Exhibit 2.08
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "AGREEMENT") is entered into as
of March 31, 2004 by and between KH LLC, a Delaware limited liability company
("KH LLC"), Knight Acquisition Corp., a Delaware corporation ("MERGER SUB"), and
Celerity Group, Inc., formerly Kinetics Holdings Corporation, a Delaware
corporation ("KHC"). KHC and Merger Sub are hereinafter sometimes collectively
referred to as the "CONSTITUENT CORPORATIONS".
RECITALS
A. KHC was incorporated on October 22, 1999. Its current authorized
capital stock consists of: (i) 500,000,000 shares of Common Stock, $0.0001 par
value per share ("KHC COMMON STOCK"); and (ii) one hundred twenty million
(120,000,000) shares of Preferred Stock, $0.0001 par value per share, thirty
million one hundred seventy-eight thousand eight hundred eighty-six (30,178,886)
of which are designated as "SERIES A PREFERRED STOCK," thirty million one
hundred seventy-eight thousand eight hundred eighty-six (30,178,886) of which
are designated as "SERIES A-1 PREFERRED STOCK", twenty million (20,000,000) of
which are designated "SERIES B PREFERRED STOCK," twenty million (20,000,000) of
which are designated "SERIES B-1 PREFERRED STOCK" (the KHC Common Stock, the
Series A Preferred Stock, the Series A-1 Preferred Stock, the Series B Preferred
Stock and the Series B-1 Preferred Stock being collectively referred to as the
"KHC CAPITAL STOCK") and nineteen million six hundred forty-two thousand two
hundred twenty-eight (19,642,228) of which are undesignated. A total of
93,449,395 shares of KHC Common Stock, 856,951 shares of Series A Preferred
Stock, 24,162,189 shares of Series A-1 Preferred Stock, no shares of Series B
Preferred Stock, and 16,276,747 shares of Series B-1 Preferred Stock are issued
and outstanding as of the date of the Agreement.
B. The Certificate of Formation of KH LLC was filed on March 5, 2004. A
copy of the Limited Liability Company Agreement of KH LLC as adopted on March 5,
2004 by KH LLC's sole member manager (the "MEMBER MANAGER") is attached hereto
as Exhibit A (the "ORIGINAL LLC AGREEMENT").
C. Merger Sub was incorporated on March 5, 2004. Its current authorized
capital stock consists of 100 shares of common stock, par value $.01 per share,
of which one share is issued and outstanding. KH LLC is the sole stockholder of
Merger Sub.
D. In order to facilitate the restructuring of KHC which is designed to
achieve numerous bona fide business purposes (the "RESTRUCTURING"), subject to
Section 2.7 the stockholders of KHC have agreed to contribute their capital
stock of KHC to KH LLC pursuant to this Agreement in exchange for limited
liability company interests in KH LLC having the rights and obligations
described in the Amended and Restated Limited Liability Company Agreement
attached hereto as Exhibit B (the "NEW LLC AGREEMENT", and the limited liability
interests described therein, the "LLC UNITS"). The temporary and limited
existence of Merger Sub is designed to facilitate the exchange of the
outstanding capital stock of KHC for LLC Units. It is the intention of KH LLC
and KHC that this transaction qualify as a nonrecognition exchange under Section
721 of the Internal Revenue Code of 1986, as amended (the "CODE").
E. Also to facilitate the Restructuring, (i) the warrantholders of KHC
have agreed to contribute their warrants to acquire capital stock of KHC to KH
LLC in return for LLC Units in a nonrecognition exchange under Section 721 of
the Code pursuant to the terms of those certain exchange agreements, dated the
date hereof (the "WARRANT EXCHANGE AGREEMENTS"), (ii) United
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States Filter Corporation, a Delaware corporation ("USF") has agreed to
contribute KHC's 11% Junior Subordinated Notes to KH LLC in return for LLC Units
in a nonrecognition exchange under Section 721 of the Code pursuant to the terms
of that certain exchange agreement dated the date hereof (the "USF EXCHANGE
AGREEMENT"), (iii) the holders of KHC's 15% Convertible Senior Subordinated
Notes have agreed to contribute such notes to KH LLC in return for LLC Units in
a nonrecognition exchange under Section 721 of the Code pursuant to the terms of
that certain exchange agreement dated the date hereof (the "CAPITAL CALL
EXCHANGE AGREEMENT") and (iv) holders of KSI 12.5% Junior Subordinated Notes and
KH LLC have entered into an exchange option agreement dated the date hereof (the
"BRIDGE NOTE EXCHANGE OPTION AGREEMENT") pursuant to which the holders of such
notes have the option to contribute such notes to KH LLC in exchange for LLC
Units in one or more nonrecognition exchanges under Section 721 of the Code.
F. The parties hereto note that it is an integral part of the
Restructuring that KHC, Kinetics Group, Inc., a Delaware corporation and a
wholly owned subsidiary of KHC ("KGI"), and Kinetics Systems, Inc., a Delaware
corporation, and an indirect wholly owned subsidiary of KHC ("KSI"), enter into
agreements with KGI's senior bank lenders, the holders of KGI's Senior Secured
Notes and the holders of KGI's Senior Subordinated Notes (collectively, the
"LENDERS"), to restructure their loans to KHC, KGI and KSI.
G. The respective Boards of Directors of KHC and Merger Sub deem it
advisable and in the best interests of their respective stockholders that Merger
Sub merge with and into KHC, with KHC being the surviving corporation, upon the
terms and subject to the conditions set forth in this Agreement.
H. Upon the effectiveness of the Merger (as defined below), subject to
Section 2.7 all of the outstanding capital stock of KHC will be converted into
LLC Units, and the parties hereto shall treat such conversion for all tax
purposes as if all the outstanding capital stock of KHC were contributed to KH
LLC in exchange for LLC Units.
I. Upon the effectiveness of the Merger, employee stock options to
purchase common stock of KHC shall remain options to purchase common stock of
KHC and such options shall be adjusted to reflect the Restructuring but shall
not be assumed by KH LLC.
J. Certain officers and directors of KHC have agreed to contribute
their options to acquire common stock of KHC to KH LLC in return for LLC Units
in a nonrecognition exchange under Section 721 of the Code pursuant to the terms
of those certain exchange agreements, dated the date hereof (the "OPTION
EXCHANGE AGREEMENTS").
K. The Boards of Directors of KHC and Merger Sub have approved and
adopted this Agreement.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
set forth in this Agreement and do hereby agree that Merger Sub shall merge with
and into KHC on the following terms, conditions and other provisions:
ARTICLE 1
THE MERGER
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1.1 MERGER AND EFFECTIVE TIME. On and subject to the terms and
conditions of this Agreement and in accordance with the General Corporation Law
of Delaware (the "DGCL"), at the Effective Time (as defined below), Merger Sub
shall be merged with and into KHC (the "MERGER"), the separate existence of
Merger Sub shall cease, and KHC shall continue as the surviving corporation of
the Merger (the "SURVIVING CORPORATION"). At the Closing, the parties hereto
shall cause the Merger to be consummated by filing a Certificate of Merger
substantially in the form attached hereto as Exhibit C (the "CERTIFICATE OF
MERGER") in accordance with the requirements of the DGCL. The Merger shall
become effective as of the date and at such time as the Certificate of Merger,
pursuant to Section 251 of the DGCL, and any other documents necessary to effect
the Merger, in accordance with the DGCL, are duly filed with the Secretary of
State of the State of Delaware or, if a later effective time is provided in the
Certificate of Merger, such later time (the "EFFECTIVE TIME").
1.2 CLOSING. The closing of the Merger (the "CLOSING") shall be a time
and date specified by the parties, which shall be as soon as practicable after
satisfaction (or waiver in accordance with this Agreement), of the conditions
set forth in Article 3, at the office of Fenwick & West LLP, 000 Xxxxxxxxxx
Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000, unless another date or place is agreed
to in writing by the parties.
ARTICLE 2
EFFECT OF THE MERGER; EXCHANGE OF CERTIFICATES
2.1 EFFECT OF MERGER. At the Effective Time, the separate corporate
existence of Merger Sub shall cease; the corporate identity, existence, powers,
rights and immunities of KHC as the Surviving Corporation shall continue
unimpaired by the Merger pursuant to the terms of this Agreement and the
Certificate of Merger. The Merger shall have the effects set forth in this
Agreement and the DGCL, including Section 259 of the DGCL.
2.2 NAME CHANGE; GOVERNING DOCUMENTS. At the Effective Time, (i) the
name of the Surviving Corporation shall be "Celerity Group, Inc.," (ii) the
Certificate of Incorporation of the Surviving Corporation shall be the
Certificate of Incorporation of KHC as amended and restated in the form attached
to the Certificate of Merger, until amended in accordance with the terms thereof
and with applicable law, (iii) the Bylaws of the Surviving Corporation shall be
the Bylaws of KHC in effect immediately prior to the Effective Time, until
amended in accordance with the terms thereof and with applicable law, and (iv)
the Original LLC Agreement shall be amended and restated pursuant to its terms
and conditions to be replaced in its entirety by the New LLC Agreement.
2.3 DIRECTORS AND OFFICERS. At the Effective Time, the officers of KHC
immediately prior to the Effective Time shall remain the officers of the
Surviving Corporation immediately after the Effective Time and the members of
the Board of Directors of KHC immediately prior to the Effective Time shall
remain the members of the Board of Directors of the Surviving Corporation
immediately after the Effective Time and shall serve until their respective
successors are duly elected or appointed and qualified.
2.4 CONVERSION OF SHARES OF KHC.
(a) At the Effective Time, by virtue of the Merger and without any
further action on the part of the Constituent Corporations or their
stockholders, except for Dissenting Shares and shares of KHC Capital Stock which
are cancelled pursuant to 2.4(b), (i) each share of KHC
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Common Stock, issued and outstanding immediately prior to the Effective Time
shall be canceled and converted into the right to receive one issued and
outstanding Common Unit (as defined in the New LLC Agreement) of KH LLC, such
cancellation to entitle the record holder of such share of KHC Common Stock to
be admitted as a Common Member (as defined in the New LLC Agreement) of KH LLC
upon surrender of the certificate representing such share in accordance with
Section 2.6, (ii) each share of KHC Series A Preferred Stock outstanding
immediately prior to the Effective Time shall be canceled and converted into the
right to receive one issued and outstanding Class A Unit (as defined in the New
LLC Agreement) of KH LLC, such cancellation to entitle the record holder of such
share of KHC Series A Preferred Stock to be admitted as a Class A Member (as
defined in the New LLC Agreement) of KH LLC upon surrender of the certificate
representing such share in accordance with Section 2.6, (iii) each share of KHC
Series A-1 Preferred Stock outstanding immediately prior to the Effective Time
shall be canceled and converted into the right to receive one issued and
outstanding Class A-1 Unit (as defined in the New LLC Agreement) of KH LLC, such
cancellation to entitle the record holder of such share of KHC Series A-1
Preferred Stock to be admitted as a Class A-1 Member (as defined in the New LLC
Agreement) of KH LLC upon surrender of the certificate representing such share
in accordance with Section 2.6, and (iv) each share of KHC Series B-1 Preferred
Stock outstanding immediately prior to the Effective Time shall be canceled and
converted into the right to receive one issued and outstanding Class B-1 Unit
(as defined in the New LLC Agreement) of KH LLC, such cancellation to entitle
the record holder of such share of KHC Series B-1 Stock to be admitted as a
Class B-1 Member (as defined in the New LLC Agreement) of KH LLC upon surrender
of the certificate representing such share in accordance with Section 2.6.
(b) Each share of KHC Capital Stock held by KHC in its treasury at the
Effective Time, if any, shall be canceled.
2.5 CONVERSION OF SHARES OF MERGER SUB. At the Effective Time, by
virtue of the Merger and without any further action on the part of the
Constituent Corporations or their stockholders, the outstanding share of Merger
Sub common stock, par value $0.01 per share, issued and outstanding immediately
prior thereto shall be canceled and converted into the right to receive
93,449,395 shares of KHC Common Stock, 856,951 shares of Series A Preferred
Stock, 24,162,189 shares of Series A-1 Preferred Stock, and 16,276,747 shares of
Series B-1 Preferred Stock.
2.6 SURRENDER OF EXISTING KHC CERTIFICATES. At and after the Effective
Time, holders of certificates that, prior to the Effective Time, represented
shares of KHC Capital Stock shall, by virtue of the Merger, cease to have any
rights with respect to such KHC Capital Stock except, upon surrender of the
certificates representing such shares pursuant to this Section 2.6, the right to
receive distributions payable from time to time in respect of the LLC Units
issued to the holders of such certificates in the Merger and the right to be
admitted as a member of KH LLC . LLC Units issued in the Merger shall not be
represented by certificates, but KH LLC may issue certificates representing the
LLC Units in the future. As soon as reasonably practicable after the Effective
Time, the Surviving Corporation will mail to the record holders of certificates
formerly representing shares of KHC Capital Stock (a) a letter of transmittal in
customary form and containing such provisions as the Surviving Corporation may
reasonably specify (including provisions confirming that (i) upon surrender of
such certificates, such holders, as Members of KH LLC, will be bound by the
terms and conditions of the New LLC Agreement and (ii) delivery of such
certificates shall be effected, and risk of loss and title to such certificates
shall pass, only upon delivery of such certificates to the Surviving
Corporation), and (b) instructions
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for use in effecting the surrender of such certificates. Upon surrender of such
a certificate, together with a duly executed letter of transmittal and such
other documents as may be reasonably required by the Surviving Corporation, (1)
the record holder of such certificate shall be entitled to receive any
distributions payable from time to time in respect of the LLC Units issued to
such holder in the Merger and such record holder shall be admitted as a Member
of KH LLC in accordance with Section 2.4(a) and (2) the certificate so
surrendered shall be cancelled. No distribution payable from time to time with
respect to LLC Units issued in the Merger shall be paid to the holder of any
unsurrendered certificate representing KHC Capital Stock until such holder
surrenders such certificate in accordance with this Section 2.6 (at which time
such holder shall be entitled, subject to the effect of applicable escheat or
similar laws, to receive all such distributions without interest). Neither KH
LLC nor the Surviving Corporation shall be liable to any holder or former holder
of capital stock of KHC for any LLC Units (or dividends or distributions with
respect thereto), or for any cash amounts, delivered to any public official
pursuant to any applicable abandoned property, escheat or similar law.
2.7 DISSENTING SHARES. Notwithstanding the provisions of Section 2.4,
if, in connection with the Merger, holders of KHC Capital Stock ("KHC
STOCKHOLDERS") are entitled to appraisal rights pursuant to the DGCL, any shares
of KHC Capital Stock held by KHC Stockholders who exercise and perfect such
appraisal rights ("DISSENTING SHARES") shall not be converted into LLC Units as
provided in Section 2.4, but shall be converted into the right to receive such
consideration from KHC as may be determined to be due with respect to such
Dissenting Shares pursuant to the DGCL. In the event that any Dissenting Share
loses its status as such, whether because a KHC Stockholder fails to make an
effective demand for payment or fails to perfect his appraisal rights in respect
of such Dissenting Share or otherwise, such Dissenting Share shall be converted
into the right to receive the consideration set forth in Section 2.4, and the
record holder of such Dissenting Share shall be entitled to be admitted as a
Member of KH LLC in accordance with Section 2.4(a).
2.8 COMPANY OPTIONS NOT ASSUMED. Options issued pursuant to (a) the KHC
2000 Stock Option Plan, (b) the KHC 2002 Stock Option Plan B, or (c) any
outstanding KHC employee stock options, shall not be assumed by KH LLC and shall
remain options to purchase KHC Capital Stock.
2.9 FRACTIONAL UNITS. Fractional LLC Units shall not be issued and 0.5
units or more or more shall be rounded up and less than 0.5 of a unit shall be
rounded down.
2.10 LOST CERTIFICATES. If any certificate representing KHC Capital
Stock shall have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the respective stockholder claiming such certificate to be lost,
stolen or destroyed, and if required by the Surviving Corporation, the posting
by such stockholder of a bond in such reasonable amount as the Surviving
Corporation may require as indemnity against such claim that may be made against
it with respect to such certificate, the holder of such missing, lost, stolen or
destroyed certificate shall be entitled to receive any distribution payable from
time to time in respect of the LLC Units issued to such holder in the Merger.
2.11 TAX CHARACTERIZATION OF MERGER. The exchanges of KHC Capital Stock
for LLC Units pursuant to the Merger are intended to be characterized for United
States federal income tax purposes as contributions of property to a partnership
in exchange for an interest in the partnership as described in Section 721 of
the Code, and no party hereto shall take any position inconsistent with such
treatment.
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2.12 TAX CHARACTERIZATION OF RELATED EXCHANGES. The transactions
contemplated by the Warrant Exchange Agreements, the USF Exchange Agreement, the
Capital Call Exchange Agreement, Bridge Note Exchange Option Agreement, the
Option Exchange Agreements and related agreements involving the transfer of
property to KH LLC and the issuance of LLC Units, are all intended by the
parties hereto to be characterized for United States federal income tax purposes
as contributions of property to a partnership in exchange for interests in the
partnership as described in Section 721 of the Code, and, no party hereto will
take any position inconsistent with such treatment.
2.13 KHC STOCKHOLDERS BOUND BY NEW LLC AGREEMENT. BY VOTING IN FAVOR OF
THE MERGER OR BY NOT EXERCISING APPRAISAL RIGHTS WITH RESPECT TO KHC CAPITAL
STOCK PURSUANT TO SECTION 2.7, AS WELL AS BY ACCEPTING LLC UNIT(S) IN THE
MERGER, EACH KHC STOCKHOLDER SHALL BE DEEMED TO HAVE AGREED TO BE BOUND BY THE
TERMS AND CONDITIONS OF THE NEW LLC AGREEMENT.
ARTICLE 3
CONDITIONS TO THE MERGER
The obligation of KHC, Merger Sub and KH LLC to consummate the
transactions under this Agreement contemplated to occur at the Closing,
including the Merger, is subject to the fulfillment, at or prior to the Closing,
of each of the following conditions (each of which (other than Sections 3.1 and
3.2) may be waived by holders of 66 2/3% of the outstanding shares of KHC
Capital Stock to the extent permitted by applicable law):
3.1 STOCKHOLDER APPROVAL. This Agreement and the transactions provided
for herein shall have been approved and adopted by (a) a majority of the holders
of the Common Stock and Preferred Stock of KHC voting together as a single class
and by holders of 66 2/3% of the outstanding shares of Series A Preferred Stock
and Series A-1 Preferred Stock, voting together as a single class, and holders
of 66 2/3% of the outstanding shares of Series B-1 Preferred Stock and (b) the
Member Manager of KH LLC, as the sole stockholder of Merger Sub.
3.2 BOARD AND MEMBER MANAGER APPROVAL. This Agreement and the
transactions provided for herein shall have been approved by the Board of
Directors of KHC and Merger Sub and the Member Manager of KH LLC.
3.3 REGULATORY APPROVALS. All authorizations by and approvals of any
governmental or public authority or agency deemed necessary or advisable by the
Board of Directors of KHC and Merger Sub and the Member Manager of KH LLC in
connection with the Merger and other related transactions shall have been
obtained, shall be in full force and effect, shall not have been revoked and
shall be legally sufficient to authorize the transactions contemplated by this
Agreement.
3.4 OTHER APPROVALS OR WAIVERS. All third party consents or waivers
deemed necessary or advisable by the Board of Directors of KHC and Merger Sub
and the Member Manager of KH LLC in connection with the Merger and other related
transactions shall have been obtained.
3.5 EXCHANGE AGREEMENTS. Each of the Warrant Exchange Agreements, USF
Exchange Agreement, Capital Call Exchange Agreement, Bridge Note Exchange Option
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Agreement and Option Exchange Agreements shall be fully executed, in full force
and effect, and the conditions to the transactions contemplated thereby (other
than consummation of the Merger) have been satisfied or waived.
3.6 UNITHOLDER AGREEMENT. The Unitholder Agreement, among KH LLC,
KHC,KSI and the holders of LLC Units, shall be executed by KH LLC, KHC, KSI and
persons that will be holding at least 95% of the LLC Units immediately following
the Merger, and the conditions to the effectiveness of the Unitholders Agreement
contemplated thereby (other than consummation of the Merger) have been satisfied
or waived.
3.7 DEBT HOLDER AGREEMENTS. The agreements with the Lenders necessary
to restructure the indebtedness of KHC, KSI and KGI shall be fully executed and
in full force and effect.
3.8 APPRAISAL RIGHTS. This Agreement shall have been adopted by KHC
Stockholders holding, individually or in the aggregate, 95% or more of the
outstanding KHC Capital Stock.
3.9 LEGAL OPINION. KHC shall have received a legal opinion from legal
counsel to KH LLC, in form and substance reasonably acceptable to KHC.
3.10 KHC CHARTER AMENDMENT. The restated certificate of incorporation
of KHC shall have been amended in form and substance reasonably acceptable to KH
LLC.
ARTICLE 4
AMENDMENT AND TERMINATION
4.1 AMENDMENTS AND WAIVERS. Prior to the effectiveness of the Merger,
any term or provision of this Agreement may be amended, and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), by the parties hereto at
any time by execution of an instrument in writing signed on behalf of each of
the parties hereto.
4.2 TERMINATION. This Agreement may be terminated and the Merger and
other transactions provided for by this Agreement may be abandoned at any time,
whether before or after approval of this Agreement by the stockholders of KHC,
by action of the Board of Directors of KHC if such Board of Directors determines
for any reason that the completion of the transactions provided for herein would
for any reason be inadvisable or not in the best interests of KHC or its
stockholders. The parties hereto, and any officers or directors thereof, shall
not have any liability to any person, including, without limitation, any
stockholder of KHC, in the event of such termination.
ARTICLE 5
ADDITIONAL AGREEMENTS
5.1 ASSUMPTION OF PLANS BY SURVIVING CORPORATION. At the Effective
Time, the obligations of KHC under or with respect to every plan, trust, program
and benefit then in effect or administered by KHC for the benefit of the
directors, officers and employees of KHC or any of its subsidiaries shall become
the lawful obligations of the Surviving Corporation and shall be
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implemented and administered in the same manner and without interruption until
the same are amended or otherwise lawfully altered or terminated.
5.2 FURTHER ASSURANCES. 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 KHC such deeds, assignments and other instruments,
and there shall be taken or caused to be taken by it all such further action, as
shall be appropriate, advisable or necessary in order to vest, perfect or
confirm, of record or otherwise, in the Surviving Corporation the title to and
possession of all property, interests, assets, rights, privileges, immunities,
powers, franchises and authority of KHC, and otherwise to carry out the purposes
of this Agreement. The officers and directors of the Surviving Corporation are
fully authorized in the name of and on behalf of KHC, or otherwise, to take any
and all such actions and to execute and deliver any and all such deeds and other
instruments as may be necessary or appropriate to accomplish the foregoing.
5.3 GOVERNING LAW. The internal laws of the State of Delaware
(irrespective of its choice of law principles) will govern the validity of this
Agreement, the construction of its terms, and the interpretation and enforcement
of the rights and duties of the parties hereto.
5.4 ASSIGNMENT; BINDING UPON SUCCESSORS AND ASSIGNS. No party hereto
may assign any of its rights or obligations hereunder without the prior written
consent of each of the other parties hereto. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
5.5 SEVERABILITY. If any provision of this Agreement, or the
application thereof, will for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such provision
to other persons or circumstances will be interpreted so as reasonably to effect
the intent of the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes of the void or unenforceable provision.
5.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument. This Agreement will become binding when one or more
counterparts hereof, individually or taken together, will bear the signatures of
both parties reflected hereon as signatories.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
KH LLC CELERITY GROUP, INC., a Delaware corporation
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxxx
---------------------- ----------------
Its: Member Manager Its: Secretary
KNIGHT ACQUISITION CORP.
By: /s/ Xxxx Xxxxxxx
----------------
Its: Secretary
[Signature Page to Agreement and Plan of Merger]
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EXHIBIT "A"
LIMITED LIABILITY AGREEMENT OF KH LLC
EXHIBIT "B"
AMENDED AND RESTATED LIMITED LIABILITY AGREEMENT OF KH LLC
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EXHIBIT "C"
CERTIFICATE OF MERGER
