Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
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entered into as of February 27, 2002 by and between Xxxxxx-XXXX Funding, L.L.C.,
a Delaware limited liability company ("TBF"), and Xxxxxx-XXXX Funding III,
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L.L.C., a Delaware limited liability company ("TBF III" or, after the Effective
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Time (as defined in Article V hereof), the "Surviving Company").
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W I T N E S S E T H:
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WHEREAS, TBF and TBF III each is a limited liability company duly
formed and validly existing under the laws of the State of Delaware;
WHEREAS, the Delaware Limited Liability Company Act Del. Code Xxx.
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tit. 6 (S)(S) 18-101 et seq. (the "Act"), permits a limited liability company
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formed and existing under the Act to merge with and into a limited liability
company formed and existing under the Act;
WHEREAS, the managers of each of TBF and TBF III have duly authorized
the merger of TBF with and into TBF III pursuant to the terms of this Agreement;
and
WHEREAS, all other conditions precedent to the merger of TBF with and
into TBF III have been, or prior to the Effective Time will be, satisfied or
validly waived;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, it is agreed that, in
accordance with the applicable statutes of the State of Delaware, TBF shall be,
and hereby is, at the Effective Time, merged with and into TBF III
(the "Merger"), with TBF to be the Surviving Company. The mode of carrying the
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Merger into effect shall be as follows:
ARTICLE I
MERGER
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At the Effective Time, TBF shall be merged with and into TBF III, the
separate existence of TBF shall cease, TBF III shall continue in existence and
the Merger shall in all respects have the effects provided for by the Act.
Prior to the Effective Time, TBF and TBF III shall take all such
action (including, without limitation, obtaining the approval of this Agreement
and the Merger by all the members of TBF and TBF III) as shall be necessary or
appropriate in order to effectuate the Merger. If at any time after the
Effective Time, TBF III shall consider or be advised that any further
assignments, conveyances or assurances in law are necessary or desirable to
carry out the provisions hereof, the proper managers, members or other agents of
TBF shall execute and deliver any and all proper deeds, assignments, and
assurances in law, and do all such additional things necessary or proper to
carry out the provisions hereof.
ARTICLE II
TERMS OF TRANSACTION
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At the Effective Time, all of the limited liability company interests
held by Xxxxxx Equity Investors IV, L.P., TC Manufacturing Holdings, L.L.C., and
RCBA Strategic Partners, L.P., collectively, as the members of TBF immediately
prior to the Effective Time, by virtue of the Merger shall automatically convert
into interests in the Surviving Company in the amounts set forth in Schedule A.
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At the Effective Time, all of the limited liability company interests
held by Xxxxxx Equity Investors IV, L.P., TC KCo, L.L.C., XXXX Strategic
Partners, L.P., and XXXX (K*TEC)
Co-Investment Partners, L.P., collectively, as the members of TBF III
immediately prior to the Effective Time, by virtue of the Merger shall
automatically convert into interests in the Surviving Company in the amounts set
forth in Schedule A.
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ARTICLE III
CERTIFICATE OF INCORPORATION AND BYLAWS
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From and after the Effective Time, and until thereafter amended as
provided by law, the Certificate of Formation and the Limited Liability Company
Agreement of TBF III as in effect immediately prior to the Effective Time shall
be the Certificate of Formation and the Limited Liability Company Agreement of
the Surviving Company.
ARTICLE IV
MANAGERS AND OFFICERS
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From and after the Effective Time, and until their successors are duly
elected or appointed, or until their earlier death, resignation or removal, the
managers of the Surviving Company shall be the same as the managers of TBF III
immediately prior to the Effective Time.
From and after the Effective Time, and until their successors are duly
elected or appointed, or until their earlier death, resignation or removal, the
officers of the Surviving Company shall be the same as the officers of TBF III
immediately prior to the Effective Time.
ARTICLE V
EFFECTIVE TIME
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A certificate of merger evidencing the Merger shall be filed in the
Office of the Secretary of State of the State of Delaware pursuant to the
applicable requirements of the Act (the "Certificate of Merger") prior to the
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time that the Merger will become effective. The Merger shall become effective on
February 27, 2002 at 10:00 a.m. Eastern Time (such time of effectiveness, the
"Effective Time") and the Certificate of Merger shall so specify.
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ARTICLE VI
TERMINATION
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At any time prior to the Effective Time, the managers of TBF or TBF
III may terminate and abandon this Agreement.
ARTICLE VII
AMENDMENTS
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At any time prior to the Effective Time, the managers of TBF and TBF
III may amend, modify or supplement this Agreement in such manner as they
jointly may determine to the fullest extent permitted by applicable law.
ARTICLE VIII
GOVERNING LAW
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This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of Delaware without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
ARTICLE IX
MISCELLANEOUS
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This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original, and such counterparts shall together
constitute but one and the same instrument.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement
as of the day and year first above written.
XXXXXX-XXXX FUNDING, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Person
XXXXXX-XXXX FUNDING III, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Person
SCHEDULE A
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Member Membership Interests
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Xxxxxx Equity Investors IV, L.P.
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TC KCO, L.L.C.
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TC Manufacturing Holdings, L.L.C.
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XXXX Strategic Partners, L.P.
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XXXX (K*TEC) Co-Investment Partners, L.P.
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