Exhibit 2.1
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") dated as of July 30, 1998
between KKR 1996 FUND L.P. ("Buyer") and LISCO, INC. ("Seller"), a wholly owned
subsidiary of EVENFLO & SPALDING HOLDINGS CORPORATION ("E&S").
RECITALS
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, 5,100,000 shares of Class A Common Stock ("Common Stock"), par
value $0.01 per share (the "Common Shares") and 400,000 shares of preferred
stock having terms to be mutually agreed upon by Buyer and Seller (the
"Preferred Stock"), par value $0.01 per share (the "Preferred Shares" and,
together with the Common Shares, the "Shares") of Evenflo Company, Inc. (the
"Company"), a Delaware corporation and, as of the date hereof, a wholly owned
subsidiary of Seller.
WHEREAS, in connection with the transactions contemplated by this
Agreement, Buyer, Seller and the Company will enter into a Stockholders'
Agreement (the "Stockholders' Agreement") dated as of the date hereof to provide
for certain matters relating to the respective holdings by Buyer and Seller of
Common Stock.
WHEREAS, in connection with the transactions contemplated by this
Agreement, the Company intends to (i) enter into a $100 million revolving credit
facility and (ii) issue and sell up to $110 million aggregate principal amount
of senior notes of the Company in a private placement transaction ((i) and (ii)
together, the "Financing").
WHEREAS, in connection with the Financing and the transactions
contemplated by this Agreement, the Company and E&S will enter into an Indemnity
Agreement (the "Indemnity Agreement") dated as of the date hereof pursuant to
which E&S will agree to indemnify the Company for all losses and liabilities of
any kind relating to any non-Company related matters and the Company will agree
to indemnify E&S for all losses and liabilities of any kind relating to the
business of the Company.
NOW, THEREFORE, in consideration of the foregoing and the
representations and warranties contained in this Agreement, the parties agree as
follows:
ARTICLE 1
PURCHASE AND SALE
Section 1.1 Purchase and Sale of the Shares. On the terms and subject
to the conditions of this Agreement, Seller shall sell, transfer and deliver to
Buyer, and Buyer shall purchase from Seller, the Common Shares for a purchase
price of $25,500,000 and the Preferred Shares for a purchase price of
$40,000,000 (the aggregate of such payments being referred to herein as the
"Purchase Price"), payable in cash as set forth in Section 1.2 below.
Section 1.2 Closing. The closing (the "Closing") of the purchase and
sale of the Shares shall be held at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx at
a date and time to be mutually agreed upon by the parties (the "Closing Date").
At the Closing, (i) Buyer shall deliver to Seller, by wire transfer to a bank
account designated in writing by Seller, immediately available funds in an
amount equal to the Purchase Price and (ii) Seller shall deliver to Buyer
certificates representing the Shares duly endorsed in blank or accompanied by
stock powers duly endorsed in blank in proper form for transfer, with
appropriate transfer stamps, if any, affixed.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
Section 2.1 Authority. Seller is a corporation duly organized and
validly existing under the jurisdiction of its incorporation. Seller has all
requisite corporate power and authority to execute, deliver and perform this
Agreement and to consummate the transactions contemplated hereby. All corporate
acts and other proceedings required to be taken by Seller to authorize the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly and properly taken. This
Agreement has been duly executed and delivered by Seller and constitutes a
legal, valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms.
Section 2.2 The Shares. Seller has good and valid title to the Shares,
free and clear of any liens, claims, encumbrances, security interests, options,
pre-emptive, drag-along or tag-along rights, rights of first refusal or first
offer, charges or restrictions of any kind (collectively, "Liens"). Assuming
Buyer has the requisite power and authority to be the lawful owner of the
Shares, upon delivery to Buyer at the Closing of certificates representing the
Shares, duly endorsed by Seller to Buyer for transfer pursuant to Section 1.1
and upon Seller's receipt of the Purchase Price, good and valid title to the
Shares will pass to Buyer, free and clear of any Liens, except for Liens arising
from acts of Buyer.
Section 2.3 Governmental Authorization. The execution, delivery and
performance by Seller of this Agreement requires no order, license, consent,
authorization or approval of, or exemption by, or action by or in respect of, or
notice to, or filing or registration with, any governmental body, agency or
official except such as have been obtained or except where the failure to obtain
any such order, license, consent, authorization, approval or exemption or give
any such notice or make any filing or registration would not reasonably be
expected to adversely affect the ability of Seller to perform its obligations
hereunder.
Section 2.4 Noncontravention. The execution, delivery and performance
by Seller of this Agreement does not and will not (i) violate the certificate of
incorporation or bylaws of Seller, (ii) violate any law, rule, regulation,
judgment, injunction, order or decree applicable to or binding upon Seller,
(iii) require any consent or other action by any person
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under, constitute a default under (with due notice or lapse of time or both), or
give rise to any right of termination, cancellation or acceleration of any right
or obligation of Seller or to a loss of any benefit to which Seller is entitled
under any provision of any agreement or other instrument binding upon Seller or
any of its assets or properties or (iv) result in the creation or imposition of
any material Lien on any property or asset of Seller.
Section 2.5 Capitalization. The authorized capital stock of the
Company as of the date of the Closing will consist of 20,000,000 shares of
Common Stock and 10,000,000 shares of preferred stock, $0.01 par value per
share. As of the date hereof, (i) 1,000 shares of Common Stock are issued and
outstanding, all of which are owned by Seller and (ii) no shares of preferred
stock are issued and outstanding. Other than the 1,000 shares of issued and
outstanding Common Stock, there are no outstanding (i) shares of capital stock
or voting securities of the Company, (ii) securities of the Company convertible
into or exchangeable for shares of capital stock or voting securities of the
Company, (iii) options or other rights to acquire from the Company, or other
obligation of the Company to issue, any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of the Company or (iv) obligation of the Company to repurchase or
otherwise acquire or retire any shares of capital stock or any convertible
securities, rights or options of the type described in clause (i), (ii), or
(iii).
Section 2.6 Litigation. There is no action, suit, investigation or
proceeding pending against or, to the knowledge of Seller, threatened against or
affecting Seller before any court or arbitrator or any governmental body, agency
or official which in any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated by this Agreement.
Section 2.7 Financial Statements and Condition. (a) Prior to the
execution of this Agreement, Seller has delivered to Buyer true and complete
copies of the following financial statements (the "Financial Statements"):
(i) the unaudited condensed combined balance sheet of the
Company and its consolidated subsidiaries as of March 31,
1998 (the "Balance Sheet") and the related unaudited
condensed statement of combined earnings for the portion of
the fiscal year then ended then ended; and
(ii) the audited combined balance sheets of the Company and its
consolidated subsidiaries as of September 30, 1996 and 1997
and the related audited statement of earnings, shareholders'
equity and cash flows for each of the fiscal years then
ended, together with a true and correct copy of the report
on such audited information by Deloitte & Touche LLP.
Except as set forth in any notes thereto, all such Financial Statements
(including the notes thereto) were prepared in accordance with United States
generally accepted accounting principles ("GAAP") and fairly present in all
material respects the consolidated financial position and results of operations
and cash flows of the Company and its consolidated
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subsidiaries, as of the respective dates thereof and for the respective periods
covered thereby, subject, in the case of interim statements (which do not
contain any notes), to normal year-end adjustments.
(b) Except for the transactions contemplated hereby (including the
transactions related to the Financing), since March 31, 1998, the business of
the Company has been operated in all material respects in the ordinary course
and there has not been any material adverse change in the business, assets,
results of operations or financial condition of the Company and its
subsidiaries, taken as a whole.
Section 2.8 Absence of Undisclosed Liabilities. Neither the Company
nor any subsidiary of the Company has any liabilities or obligations, whether
currently due, accrued, direct or indirect, matured or unmatured, absolute,
contingent or otherwise, of a nature required under GAAP to be reflected or
reserved against in the notes or schedules thereto, other than: (i) liabilities
fully and adequately reflected or reserved against in the Balance Sheet, (ii)
liabilities incurred in the ordinary course of business and consistent with past
practice since September 30, 1997, and (iii) liabilities incurred in connection
with the acquisition of Xxxxx Baby Products Company.
Section 2.9 Taxes. (a) The Company has duly and timely filed (within
applicable extension periods) all material Tax Returns required to be filed by
it and has paid or adequately provided for in the Financial Statements all Taxes
that are due and payable, regardless of whether such Taxes are shown as due on
such Tax Returns. No deficiencies for any Taxes have been asserted or assessed
for which there is not an adequate reserve reflected in the Financial
Statements. Except as previously disclosed in writing to Buyer, the Company has
not entered into any agreement to extend or waive the limitations period
applicable to the filing of any Tax Return or the assertion or assessment of any
liability for Taxes. The Company is not a party to any Tax sharing, Tax
indemnity or other agreement relating to Taxes.
(b) "Tax" or "Taxes" mean all income, gross receipts, gains, sales,
use, employment, franchise, profits, excise, property, value added and other
taxes, fees, stamp taxes and duties, assessments or charges of any kind,
together with any interest and penalties, additions to tax or additional amounts
imposed by any taxing authority with respect thereto and the term "Tax Returns"
means any and all returns, reports and information statements with respect to
Taxes required to be filed with the IRS or other Tax authority, whether domestic
or foreign, including, without limitation, any and all consolidated, combined
and unitary tax returns.
Section 2.10 Full Disclosure. Seller has made or caused to be made
available to Buyer all material information and complete and accurate copies of
all material documents, files, records and papers relating to the Company and in
possession of Seller, the Company, or any subsidiary of the Company relating to
the business, assets, results of operations or financial condition of the
Company and its subsidiaries. Seller has not knowingly withheld and information
or documents, files, records or papers necessary to make the representations and
warranties set forth in this Article 2, in the context in which they were made,
not
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misleading in any material respect. To the knowledge of Seller, the Company has
not furnished any information, documents, files, records papers or related
materials to Buyer that contain any untrue statement of a material fact.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
Section 3.1 Authority. Buyer is a limited partnership duly organized
and validly existing under the jurisdiction of its formation. Buyer has all
requisite power and authority to execute, deliver and perform this Agreement and
to consummate the transactions contemplated hereby. All acts and other
proceedings required to be taken by Buyer to authorize the execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and properly taken. This Agreement has been
duly executed and delivered by Buyer and constitutes a legal, valid and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
Section 3.2 Governmental Authorization. The execution, delivery and
performance by Buyer of this Agreement requires no order, license, consent,
authorization or approval of, or exemption by, or action by or in respect of, or
notice to, or filing or registration with, any governmental body, agency or
official except such as have been obtained or except where the failure to obtain
any such order, license, consent, authorization, approval or exemption or give
any such notice or make any filing or registration would not reasonably be
expected to adversely affect the ability of Buyer to perform its obligations
hereunder.
Section 3.3 Noncontravention. The execution, delivery and performance
by Buyer of this Agreement does not and will not (i) violate the certificate of
limited partnership or agreement of limited partnership of Buyer, (ii) violate
any law, rule, regulation, judgment, injunction, order or decree applicable to
or binding upon Buyer, (iii) require any consent or other action by any person
under, constitute a default under (with due notice or lapse of time or both), or
give rise to any right of termination, cancellation or acceleration of any right
or obligation of Buyer or to a loss of any benefit to which Buyer is entitled
under any provision of any agreement or other instrument binding upon Buyer or
any of its assets or properties or (iv) result in the creation or imposition of
any material Lien on any property or asset of Buyer.
Section 3.4 Securities Act. The Shares purchased by Buyer pursuant to
this Agreement are being acquired for investment only and not with a view to any
public distribution thereof, and Buyer shall not offer to sell or otherwise
dispose of the Shares so acquired by it in violation of any registration
requirements of the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
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Section 3.5 Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of Buyer, threatened against or
affecting Buyer before any court or arbitrator or any governmental body, agency
or official which in any manner challenges or seeks to prevent, enjoin, alter or
materially delay the transactions contemplated by this Agreement.
ARTICLE 4
CONDITIONS TO CLOSING
Section 4.1 Conditions to Obligations of Buyer and Seller. The
obligations of Buyer and Seller to consummate the transactions contemplated
hereby are subject to the satisfaction of the following conditions:
(a) No provision of any applicable law, rule or regulation and no
judgment, injunction, order or decree by any governmental entity of
competent jurisdiction shall prohibit the consummation of the transactions
contemplated hereby.
(b) All material actions by or in respect of, or filings with, any
governmental body, agency, official or authority required to permit the
consummation of the Closing shall have been taken, made or obtained.
(c) The Company shall have received the proceeds of the Financing on
terms reasonably satisfactory to Seller and Buyer.
(d) Seller and Buyer shall have received from a qualified valuation
firm (who may be the same firm retained to deliver a solvency letter to the
financial institutions providing the senior debt portion of the Financing)
a letter in form and substance reasonably satisfactory to Buyer and Seller
as to the solvency of the Seller and the Company and its subsidiaries after
giving effect to the Financing, the Preferred Stock Investment and the
transactions contemplated by this Agreement.
(e) Each of Buyer and Seller shall be satisfied in their sole
discretion with the terms and conditions of the Preferred Stock.
(f) Each of the Company and E&S shall have executed and delivered the
Indemnity Agreement substantially in the form attached hereto as Exhibit A.
(g) Each of the Company and E&S shall have executed and delivered the
Employee Matters Agreement in a form reasonably satisfactory to both
parties.
(h) Each of the Company and E&S shall have executed and delivered the
Tax Disaffiliation Agreement in a form reasonably satisfactory to both
parties.
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Section 4.2 Conditions to Obligations of Buyer. The obligation of
Buyer to consummate the transactions contemplated hereby is subject to the
satisfaction of the following further conditions:
(a) (i) Seller shall have performed in all material respects all of
its obligations hereunder required to be performed by it on or prior to the
Closing Date and (ii) the representations and warranties of Seller
contained in this Agreement shall be true in all material respects when
made and at and as of the Closing Date, as if made at and as of such date.
(b) The representations and warranties of Seller in the Agreement that
are qualified as to materiality shall be true and correct in all respects
as of the date hereof and at and as of the Closing as if made at and as of
such time, other than representations and warranties that speak as of a
specific date or time (which need only be true and correct in all respects
as of such date and time), and the representations and warranties of Seller
in this Agreement that are not qualified by materiality shall be true and
correct in all material respects as of the date hereof and at and as of the
Closing as if made at and as of such time, other than representations and
warranties that speak as of a specific date or time (which need only be
true and correct in all material respects as of such date or time).
(c) Each of the Company and Seller shall have executed and delivered
the Stockholders' Agreement substantially in the form attached hereto as
Exhibit B.
(d) The Company shall have executed and delivered the Registration
Rights Agreement substantially in the form attached hereto as Exhibit C.
(e) The Company shall have executed and delivered a Management Fee
Agreement in a form reasonably acceptable to Buyer and the Company.
(f) The Company shall have executed and delivered a Stock Ownership
Agreement in a form reasonably acceptable to Buyer and the Company.
(g) The Company shall have paid all intercompany receivables owing to
E&S and its subsidiaries.
Section 4.3 Conditions to Obligation of Seller. The obligation of
Seller to consummate the transactions contemplated hereby is subject to the
satisfaction of the following further conditions:
(a) (i) Buyer shall have performed in all material respects all of its
obligations hereunder required to be performed by it at or prior to the
Closing Date and (ii) the representations and warranties of Buyer contained
in this Agreement shall be true in all material respects when made and at
and as of the Closing Date, as if made at and as of such date.
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(b) Each of the Company and Buyer shall have executed and delivered
the Stockholders' Agreement.
(c) Seller shall have received from an independent investment banking
institution a favorable opinion as to the fairness, from a financial point
of view, of the transactions contemplated by this Agreement.
ARTICLE 5
COVENANTS OF SELLER AND BUYER
Section 5.1 Further Assurances. Seller and Buyer agree that, from time
to time, whether on or after the Closing Date, each of them will execute and
deliver such further instruments of conveyance and transfer and take such other
actions as may be necessary to carry out the purposes and intents of this
Agreement.
Section 5.2 Conduct of Business. Except as otherwise contemplated by
the transactions provided for herein or the terms hereof, pending the Closing,
Seller shall cause the Company to operate and carry on its business in all
material respects only in the ordinary course consistent with past practice.
Section 5.3 No Inconsistent Action. Subject to Sections 7.1 and 7.2,
Seller, Buyer and the Company shall not take any action inconsistent with their
obligations under this Agreement or which could materially hinder or delay the
consummation of the transactions contemplated by this Agreement.
ARTICLE 6
NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES; COMPETITION
Section 6.1 Survival. The representations and warranties in this
Agreement or in any instrument delivered pursuant to this Agreement shall not
survive the Closing. This Section 6.1 shall not limit any covenant or agreement
of the parties which by its terms contemplates performance after the Closing.
Section 6.2 Competition. Without the express written consent of Buyer,
for so long as Buyer holds shares of Common Stock, none of Seller or any of its
affiliates (other than the Company and its direct and indirect subsidiaries)
shall directly or indirectly acquire any interest, or invest in any manner, in
any individual, corporation, limited liability company, partnership, trust,
joint stock company, business trust, unincorporated association, joint venture,
governmental authority or other legal entity of any nature whatsoever engaged in
the manufacture or marketing of juvenile products, whether located in or outside
of the United States.
ARTICLE 7
TERMINATION
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Section 7.1 Grounds for Termination. This Agreement may be terminated
at any time prior to the Closing:
(a) by mutual written agreement of Seller and Buyer;
(b) by either Seller, on the one hand, or Buyer, on the other hand, if
the Closing shall not have been consummated as of the close of business on
September 30, 1998; or
(c) by either Seller, on the one hand, or Buyer, on the other hand, if
consummation of the transactions contemplated hereby would violate any
non-appealable final order, decree or judgment of any court or governmental
body having competent jurisdiction.
The party desiring to terminate this Agreement pursuant to clauses 7.1(b) or (c)
shall promptly give notice of such termination to the other party.
Section 7.2 Effect of Termination. If this Agreement is terminated as
permitted by Section 7.1, such termination shall be without liability of any
party (or any stockholder, general partner, limited partner, member, director,
officer, employee, agent, consultant or representative of such party) to the
other party to this Agreement and this Agreement shall become void and of no
further force or effect; provided that if such termination shall result from the
willful (i) failure of either party to fulfill a condition to the performance of
the obligations of the other party, (ii) failure to perform a covenant of this
Agreement or (iii) material breach by either party hereto of any representation
or warranty or agreement contained herein, such party shall be liable for such
breach prior to such termination. Notwithstanding the foregoing, the provisions
of Sections 8.2, 8.5, 8.6 and 8.7 shall survive any termination hereof pursuant
to Section 7.1.
ARTICLE 8
MISCELLANEOUS
Section 8.1 Notices. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent by prepaid telex, cable or telecopy or sent, postage prepaid, by
registered, certified or express mail or reputable overnight courier service and
shall be deemed given when so delivered by hand, telexed, cabled or telecopied,
or if mailed, three business days after mailing (one business day in the case of
express mail or overnight courier service), as follows:
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(a) if to Buyer,
KKR 1996 Fund L.P.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
(b) if to Seller,
Lisco, Inc.
c/o Spalding & Evenflo Companies, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: General Counsel
Section 8.2 Expenses. Whether or not the transactions contemplated
hereby 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 costs or expenses.
Section 8.3 Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
Section 8.4 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto (it being agreed that a merger
shall not be deemed an assignment requiring the consent of any Buyer).
Section 8.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York.
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Section 8.6 Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby may only be brought in the United States District Court for
the Southern District of New York or any New York State court sitting in New
York City, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 8.1 shall be deemed
effective service of process on such party.
Section 8.7 Waiver Of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
Section 8.8 Counterparts; Third Party Beneficiaries. This Agreement
may be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement shall confer upon any person other than the parties
hereto any rights or remedies hereunder.
Section 8.9 Entire Agreement. This Agreement, together with the
Stockholders' Agreement, constitutes the entire agreement between the parties
with respect to the subject mater of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter of this Agreement.
Section 8.10 Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
Section 8.11 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
deemed to be excluded from this Agreement and the balance of this Agreement
shall be interpreted as if such provision were so excluded and shall be enforced
in accordance with its terms to the maximum extent permitted by law.
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IN WITNESS WHEREOF, each of the parties has duly executed this
Agreement or caused it to be duly executed as of the date first written above.
KKR 1996 FUND L.P.
By: KKR Associates 1996 L.P., its general partner
By: KKR 1996 GP LLC, its general partner
By:___________________________
LISCO, INC.
By:_________________________
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