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Title: |
Agreement and Plan of Merger |
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Entities: |
Lehman Brothers Inc.; On Assignment, Inc.; Frost Brown Todd; Fulbright & Jaworski; Porter, Wright, Morris & Arthur |
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Date: |
2002 |
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Size: |
Preview shows 19KB of 219KB total |
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Price: |
$68 |
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ID: |
#360487 |
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
ON ASSIGNMENT, INC.,
ON ASSIGNMENT ACQUISITION CORP.,
HEALTH PERSONNEL OPTIONS CORPORATION
AND
CERTAIN STOCKHOLDERS OF
HEALTH PERSONNEL OPTIONS CORPORATION
MARCH 27, 2002
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
{S} {C} {C}
Article I
Definitions
1.1 Definitions.............................................................................................1
Article II
Merger
2.1 The Merger..............................................................................................7
2.2 Closing and Effective Time of the Merger................................................................8
2.3 Effects of the Merger...................................................................................8
Article III
Effect of the Merger on the Capital Stock of the Constituent Corporations; Exchange of Certificates
3.1 Effect on Company Capital Stock.........................................................................8
3.2 Exchange of Certificates................................................................................9
3.3 Return of Merger Consideration.........................................................................11
Article IV
Representations and Warranties
4.1 Representations and Warranties of the Company and the Management Stockholders..........................13
4.2 Representations and Warranties of Parent and Sub.......................................................30
Article V
Covenants Relating to Conduct of Business
5.1 Conduct of Business by the Company Pending the Merger..................................................38
5.2 No Solicitation; Other Offers..........................................................................41
Article VI
Additional Agreements
6.1 Access to Information..................................................................................41
6.2 Legal Conditions to Merger.............................................................................42
6.3 Stock Options and Warrant..............................................................................43
6.4 Payment of Accrued Dividends...........................................................................44
6.5 Registration Rights Agreement..........................................................................44
6.6 Agreement to Defend....................................................................................44
6.7 Public Announcements...................................................................................44
6.8 Other Actions..........................................................................................44
{/TABLE}
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TABLE OF CONTENTS
(continued)
{TABLE}
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{S} {C} {C}
6.9 Advice of Changes......................................................................................45
6.10 Voting Agreements......................................................................................45
6.11 Stockholder Vote.......................................................................................45
6.12 Registration of Form S-3...............................................................................45
6.13 Limitation on Michael's Representations and Warranties.................................................45
Article VII
Conditions Precedent
7.1 Conditions to Each Party's Obligation to Effect the Merger.............................................45
7.2 Conditions to Obligations of Parent and Sub............................................................46
7.3 Conditions to Obligations of the Company...............................................................47
Article VIII
Survival of Representations and Warranties; Indemnification
8.1 Survival of Representations and Warranties.............................................................48
8.2 Indemnification by the Company and the Company Stockholders............................................48
8.3 Indemnification by Parent..............................................................................49
8.4 Damages................................................................................................50
8.5 Procedure..............................................................................................50
8.6 Limitation on Indemnification After the Effective Time.................................................51
Article IX
Termination and Amendment
9.1 Termination............................................................................................53
9.2 Effect of Termination..................................................................................54
9.3 Amendment..............................................................................................54
9.4 Extension; Waiver......................................................................................55
Article X
General Provisions
10.1 Payment of Expenses....................................................................................55
10.2 Survival of Representations, Warranties and Agreements.................................................55
10.3 Notices................................................................................................55
10.4 Interpretation.........................................................................................58
10.5 Counterparts...........................................................................................58
10.6 Entire Agreement; No Third-Party Beneficiaries.........................................................58
{/TABLE}
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TABLE OF CONTENTS
(continued)
{TABLE}
{CAPTION}
PAGE
{S} {C} {C}
10.7 Governing Law..........................................................................................58
10.8 No Remedy in Certain Circumstances.....................................................................59
10.9 Assignment.............................................................................................59
10.10 Enforcement of the Merger Agreement....................................................................59
10.11 Performance by Sub.....................................................................................59
10.12 Severability...........................................................................................59
10.13 Titles and Section Headings............................................................................59
10.14 Further Assurances.....................................................................................60
{/TABLE}
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{PAGE}
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of March 27, 2002 (this "MERGER
AGREEMENT"), among On Assignment, Inc., a Delaware corporation ("PARENT"), On
Assignment Acquisition Corp., a Delaware corporation and a wholly owned
subsidiary of Parent ("SUB"), Health Personnel Options Corporation, an Ohio
corporation (the "COMPANY"), Timothy A. Michael ("MICHAEL") and J. William
DeVille ("DEVILLE", and collectively with Michael, the "MANAGEMENT
STOCKHOLDERS") and for purposes of Sections 3.3, 6.5, 6.10 and Article VIII only
of this Merger Agreement, River Cities Capital Fund Limited Partnership, a
Delaware limited partnership, River Cities Capital Fund II Limited Partnership,
a Delaware limited partnership and Castellini Management Company Limited
Partnership, an Ohio limited partnership (collectively, the "VENTURE
STOCKHOLDERS").
WHEREAS, each of the Boards of Directors of Parent, Sub and the Company
deem it advisable and in the best interests of its corporation and its
stockholders to consummate the business combination transaction provided for
herein;
WHEREAS, the combination of Parent and the Company is to be effected by
the terms of this Merger Agreement through a merger as described below (the
"MERGER");
WHEREAS, pursuant to the Merger, among other things, the outstanding
shares of Company Capital Stock are to be converted into the right to receive
the Merger Consideration upon the terms and conditions set forth herein;
WHEREAS, immediately prior to the execution of this Merger Agreement,
the Board of Directors of the Company has approved the Merger in accordance with
the requirements of Ohio law and the charter documents of the Company;
WHEREAS, Parent, Sub, the Company, and the Management Stockholders
desire to make certain representations, warranties, covenants and agreements in
connection with the Merger; and
WHEREAS, for Federal income tax purposes, it is intended that the
Merger qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "CODE"), and the regulations
promulgated thereunder.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements herein contained, the
parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. For purposes of this Merger Agreement:
(a) "ACQUISITION PROPOSAL" means any proposal or offer, other
than a proposal or offer by Parent or any of its Affiliates, for a tender or
exchange offer, a merger,
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{PAGE}
consolidation or other business combination involving the Company or any
proposal to acquire in any manner a substantial (10% or more) equity interest
in, or substantially all of the assets of, the Company.
(b) "AFFILIATE" of any Person means another Person that directly
or indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, such first Person.
(c) "AGGREGATE COMPANY CAPITAL STOCK" means the sum of (i) the
number of shares of Company Common Stock outstanding immediately prior to the
Effective Time, plus (ii) the number of Company Common Stock Equivalents
outstanding immediately prior to the Effective Time.
(d) "AVERAGE PRICE" means the average of the per share daily
closing price of Parent Common Stock as reported on Nasdaq during the ten
consecutive trading days ending on the trading day immediately prior to the date
on which this Merger Agreement is executed.
(e) "BUSINESS DAY" means any day other than (i) Saturday or
Sunday or (ii) any other day on which banks in California or Ohio are permitted
or required to be closed.
(f) "CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9601 et seq.).
(g) "COMPANY CAPITAL STOCK" means the shares of Company Common
Stock and Company Preferred Stock.
(h) "COMPANY COMMON STOCK" means the shares of the Company's
common stock, no par value.
(i) "COMPANY COMMON STOCK EQUIVALENTS" means, with respect to any
share of Company Preferred Stock, that number of shares of Company Common Stock
into which such share is convertible immediately prior to the Effective Time.
(j) "COMPANY DEBT" means the sum of all outstanding notes
payable, capitalized leases, overdrafts (excluding overdrafts that are used
solely as working capital to pay for bona fide accounts payable of the Company,
including related accrued payroll and accrued withholding taxes incurred in the
Ordinary Course of Business) and lines of credit of the Company and the Company
Sub, less all cash and cash equivalents of the Company and the Company Sub, all
as reflected on the Company's balance sheet as of February 28, 2002, plus (A)
the sum of (i) the Investment Banking Fees, (ii) the Management Bonus Payments,
less the amount of the aggregate accrued bonuses on the books of the Company at
February 28, 2002, for Wead and DeVille, which are verified to the satisfaction
of Parent (iii) one-half of the filing fees incurred by Parent and the Company
in connection with the HSR filing, (iv) the payment in cash of any dividends in
respect of the Company Preferred Stock, (v) all payments to optionholders in
connection with the cash out of their options (vi) any loans or advances to
employees which have not been repaid by the Closing Date, (vii) all payments
made between February 28, 2002 and the Closing Date in connection with any
transaction by the Company not in the Ordinary Course of Business, including all
payments to Michael pursuant to the Michael Agreement, (viii) all
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{PAGE}
income, withholding, payroll and excise taxes payable by the Company in
connection with the Management Bonus Payments, the cash out of the Vested
Options, the exercise of the Vested Options (but only to the extent such taxes
have not been withheld by the Company from any such payment or in connection
with any such transaction or have otherwise been paid to the Company in
connection with any such transaction) and/or the Warrant (as defined in Section
4.1(c)(i)) or arising out of or related to any other transactions of the Company
not in the Ordinary Course of Business and (ix) all other fees and expenses,
including, without limitation, legal fees, incurred by the Company in connection
with this Merger Agreement and the transactions contemplated hereunder, less (B)
any cash received by the Company upon the exercise of the Vested Options or the
Warrant.
(k) "COMPANY DISCLOSURE LETTER" means the disclosure letter to be
delivered by the Company to Parent and Sub in connection with this Merger
Agreement.
(l) "COMPANY INTANGIBLE PROPERTY" means all trademarks, trade
names, patents, service marks, brand marks, brand names, computer programs,
database, industrial designs, know how, trade secrets, copyrights and other
intellectual property rights that the Company uses in its business operations.
(m) "COMPANY PREFERRED STOCK" means the shares of the Company's
Series A Preferred Stock and Series B Preferred Stock.
(n) "COMPANY STOCKHOLDERS" means (i) the Management Stockholders,
(ii) those certain non-management stockholders of the Company identified on
Exhibit A hereto, including the Venture Stockholders, and (iii) Kenneth Wead
("Wead") ((ii) and (iii) are collectively referred to herein as the
"NON-MANAGEMENT STOCKHOLDERS").
(o) "COMPANY SUB" means Nurse Bridge Consultants, LLC, a limited
liability company organized under the laws of Ohio.
(p) "CONTRACT" means any agreement, contract, obligation, promise
or undertaking (whether written or oral and whether express or implied) that is
legally binding.
(q) "DGCL" means the Delaware General Corporation Law.
(r) "ENCUMBRANCE" means any mortgage, pledge, lien (statutory or
other), security interest, charge, claim, restriction on transfer, restriction
on conveyance, assignment or license, or conditional sale or other title
retention device or arrangement (including, without limitation, a capital
lease), of any kind or any nature whatsoever, or restriction on the creation of
any of the foregoing, whether relating to any property or right or the income or
profits therefrom.
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