Exhibit 2.6
EXHIBIT B
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TRANSMITTAL LETTER AND AGREEMENT
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FOR SURRENDER OF CLASS A UNITS(1) OF
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NASH_ELMO HOLDINGS LLC
0 Xxxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Attention: Xxxxxx X. Xxxx
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(1) The Transmittal Letter and Agreement used for the Class P Units will be in
substantially the form of this Exhibit B, provided the exhibit
pertaining to confidentiality will not be included.
TRANSMITTAL LETTER AND AGREEMENT
(THE "TRANSMITTAL LETTER")
Between the Company and the Undersigned with Respect
to the Undersigned's Class A Units of
NASH_ELMO HOLDINGS LLC
surrendered in connection with the acquisition of nash_elmo Holdings LLC
(the "Company") by Xxxxxxx Denver, Inc., a Delaware corporation ("Buyer").
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Such acquisition will be accomplished by a merger (the "Merger") of Neptune
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Holdings I, Inc., a Delaware corporation and a wholly owned subsidiary of
Buyer ("Merger Sub") with and into the Company, with the Company being the
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surviving company. In connection with the Merger, the Company's Class A
Units (the "Class A Units") will be converted into the right to receive the
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consideration set forth in the Agreement and Plan of Merger by and among the
Company, Buyer, Merger Sub and the Representative (the "Merger Agreement").
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THE COMPANY, AS SET FORTH IN THE INFORMATION STATEMENT(2), REQUESTS THAT YOU
COMPLETE, EXECUTE AND DELIVER THIS TRANSMITTAL LETTER TO XXXXXXXX AND XXXXX
LLP AT THE FOLLOWING ADDRESS SO THAT IT IS RECEIVED NO LATER THAN 5 P.M.
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CENTRAL TIME ON AUGUST [__], 2004.
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DELIVERY OF THIS TRANSMITTAL LETTER SHOULD BE MADE TO:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx XX
PLEASE ACCURATELY AND COMPLETELY FILL IN ALL APPLICABLE BLANKS, FOLLOW ALL
INSTRUCTIONS CAREFULLY, SIGN AND DATE THIS TRANSMITTAL LETTER IN THE SPACES
PROVIDED AND HAVE SUCH SIGNATURE NOTARIZED.
ALL CLASS A UNITS HELD BY YOU SHALL AUTOMATICALLY BE CONVERTED INTO THE
RIGHT TO RECEIVE THE CONSIDERATION SET FORTH IN THE MERGER AGREEMENT AT THE
EFFECTIVE TIME. THE COMPANY SHALL CLOSE ITS BOOKS AND RECORDS TO THE
TRANSFER OF THE CLASS A UNITS AS OF THE EFFECTIVE TIME.
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(2) Draft to be provided to Buyer prior to distribution.
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A PREPAID, PRE-ADDRESSED ENVELOPE IS ENCLOSED FOR YOUR CONVENIENCE.
DELIVERY OF THIS TRANSMITTAL LETTER TO AN ADDRESS OTHER THAN AS SET FORTH
ABOVE WILL NOT CONSTITUTE A VALID DELIVERY, EXCEPT TO THE EXTENT THE COMPANY
AGREES IN WRITING OTHERWISE. NOTWITHSTANDING THE FACT THAT THE COMPANY HAS
PROVIDED SUCH RETURN ENVELOPE, THE RISK OF LOSS AND DELIVERY REMAINS WITH
THE UNDERSIGNED UNTIL SUCH HAS BEEN RECEIVED BY THE COMPANY.
If you have any questions regarding this Transmittal Letter, or
desire any additional information, please contact Xxxxxx X. Xxxx, the
Company's Chief Financial Officer, at (000) 000-0000. Each capitalized term
used but not otherwise defined in this Transmittal Letter shall have the
meaning set forth in the Merger Agreement.
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TRANSMITTAL LETTER AND AGREEMENT
1. Initial Acknowledgments. The undersigned acknowledges and agrees
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to follow the Instructions to this Transmittal Letter attached hereto as
Exhibit A which are hereby incorporated herein by reference. The undersigned
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further acknowledges receipt of (i) the Information Statement to which this
Transmittal Letter is attached, (ii) the Merger Agreement (iii) the BC
Merger Agreement, (iv) the Escrow Agreement, (v) the Confidentiality
Agreement attached hereto as Exhibit B, (vi) the Written Consent of the
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holders of the Company's Class A Units and (vii) a form W-9 or form W-8BEN,
W-8IMY or W-8ECI (if applicable) (collectively, the "Relevant Documents").
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THE UNDERSIGNED ACKNOWLEDGES THAT THE UNDERSIGNED HAS HAD THE OPPORTUNITY TO
REVIEW THE RELEVANT DOCUMENTS, THAT THE UNDERSIGNED HAS CONSULTED, OR HAD
THE OPPORTUNITY TO CONSULT, WITH INDEPENDENT LEGAL, TAX, ACCOUNTING,
REGULATORY AND FINANCIAL ADVISORS REGARDING THE UNDERSIGNED'S RIGHTS AND
OBLIGATIONS UNDER THE RELEVANT DOCUMENTS AND THAT THE UNDERSIGNED FULLY
UNDERSTANDS THE TERMS AND CONDITIONS CONTAINED, AND THE TRANSACTIONS
PROVIDED FOR, HEREIN AND THEREIN (INCLUDING, WITHOUT LIMITATION, THE
PURCHASE PRICE ADJUSTMENT AND INDEMNIFICATION OBLIGATIONS DESCRIBED IN
ARTICLES II AND IX OF THE MERGER AGREEMENT, RESPECTIVELY).
2. Surrender of Class A Units. The undersigned hereby irrevocably
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and unconditionally surrenders to the Company, which shall act as the Paying
Agent under the Merger Agreement, the Class A Units described hereinafter
under the heading "Description of Class A Units Surrendered" (the
"Surrendered Class A Units") for the purpose of receiving cash as set forth
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in the Merger Agreement. The undersigned understands and agrees that in
accordance with the Merger Agreement, at the Effective Time and subject to
the applicable conditions set forth in Article III of the Merger Agreement,
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each Class A Unit will be converted into the right to receive the
consideration set forth in the Merger Agreement and the Class A Units will
be cancelled as of the Effective Time.
3. Consent to Merger Agreement and Transactions. The undersigned
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hereby consents to and approves the Company entering into the Merger
Agreement, the Escrow Agreement and the other documents and agreements
contemplated therein (collectively, the "Transaction Documents") and each of
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the transactions contemplated therein.
4. Authorized Agent. Without limiting any provision of this
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Transmittal Letter, the undersigned hereby acknowledges, accepts and
appoints (i) the Company (and, after the Effective Time, the Surviving
Company) to serve as the Paying Agent with respect to the matters set forth
in the Merger Agreement and (ii) Audax Vacuum Corp. to serve as the
Representative with respect to the matters set forth in the Transaction
Documents. Without limiting the generality of the foregoing, the undersigned
acknowledges and accepts the provisions of Article X of the Merger Agreement
and the rights and authorities afforded the Representative thereunder. The
undersigned hereby severally, for itself only and not jointly and severally,
agrees to indemnify and hold harmless the Representative against all
expenses (including reasonable attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the
Representative by reason of the fact it is or was acting as the
Representative pursuant to the terms of the Merger Agreement; provided,
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however, that, to the extent of its rights pursuant to the Merger Agreement
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and the Escrow Agreement, the Representative shall first seek a recovery of
any of the foregoing against the funds in the Escrow
Account; provided further that, the undersigned shall not indemnify and hold
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harmless the Representative to the extent any of the Representative's claims
for indemnification hereunder arise from the Representative's willful
misconduct or gross negligence.
5. Representations and Warranties Regarding Status of Undersigned
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as a Class A Unitholder. The undersigned hereby represents and warrants to
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the Company that the following statements are true as of the date hereof and
will be true at the Effective Time:
(a) Power and Authority. The undersigned possesses all material
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power and authority to execute and deliver this Transmittal Letter and to
perform each of the material transactions contemplated hereby, including
without limitation to surrender the Surrendered Class A Units to the Paying
Agent pursuant to the Merger Agreement.
(b) Authorization; No Breach. This Transmittal Letter, when
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executed and delivered by the undersigned in accordance with the terms
hereof and instructions hereto, constitutes the valid and binding obligation
of the undersigned, enforceable against the undersigned in accordance with
its terms. The execution and delivery by the undersigned of this Transmittal
Letter and its compliance with the terms hereof do not and shall not (i)
conflict with or result in a breach of the terms, conditions or provisions
of, (ii) constitute a default under, (iii) result in a violation of, or (iv)
require any authorization, consent, approval, exemption or other action by
or notice to any court or administrative or governmental body pursuant to,
any material law, statute, rule or regulation to which the undersigned is
subject, or any material agreement, organizational document, instrument,
order, judgment or decree to which the undersigned is a party or by which it
is bound.
(c) Title; etc. The undersigned is the record and beneficial owner
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of, and has good and marketable title to, the Surrendered Class A Units
which the undersigned has agreed in this Transmittal Letter to deliver to
the Company, free and clear of any pledge or other encumbrance of any kind
whatsoever not being released at the Closing. The undersigned does not own
any securities of the Company other than the Surrendered Class A Units, and,
after giving effect to the Closing, neither the undersigned nor any
Affiliate of the undersigned will have any interest in any units or other
security of the Company or any Subsidiary thereof.
6. Acknowledgment of Potential Adjustments to Merger Consideration.
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The undersigned hereby acknowledges and agrees that the amount of
consideration to be received by the undersigned will be calculated in
accordance with the Merger Agreement and the Escrow Agreement and that the
amounts set forth in the Information Statement to which this Transmittal
Letter is attached represent estimates by the Company based upon current
information and projected timing only and that the consideration actually
received by the undersigned may differ significantly from that set forth
therein.
7. Delivery of Merger Consideration. The delivery of any proceeds
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to be paid from time to time in exchange for the surrender of the
Surrendered Class A Units will be made to the undersigned by wire transfer
to the account set forth below under 'Cash Payment Instructions' to be
completed by the undersigned and, on the due payment to such account of all
of the proceeds that may be required to be paid under the Merger Agreement
and the Escrow Agreement to the undersigned, none of the Company, Surviving
Company or Buyer will have any further
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obligation to the undersigned with respect to proceeds payable for the
surrender of the Surrendered Class A Units. Nothing contained herein,
however, shall affect any other obligations or liabilities of Buyer or the
Surviving Company, including indemnification obligations, pursuant to the
Merger Agreement.
8. Continuation; Survival. All authority conferred or agreed to be
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conferred and covenants and agreements in this Transmittal Letter shall bind
and inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors, legal representatives, and permitted
assigns, whether so expressed or not.
9. Choice of Law. The corporate law of the State of New York will
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govern all questions concerning the relative rights of the Company and the
undersigned. All other questions concerning the construction, validity and
interpretation of this Transmittal Letter will be governed by and construed
in accordance with the internal laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State
of New York.
10. Counterparts. This Transmittal Letter may be executed in
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multiple counterparts with the same effect as if all signing parties had
signed the same document. All counterparts shall be construed together and
constitute the same instrument.
11. Successors and Assigns. Except as otherwise provided herein,
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this Transmittal Letter shall bind and inure to the benefit of and be
enforceable by the undersigned, the Company and their respective successors
and assigns; provided that the rights and obligations of the undersigned and
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the Company under this Transmittal Letter shall not be assignable without
the prior written consent of the other party.
12. Complete Agreement. This Transmittal Letter and the Transaction
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Documents and the agreements executed in connection therewith embody the
complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among
the parties, written or oral, which may have related to the subject matter
hereof in any way.
13. Severability. Whenever possible, each provision of this
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Transmittal Letter and any document signed pursuant to this Transmittal
Letter shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of any such document is held to
be invalid, illegal or unenforceable in any respect under any applicable law
by which this Transmittal Letter is governed, such invalidity, illegality or
unenforceability shall not affect any other provision; provided that such
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provision shall be construed to give effect to the parties intent of such
provision to the maximum extent permitted by applicable law.
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14. Amendment and Waiver. The provisions of this Transmittal Letter
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may be amended and waived only with the prior written consent of the Company
and the undersigned; provided that Section 4 shall not be amended or waived
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without the prior written consent of each of the Representative and the
Paying Agent.
15. Termination. This Transmittal Letter shall be void and of no
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force and effect if the Closing pursuant to the Merger Agreement fails to
occur for any reason and the Merger Agreement is terminated in accordance
with its terms.
16. Third Party Beneficiary. From and after the Effective Time,
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Buyer shall be an intended third-party beneficiary to this Transmittal
Letter. Prior to the Effective Time, Buyer shall have no rights herein.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound, have executed this Transmittal Letter and Agreement.
NASH_ELMO HOLDINGS LLC
By: _______________________
Name: _______________________
Its: _______________________
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SIGN HERE
If the undersigned is an individual:
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Signature
If the undersigned is an Entity or Trust:
By:
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Signature
Name:
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Its:
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Must be signed by registered holder(s). If signing is by attorney,
administrator, executor, guardian, trustee, officer of a corporation or
other person acting in a fiduciary or representative capacity, please set
forth the full title in such capacity below and enclose proper evidence of
authority to so act. (See Instruction III.) If the signature block of the
registered holder(s) does not fit in the space provided, please insert the
correct signature block on a page with "Signature Page to Transmittal
Letter" across the top and indicate "See Attached" in the above space.)
Dated:
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Name(s):
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(Please Print)
Capacity:
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Address:
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(Zip Code)
Area Code and Telephone No.:
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Tax Identification or Social Security No.:
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NOTARIZATION
STATE/PROVINCE OF ______________
COUNTY OF ______________
On this ___ of _______, 2004, before me personally appeared
_____________________, signer of the foregoing instrument, and acknowledged
the same to be his/her free act and deed and the free act and deed of the
registered holder of the Class A Units, before me.
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Notary Public
My Commission Expires:
Seal:
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CASH PAYMENT INSTRUCTIONS
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| | The registered holder hereby elects to receive a wire transfer to the
account set forth below for any applicable cash payments to be paid pursuant
to the Merger Agreement to the registered holder, as a registered holder of
Class A Units:
| | The registered holder hereby elects that a wire transfer be sent to the
account of the third party set forth below on the registered holder's behalf
for any applicable cash payments to be paid pursuant to the Merger Agreement
to the registered holder, as a registered holder of Class A Units:
Bank:
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ABA#:
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For Credit to:
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Account Number:
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For Further Credit to:
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Contact:
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Reference:
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Bank Address:
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Recipient (if different -----------------------------------
from registered holder)
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DESCRIPTION OF CLASS A UNITS SURRENDERED
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NAME OF RECORD HOLDER DATE ISSUED CLASS A UNITS
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