have
approved this Agreement and have directed that this Agreement be submitted to
a vote of Holding Company, the sole stockholder of CRA Merger Corp, and the
stockholders of CRA.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, CRA Merger Corp. and CRA hereby agree, subject to the terms
and conditions hereinafter set forth, as follows:
ARTICLE I
THE MERGER
Section 1.1 MERGER. In accordance with the provisions of this
Agreement and the Massachusetts Business Corporation Law (the "MBCL"), at the
Effective Time of the CRA Merger (as hereinafter defined) CRA Merger Corp.
shall be merged with and into CRA (the "CRA Merger"), the separate corporate
existence of CRA Merger Corp. shall cease and CRA will become a wholly-owned
subsidiary of Holding Company. CRA shall be the surviving corporation in the
CRA Merger (hereinafter sometimes referred to as the "Surviving Corporation")
and shall continue its corporate existence under the laws of the Commonwealth
of Massachusetts.
Section 1.2 FILING AND EFFECTIVENESS. The CRA Merger shall become
effective when the following actions have been completed: (a) the
Reorganization Agreement and the CRA Merger
C-1
<PAGE>
shall have been adopted and approved by the stockholders of CRA and Holding
Company, the sole stockholder of CRA Merger Corp., in accordance with the
requirements of the MBCL; and (b) an executed Articles of Merger shall have
been filed with the Secretary of State of the Commonwealth of Massachusetts.
The date and time when the CRA Merger shall become effective, as hereinabove
provided, is herein called the "Effective Time of the CRA Merger."
Section 1.3 EFFECT OF THE MERGER. At the Effective Time of the CRA
Merger, (a) the separate existence of CRA Merger Corp. shall cease and CRA, as
the Surviving Corporation, shall possess all the rights, privileges, powers,
franchises and authority, both public and private, and be subject to all the
restrictions, disabilities and duties of the Constituent Corporation and (b)
the Surviving Corporation shall be vested with all assets and property, real,
personal and mixed, and every interest therein, wherever located, belonging to
each of the Constituent Corporations and shall be liable for all the
obligations and liabilities of each of the Constituent Corporations, all as
more fully provided under the applicable provisions of the MBCL.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
Section 2.1 ARTICLES OF INCORPORATION. The Articles of Incorporation
of CRA Merger Corp. as in effect immediately prior to the Effective Time of
the CRA Merger shall be the Articles of Incorporation of the Surviving
Corporation immediately after the Effective Time of the CRA Merger.
Section 2.2 BYLAWS. The Bylaws of CRA Merger Corp. as in effect
immediately prior to the Effective Time of the CRA Merger shall be the Bylaws
of the Surviving Corporation immediately after the Effective Time of the CRA
Merger.
Section 2.3 DIRECTORS AND OFFICERS. The directors and officers of CRA
Merger Corp. immediately prior to the Effective Time of the CRA Merger shall
be the directors and officers of the Surviving Corporation until their
successors shall have been duly elected and qualified in accordance with
applicable law.
ARTICLE III
CONVERSION OF STOCK
Section 3.1 CRA COMMON STOCK. At the Effective Time of the CRA
Merger, each share of CRA Common Stock issued and outstanding immediately
prior thereto shall, by virtue of the CRA Merger and without any action by the
Constituent Corporations, the holder of such share or any other person, be
converted into the right to receive 1.786 (the "CRA Ratio") shares of Holding
Company Common Stock, payable upon the surrender of the certificates formerly
representing CRA Common Stock pursuant to Section 3.5. Each certificate which
immediately prior to the Effective Time of the CRA Merger represented
outstanding shares of CRA Common Stock shall, on and after the Effective Time
of the CRA Merger, be deemed for all purposes to represent the right to
receive the number of shares of Holding Company Common Stock into which the
shares of CRA Common Stock represented by such certificate shall have been
converted pursuant to this Section 3.1.
C-2
<PAGE>
Section 3.2 HOLDING COMPANY COMMON STOCK. At the Effective Time of
the CRA Merger, each share of Holding Company Common Stock issued and
outstanding immediately prior thereto shall, by virtue of the CRA Merger and
without any action by the Constituent Corporations, the holder of such share
or any other person, be canceled without payment of any consideration therefor
and cease to exist and be outstanding.
Section 3.3 DISSENTING SHARES. Notwithstanding anything in this
Article III to the contrary, shares of CRA Common Stock which are issued and
outstanding immediately prior to the Effective Time of the CRA Merger and
which are held by stockholders who have not voted such shares in favor of the
CRA Merger and who shall have properly exercised their rights of appraisal for
such shares in the manner provided by the MBCL (the "Dissenting Shares") shall
not be converted into or be exchangeable for the right to receive shares of
Holding Company Common Stock pursuant to Section 3.1, unless and until such
holder shall have failed to perfect or shall have effectively withdrawn or
lost his right to appraisal and payment, as the case may be. If such holder
shall have so failed to perfect or shall have effectively withdrawn or lost
such right, his shares shall thereupon be deemed to have been converted into
and to have become exchangeable for, at the Effective Time of the CRA Merger,
the right to receive the shares of Holding Company Common Stock pursuant to
Section 3.1, without any interest thereon.
Section 3.4 FRACTIONAL SHARES, ETC. No certificate of scrip
representing fractional shares of Holding Company Common Stock shall be issued
upon the surrender for exchange of Certificates. In lieu of any fractional
shares, each holder of shares of Converted Stock who would otherwise have been
entitled to a fraction of a share of Holding Company Common Stock upon
surrender of Certificates for exchange will be paid an amount of cash (without
interest) in accordance with the terms and conditions of Section 4.5 of the
Reorganization Agreement.
Section 3.5 EXCHANGE FUND EXCHANGE PROCEDURES, ETC. The surrender and
exchange of Certificates for shares of Holding Company Common Stock shall be
made in accordance with the terms and conditions of Section 4.6 of the
Reorganization Agreement.
ARTICLE IV
GENERAL
Section 4.1 FURTHER ASSURANCE. From time to time, as and when
required by the Surviving Corporation, or by its successors or assigns, there
shall be executed and delivered on behalf of CRA such deeds and other
instruments, and there shall be taken or caused to be taken by it such further
and other actions as shall be appropriate or necessary in order to vest or
perfect in or confirm of record or otherwise by Surviving Corporation the
title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of CRA and otherwise
to carry out the purposes of this Agreement, and the officers and directors of
the Surviving Corporation are fully authorized in the name and on behalf of
CRA or otherwise to take any and all such action and to execute and deliver
any and all such deeds and other instruments.
C-3
<PAGE>
Section 4.2 TERMINATION. At any time before the Effective Time of the
CRA Merger, this Agreement may be terminated and the CRA Merger may be
abandoned for any reason whatsoever by the Board of Directors of either CRA or
CRA Merger Corp., or of both, notwithstanding the approval of this Agreement
by the stockholders of CRA or the sole stockholder of CRA Merger Corp. In
the event of the termination of this Agreement, this Agreement shall forthwith
become void and there shall be no liability on the part of either of the
parties hereto except as otherwise provided in the Reorganization Agreement.
Section 4.3 COUNTERPARTS. In order to facilitate the filing and
recording of this Agreement, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
Section 4.4 AMENDMENT. This Agreement shall not be amended other than
pursuant to an amendment to the Reorganization Agreement approved in the
manner therein provided. If any such amendment to the Reorganization
Agreement is so approved, any amendment to this Agreement required by such
amendment to the Reorganization Agreement shall be effected by the parties
hereto by action taken by their respective Boards of Directors.
Section 4.5 GOVERNING LAW. This Agreement shall be governed by the
laws of the Commonwealth of Massachusetts.
C-4
<PAGE>
IN WITNESS WHEREOF, this Agreement is hereby executed on behalf of
each of the Constituent Corporations.
CRA MANAGED CARE, INC.
a Massachusetts corporation
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
CRA MERGER CORP.
a Massachusetts corporation
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
C-5
<PAGE>
EXHIBIT D
to
Reorganization
Agreement
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is dated as of
_________, 1997, by and between Concentra Managed Care, Inc., a Delaware
corporation ("Holding Company"), and OccuSystems, Inc., a Delaware corporation
("OccuSystems"). Holding Company and OccuSystems are sometimes referred to
herein as the "Constituent Corporations."
RECITALS
A. This Agreement is being entered into pursuant to an Agreement and
Plan of Reorganization dated as of April 21, 1997 (the "Reorganization
Agreement"), by and among OccuSystems, Holding Company and CRA Managed Care,
Inc. ("CRA"), a Massachusetts corporation. The Reorganization Agreement
provides for, among other things, (i) the merger of OccuSystems with and into
Holding Company and (ii) the merger of a wholly-owned subsidiary of Holding
Company with and into CRA. All defined terms that are not otherwise defined
herein shall have the meaning ascribed to such terms in the Reorganization
Agreement.
B. The number of outstanding shares of common stock, par value $.01 per
share, of Holding Company (the "Holding Company Common Stock") is 100, all of
which shares are of one class and all of which shares are entitled to vote.
The number of outstanding shares of the common stock, par value $.01 per
share, of OccuSystems (the "OccuSystems Common Stock") is _______, all of
which shares are of one class and all of which shares are entitled to vote.
C. The respective Boards of Directors of Holding Company and OccuSystems
have approved this Agreement and have directed that this Agreement be
submitted to a vote of the stockholders of Holding Company and the
stockholders of OccuSystems.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Holding Company and OccuSystems hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
ARTICLE I
THE MERGER
Section 1.1 MERGER. In accordance with the provisions of this
Agreement and the Delaware General Corporation Law (the "DGCL"), at the
Effective Time of the OccuSystems Merger (as hereinafter defined), OccuSystems
shall be merged with and into Holding Company (the "OccuSystems Merger") and
the separate corporate existence of OccuSystems shall cease. Holding Company
shall be the surviving corporation in the OccuSystems Merger (hereinafter
sometimes referred to as the "Surviving Corporation") and shall continue its
corporate existence under the laws of the State of Delaware.
Section 1.2 FILING AND EFFECTIVENESS. The OccuSystems Merger shall
become effective when the following actions have been completed:(a) the
Reorganization Agreement and the OccuSystems Merger shall have been adopted
and approved by the stockholders of OccuSystems
D-1
<PAGE>
and the stockholders of Holding Company in accordance with the requirements of
the DGCL; and (b) an executed Certificate of Merger or an executed counterpart
of this Agreement meeting the requirements of the DGCL shall have been filed
with the Secretary of State of the State of Delaware. The date and time when
the OccuSystems Merger shall become effective, as hereinabove provided, is
herein called the "Effective Time of the OccuSystems Merger."
Section 1.3 EFFECT OF THE MERGER. At the Effective Time of the
OccuSystems Merger, (a) the separate existence of OccuSystems shall cease and
Holding Company, as the Surviving Corporation, shall possess all the rights,
privileges, powers, franchises and authority, both public and private, and be
subject to all the restrictions, disabilities and duties of the Constituent
Corporation and (b) the Surviving Corporation shall be vested with all assets
and property, real, personal and mixed, and every interest therein, wherever
located, belonging to each of the Constituent Corporations and shall be liable
for all the obligations and liabilities of each of the Constituent
Corporations, all as more fully provided under the applicable provisions of
the DGCL.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
Section 2.1 CERTIFICATE OF INCORPORATION. The Certificate of
Incorporation of Holding Company as in effect immediately prior to the
Effective Time of the OccuSystems Merger shall be the Certificate of
Incorporation of the Surviving Corporation immediately after the Effective
Time of the OccuSystems Merger.
Section 2.2 BYLAWS. The Bylaws of Holding Company as in effect
immediately prior to the Effective Time of the OccuSystems Merger shall be the
Bylaws of the Surviving Corporation immediately after the Effective Time of
the OccuSystems Merger.
Section 2.3 DIRECTORS AND OFFICERS. The directors and officers of
Holding Company immediately prior to the Effective Time of the OccuSystems
Merger shall be the directors and officers of the Surviving Corporation until
their successors shall have been duly elected and qualified in accordance with
applicable law.
ARTICLE III
CONVERSION OF STOCK
Section 3.1 OCCUSYSTEMS COMMON STOCK. At the Effective Time of the
OccuSystems Merger, each share of OccuSystems Common Stock issued and
outstanding immediately prior thereto shall, by virtue of the OccuSystems
Merger and without any action by the Constituent Corporations, the holder of
such share or any other person, be converted into the right to receive one
(the "OccuSystems Ratio") share of Holding Company Common Stock, payable upon
the surrender of the certificates formerly representing OccuSystems Common
Stock pursuant to Section 3.4. Each certificate which immediately prior to
the Effective Time of the OccuSystems Merger represented outstanding shares of
OccuSystems Common Stock shall, on and after the Effective Time of the
OccuSystems Merger, be deemed for all purposes to represent the right to
receive the number of
D-2
<PAGE>
shares of Holding Company Common Stock into which the shares of OccuSystems
Common Stock represented by such certificate shall have been converted
pursuant to this Section 3.1.
Section 3.2 HOLDING COMPANY COMMON STOCK. At the Effective Time of the
OccuSystems Merger, each share of Holding Company Common Stock issued and
outstanding immediately prior thereto shall, by virtue of the OccuSystems
Merger and without any action by the Constituent Corporations, the holder of
such share or any other person, be canceled without payment of any
consideration therefor and cease to exist and be outstanding.
Section 3.3 FRACTIONAL SHARES, ETC. No certificate or scrip
representing fractional shares of Holding Company Common Stock shall be issued
upon the surrender for exchange of Certficates. In lieu of any fractional
shares, each holder of shares of Converted Stock who would otherwise have been
entitled to a fraction of a share of Holding Company Common Stock upon
surrender of Certificates for exchange will be paid an amount of cash (without
interest) in accordance with the terms and conditions of Section 4.5 of the
Reorganization Agreement.
Section 3.4 EXCHANGE FUND EXCHANGE PROCEDURES, ETC. The surrender and
exchange of Certificates for shares of Holding Company Common Stock shall be
made in accordance with the terms and conditions of Section 4.6 of the
Reorganization Agreement.
ARTICLE IV
GENERAL
Section 4.1 FURTHER ASSURANCE. From time to time, as and when required
by the Surviving Corporation, or by its successors or assigns, there shall be
executed and delivered on behalf of OccuSystems such deeds and other
instruments, and there shall be taken or caused to be taken by it such further
and other actions as shall be appropriate or necessary in order to vest or
perfect in or confirm of record or otherwise by Surviving Corporation the
title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of OccuSystems and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of the Surviving Corporation are fully authorized in the name and on
behalf of OccuSystems or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
Section 4.2 TERMINATION. At any time before the Effective Time of the
OccuSystems Merger, this Agreement may be terminated and the OccuSystems
Merger may be abandoned for any reason whatsoever by the Board of Directors of
either OccuSystems or Holding Company, or of both, notwithstanding the
approval of this Agreement by the stockholders of OccuSystems or the
stockholders of Holding Company. In the event of the termination of this
Agreement, this Agreement shall forthwith become void and there shall be no
liability on the part of either of the parties hereto except as otherwise
provided in the Reorganization Agreement.
D-3
<PAGE>
Section 4.3 COUNTERPARTS. In order to facilitate the filing and
recording of this Agreement, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
Section 4.4 AMENDMENT. This Agreement shall not be amended other than
pursuant to an amendment to the Reorganization Agreement approved in the
manner therein provided. If any such amendment to the Reorganization
Agreement is so approved, any amendment to this Agreement required by such
amendment to the Reorganization Agreement shall be effected by the parties
hereto by action taken by their respective Boards of Directors.
Section 4.5 GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Delaware.
IN WITNESS WHEREOF, this Agreement is hereby executed on behalf of each of
the Constituent Corporations.
CONCENTRA MANAGED CARE, INC.
a Delaware corporation
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
OCCUSYSTEMS, INC.
a Delaware corporation
By:
-----------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
D-4
<PAGE>
EXHIBIT E
TO REORGANIZATION
AGREEMENT
FORM OF AFFILIATE LETTER
________________
________________
________________
Ladies and Gentlemen:
I have been advised that as of the date of this letter I may be deemed to
be an "affiliate" of ______________ (the "Company"), as the term "affiliate" is
(i) defined for purposes of paragraphs (c) and (d) of Rule 145 of the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), or (ii) used in and for purposes of Accounting Series, Releases 130 and
135, as amended, of the Commission. Pursuant to the terms of the Agreement and
Plan of Reorganization dated as of April 21, 1997 (the "Agreement"), between CRA
Managed Care, Inc., a Massachusetts corporation ("CRA"), OccuSystems, Inc., a
Delaware corporation (the "OSI") and Concentra Managed Care, Inc., a Delaware
corporation ("Holding Company"), I may receive shares of Common Stock, par value
$.01 per share, of Holding Company (the "Holding Company Securities") in
exchange for shares owned by me of Common Stock, par value $__ per share, of the
Company (the "Company Common Stock").
I represent, warrant and covenant to Holding Company that in the event I
receive, or am deemed the beneficial owner of, any Holding Company Securities as
a result of the Mergers (as defined in the Agreement):
A. I shall not make any sale, transfer or other disposition of the Holding
Company Securities in violation of the Act or the Rules and Regulations.
B. I have carefully read this letter and the Agreement and discussed the
requirements of such documents and other applicable limitations upon my ability
to sell, transfer or otherwise dispose of Holding Company Securities to the
extent I felt necessary, with my counsel or counsel for the Company.
C. I will not sell or transfer any of my Company Common Stock during the
period beginning 30 days prior to consummation of the Mergers (as such term is
defined in the Agreement). I understand that the Commission has restricted the
sales of stock held by affiliates prior to the Mergers to a period beginning
generally 30 days prior to consummation of the Mergers to preserve the spirit of
risk sharing. I understand that the Commission generally will not question
dispositions by affiliates made more than 30 days prior to the
E-1
<PAGE>
consummation of the Mergers if they are not made to avoid the risk sharing
intent of APB No. 16. Furthermore, I understand that if I do sell any Company
Common Stock that I hold before the aforementioned period, the Commission will
determine if I intended to avoid risk sharing by looking to the following
factors: proximity of the sale to the aforementioned period, magnitude of the
Company Common Stock sold, reasons for disposal and the nature of my affiliate
status. In the event the Commission determines that I intended to avoid risk
sharing due to a sale or transfer of the Company Common Stock made by me after
the date hereof, I agree to take any actions reasonably requested, including
rescinding such sales or transfers, such that the Commission will determine that
such sales or transfers did not avoid risk sharing.
D. I will not sell, transfer or otherwise dispose of any Holding Company
Securities held by me until after such time as results covering at least 30 days
of post Effective Time operations of Holding Company have been published in the
form of a quarterly earnings report, an effective registration statement filed
with the Commission, a report to the Commission on Form 10-K, 10-Q or 8-K, or
any other public filing or announcement which includes such results of
operations. Holding Company shall notify the "affiliates" of the publication of
such results.
E. I understand that, except as may be provided in any registration rights
agreement entered into by the Holding Company and the undersigned, the Holding
Company is under no obligation to register the sale, transfer or other
disposition of the Holding Company Securities by me or on my behalf under the
Act take any other action necessary in order to make compliance with an
exemption from such registration available.
F. I also understand that stop transfer instructions will be given to the
Holding Company's transfer agents with respect to the Holding Company Securities
and that the Holding Company may place on the certificates for the Holding
Company Securities issued to me, or any substitutions therefor, a legend stating
in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE WERE ISSUED IN A TRANSACTION
TO WHICH RULE 145 PROMULGATED UNDER THE SECURITIES ACT OF 1933 APPLIES.
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY ONLY BE TRANSFERRED IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT DATED APRIL 21, 1997, BETWEEN
THE REGISTERED HOLDER HEREOF AND HOLDING COMPANY, A COPY OF WHICH
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF HOLDING COMPANY.
E-2
<PAGE>
Execution of this letter should not be considered an admission on my part
that I am an "affiliate" of the Company as described in the first paragraph of
this letter or as a waiver of any rights I may have to object to any claim that
I am such an affiliate on or after the date of this letter.
Very truly yours,
------------------------------
Name:
Agreed and accepted this ___ day of _________________, 1997 by ________________.
By:
----------------------------
Name:
Title:
E-3
<PAGE>
SCHEDULE 1.2
TO
AGREEMENT AND PLAN OF REORGANIZATION
Directors and Officers of the Holding Company
Directors
Donald J. Larson
John K. Carlyle
Officers
John K. Carlyle Chairman
Donald J. Larson President and Chief Executive Officer
John A. McCarthy Executive Vice President - Managed Care Services
Richard A. Parr II Executive Vice President, General Counsel, and Secretary
Joseph F. Pesce Executive Vice President, Chief Financial Officer, and
Treasurer
Daniel J. Thomas Executive Vice President - Practice Management Services
W. Tom Fogarty, M.D. Senior Vice President and Chief Medical Officer
Peter R. Gates Senior Vice President - Marketing and Sales
James M. Greenwood Senior Vice President - Corporate Development
<PAGE>
SCHEDULE 3.1(a)
TO
AGREEMENT AND PLAN OF REORGANIZATION
Directors of the Surviving Corporation of CRA Merger
Donald J. Larson
John A. McCarthy
Joseph F. Pesce
<PAGE>
SCHEDULE 3.1(b)
TO
AGREEMENT AND PLAN OF REORGANIZATION
Directors of OccuCenters, Inc.
Donald J. Larson
Joseph F. Pesce
Daniel J. Thomas
<PAGE>
SCHEDULE 3.2(a)
TO
AGREEMENT AND PLAN OF REORGANIZATION
Officers of the Surviving Corporation of the CRA Merger
John K. Carlyle Chairman
Donald J. Larson President and Chief Executive Officer
John A. McCarthy Executive Vice President - Managed Care Services
Richard A. Parr II Executive Vice President, General Counsel, and Secretary
Joseph F. Pesce Executive Vice President, Chief Financial Officer, and
Treasurer
Peter R. Gates Senior Vice President - Marketing and Sales
James M. Greenwood Senior Vice President - Corporate Development
<PAGE>
SCHEDULE 3.2(b)
TO
AGREEMENT AND PLAN OF REORGANIZATION
Officers of the Surviving Corporation of the OSI Merger
John K. Carlyle Chairman
Donald J. Larson President and Chief Executive Officer
John A. McCarthy Executive Vice President - Managed Care Services
Richard A. Parr II Executive Vice President, General Counsel, and Secretary
Joseph F. Pesce Executive Vice President, Chief Financial Officer, and
Treasurer
Daniel J. Thomas Executive Vice President - Practice Management Services
W. Tom Fogarty, M.D. Senior Vice President and Chief Medical Officer
Peter R. Gates Senior Vice President - Marketing and Sales
James M. Greenwood Senior Vice President - Corporate Development
<PAGE>
SCHEDULE 3.2(c)
TO
AGREEMENT AND PLAN OF REORGANIZATION
Officers of OccuCenters, Inc.
John K. Carlyle Chairman
Donald J. Larson President and Chief Executive Officer
Daniel J. Thomas Executive Vice President - Practice Management Services
Richard A. Parr II Executive Vice President, General Counsel, and Secretary
Joseph F. Pesce Executive Vice President, Chief Financial Officer, and
Treasurer
W. Tom Fogarty, M.D. Senior Vice President and Chief Medical Officer
Peter R. Gates Senior Vice President - Marketing and Sales
James M. Greenwood Senior Vice President - Corporate Development
<PAGE>
Exhibit 99.2
CRA MANAGED CARE, INC. STOCK OPTION AGREEMENT
CRA MANAGED CARE, INC. STOCK OPTION AGREEMENT (this "Agreement"), dated as
of April 21, 1997 by and between OccuSystems, Inc., a Delaware corporation
("OSI"), and CRA Managed Care, Inc., a Massachusetts corporation ("CRA").
WHEREAS, concurrently with the execution and delivery of this Agreement,
OSI, CRA and Concentra Managed Care, Inc. a Delaware corporation ("Holding
Company"), are entering into an Agreement and Plan of Reorganization, dated as
of the date hereof (the "Merger Agreement"), which provides that, among other
things, upon the terms and subject to the conditions thereof, CRA will be merged
with a wholly owned subsidiary of Holding Company (the "Merger"), with CRA
continuing as the surviving corporation;
WHEREAS, as a condition to OSI's willingness to enter into the Merger
Agreement, OSI has requested that CRA agree, and CRA has so agreed, to grant to
OSI an option with respect to certain shares of CRA's common stock on the terms
and subject to the conditions set forth herein; and
WHEREAS, concurrently with the execution and delivery of this Agreement,
CRA and OSI are entering into an OSI Stock Option Agreement (the "OSI Stock
Option Agreement") pursuant to which OSI has agreed to grant to CRA an option
with respect to certain shares of OSI's Common Stock on the terms and subject to
the conditions set forth therein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Merger Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option.
(a) CRA hereby grants OSI an irrevocable option (the "CRA Option") to
purchase up to the Option Number (as hereinafter defined) of shares (the "CRA
Shares") of common stock, par value $.01 per share, of CRA (the "CRA Common
Stock"), in the manner set forth below at a price (the "Exercise Price") of $37
7/8 per CRA Share, payable in cash in accordance with Section 4 hereof. As used
herein, the "Option Number" shall initially be the number of shares equal to 10%
of the total number of shares of CRA Common Stock issued and outstanding as of
March 31, 1997, and shall be adjusted hereafter to reflect changes in CRA's
capitalization occurring after the date hereof in accordance with Section 12.
Capitalized terms used herein but not defined herein shall have the meanings set
forth in the Merger Agreement.
<PAGE>
(b) Notwithstanding any other provision of this Agreement, in no event
shall OSI's Total Profit (as hereinafter defined) exceed $15 million and, if it
otherwise would exceed such amount, OSI, at its sole election, shall either (a)
deliver to CRA for cancellation CRA Shares previously purchased by OSI, (b) pay
cash to CRA or (c) undertake any combination thereof, so that OSI's Total Profit
shall not exceed $15 million after taking into account the foregoing actions.
(c) Notwithstanding any other provision of this Agreement, the CRA Option
may not be exercised for a number of CRA Shares as would, as of the date of the
Exercise Notice (as hereinafter defined), result in a Notional Total Profit (as
hereinafter defined) of more than $15 million and, if exercise of the CRA Option
otherwise would exceed such amount, OSI, at its discretion, may increase the
Purchase Price for that number of CRA Shares set forth in the Exercise Notice so
that the Notional Total Profit shall not exceed $15 million.
(d) As used herein, the term "Total Profit" shall mean the aggregate
amount (before taxes) of the following: (i) the amount of cash received by OSI
pursuant to Section 9.5(b) of the Merger Agreement, (ii) (x) the amount received
by OSI pursuant to CRA's repurchase of CRA Shares or the CRA Option pursuant to
Section 7 hereof, less (y) OSI's purchase price for such CRA Shares, and (iii)
(x) the net cash amounts received by OSI pursuant to the sale of CRA Shares (or
any other securities into which such CRA Shares are converted or exchanged),
less (y) OSI's purchase price for such CRA Shares.
(e) As used herein, the term "Notional Total Profit" with respect to any
number of CRA Shares as to which OSI may propose to exercise the CRA Option
shall be the Total Profit determined as of the date of the Exercise Notice
assuming that the CRA Option was exercised on such date for such number of CRA
Shares and assuming that such CRA Shares, together with all other CRA Shares
held by OSI and its affiliates as of such date, were sold for cash at the
closing market price for the CRA Common Stock as of the close of business on the
preceding trading day (less customary brokerage commissions).
2. Exercise of Option. The CRA Option may be exercised by OSI, in whole or
in part, at any time or from time to time after the occurrence of a "Trigger
Event". For purposes hereof, a "Trigger Event" shall mean an event that causes
CRA to pay the fee to OSI provided in Section 9.5(b) of the Merger Agreement. In
the event OSI wishes to exercise the CRA Option, OSI shall deliver to CRA a
written notice (an "Exercise Notice") specifying the total number of CRA Shares
it wishes to purchase. Each closing of a purchase of CRA Shares (a "Closing")
shall occur at a place, on a date and at a time designated by OSI in an Exercise
Notice delivered at least two business days prior to the date of the Closing.
The CRA Option shall terminate (the "Termination Date") upon the earlier of: (i)
the Effective Time; (ii) the termination of the Merger Agreement other than
under circumstances which also constitute a Trigger Event; or (iii) the 180th
day following a Trigger Event (or if, at the expiration of such period the CRA
Option cannot be exercised by reason of any applicable judgment, decree, order,
law or regulation, 10 business days after such impediment to exercise
- 2 -
<PAGE>
shall have been removed or shall have become final and not subject to appeal but
in no event under this clause (iii) later than the 548th day following such
Triggering Event). Notwithstanding the foregoing, the CRA Option may not be
exercised if OSI is in material breach of any of its representations,
warranties, covenants or agreements contained in this Agreement or in the Merger
Agreement.
3. Conditions to Closing. The obligation of CRA to issue the CRA Shares to
OSI hereunder is subject to the conditions, which (other than the conditions
described in clauses (i) and (iii) below) may be waived by CRA in its sole
discretion, that (i) all waiting periods, if any, under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the rules and regulations
promulgated thereunder ("HSR Act"), applicable to the issuance of the CRA Shares
hereunder shall have expired or have been terminated, and all consents,
approvals, orders or authorizations of, or registrations, declarations or
filings with, any federal administrative agency or commission or other federal
governmental authority or instrumentality, if any, required in connection with
the issuance of the CRA Shares hereunder shall have been obtained or made, as
the case may be; (ii) the CRA Shares shall have been approved for quotation on
the Nasdaq Stock Market upon official notice of issuance; and (iii) no
preliminary or permanent injunction or other order by any court of competent
jurisdiction prohibiting or otherwise restraining such issuance shall be in
effect.
4. Closing. At any Closing, (a) CRA will deliver to OSI a single
certificate in definitive form representing the number of CRA Shares designated
by OSI in its Exercise Notice, such certificate to be registered in the name of
OSI and to bear the legend set forth in Section 13, and (b) OSI will deliver to
CRA the aggregate price for the CRA Shares so designated and being purchased by
wire transfer of immediately available funds to a bank designated by CRA at the
Closing.
5. Representations and Warranties of CRA. CRA represents and warrants to
OSI that (a) CRA is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts and has the
corporate power and authority to enter into this Agreement and to carry out its
obligations hereunder, (b) the execution and delivery of this Agreement by CRA
and the consummation by CRA of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of CRA and no
other corporate proceedings on the part of CRA are necessary to authorize this
Agreement or any of the transactions contemplated hereby, (d) this Agreement has
been duly executed and delivered by CRA and constitutes a valid and binding
obligation of CRA, and, assuming this Agreement constitutes a valid and binding
obligation of OSI, is enforceable against CRA in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights and general principles of equity, (d) CRA has
taken all necessary corporate action to authorize and reserve for issuance and
to permit it to issue, upon exercise of the CRA Option, and at all times from
the date hereof through the expiration of the CRA Option will have reserved, a
number of authorized and unissued CRA Shares not less than the Option Number,
all of which, upon their issuance and
- 3 -
<PAGE>
delivery in accordance with the terms of this Agreement, will be validly issued,
fully paid and nonassessable, (e) upon delivery of CRA Shares to OSI upon the
exercise of the CRA Option, OSI will acquire CRA Shares, free and clear of all
claims, liens, charges, encumbrances and security interests of any nature
whatsoever, (f) the execution and delivery of this Agreement by CRA does not,
and the performance of this Agreement by CRA will not (i) violate the Articles
of Organization or By-Laws of CRA, (ii) conflict with or violate any statute,
rule, regulation, order, judgment or decree applicable to CRA or by which it or
any of its property is bound or affected or (iii) result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give rise to any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or encumbrance on any of the property or assets of CRA pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, or other
instrument or obligation to which CRA is a party or by which CRA or any of its
property is bound or affected, except, in the case of clauses (ii) and (iii)
above, for violations, breaches, defaults, rights, liens or encumbrances which
would not, individually or in the aggregate, have a CRA Material Adverse Effect,
and (g) the execution and delivery of this Agreement by CRA does not, and the
performance of this Agreement by CRA will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any governmental
or regulatory authority except the pre-merger notification requirements of the
HSR Act.
6. Representations and Warranties of OSI. OSI represents and warrants to
CRA that (a) OSI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder, (b) the execution and delivery of this Agreement by OSI and the
consummation by OSI of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of OSI and no other
corporate proceedings on the part of OSI are necessary to authorize this
Agreement or any of the transactions contemplated hereby, (c) this Agreement has
been duly executed and delivered by OSI and constitutes a valid and binding
obligation of OSI, and, assuming this Agreement constitutes a valid and binding
obligation of CRA, is enforceable against OSI in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights and general principles of equity, (d) the
execution and delivery of this Agreement by OSI does not, and the performance of
this Agreement by OSI will not (i) violate the Certificate of Incorporation or
By-Laws of OSI, (ii) conflict with or violate any statute, rule, regulation,
order, judgment or decree applicable to OSI or by which it or any of its
property is bound or affected or (iii) result in any breach of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give rise to any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the property or assets of OSI pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, or other instrument or
obligation to which OSI is a party or by which OSI or any of its property is
bound or affected, except, in the case of clauses (ii) and (iii) above, for
violations, breaches, defaults, rights, liens or encumbrances which would not,
individually or in the aggregate, have an OSI
- 4 -
<PAGE>
Material Adverse Effect, (e) the execution and delivery of this Agreement by OSI
does not, and the performance of this Agreement by OSI will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority, except the pre-merger notification
requirements of the HSR Act and (f) any CRA Shares acquired upon exercise of the
CRA Option will not be, and the CRA Option is not being, acquired by OSI with a
view to the public distribution thereof.
7. Certain Repurchases.
(a) OSI Put. At the request of OSI at any time during which the CRA Option
would be exercisable pursuant to Section 2 (the "Repurchase Period"), CRA (or
any successor entity thereof) shall, subject to the limitations set forth in
Section 1, repurchase from OSI (1) the CRA Option, including any portion
thereof, at the price set forth in subparagraph (i) below, or (2) CRA Shares
purchased by OSI pursuant thereto, at a price set forth in subparagraph (ii)
below:
(i) the difference between the average of the closing sale prices of
shares of CRA Common Stock on the Nasdaq Stock Market for the ten trading
days immediately preceding the date OSI gives notice of its intent to
exercise its rights under this Section 7 (the "Market Price") and the
Exercise Price, multiplied by the number of the CRA Shares purchasable
pursuant to the CRA Option (or portion thereof with respect to which OSI
is exercising its rights under this Section 7), but only if the Market
Price is greater than the Exercise Price; or
(ii) the Exercise Price paid by OSI for the CRA Shares acquired
pursuant to the CRA Option plus the difference between the Market Price
and the Exercise Price, but only if the Market Price is greater than the
Exercise Price, multiplied by the number of CRA Shares so purchased.
(b) Payment and Redelivery of the CRA Option or Shares. In the event OSI
exercises its rights under this Section 7, CRA shall, within 10 business days
thereafter, pay the required amount to OSI by wire transfer of immediately
available funds and OSI shall surrender to CRA the CRA Option or the
certificates evidencing CRA Shares purchased by OSI pursuant thereto, and OSI
shall warrant that it owns such shares and that such shares are then free and
clear of all liens, claims, damages, charges and encumbrances of any kind or
nature whatsoever.
8. Voting of Shares. Following the date hereof and prior to the Expiration
Date (as defined in Section 9(b)), each party shall vote any shares of capital
stock of the other party acquired by such party pursuant to this Agreement or
otherwise beneficially owned (within the meaning of Rule 13d-3 promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) by such
party (the shares so owned by a party collectively the "Restricted Shares") on
each matter submitted to a vote of stockholders of such other party for
- 5 -
<PAGE>
and against such matter in the same proportion as the vote of all other
stockholders of such other party are voted (whether by proxy or otherwise) for
and against such matter.
9. Restriction on Certain Actions.
(a) Restrictions. Other than pursuant to the Merger Agreement, following
the date hereof and prior to the Expiration Date, without the prior written
consent of the other party, neither party shall, nor shall permit its affiliates
to, directly or indirectly, alone or in concert or conjunction with any other
Person or Group (as defined in Section 9(b)), (i) in any manner acquire, agree
to acquire or make any proposal to acquire, any securities of, equity interest
in, or any material property of, such other party or any of its subsidiaries
(other than pursuant to this Agreement, the OSI Stock Option Agreement or the
Merger Agreement), (ii) except at the specific written request of such other
party, propose to enter into any merger or business combination involving such
other party or any of its subsidiaries or to purchase a material portion of the
assets of such other party or any of its subsidiaries, (iii) make or in any way
participate in any "solicitation" of "proxies" (as such terms are used in
Regulation 14A promulgated under the Exchange Act) to vote, or seek to advise or
influence any Person with respect to the voting of, any voting securities of
such other party or any of its subsidiaries, (iv) form, join or in any way
participate in a Group with respect to any voting securities of such other party
or any of its subsidiaries, (v) seek to control or influence the management,
Board of Directors or policies of such other party, (vi) disclose any intention,
plan or arrangement inconsistent with the foregoing, (vii) advise, assist or
encourage any other Person in connection with the foregoing or (viii) request
such other party (or its directors, officers, employees or agents), to amend or
waive any provision of this Section 9, or take any action which may require such
other party to make a public announcement regarding the possibility of a
business combination or merger with such party.
(b) Expiration Date. For purposes of this Agreement, (i) the term "Person"
shall mean any corporation, partnership, individual, trust, unincorporated
association or other entity or Group (within the meaning of Section 13(d)(3) of
the Exchange Act), (ii) the term "Expiration Date" with respect to any
obligation or restriction imposed on one party shall mean the earlier to occur
of (A) the first anniversary of the date hereof and (B) such time as the other
party shall have suffered a Change of Control and (iii) a "Change of Control"
with respect to one party shall be deemed to have occurred whenever (A) there
shall be consummated (1) any consolidation or merger of such party in which such
party is not the continuing or surviving corporation, or pursuant to which
shares of such party's common stock would be converted in whole or in part into
cash, other securities or other property, other than a merger of such person in
which the holders of such party's common stock immediately prior to the merger
have substantially the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (2) any sale, lease,
exchange or transfer (in one transaction or a series of related transactions) of
all or substantially all the assets of such party, or (B) the stockholders of
such party shall approve any plan or proposal for the liquidation or dissolution
of such party, or (C) any party, other
- 6 -
<PAGE>
than such party or a subsidiary thereof or any employee benefit plan sponsored
by such party or a subsidiary thereof or a corporation owned, directly or
indirectly, by the stockholders of such party in substantially the same
proportions as their ownership of stock of such party, shall become the
beneficial owner of securities of such party representing 25% or more of the
combined voting power of then outstanding securities ordinarily (and apart from
rights accruing in special circumstances) having the right to vote in the
election of directors, as a result of a tender or exchange offer, open market
purchases, privately negotiated purchases or otherwise, or (D) at any time
during the period commencing on the date of this Agreement and ending on the
Expiration Date, individuals who at the date hereof constituted the Board of
Directors of such party shall cease for any reason to constitute at least a
majority thereof, unless the election or the nomination for election by such
party's stockholders of each new director during the period commencing on the
date of this Agreement and ending on the Expiration Date was approved by a vote
of at least two-thirds of the directors then still in office who were directors
at the date hereof, or (E) any other event shall occur with respect to such
party that would be required to be reported in response to Item 6(e) (or any
successor provision) of Schedule 14A of Regulation 14A promulgated under the
Exchange Act.
10. Restrictions on Transfer.
(a) Restrictions on Transfer. Prior to the Expiration Date, OSI shall not,
directly or indirectly, by operation of law or otherwise, sell, assign, pledge
or otherwise dispose of or transfer any Restricted Shares beneficially owned by
it, other than (i) pursuant to Section 7, or (ii) in accordance with Section
10(b) or 11. Subsequent to the Expiration Date, OSI shall not, directly or
indirectly, by operation of law or otherwise, sell, assign, pledge or otherwise
dispose of or transfer any Restricted Shares beneficially owned by it to any
purchaser, assignee, pledgee or other transferee who would, immediately after
such sale, assignment, pledge, disposition or transfer, beneficially own more
than 4.9% of the then outstanding voting power of the issuer of the Restricted
Shares, except in accordance with Section 10(b) or Section 11.
(b) Permitted Sales. Following the termination of the Merger Agreement,
OSI shall be permitted to sell any Restricted Shares beneficially owned by it if
such sale is made pursuant to a tender or exchange offer that has been approved
or recommended, or otherwise determined to be fair and in the best interests of
the stockholders of CRA, by a majority of the members of the Board of Directors
of CRA (which majority shall include a majority of directors who were directors
prior to the announcement of such tender or exchange offer).
11. Registration Rights. Following the termination of the Merger
Agreement, OSI (a "Designated Holder") may by written notice (the "Registration
Notice") to CRA (the "Registrant") request the Registrant to register under the
Securities Act all or any part of the Restricted Shares beneficially owned by
such Designated Holder (the "Registrable Securities") pursuant to a bonafide
firm commitment underwritten public offering in which the Designated Holder and
the underwriters shall effect as wide a distribution of such Registrable
Securities as
- 7 -
<PAGE>
is reasonably practicable and shall use their best efforts to prevent any Person
(including any Group) and its affiliates from purchasing through such offering
Restricted Shares representing more than 1% of the outstanding shares of Common
Stock of the Registrant on a fully diluted basis (a "Permitted Offering"). The
Registration Notice shall include a certificate executed by the Designated
Holder and its proposed managing underwriter, which underwriter shall be an
investment banking firm of nationally recognized standing and reasonably
satisfactory to the Registrant (the "Manager"), stating that (i) they have a
good faith intention to commence promptly a Permitted Offering and (ii) the
Manager in good faith believes that, based on the then prevailing market
conditions, it will be able to sell the Registrable Securities at a per share
price equal to at least 80% of the Fair Market Value of such shares. For
purposes hereof, the "Fair Market Value" of such shares shall mean the average
of the closing sales prices of such shares on the Nasdaq Stock Market (or such
other stock exchange or market system as shall then be the primary trading
market for such security) for the ten trading days immediately preceding the
Registration Notice. The Registrant (and/or any Person designated by the
Registrant) shall thereupon have the option exercisable by written notice
delivered to the Designated Holder within 10 business days after the receipt of
the Registration Notice, irrevocably to agree to purchase all or any part of the
Registrable Securities for cash at a price (the "Option Price") equal to the
product of (i) the number of Registrable Securities to be purchased and (ii) the
Fair Market Value of such shares. Any such purchase of Registrable Securities by
the Registrant hereunder shall take place at a closing to be held at the
principal executive offices of the Registrant or its counsel at any reasonable
date and time designated by the Registrant and/or such designee in such notice
within 20 business days after delivery of such notice. Any payment for the
shares to be purchased shall be made by delivery at the time of such closing of
the Option Price in immediately available funds.
If the Registrant does not elect to exercise its option pursuant to this
Section 11 with respect to all Registrable Securities, it shall use its
reasonable best efforts to effect, as promptly as practicable, the registration
under the Securities Act of the unpurchased Registrable Securities; provided,
however, that (i) neither party shall be entitled to more than an aggregate of
two effective registration statements hereunder and (ii) the Registrant will not
be required to file any such registration statement during any period of time
(not to exceed 40 days after such request in the case of clause (A) below or 90
days in the case of clauses (B) and (C) below) when (A) the Registrant is in
possession of material non-public information which it reasonably believes would
be detrimental to be disclosed at such time and, in the opinion of counsel to
such Registrant, such information would have to be disclosed if a registration
statement were filed at that time; (B) such Registrant is required under the
Securities Act to include audited financial statements for any period in such
registration statement and such financial statements are not yet available for
inclusion in such registration statement; or (C) such Registrant determines, in
its reasonable judgment, that such registration would interfere with any
financing, acquisition or other material transaction involving the Registrant or
any of its affiliates. If consummation of the sale of any Registrable Securities
pursuant to a registration hereunder does not occur within 90 days after the
filing with the Securities and Exchange Commission of the initial registration
statement, the provisions of this
- 8 -
<PAGE>
Section 11 shall again be applicable to any proposed registration; provided,
however, that neither party shall be entitled to request more than two
registrations pursuant to this Section 11. The Registrant shall use its
reasonable best efforts to cause any Registrable Securities registered pursuant
to this Section 11 to be qualified for sale under the securities or Blue-Sky
laws of such jurisdictions as the Designated Holder may reasonably request and
shall continue such registration or qualification in effect in such
jurisdiction; provided, however, that the Registrant shall not be required to
qualify to do business in, consent to general service of process in, or subject
itself to taxation in any jurisdiction by reason of this provision.
The registration rights set forth in this Section 11 are subject to the
condition that the Designated Holder shall provide the Registrant with such
information with respect to such holder's Registrable Securities, the plans for
the distribution thereof, and such other information with respect to such holder
as, in the reasonable judgment of counsel for the Registrant, is necessary to
enable the Registrant to include in such registration statement all material
facts required to be disclosed with respect to a registration thereunder.
A registration effected under this Section 11 shall be effected at the
Registrant's expense, except for underwriting discounts and commissions and the
fees and expenses of counsel to the Holder, and the Registrant shall provide to
the underwriters such documentation (including certificates, opinions of counsel
and "comfort" letters from auditors) as are customary in connection with
underwritten public offerings as such underwriters may reasonably require. In
connection with any such registration, the parties agree (i) to indemnify each
other and the underwriters in the customary manner and (ii) to enter into an
underwriting agreement in form and substance customary to transactions of this
type with the Manager and the other underwriters participating in such offering.
12. Adjustment upon Changes in Capitalization. In the event of any change
in CRA Common Stock by reason of stock dividends, splitups, mergers (other than
the Merger), recapitalizations, combinations, exchange of shares or the like,
the type and number of shares or securities subject to the CRA Option, and the
purchase price per share provided in Section 1, shall be adjusted appropriately.
13. Restrictive Legends. Each certificate representing shares of CRA
Common Stock issued to OSI hereunder, shall include a legend in substantially
the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR SOLD ONLY
IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. SUCH
SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH
IN THE STOCK OPTION AGREEMENT, DATED AS OF APRIL 21, 1997, A COPY OF WHICH MAY
BE OBTAINED FROM CRA MANAGED CARE, INC.
- 9 -
<PAGE>
14. Binding Effect; No Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Except as expressly provided for in this Agreement,
neither this Agreement nor the rights or the obligations of either party hereto
are assignable, except by operation of law, or with the written consent of the
other party. Nothing contained in this Agreement, express or implied, is
intended to confer upon any person other than the parties hereto and their
respective permitted assigns any rights or remedies of any nature whatsoever by
reason of this Agreement. Any Restricted Shares sold by a party in compliance
with the provisions of Section 10 or 11 shall, upon consummation of such sale,
be free of the restrictions imposed with respect to such shares by this
Agreement, unless and until such party shall repurchase or otherwise become the
beneficial owner of such shares, and any transferee of such shares shall not be
entitled to the rights of such party. Certificates representing shares sold in a
registered public offering pursuant to Section 11 shall not be required to bear
the legend set forth in Section 13.
15. Specific Performance. The parties recognize and agree that if for any
reason any of the provisions of this Agreement are not performed in accordance
with their specific terms or are otherwise breached, immediate and irreparable
harm or injury would be caused for which money damages would not be an adequate
remedy. Accordingly, each party agrees that, in addition to other remedies, the
other party shall be entitled to an injunction restraining any violation or
threatened violation of the provisions of this Agreement. In the event that any
action should be brought in equity to enforce the provisions of the Agreement,
neither party will allege, and each party hereby waives the defense, that there
is adequate remedy at law.
16. Entire Agreement. This Agreement, the Confidentiality Agreement dated
March 19, 1997 between CRA and OSI (other than the "standstill" provisions
thereof, which are superseded pursuant to Section 10.4 of the Merger Agreement),
the Merger Agreement (including the exhibits and schedules thereto) and the OSI
Stock Option Agreement constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all other prior agreements
and understandings, both written and oral, among the parties or any of them with
respect to the subject matter hereof.
17. Further Assurances. Each party will execute and deliver all such
further documents and instruments and take all such further action as may be
necessary in order to consummate the transactions contemplated hereby.
18. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, which shall remain in full force and effect. In
the event any court or other competent authority holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto shall negotiate
in good faith the execution and delivery of an amendment to this Agreement in
order, as nearly as possible, to effectuate, to the extent permitted by law, the
intent of the parties hereto with respect to such provision. Each party agrees
that, should any court or
- 10 -
<PAGE>
other competent authority hold any provision of this Agreement or part hereof to
be null, void or unenforceable, or order any party to take any action
inconsistent herewith, or not take any action required herein, the other party
shall not be entitled to specific performance of such provision or part hereof
or to any other remedy, including but not limited to money damages, for breach
hereof or of any other provision of this Agreement or part hereof as the result
of such holding or order.
19. Notices. Any notice or communication required or permitted hereunder
shall be in writing and either delivered personally, telegraphed or telecopied
or sent by next day delivery by a nationally recognized overnight delivery
service or by certified or registered mail, postage prepaid, and shall be deemed
to be given, dated and received (i) when so delivered personally, (ii) upon
receipt of an appropriate electronic answer back or confirmation when so
delivered by telegraph or telecopy (to such number specified below or another
number or numbers as such person may subsequently designate by notice hereunder)
or (iii) one business day after sending by overnight delivery, and five business
days after the date of mailing by certified or registered mail, to the following
address or to such other address or addresses as such person may subsequently
designate by notice given hereunder, if so delivered by mail:
If to CRA:
CRA Managed Care, Inc.
312 Union Wharf
Boston, Massachusetts 02109
Attention: Chairman
Telecopier No.: (617) 720-1259
With copies to:
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, MA 02110
Attention: James Westra, Esq.
Telecopier No.: (617) 951-1295
If to OSI:
OccuSystems, Inc.
3010 LBJ Freeway
Suite 400
Dallas, Texas 75234
Attention: General Counsel
- 11 -
<PAGE>
Telecopier No.: (972) 243-7540
With copies to:
Vinson & Elkins LLP
2001 Ross Avenue
Suite 3700
Dallas, TX 75201
Attention: Jeffrey A. Chapman
Telecopier No.: (214) 220-7716
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts applicable to
agreements made and to be performed entirely within such State.
21. Descriptive Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
22. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed to be an original, but both of which, taken together,
shall constitute one and the same instrument.
23. Expenses. Except as otherwise expressly provided herein or in the
Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
24. Amendments; Waiver. This Agreement may be amended by the parties
hereto and the terms and conditions hereof may be waived only by an instrument
in writing signed on behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument signed on behalf of the party waiving compliance.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
OCCUSYSTEMS, INC.
By: /s/ John K. Carlyle
-----------------------------------------
Title: Chairman & Chief Executive Officer
CRA MANAGED CARE, INC.
By: /s/ Donald J. Larson
-----------------------------------------
Title: President & Chief Executive Officer
- 12 -
<PAGE>
- 13 -
<PAGE>
Exhibit 99.3
OCCUSYSTEMS, INC. STOCK OPTION AGREEMENT
OCCUSYSTEMS, INC. STOCK OPTION AGREEMENT (this "Agreement"), dated as of
April 21, 1997, by and between CRA Managed Care, Inc., a Massachusetts
corporation ("CRA"), and OccuSystems, Inc., a Delaware corporation ("OSI").
WHEREAS, concurrently with the execution and delivery of this Agreement,
CRA, OSI and Concentra Managed Care, Inc., a Delaware corporation ("Holding
Company"), are entering into an Agreement and Plan of Reorganization, dated as
of the date hereof (the "Merger Agreement"), which provides that, among other
things, upon the terms and subject to the conditions thereof, OSI will be merged
with and into Holding Company (the "Merger"), with Holding Company continuing as
the surviving corporation;
WHEREAS, as a condition to CRA's willingness to enter into the Merger
Agreement, CRA has requested that OSI agree, and OSI has so agreed, to grant to
CRA an option with respect to certain shares of OSI's common stock on the terms
and subject to the conditions set forth herein; and
WHEREAS, concurrently with the execution and delivery of this Agreement,
OSI and CRA are entering into a CRA Stock Option Agreement (the "CRA Stock
Option Agreement") pursuant to which CRA has agreed to grant to OSI an option
with respect to certain shares of CRA's Common Stock on the terms and subject to
the conditions set forth therein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and in the Merger Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option.
(a) OSI hereby grants CRA an irrevocable option (the "OSI Option") to
purchase up to the Option Number (as hereinafter defined) of shares (the "OSI
Shares") of common stock, par value $.01 per share, of OSI (the "OSI Common
Stock"), in the manner set forth below at a price (the "Exercise Price") of
$21.21 per OSI Share, payable in cash in accordance with Section 4 hereof. As
used herein, the "Option Number" shall initially be the number of shares equal
to 10% of the total number of shares of OSI Common Stock issued and outstanding
as of March 31, 1997, and shall be adjusted hereafter to reflect changes in
OSI's capitalization occurring after the date hereof in accordance with Section
12. Capitalized terms used herein but not defined herein shall have the meanings
set forth in the Merger Agreement.
<PAGE>
(b) Notwithstanding any other provision of this Agreement, in no event
shall CRA's Total Profit (as hereinafter defined) exceed $15 million and, if it
otherwise would exceed such amount, CRA, at its sole election, shall either (a)
deliver to OSI for cancellation OSI Shares previously purchased by CRA, (b) pay
cash to OSI or (c) undertake any combination thereof, so that CRA's Total Profit
shall not exceed $15 million after taking into account the foregoing actions.
(c) Notwithstanding any other provision of this Agreement, the OSI Option
may not be exercised for a number of OSI Shares as would, as of the date of the
Exercise Notice (as hereinafter defined), result in a Notional Total Profit (as
hereinafter defined) of more than $15 million and, if exercise of the OSI Option
otherwise would exceed such amount, CRA, at its discretion, may increase the
Purchase Price for that number of OSI Shares set forth in the Exercise Notice so
that the Notional Total Profit shall not exceed $15 million.
(d) As used herein, the term "Total Profit" shall mean the aggregate
amount (before taxes) of the following: (i) the amount of cash received by CRA
pursuant to Section 9.5(a) of the Merger Agreement, (ii) (x) the amount received
by CRA pursuant to OSI's repurchase of OSI Shares or the OSI Option pursuant to
Section 7 hereof, less (y) CRA's purchase price for such OSI Shares, and (iii)
(x) the net cash amounts received by CRA pursuant to the sale of OSI Shares (or
any other securities into which such OSI Shares are converted or exchanged),
less (y) CRA's purchase price for such OSI Shares.
(e) As used herein, the term "Notional Total Profit" with respect to any
number of OSI Shares as to which CRA may propose to exercise the OSI Option
shall be the Total Profit determined as of the date of the Exercise Notice
assuming that the OSI Option was exercised on such date for such number of OSI
Shares and assuming that such OSI Shares, together with all other OSI Shares
held by CRA and its affiliates as of such date, were sold for cash at the
closing market price for the OSI Common Stock as of the close of business on the
preceding trading day (less customary brokerage commissions).
2. Exercise of Option. The OSI Option may be exercised by CRA, in whole or
in part, at any time or from time to time after the occurrence of a "Trigger
Event". For purposes hereof, a "Trigger Event" shall mean an event that causes
OSI to pay the fee to CRA provided in Section 9.5(a) of the Merger Agreement. In
the event CRA wishes to exercise the OSI Option, CRA shall deliver to OSI a
written notice (an "Exercise Notice") specifying the total number of OSI Shares
it wishes to purchase. Each closing of a purchase of OSI Shares (a "Closing")
shall occur at a place, on a date and at a time designated by CRA in an Exercise
Notice delivered at least two business days prior to the date of the Closing.
The OSI Option shall terminate (the "Termination Date") upon the earlier of: (i)
the Effective Time; (ii) the termination of the Merger Agreement other than
under circumstances which also constitute a Trigger Event; or (iii) the 180th
day following a Trigger Event (or if, at the expiration of such period the OSI
Option cannot be exercised by reason of any applicable judgment, decree, order,
law or regulation, 10 business days after such impediment to exercise shall have
been
- 2 -
<PAGE>
removed or shall have become final and not subject to appeal but in no event
under this clause (iii) later than the 548th day following such Triggering
Event). Notwithstanding the foregoing, the OSI Option may not be exercised if
CRA is in material breach of any of its representations, warranties, covenants
or agreements contained in this Agreement or in the Merger Agreement.
3. Conditions to Closing. The obligation of OSI to issue the OSI Shares to
CRA hereunder is subject to the conditions, which (other than the conditions
described in clauses (i) and (iii) below) may be waived by OSI in its sole
discretion, that (i) all waiting periods, if any, under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, and the rules and regulations
promulgated thereunder ("HSR Act"), applicable to the issuance of the OSI Shares
hereunder shall have expired or have been terminated, and all consents,
approvals, orders or authorizations of, or registrations, declarations or
filings with, any federal administrative agency or commission or other federal
governmental authority or instrumentality, if any, required in connection with
the issuance of the OSI Shares hereunder shall have been obtained or made, as
the case may be; (ii) the OSI Shares shall have been approved for quotation on
the Nasdaq Stock Market upon official notice of issuance; and (iii) no
preliminary or permanent injunction or other order by any court of competent
jurisdiction prohibiting or otherwise restraining such issuance shall be in
effect.
4. Closing. At any Closing, (a) OSI will deliver to CRA a single
certificate in definitive form representing the number of OSI Shares designated
by CRA in its Exercise Notice, such certificate to be registered in the name of
CRA and to bear the legend set forth in Section 13, and (b) CRA will deliver to
OSI the aggregate price for the OSI Shares so designated and being purchased by
wire transfer of immediately available funds to a bank designated by OSI at the
Closing.
5. Representations and Warranties of OSI. OSI represents and warrants to
CRA that (a) OSI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has the corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder, (b) the execution and delivery of this Agreement by OSI and the
consummation by OSI of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of OSI and no other
corporate proceedings on the part of OSI are necessary to authorize this
Agreement or any of the transactions contemplated hereby, (c) this Agreement has
been duly executed and delivered by OSI and constitutes a valid and binding
obligation of OSI, and, assuming this Agreement constitutes a valid and binding
obligation of CRA, is enforceable against OSI in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights and general principles of equity, (d) OSI has
taken all necessary corporate action to authorize and reserve for issuance and
to permit it to issue, upon exercise of the OSI Option, and at all times from
the date hereof through the expiration of the OSI Option will have reserved, a
number of authorized and unissued OSI Shares not less than the Option Number,
all of which, upon their issuance and delivery in accordance with the terms of
- 3 -
<PAGE>
this Agreement, will be validly issued, fully paid and nonassessable, (e) upon
delivery of OSI Shares to CRA upon the exercise of the OSI Option, CRA will
acquire OSI Shares, free and clear of all claims, liens, charges, encumbrances
and security interests of any nature whatsoever, (f) the execution and delivery
of this Agreement by OSI does not, and the performance of this Agreement by OSI
will not (i) violate the Certificate of Incorporation or By-Laws of OSI, (ii)
conflict with or violate any statute, rule, regulation, order, judgment or
decree applicable to OSI or by which it or any of its property is bound or
affected or (iii) result in any breach of or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give rise to any rights of termination, amendment, acceleration or cancellation
of, or result in the creation of a lien or encumbrance on any of the property or
assets of OSI pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, or other instrument or obligation to which OSI is a
party or by which OSI or any of its property is bound or affected, except, in
the case of clauses (ii) and (iii) above, for violations, breaches, defaults,
rights, liens or encumbrances which would not, individually or in the aggregate,
have an OSI Material Adverse Effect, and (g) the execution and delivery of this
Agreement by OSI does not, and the performance of this Agreement by OSI will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority except the
pre-merger notification requirements of the HSR Act.
6. Representations and Warranties of CRA. CRA represents and warrants to
OSI that (a) CRA is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts and has the
corporate power and authority to enter into this Agreement and to carry out its
obligations hereunder, (b) the execution and delivery of this Agreement by CRA
and the consummation by CRA of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of CRA and no
other corporate proceedings on the part of CRA are necessary to authorize this
Agreement or any of the transactions contemplated hereby, (c) this Agreement has
been duly executed and delivered by CRA and constitutes a valid and binding
obligation of CRA, and, assuming this Agreement constitutes a valid and binding
obligation of OSI, is enforceable against CRA in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or other similar laws
relating to creditors' rights and general principles of equity, (d) the
execution and delivery of this Agreement by CRA does not, and the performance of
this Agreement by CRA will not (i) violate the Articles of Organization or
By-Laws of CRA, (ii) conflict with or violate any statute, rule, regulation,
order, judgment or decree applicable to CRA or by which it or any of its
property is bound or affected or (iii) result in any breach of or constitute a
default (or an event which with notice or lapse of time or both would become a
default) under, or give rise to any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the property or assets of CRA pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, or other instrument or
obligation to which CRA is a party or by which CRA or any of its property is
bound or affected, except, in the case of clauses (ii) and (iii) above, for
violations, breaches, defaults, rights, liens or encumbrances which would not,
individually or
- 4 -
<PAGE>
in the aggregate, have a CRA Material Adverse Effect, (e) the execution and
delivery of this Agreement by CRA does not, and the performance of this
Agreement by CRA will not, require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or regulatory
authority, except the pre-merger notification requirements of the HSR Act and
(f) any OSI Shares acquired upon exercise of the OSI Option will not be, and the
OSI Option is not being, acquired by CRA with a view to the public distribution
thereof.
7. Certain Repurchases.
(a) CRA Put. At the request of CRA at any time during which the OSI Option
would be exercisable pursuant to Section 2 (the "Repurchase Period"), OSI (or
any successor entity thereof) shall, subject to the limitations set forth in
Section 1, repurchase from CRA (1) the OSI Option, including any portion
thereof, at the price set forth in subparagraph (i) below, or (2) OSI Shares
purchased by CRA pursuant thereto, at a price set forth in subparagraph (ii)
below:
(i) the difference between the average of the closing sale prices of
shares of OSI Common Stock on the Nasdaq Stock Market for the ten trading
days immediately preceding the date CRA gives notice of its intent to
exercise its rights under this Section 7 (the "Market Price") and the
Exercise Price, multiplied by the number of the OSI Shares purchasable
pursuant to the OSI Option (or portion thereof with respect to which CRA
is exercising its rights under this Section 7), but only if the Market
Price is greater than the Exercise Price; or
(ii) the Exercise Price paid by CRA for the OSI Shares acquired
pursuant to the OSI Option plus the difference between the Market Price
and the Exercise Price, but only if the Market Price is greater than the
Exercise Price, multiplied by the number of OSI Shares so purchased.
(b) Payment and Redelivery of the OSI Option or Shares. In the event CRA
exercises its rights under this Section 7, OSI shall, within 10 business days
thereafter, pay the required amount to CRA by wire transfer of immediately
available funds and CRA shall surrender to OSI the OSI Option or the
certificates evidencing OSI Shares purchased by CRA pursuant thereto, and CRA
shall warrant that it owns such shares and that such shares are then free and
clear of all liens, claims, damages, charges and encumbrances of any kind or
nature whatsoever.
8. Voting of Shares. Following the date hereof and prior to the Expiration
Date (as defined in Section 9(b)), each party shall vote any shares of capital
stock of the other party acquired by such party pursuant to this Agreement or
otherwise beneficially owned (within the meaning of Rule 13d-3 promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) by such
party (the shares so owned by a party collectively the "Restricted Shares") on
each matter submitted to a vote of stockholders of such other party for
- 5 -
<PAGE>
and against such matter in the same proportion as the vote of all other
stockholders of such other party are voted (whether by proxy or otherwise) for
and against such matter.
9. Restriction on Certain Actions.
(a) Restrictions. Other than pursuant to the Merger Agreement, following
the date hereof and prior to the Expiration Date, without the prior written
consent of the other party, neither party shall, nor shall permit its affiliates
to, directly or indirectly, alone or in concert or conjunction with any other
Person or Group (as defined in Section 9(b)), (i) in any manner acquire, agree
to acquire or make any proposal to acquire, any securities of, equity interest
in, or any material property of, such other party or any of its subsidiaries
(other than pursuant to this Agreement, the CRA Stock Option Agreement or the
Merger Agreement), (ii) except at the specific written request of such other
party, propose to enter into any merger or business combination involving such
other party or any of its subsidiaries or to purchase a material portion of the
assets of such other party or any of its subsidiaries, (iii) make or in any way
participate in any "solicitation" of "proxies" (as such terms are used in
Regulation 14A promulgated under the Exchange Act) to vote, or seek to advise or
influence any Person with respect to the voting of, any voting securities of
such other party or any of its subsidiaries, (iv) form, join or in any way
participate in a Group with respect to any voting securities of such other party
or any of its subsidiaries, (v) seek to control or influence the management,
Board of Directors or policies of such other party, (vi) disclose any intention,
plan or arrangement inconsistent with the foregoing, (vii) advise, assist or
encourage any other Person in connection with the foregoing or (viii) request
such other party (or its directors, officers, employees or agents), to amend or
waive any provision of this Section 9, or take any action which may require such
other party to make a public announcement regarding the possibility of a
business combination or merger with such party.
(b) Expiration Date. For purposes of this Agreement, (i) the term "Person"
shall mean any corporation, partnership, individual, trust, unincorporated
association or other entity or Group (within the meaning of Section 13(d)(3) of
the Exchange Act), (ii) the term "Expiration Date" with respect to any
obligation or restriction imposed on one party shall mean the earlier to occur
of (A) the first anniversary of the date hereof and (B) such time as the other
party shall have suffered a Change of Control and (iii) a "Change of Control"
with respect to one party shall be deemed to have occurred whenever (A) there
shall be consummated (1) any consolidation or merger of such party in which such
party is not the continuing or surviving corporation, or pursuant to which
shares of such party's common stock would be converted in whole or in part into
cash, other securities or other property, other than a merger of such person in
which the holders of such party's common stock immediately prior to the merger
have substantially the same proportionate ownership of common stock of the
surviving corporation immediately after the merger, or (2) any sale, lease,
exchange or transfer (in one transaction or a series of related transactions) of
all or substantially all the assets of such party, or (B) the stockholders of
such party shall approve any plan or proposal for the liquidation or dissolution
of such party, or (C) any party, other
- 6 -
<PAGE>
than such party or a subsidiary thereof or any employee benefit plan sponsored
by such party or a subsidiary thereof or a corporation owned, directly or
indirectly, by the stockholders of such party in substantially the same
proportions as their ownership of stock of such party, shall become the
beneficial owner of securities of such party representing 25% or more of the
combined voting power of then outstanding securities ordinarily (and apart from
rights accruing in special circumstances) having the right to vote in the
election of directors, as a result of a tender or exchange offer, open market
purchases, privately negotiated purchases or otherwise, or (D) at any time
during the period commencing on the date of this Agreement and ending on the
Expiration Date, individuals who at the date hereof constituted the Board of
Directors of such party shall cease for any reason to constitute at least a
majority thereof, unless the election or the nomination for election by such
party's stockholders of each new director during the period commencing on the
date of this Agreement and ending on the Expiration Date was approved by a vote
of at least two-thirds of the directors then still in office who were directors
at the date hereof, or (E) any other event shall occur with respect to such
party that would be required to be reported in response to Item 6(e) (or any
successor provision) of Schedule 14A of Regulation 14A promulgated under the
Exchange Act.
10. Restrictions on Transfer.
(a) Restrictions on Transfer. Prior to the Expiration Date, CRA shall not,
directly or indirectly, by operation of law or otherwise, sell, assign, pledge
or otherwise dispose of or transfer any Restricted Shares beneficially owned by
it, other than (i) pursuant to Section 7, or (ii) in accordance with Section
10(b) or 11. Subsequent to the Expiration Date, CRA shall not, directly or
indirectly, by operation of law or otherwise, sell, assign, pledge or otherwise
dispose of or transfer any Restricted Shares beneficially owned by it to any
purchaser, assignee, pledgee or other transferee who would, immediately after
such sale, assignment, pledge, disposition or transfer, beneficially own more
than 4.9% of the then outstanding voting power of the issuer of the Restricted
Shares, except in accordance with Section 10(b) or Section 11.
(b) Permitted Sales. Following the termination of the Merger Agreement,
CRA shall be permitted to sell any Restricted Shares beneficially owned by it if
such sale is made pursuant to a tender or exchange offer that has been approved
or recommended, or otherwise determined to be fair and in the best interests of
the stockholders of OSI, by a majority of the members of the Board of Directors
of OSI (which majority shall include a majority of directors who were directors
prior to the announcement of such tender or exchange offer).
11. Registration Rights. Following the termination of the Merger
Agreement, CRA (a "Designated Holder") may by written notice (the "Registration
Notice") to OSI (the "Registrant") request the Registrant to register under the
Securities Act all or any part of the Restricted Shares beneficially owned by
such Designated Holder (the "Registrable Securities") pursuant to a bonafide
firm commitment underwritten public offering in which the Designated Holder and
the underwriters shall effect as wide a distribution of such Registrable
Securities as
- 7 -
<PAGE>
is reasonably practicable and shall use their best efforts to prevent any Person
(including any Group) and its affiliates from purchasing through such offering
Restricted Shares representing more than 1% of the outstanding shares of Common
Stock of the Registrant on a fully diluted basis (a "Permitted Offering"). The
Registration Notice shall include a certificate executed by the Designated
Holder and its proposed managing underwriter, which underwriter shall be an
investment banking firm of nationally recognized standing and reasonably
satisfactory to the Registrant (the "Manager"), stating that (i) they have a
good faith intention to commence promptly a Permitted Offering and (ii) the
Manager in good faith believes that, based on the then prevailing market
conditions, it will be able to sell the Registrable Securities at a per share
price equal to at least 80% of the Fair Market Value of such shares. For
purposes hereof, the "Fair Market Value" of such shares shall mean the average
of the closing sales prices of such shares on the Nasdaq Stock Market (or such
other stock exchange or market system as shall then be the primary trading
market for such security) for the ten trading days immediately preceding the
Registration Notice. The Registrant (and/or any Person designated by the
Registrant) shall thereupon have the option exercisable by written notice
delivered to the Designated Holder within 10 business days after the receipt of
the Registration Notice, irrevocably to agree to purchase all or any part of the
Registrable Securities for cash at a price (the "Option Price") equal to the
product of (i) the number of Registrable Securities to be so purchased and (ii)
the Fair Market Value of such shares. Any such purchase of Registrable
Securities by the Registrant hereunder shall take place at a closing to be held
at the principal executive offices of the Registrant or its counsel at any
reasonable date and time designated by the Registrant and/or such designee in
such notice within 20 business days after delivery of such notice. Any payment
for the shares to be purchased shall be made by delivery at the time of such
closing of the Option Price in immediately available funds.
If the Registrant does not elect to exercise its option pursuant to this
Section 11 with respect to all Registrable Securities, it shall use its
reasonable best efforts to effect, as promptly as practicable, the registration
under the Securities Act of the unpurchased Registrable Securities; provided,
however, that (i) neither party shall be entitled to more than an aggregate of
two effective registration statements hereunder and (ii) the Registrant will not
be required to file any such registration statement during any period of time
(not to exceed 40 days after such request in the case of clause (A) below or 90
days in the case of clauses (B) and (C) below) when (A) the Registrant is in
possession of material non-public information which it reasonably believes would
be detrimental to be disclosed at such time and, in the opinion of counsel to
such Registrant, such information would have to be disclosed if a registration
statement were filed at that time; (B) such Registrant is required under the
Securities Act to include audited financial statements for any period in such
registration statement and such financial statements are not yet available for
inclusion in such registration statement; or (C) such Registrant determines, in
its reasonable judgment, that such registration would interfere with any
financing, acquisition or other material transaction involving the Registrant or
any of its affiliates. If consummation of the sale of any Registrable Securities
pursuant to a registration hereunder does not occur within 90 days after the
filing with the Securities and Exchange Commission of the initial registration
statement, the provisions of this
- 8 -
<PAGE>
Section 11 shall again be applicable to any proposed registration; provided,
however, that neither party shall be entitled to request more than two
registrations pursuant to this Section 11. The Registrant shall use its
reasonable best efforts to cause any Registrable Securities registered pursuant
to this Section 11 to be qualified for sale under the securities or Blue-Sky
laws of such jurisdictions as the Designated Holder may reasonably request and
shall continue such registration or qualification in effect in such
jurisdiction; provided, however, that the Registrant shall not be required to
qualify to do business in, consent to general service of process in, or subject
itself to taxation in any jurisdiction by reason of this provision.
The registration rights set forth in this Section 11 are subject to the
condition that the Designated Holder shall provide the Registrant with such
information with respect to such holder's Registrable Securities, the plans for
the distribution thereof, and such other information with respect to such holder
as, in the reasonable judgment of counsel for the Registrant, is necessary to
enable the Registrant to include in such registration statement all material
facts required to be disclosed with respect to a registration thereunder.
A registration effected under this Section 11 shall be effected at the
Registrant's expense, except for underwriting discounts and commissions and the
fees and expenses of counsel to the Holder, and the Registrant shall provide to
the underwriters such documentation (including certificates, opinions of counsel
and "comfort" letters from auditors) as are customary in connection with
underwritten public offerings as such underwriters may reasonably require. In
connection with any such registration, the parties agree (i) to indemnify each
other and the underwriters in the customary manner and (ii) to enter into an
underwriting agreement in form and substance customary to transactions of this
type with the Manager and the other underwriters participating in such offering.
12. Adjustment upon Changes in Capitalization. In the event of any change
in OSI Common Stock by reason of stock dividends, splitups, mergers (other than
the Merger), recapitalizations, combinations, exchange of shares or the like,
the type and number of shares or securities subject to the OSI Option, and the
purchase price per share provided in Section 1, shall be adjusted appropriately.
13. Restrictive Legends. Each certificate representing shares of OSI
Common Stock issued to CRA hereunder, shall include a legend in substantially
the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE REOFFERED OR SOLD ONLY
IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. SUCH
SECURITIES ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH
IN THE STOCK OPTION AGREEMENT, DATED AS OF APRIL 21, 1997, A COPY OF WHICH MAY
BE OBTAINED FROM OCCUSYSTEMS, INC.
- 9 -
<PAGE>
14. Binding Effect; No Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Except as expressly provided for in this Agreement,
neither this Agreement nor the rights or the obligations of either party hereto
are assignable, except by operation of law, or with the written consent of the
other party. Nothing contained in this Agreement, express or implied, is
intended to confer upon any person other than the parties hereto and their
respective permitted assigns any rights or remedies of any nature whatsoever by
reason of this Agreement. Any Restricted Shares sold by a party in compliance
with the provisions of Section 10 or 11 shall, upon consummation of such sale,
be free of the restrictions imposed with respect to such shares by this
Agreement, unless and until such party shall repurchase or otherwise become the
beneficial owner of such shares, and any transferee of such shares shall not be
entitled to the rights of such party. Certificates representing shares sold in a
registered public offering pursuant to Section 11 shall not be required to bear
the legend set forth in Section 13.
15. Specific Performance. The parties recognize and agree that if for any
reason any of the provisions of this Agreement are not performed in accordance
with their specific terms or are otherwise breached, immediate and irreparable
harm or injury would be caused for which money damages would not be an adequate
remedy. Accordingly, each party agrees that, in addition to other remedies, the
other party shall be entitled to an injunction restraining any violation or
threatened violation of the provisions of this Agreement. In the event that any
action should be brought in equity to enforce the provisions of the Agreement,
neither party will allege, and each party hereby waives the defense, that there
is adequate remedy at law.
16. Entire Agreement. This Agreement, the Confidentiality Agreement dated
March 19, 1997 between OSI and CRA (other than "standstill" provisions thereof,
which are superseded pursuant ot Section 10.4 of the Management Agreement), the
Merger Agreement (including the exhibits and schedules thereto) and the CRA
Stock Option Agreement constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all other prior agreements
and understandings, both written and oral, among the parties or any of them with
respect to the subject matter hereof.
17. Further Assurances. Each party will execute and deliver all such
further documents and instruments and take all such further action as may be
necessary in order to consummate the transactions contemplated hereby.
18. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, which shall remain in full force and effect. In
the event any court or other competent authority holds any provision of this
Agreement to be null, void or unenforceable, the parties hereto shall negotiate
in good faith the execution and delivery of an amendment to this Agreement in
order, as nearly as possible, to effectuate, to the extent permitted by law, the
intent of the parties hereto with respect to such provision. Each party agrees
that, should any court or
- 10 -
<PAGE>
other competent authority hold any provision of this Agreement or part hereof to
be null, void or unenforceable, or order any party to take any action
inconsistent herewith, or not take any action required herein, the other party
shall not be entitled to specific performance of such provision or part hereof
or to any other remedy, including but not limited to money damages, for breach
hereof or of any other provision of this Agreement or part hereof as the result
of such holding or order.
19. Notices. Any notice or communication required or permitted hereunder
shall be in writing and either delivered personally, telegraphed or telecopied
or sent by next day delivery by a nationally recognized overnight delivery
service or by certified or registered mail, postage prepaid, and shall be deemed
to be given, dated and received (i) when so delivered personally, (ii) upon
receipt of an appropriate electronic answerback or confirmation when so
delivered by telegraph or telecopy (to such number specified below or another
number or numbers as such person may subsequently designate by notice hereunder)
or (iii) one business day after sending by overnight delivery, and five business
days after the date of mailing by certified or registered mail, to the following
address or to such other address or addresses as such person may subsequently
designate by notice given hereunder, if so delivered by mail:
If to CRA:
CRA Managed Care, Inc.
312 Union Wharf
Boston, Massachusetts 02109
Attention: Chairman
Telecopier No.: (617) 720-1259
With copies to:
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, MA 02110
Attention: James Westra, Esq.
Telecopier No.: (617) 951-1295
If to OSI:
OccuSystems, Inc.
3010 LBJ Freeway
Suite 400
Dallas, Texas 75234
Attention: General Counsel
- 11 -
<PAGE>
Telecopier No.: (972) 243-7540
With copies to:
Vinson & Elkins LLP
2001 Ross Avenue
Suite 3700
Dallas TX 75201
Attention: Jeffrey A. Chapman
Telecopier No.: (214) 220-7716
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to agreements made
and to be performed entirely within such State.
21. Descriptive Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
22. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed to be an original, but both of which, taken together,
shall constitute one and the same instrument.
23. Expenses. Except as otherwise expressly provided herein or in the
Merger Agreement, all costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such expenses.
24. Amendments; Waiver. This Agreement may be amended by the parties
hereto and the terms and conditions hereof may be waived only by an instrument
in writing signed on behalf of each of the parties hereto, or, in the case of a
waiver, by an instrument signed on behalf of the party waiving compliance.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
CRA MANAGED CARE, INC.
By: /s/ Donald J. Larson
-----------------------------------------
Title: President & Chief Executive Officer
OCCUSYSTEMS, INC.
By: /s/ John K. Carlyle
-----------------------------------------
Title: Chairman & Chief Executive Officer
- 12 -
<PAGE>
- 13 -
