Exhibit 2.3
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
by and among
XXXXXXX DENVER, INC.,
NEPTUNE HOLDINGS II, INC.,
and
NASH_ELMO CORP.
July 28, 2004
TABLE OF CONTENTS
Article I THE MERGER.......................................................1
Article II EFFECT ON THE CONSTITUENT ENTITIES..............................2
Article III CONDITIONS TO CLOSING..........................................4
Article IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY...................7
Article V REPRESENTATIONS AND WARRANTIES OF BUYER AND MERGER SUB..........10
Article VI PRE-CLOSING COVENANTS..........................................11
Article VII TERMINATION...................................................11
Article VIII ADDITIONAL COVENANTS AND AGREEMENTS..........................12
Article IX DEFINITIONS....................................................13
Article X MISCELLANEOUS...................................................17
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EXHIBITS
Exhibit A Form of Letter of Transmittal
Exhibit B Form of Closing Certificate of the Company
Exhibit C Form of Closing Certificate of Buyer and Merger Sub
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SCHEDULES
Section Reference
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Authorization Schedule..........3.01(d), 3.02(c), 4.05(a), 4.05(b), 5.04, 8.04
Business Conduct Schedule.................................................6.01
Litigation Schedule.......................................................4.06
Stockholders Schedule............................................4.03, 4.07(f)
Taxes Schedule............................................................4.07
Transaction Expenses Schedule.............................................4.08
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AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is
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made as of July 28, 2004, by and among Xxxxxxx Denver, Inc., a Delaware
corporation ("Buyer"), Neptune Holdings II, Inc., a Delaware corporation and
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a wholly owned Subsidiary of Buyer ("Merger Sub"), and nash_elmo Corp., a
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Delaware corporation (the "Company"). Capitalized terms used and not
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otherwise defined herein have the meanings set forth in Article IX.
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WHEREAS, the Company is a corporation duly organized and
validly existing under the Laws of the State of Delaware;
WHEREAS, Merger Sub is a corporation duly organized and
validly existing under the Laws of the State of Delaware; and
WHEREAS, the respective Boards of Directors of Buyer,
Merger Sub and the Company have approved this Agreement, the merger of
Merger Sub with and into the Company (the "Merger") and the related
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transactions contemplated hereby, upon the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises,
representations and warranties and mutual covenants contained herein and of
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
do hereby agree as follows:
ARTICLE I
THE MERGER
1.01 The Merger. On the terms and subject to the conditions set
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forth in this Agreement, at the Effective Time, Merger Sub shall be merged
with and into the Company, the separate existence of Merger Sub shall cease,
the Company shall continue in existence as a wholly owned Subsidiary of
Buyer (as such, the "Surviving Corporation") and the Merger shall in all
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respects have the effects provided for by the General Corporation Law of
Delaware (the "GCL"). Without limiting the generality of the foregoing, the
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Surviving Corporation shall succeed to all the assets, rights, privileges,
powers and franchises and be subject to all of the liabilities,
restrictions, disabilities and duties of the Company and Merger Sub,
including under this Agreement, all as provided under the GCL.
1.02 Effective Time. Prior to the Closing the Company shall
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prepare, and on the Closing Date, upon satisfaction of the terms and
conditions set forth herein, the Company shall file with the Secretary of
State of the State of Delaware, a certificate of merger (the "Certificate of
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Merger") executed in accordance with the relevant provisions of the GCL and
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shall make all other filings or recordings required under the GCL. The
Merger shall become effective at such time as the Certificate of Merger is
duly filed with such Secretary of State or at such other time as Buyer and
the Company shall agree and specify in the Certificate of Merger (the time
the Merger becomes effective being the "Effective Time").
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1.03 Certificate of Incorporation and Bylaws. From and after the
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Effective Time:
(a) The certificate of incorporation of Merger Sub, as in
effect immediately prior to the Effective Time, shall be amended at the
Effective Time to change the corporate name set forth therein to "nash_elmo
Corp." and, as so amended, shall be the certificate of incorporation of the
Surviving Corporation until thereafter changed or amended in accordance with
the provisions thereof and applicable Law.
(b) The bylaws of Merger Sub as in effect immediately prior to
the Effective Time shall be the bylaws of the Surviving Corporation until
thereafter changed or amended in accordance with the provisions thereof, the
provisions of the certificate of incorporation of the Surviving Corporation
and applicable Law.
1.04 Directors. From and after the Effective Time, the directors of
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Merger Sub immediately prior to the Effective Time shall be the directors of
the Surviving Corporation, until the earlier of their resignation or removal
or until their respective successors are duly elected and qualified, as the
case may be.
1.05 Officers. From and after the Effective Time, the officers of
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Merger Sub immediately prior to the Effective Time shall be the officers of
the Surviving Corporation, until the earlier of their resignation or removal
or until their respective successors are duly elected and qualified, as the
case may be.
ARTICLE II
EFFECT ON THE CONSTITUENT ENTITIES
2.01 Effect on Capital Stock of Merger Sub. At the Effective Time,
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each issued and outstanding share of common stock of Merger Sub, par value
$0.001 per share, by virtue of the Merger and without any action on the part
of the holder thereof, shall be converted into and become one fully paid and
nonassessable share of common stock, par value $0.01 per share, of the
Surviving Corporation.
2.02 Effect on Capital Stock of the Company. At the Effective Time,
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each issued and outstanding share of Common Stock by virtue of the Merger
and without any action on the part of the holder thereof, shall be converted
into the right to receive, subject to the terms of this Agreement, an amount
in cash equal to the Final Common Share Price; provided, however, that the
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amount paid at the Effective Time pursuant to Section 2.05 below in respect
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of such share of Common Stock shall be an amount in cash equal to the
Closing Common Share Price. Following the Effective Time, the Final Common
Share Price (to the extent not paid pursuant to the preceding sentence)
shall be paid in respect of each share of Common Stock in accordance with
the provisions set forth in this Agreement, the LLC Merger Agreement and the
Escrow Agreement (as defined in the LLC Merger Agreement). Notwithstanding
the foregoing, any shares of Common Stock owned by the Company, Merger Sub
or Buyer shall not convert as described in this Section 2.02 but shall
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instead by virtue of the Merger and without any action on the part of the
holder thereof be canceled and retired and shall cease to exist with no
payment being made hereunder with respect thereto.
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2.03 Delivery of Closing Common Share Price Calculation. At least
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two business days prior to the Closing Date, the Company shall deliver to
Buyer its good faith calculation of the Closing Common Share Price as of the
Closing Date.
2.04 The Closing. The closing of the transactions contemplated by
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this Agreement (the "Closing") shall take place at the offices of Xxxxxxxx &
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Xxxxx LLP located at 000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx, on the same
day as, and immediately prior to, the closing of the LLC Merger Transaction.
The date and time of the Closing are referred to herein as the "Closing
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Date."
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2.05 Exchange Procedures.
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(a) Paying Agent. The Company (and, after the Effective Time,
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the Surviving Corporation) shall act as paying agent (the "Paying Agent") in
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effecting the payment of the Closing Date Merger Consideration to the
holders of shares of Common Stock thereto in accordance with this Article II.
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Simultaneous with the Closing, each holder who has delivered its respective
Securityholder Documents shall be paid at the Effective Time the
consideration to which he, she or it is entitled under Section 2.02. Payment
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to each holder of such amount shall be made by wire transfer of funds to an
account designated in writing by such holder to the Paying Agent.
(b) Payment of Closing Date Merger Consideration; Delivery of
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Securityholder Documents at the Closing. At the Closing, Buyer shall pay to
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the Paying Agent, by wire transfer of immediately available funds to an
account designated by the Paying Agent no later than two days prior to the
Closing Date, an amount equal to the Closing Date Merger Consideration. At
the Effective Time (or after the Effective Time in the case of a holder of
record not delivering the appropriate Securityholder Documents until after
the Effective Time), the Paying Agent shall deliver to each holder of
record, as of the Effective Time, of outstanding shares of Common Stock,
upon each holder's delivery of the respective Securityholder Documents, the
consideration payable to such holder as set forth in Section 2.02 above by
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wire transfer of immediately available funds to an account designated by
such holder to the Paying Agent prior to the Closing. The documents to be
delivered by holders of shares of Common Stock (referred to herein as the
"Securityholder Documents") shall be a duly executed letter of transmittal
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substantially in the form attached hereto as Exhibit A (the "Letter of
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Transmittal").
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(c) Delivery of Securityholder Documents After the Closing.
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With respect to each share of Common Stock for which the respective
Securityholder Documents were not so delivered at or prior to the Closing,
the Paying Agent shall promptly thereafter mail to the holder thereof
instructions for delivering such Securityholder Documents in exchange for
the payment to such holder of the consideration to which he, she or it is
entitled under Section 2.02 above. Upon delivery to the Paying Agent of such
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Securityholder Documents, the Paying Agent shall deliver to such holder in
exchange therefor the amounts set forth in Section 2.02 above.
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(d) No Interest Accrual; Conditions to Payment. No interest
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will be paid or accrued on the amounts payable upon the delivery of the
Securityholder Documents. If payment is to be made to a Person other than
the Person in whose name a share of Common Stock is registered, it shall be
a condition of payment that the Person requesting such payment shall pay
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any transfer or similar taxes required by reason of the payment to a Person
other than the holder of record or shall establish to the satisfaction of
the Paying Agent that such tax has been paid or is not applicable. Until the
respective Securityholder Documents are delivered with respect to any share
of Common Stock, such share shall represent for all purposes only the right
to receive payment of the amounts specified in Section 2.02 above in respect
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of such share.
(e) Unclaimed Funds. Any portion of the funds deposited with
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the Paying Agent which remains undistributed to the holders of shares of
Common Stock for one year after the Effective Time shall become available to
the Surviving Corporation for all purposes, and any holder of shares of
Common Stock who has not theretofore complied with this Section 2.05 shall
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thereafter look only as a general claimant to the Surviving Corporation for
payment of the sums to which such holder is entitled pursuant to this
Agreement.
(f) No Liability. Neither Buyer nor the Surviving Corporation
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shall be liable to any holder of shares of Common Stock for any cash
delivered by the Paying Agent or the Surviving Corporation in good faith to
a public official pursuant to an applicable abandoned property, escheat or
similar Law.
(g) No Further Ownership Rights in Common Stock; Transfer
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Books. After the Effective Time, there shall be no further registration of
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transfers on the stock transfer books of the Surviving Corporation of shares
of Common Stock that were outstanding immediately prior to the Effective
Time. At the Effective Time, the stock ledger of the Company shall be
closed.
2.06 Post-Closing Reconciliation. For the avoidance of doubt, each
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Seller shall be entitled to its share (determined in accordance with Section
2.08 of the LLC Merger Agreement) of any Settlement Payment paid to the
Representative under Section 2.08 of the LLC Merger Agreement (as such terms
are defined in the LLC Merger Agreement).
ARTICLE III
CONDITIONS TO CLOSING
3.01 Conditions to Buyer's Obligations. The obligation of Buyer to
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consummate the transactions contemplated by this Agreement is subject to the
satisfaction of the following conditions as of the Closing Date:
(a) The representations and warranties set forth in Article IV
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shall be true and correct at and as of the date hereof and at and as of the
Closing Date (without giving any effect to any update or amendment to the
schedules hereto between the date of this Agreement and the Closing Date and
without giving effect to any materiality or Material Adverse Effect
qualifications contained therein) with the same force and effect as though
made at and as of the Closing Date (except to the extent any representation
or warranty is made as of a particular date, in which case such
representation or warranty shall be true and correct at and as of such
particular date), except where the failure of such representations and
warranties to be so true and correct would not have a Material Adverse
Effect;
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(b) The Company shall have performed in all respects all of
the covenants, obligations and other agreements required to be performed or
complied with by it under this Agreement at or prior to the Closing, except
where any failure to perform any covenant, obligation or agreement would not
have a Material Adverse Effect;
(c) No Material Adverse Effect shall have occurred except as
such relates to any matter in existence on the date hereof and to the extent
set forth specifically on any schedule attached hereto (without giving
effect to any update or amendment to such schedules between the date of this
Agreement and the Closing Date);
(d) Each of the material clearances, consents, waivers and
approvals or other authorizations of Governmental Entities listed on the
Authorization Schedule and marked with an asterisk shall have been obtained
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or satisfied and the applicable waiting periods, if any, under the HSR Act
shall have expired or have been terminated, in each case, subject to Section
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8.03;
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(e) No judgment, decree or order shall have been entered which
would prevent the performance of this Agreement or the consummation of any
material part of the transactions contemplated hereby, declare void or
unlawful the transactions contemplated by this Agreement or cause such
transactions to be rescinded;
(f) The Company shall have delivered to Buyer each of the
following:
(i) a certificate of the Company in the form set forth in
Exhibit B, dated the Closing Date, stating that the preconditions specified
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in subsections (a) and (b) have been satisfied;
(ii) a copy of the Company's certificate of incorporation
certified by the Secretary of State of the State of Delaware and a
certificate of good standing from Delaware, in each case dated within ten
days of the Closing Date;
(iii) certified copies of the resolutions duly adopted by
the Company's Board of Directors authorizing its execution, delivery and
performance of this Agreement and the other agreements contemplated hereby
to which it is a party, and the consummation of all transactions
contemplated hereby and thereby; and
(iv) certified copies of the resolutions duly adopted by
the Company's stockholders authorizing the Company to execute, deliver and
perform this Agreement and the other agreements contemplated hereby to which
it is a party, and the consummation of all transactions contemplated hereby
and thereby; and
(g) All other conditions set out in Section 3.01 of the LLC
Merger Agreement shall have been (or shall be capable of being as of such
date) satisfied or duly waived by Buyer in accordance with the terms of such
LLC Merger Agreement.
If the Closing occurs, all closing conditions set forth in this
Section 3.01 which have not been fully satisfied as of the Closing shall be
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deemed to have been fully waived by Buyer.
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3.02 Conditions to the Company's Obligations. The obligation of the
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Company to consummate the transactions contemplated by this Agreement is
subject to the satisfaction of the following conditions as of the Closing
Date:
(a) The representations and warranties set forth in Article V
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shall be true and correct at and as of the date hereof and at and as of the
Closing Date (without giving any effect to any update or amendment to the
schedules hereto between the date of this Agreement and the Closing Date and
without giving effect to any materiality qualifications contained therein)
with the same force and effect as though made at and as of the Closing Date
(except to the extent any representation or warranty is made as of a
particular date, in which case, such representation or warranty shall be
true and correct at and as of such particular date), except where the
failure of such representations and warranties to be so true and correct
would not be materially adverse to the ability of Buyer and Merger Sub to
consummate the transactions contemplated by this Agreement;
(b) Each of Buyer and Merger Sub shall have performed in all
respects all the covenants, obligations and other agreements required to be
performed or complied with by it under this Agreement at or prior to the
Closing, except where any failure to perform any covenant, obligation or
agreement would not be materially adverse to the ability of Buyer and Merger
Sub to consummate the transactions contemplated by this Agreement;
(c) Each of the material clearances, waivers, consents and
approvals or other authorizations of Governmental Entities listed on the
Authorization Schedule and marked with an asterisk shall have been obtained
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or satisfied and the applicable waiting periods, if any, under the HSR Act
shall have expired or have been terminated, in each case, subject to Section
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8.03;
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(d) No judgment, decree or order shall have been entered which
would prevent the performance of this Agreement or the consummation of any
material part of the transactions contemplated hereby, declare void or
unlawful the transactions contemplated by this Agreement or cause such
transactions to be rescinded;
(e) Buyer and Merger Sub shall have delivered to the Company a
certificate in the form set forth as Exhibit C, dated the Closing Date,
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stating that the preconditions specified in subsections (a) and (b) have
been satisfied;
(f) Each of Buyer and Merger Sub shall have delivered to the
Company certified copies of the resolutions duly adopted by its respective
board of directors (or its equivalent governing body), and, in the case of
Merger Sub, also by its stockholders, authorizing its execution, delivery
and performance of this Agreement and the other agreements contemplated
hereby to which it is a party, and the consummation of all transactions
contemplated hereby and thereby;
(g) All other conditions set out in Section 3.02 of the LLC
Merger Agreement shall have been (or shall be capable of being as of such
date) satisfied or duly waived in accordance with the terms of such LLC
Merger Agreement; and
(h) Buyer shall have delivered the consideration contemplated
by Section 2.05(b).
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If the Closing occurs, all closing conditions set forth in this
Section 3.02 which have not been fully satisfied as of the Closing shall be
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deemed to have been fully waived by the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in a disclosure schedule referenced
herein, the Company represents and warrants to Buyer and Merger Sub that:
4.01 Organization and Qualification; Subsidiaries. The Company is a
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corporation duly organized, validly existing and in good standing under the
Laws of the State of Delaware and has the requisite power and authority to
own, lease and operate its properties and to carry on its business as it is
now being conducted. Except in connection with (a) its incorporation and
organization, (b) tax filing obligations (subject to Section 4.07), (c) the
purchase and ownership of the Class A Units (including the obligations
incurred in connection with the (i) Call Option Agreement, dated May 7,
2002, between the Company and Audax Private Equity Fund, L.P. and (ii) Call
Option Agreement, dated May 7, 2002, between the Company and Audax Trust
Co-Invest, L.P.), in each case pursuant to which the Company shall have no
further liabilities as of the Closing Date, (d) the Agreement, dated May 7,
2002, between the Company and Audax Management Company, LLC, pursuant to
which the Company shall have no further liabilities as of the Closing Date
and (e) the negotiation and consummation of this Agreement and the
documents, agreements, instruments and transactions contemplated hereby, the
Company has not (x) engaged in any business or activity of any type or kind
whatsoever; (y) incurred (and does not currently have) any indebtedness,
obligation or liability of any kind (absolute, accrued, contingent or
otherwise); or (z) entered into any agreement or arrangement with any
Person. The Company has no Subsidiaries other than Holdings LLC. Other than
its ownership interest in Holdings LLC, the agreements referenced in this
Section 4.01, the corporate governance documents and the rights attendant to
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any Delaware corporation, the Company owns or leases no other assets.
4.02 Governance Documents. The Company has heretofore made
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available to Buyer a true, complete and correct copy of the certificate of
incorporation and bylaws, each as amended to date, of the Company. Such
certificate of incorporation and bylaws are in full force and effect. The
Company is not in violation in any material respect of any provision of its
certificate of incorporation or bylaws.
4.03 Capitalization. The authorized capital stock of the Company
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consists of 1,000 shares of Common Stock, of which 100.0002 shares are
issued and outstanding as of the date hereof and the attached Stockholders
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Schedule sets for the names of all stockholders of the Company and the
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number of shares of capital stock owned by each stockholder. All issued and
outstanding shares of the Company are duly authorized and validly issued.
Except as set forth on the attached Stockholders Schedule or in this Section
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4.03, there are no options, warrants, calls, commitments, rights to convert,
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purchase rights, subscription rights, "phantom stock" rights, or other
rights relating to issued or unissued equity securities of the Company or
obligating the Company to issue or sell any equity securities of, or other
equity interests in, the Company. Except as set forth on the attached
Stockholders Schedule, there are no outstanding contractual
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obligations of the Company to repurchase, redeem or otherwise acquire any
equity securities of the Company, or make any investment (in the form of a
loan, capital contribution or otherwise) in, any other Person. Other than
with respect to its ownership interest in Holdings, LLC, the Company does
not own or does not have any contract or other obligation to acquire, any
equity securities or other securities of any Person or any direct or
indirect equity or ownership interest in any other business.
4.04 Authority Relative to This Agreement. The Company has all
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necessary corporate power and authority to execute and deliver this
Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action and no other corporate proceedings on the
part of the Company are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been
duly and validly executed and delivered by the Company and, assuming the due
authorization, execution and delivery by the other parties hereto,
constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforceability may be limited by bankruptcy Laws, other similar Laws
affecting creditors' rights and general principles of equity affecting the
availability of specific performance and other equitable remedies.
4.05 No Conflict; Required Filings and Consents.
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(a) Except as set forth on the attached Authorization
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Schedule, the execution, delivery and performance of this Agreement by the
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Company does not (i) conflict with or violate the certificate of
incorporation or bylaws of the Company, (ii) conflict with or violate any
law, order, judgment or decree applicable to the Company or by which any
property or asset of the Company is bound or affected or (iii) result in any
breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or result in the creation of a
lien or other encumbrance on any material property or asset of the Company
pursuant to, any material note, bond, mortgage, indenture or contract to
which the Company is a party or by which the Company or any property or
asset of the Company is bound or affected, except in the case of clauses
(ii) and (iii), for any such conflicts, violations, breaches, defaults or
other occurrences which would not prevent the Company from performing its
obligations under this Agreement in any material respect and would not have
a Material Adverse Effect.
(b) Except as set forth on the attached Authorization
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Schedule, the execution, delivery and performance of this Agreement by the
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Company, or the compliance by the Company with any of the provisions hereof,
does not require any consent, waiver, order, clearance, approval,
authorization or permit of, or filing or notification with, any Governmental
Entity except (i) for (A) applicable requirements, if any, of state
securities or "blue sky" Laws ("Blue Sky Laws") and (B) the pre-merger
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notification requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the rules and regulations thereunder (the "HSR
---
Act") and (ii) where failure to obtain such consents, waivers, orders,
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clearances, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent the Company from performing its obligations
under this Agreement in any material respect, and would not have a Material
Adverse Effect.
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4.06 Absence of Litigation. Except as set forth on the attached
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Litigation Schedule, there is no Legal Proceeding or investigation pending
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or, to the Company's knowledge threatened against the Company, or any
property or asset of the Company, before any court, arbitrator or
Governmental Entity except as set forth on the attached Litigation Schedule,
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neither the Company nor any property or asset of the Company is subject to
any order, writ, judgment, injunction, decree, determination or award (other
than any order, writ, judgment, injunction, decree, determination or award
not particular in its application to the Company). The Company is not named
on any matter referred to on the Litigation Schedule.
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4.07 Taxes. Except as set forth on the attached Taxes Schedule:
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(a) The Company has timely filed, or has timely filed for
extensions to file, all federal, state, local and foreign income and other
material Tax Returns required to be filed by it through the date hereof. All
such Tax Returns are complete and accurate in all material respects.
(b) The Company has timely paid and discharged all Taxes shown
as being due on such Tax Returns, and all other material Taxes (whether or
not required to be shown on any Tax Return) other than such Taxes that are
being contested in good faith by appropriate proceedings. Neither the
Internal Revenue Service nor any other taxing authority or agency, domestic
or foreign, is now asserting or threatening to assert in writing against the
Company any material deficiency or material claim for additional Taxes and
all deficiencies asserted as a result of any examinations by any taxing
authority of the Tax Returns of the Company have been fully paid or have
been reserved for on the books and records of the Company. The Company has
not granted any waiver of any statute of limitations applicable to any claim
for Taxes.
(c) There are no audits of the Company by any taxing authority
in progress.
(d) The Company has withheld, collected and paid over to the
appropriate governmental authorities or are properly holding for such
payment all Taxes required by Law to be withheld or collected.
(e) The Company has not entered into any transactions that
require disclosure under Section 6011 of the Code.
(f) Except as set forth on the Stockholders Schedule attached
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hereto, none of the Sellers is a "foreign person" within the meaning of
Section 1445 of the Code and they will furnish an affidavit that satisfies
the requirements of Section 1445(b)(2) of the Code. None of the Subsidiaries
is or has been a United States real property holding corporation (as defined
in Section 897(c)(2) of the Code) during the applicable period specified in
Section 897(c)(1)(A)(ii) of the Code.
4.08 Brokers. Except as described on the Transaction Expenses
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Schedule, no Person is entitled to any brokerage, finder's or other fee or
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commission in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of the Company.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER AND MERGER SUB
Buyer and Merger Sub jointly and severally represent and
warrant to the Company that:
5.01 Organization and Power. Buyer is a corporation duly organized,
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validly existing and in good standing under the Laws of the State of
Delaware, with full corporate power and authority to enter into this
Agreement and perform its obligations hereunder. Merger Sub is a corporation
duly organized, validly existing and in good standing under the Laws of the
State of Delaware, with full corporate power and authority to enter into
this Agreement and perform its obligations hereunder.
5.02 Authorization; Valid and Binding Agreement. The execution,
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delivery and performance of this Agreement by Buyer and Merger Sub and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by all requisite action (including all corporate and
shareholder action), and no other proceedings (including corporate
proceedings) on the part of Buyer or Merger Sub are necessary to authorize
the execution, delivery or performance of this Agreement. This Agreement has
been duly executed and delivered by each of Buyer and Merger Sub and,
assuming the due authorization, execution and delivery by the other parties
hereto, constitutes a legal, valid and binding obligation of each such
party, enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy Laws, other similar Laws affecting creditors'
rights and general principles of equity affecting the availability of
specific performance and other equitable remedies.
5.03 No Breach. Neither Buyer nor Merger Sub is subject to or
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obligated under its respective certificate of incorporation, bylaws, or
equivalent organizational documents, any applicable Law, or rule or
regulation of any governmental authority, or any material agreement or
instrument, or any license, franchise or permit, or subject to any order,
writ, injunction or decree, which would be breached or violated in any
material respect by such party's execution, delivery or performance of this
Agreement or the consummation of the transactions contemplated hereby.
5.04 Governmental Consents, etc. Except for the applicable
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requirements of the HSR Act and the clearance, consent and approval
requirements listed on the Authorization Schedule, neither Buyer nor Merger
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Sub is required to submit any notice or report to, or approval application
or other filing with any Governmental Entity in connection with the
execution, delivery or performance by it of this Agreement or the
consummation of the transactions contemplated hereby. Except for the
clearance, consent and approval requirements listed on the Authorization
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Schedule, no clearance, consent, approval or authorization of any
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Governmental Entity or any other party or Person is required to be obtained
by either Buyer or Merger Sub in connection with its execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby. Neither Buyer nor Merger Sub is subject to any
outstanding judgment, order or decree of any court or Governmental Entity.
- 10 -
5.05 Litigation. There are no Legal Proceedings pending or, to
----------
Buyer's knowledge, threatened against or affecting Buyer or Merger Sub at
Law or in equity, or before or by any Governmental Entity which would
adversely affect Buyer's or Merger Sub's performance under this Agreement or
the consummation of the transactions contemplated hereby.
5.06 Brokerage. There are no claims for brokerage commissions,
---------
finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement made by
or on behalf of Buyer or Merger Sub for which the Company or the Sellers
could become liable or obligated.
5.07 Investment Representation. Buyer is acquiring the shares of
-------------------------
Common Stock for its own account with the present intention of holding such
securities for investment purposes and not with a view toward any public
distribution of such securities in violation of any federal or state
securities Laws. Buyer is an "accredited investor" as defined in Regulation
D promulgated by the Securities and Exchange Commission under the Securities
Act. Buyer acknowledges that it is informed as to the risks of the
transactions contemplated hereby and of ownership of the shares of Common
Stock. Buyer acknowledges that the shares of Common Stock have not been
registered under the Securities Act or the Exchange Act or any state or
foreign securities Laws and that such shares may not be sold, transferred,
offered for sale, pledged, hypothecated or otherwise disposed of unless such
sale, transfer, offer, pledge, hypothecation or other disposition is
pursuant to the terms of an effective registration statement under the
Securities Act and are registered under any applicable state or foreign
securities Laws or pursuant to an exemption from registration under the
Securities Act or the Exchange Act and any applicable state or foreign
securities Laws.
ARTICLE VI
PRE-CLOSING COVENANTS
6.01 Conduct of the Business. From the date hereof until the
-----------------------
Closing Date, the Company shall not conduct any business except as
contemplated on the Business Conduct Schedule, unless Buyer shall have
-------------------------
consented in writing.
6.02 Access to Books and Records. From the date hereof until the
---------------------------
Closing Date, the Company shall provide Buyer and its authorized
representatives (the "Buyer's Representatives") with full access at all
-----------------------
reasonable times and upon reasonable notice, to the offices, properties,
personnel, books and records of the Company in order for Buyer to have the
opportunity to make such investigations as it shall reasonably desire to
make of the affairs of the Company.
ARTICLE VII
TERMINATION
7.01 Termination. This Agreement may be terminated at any time
-----------
prior to the Effective Time upon the termination of the LLC Merger
Agreement.
- 11 -
7.02 Effect of Termination. In the event of termination of this
---------------------
Agreement by Buyer, Merger Sub or the Company as provided above, the
provisions of this Agreement shall immediately become void and of no further
force and effect (other than this Section 7.02, Article X and the
------------ ---------
Confidentiality Agreements each of which shall survive the termination of
this Agreement), and there shall be no liability on the part of any of
Buyer, Merger Sub or the Company (or any of their respective Affiliates,
officers, directors or shareholders) to one another, except for any breaches
of the covenants or agreements of this Agreement or any other knowing or
willful breaches of the representations or warranties contained in Article
-------
IV and Article V of this Agreement at or prior to the time of such
-- ---------
termination.
ARTICLE VIII
ADDITIONAL COVENANTS AND AGREEMENTS
8.01 Survival; Indemnification. The representations, warranties,
-------------------------
agreements and covenants set forth in this Agreement shall survive as
provided in the LLC Merger Agreement, and Buyer and Merger Sub shall only
have such post-Closing remedies for any breach of the representations,
warranties, agreements and covenants set forth in this Agreement to the
extent expressly provided for in the LLC Merger Agreement. For the avoidance
of doubt, all of Buyer's and Merger Sub's post-Closing recourse shall be
governed by, and subject to the limitations set forth in, the LLC Merger
Agreement.
8.02 Disclosure Generally. All schedules attached hereto are
--------------------
incorporated herein and expressly made a part of this Agreement as though
completely set forth herein. All references to this Agreement herein or in
any of the schedules shall be deemed to refer to this entire Agreement,
including all schedules.
8.03 Reasonable Best Efforts. Subject to the terms of this
-----------------------
Agreement (including the limitations set forth in this Section 8.03), each
------------
of Buyer, Merger Sub and the Company shall use its reasonable best efforts
to cause the Closing to occur, provided, that, Buyer shall not be required
to take any action which would be reasonably likely to materially adversely
impact the benefits expected to be derived by Buyer as a result of the
transactions contemplated hereby or to have a Material Adverse Effect,
including the divestiture of businesses, product lines or assets of Buyer.
The "reasonable best efforts" of the Company shall not require the Company
or any of its respective Subsidiaries or Affiliates to expend any money to
remedy any breach of any representation, warranty or covenant hereunder.
8.04 Regulatory Act Compliance. Buyer, Merger Sub and the Company
-------------------------
shall each file or jointly file, if applicable, or cause to be filed,
promptly (but in any event within seven business days) after the date of
this Agreement, any notifications, approval applications or the like set
forth on the attached Authorization Schedule, and Buyer shall pay all filing
----------------------
and similar fees and related expenses, including the costs of translation,
payable in connection with any such filing required under the HSR Act,
provided, however, that each party shall pay its own attorneys' fees with
respect to such filing, and that all filing fees and other expenses relating
to filing under other merger control Laws shall be borne as provided in
Section 11.03 of the LLC Merger Agreement. With respect to filings under the
HSR Act, each of the parties hereto shall seek early termination of the
waiting period under the HSR Act. Buyer, Merger Sub and the Company shall
- 12 -
use their respective reasonable best efforts to respond to any requests for
additional information made by any Governmental Entity promptly (and in any
event within five business days) and to cause the waiting or approval
periods or other requirements under the HSR Act and other merger control
Laws to terminate or expire at the earliest possible date and to resist in
good faith, at each of their respective cost and expense (including the
institution or defense of legal proceedings), any assertion that the
transactions contemplated hereby constitute a violation of any antitrust or
merger control Laws, all to the end of expediting consummation of the
transactions contemplated hereby. Each of Buyer, Merger Sub and the Company
shall consult with the other prior to any meetings, by telephone or in
person, with the staff of the Federal Trade Commission, the United States
Department of Justice or any other Governmental Entity administering other
merger control Laws, and each of Buyer, Merger Sub and the Company shall
have the right to have a representative present at any such meeting.
8.05 Provision Respecting Legal Representation. Each of the parties
-----------------------------------------
to this Agreement hereby agrees, on its own behalf and on behalf of its
directors, members, partners, officers, employees and Affiliates, that
Xxxxxxxx & Xxxxx LLP may serve as counsel to each and any Seller and its
Affiliates (individually and collectively, "Seller Group"), on the one hand,
------------
and the Company and its Subsidiaries, on the other hand, in connection with
the negotiation, preparation, execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby, and that,
following consummation of the transactions contemplated hereby, Xxxxxxxx &
Xxxxx LLP (or any successor) may serve as counsel to the Seller Group or any
director, member, partner, officer, employee or Affiliate of Seller Group,
in connection with any litigation, claim or obligation arising out of or
relating to this Agreement or the transactions contemplated by this
Agreement notwithstanding such representation or any continued
representation of the Company and/or any of its Subsidiaries, and each of
the parties hereto hereby consents thereto and waives any conflict of
interest arising therefrom, and each of such parties shall cause any
Affiliate thereof to consent to waive any conflict of interest arising from
such representation.
8.06 Further Assurances. From time to time, as and when requested
------------------
by any party hereto and at such party's expense, any other party shall
execute and deliver, or cause to be executed and delivered, all such
documents and instruments and shall take, or cause to be taken, all such
further or other actions as the requesting party may reasonably deem
necessary or desirable to evidence and effectuate the transactions
contemplated by this Agreement.
ARTICLE IX
DEFINITIONS
9.01 Definitions. For purposes hereof, the following terms, when
-----------
used herein with initial capital letters, shall have the respective meanings
set forth herein:
"Affiliate" of any particular Person means any other Person
---------
controlling, controlled by or under common control with such particular
Person. For the purposes of this definition, "control" means the possession,
directly or indirectly, of the power to direct the management and policies
of a Person whether through the ownership of voting securities, contract or
otherwise.
- 13 -
"Aggregate Common Share Number" means the number of shares of
-----------------------------
Common Stock outstanding immediately prior to the Effective Time; provided,
--------
however, that any shares of Common Stock that are owned by the Company,
------- ----
Merger Sub or Buyer shall be excluded from the calculation of the Aggregate
Common Share Number.
"Class A Unit" means a Class A Unit of Holdings LLC.
------------
"Closing BC Merger Consideration" means the result obtained by
-------------------------------
multiplying (a) the number of Class A Units owned by the Company by (b) the
Estimated Closing Unit Price (as defined in the LLC Merger Agreement).
"Closing Common Share Price" means the quotient determined by
--------------------------
dividing the Closing BC Merger Consideration by the Aggregate Common Share
Number.
"Closing Date Merger Consideration" means the aggregate
---------------------------------
consideration (derived in part by using the Closing Common Share Price) that
the holders of shares of Common Stock are entitled to receive at the
Effective Time (or after the Effective Time if the appropriate
Securityholder Documents are received after the Effective Time) pursuant to
Section 2.02.
------------
"Code" means the United States Internal Revenue Code of 1986,
----
as amended, and the regulations promulgated thereunder.
"Common Stock" means the Company's common stock, par value
------------
$0.01 per share.
"Confidentiality Agreements" has the meaning given to that
--------------------------
term in the LLC Merger Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended.
"Final BC Merger Consideration" means the result obtained by
-----------------------------
multiplying (a) the number of Class A Units owned by the Company by (b) the
Final Unit Price (as defined in the LLC Merger Agreement).
"Final Common Share Price" means the greater of (a) the
------------------------
quotient determined by dividing the Final BC Merger Consideration by the
Aggregate Common Share Number and (b) the Closing Common Share Price.
"Governmental Entity" means any (a) nation, region, state,
-------------------
province, county, city, town, village, district or other jurisdiction, (b)
federal, state, local, municipal, foreign or other government, (c)
governmental or quasi-governmental authority of any nature (including any
governmental agency, branch, department or other entity, (d) multinational
organization or (e) body entitled to exercise any administrative, executive
or regulatory power of any nature.
"Holdings LLC" means nash_elmo Holdings LLC, a Delaware
------------
limited liability company.
"Law" means any federal, state, local or foreign law
---
(including common law), statute, code, ordinance, rule, regulation or other
legally binding requirement.
- 14 -
"Legal Proceeding" means any judicial, administrative or
----------------
arbitral actions, suits, proceedings (public or private), claims or
governmental proceedings.
"LLC Merger Agreement" means that certain Agreement and Plan
--------------------
of Merger, dated as of the date hereof, by and among Buyer, Neptune Holdings
I, Inc., Holdings LLC and Audax Vacuum Corp.
"LLC Merger Transaction" means the transactions contemplated
----------------------
by the LLC Merger Agreement.
"Material Adverse Effect" means any change, effect, event,
-----------------------
occurrence, state of facts or development that, individually or in the
aggregate with any other change, effect, event, occurrence, state of facts
or development, is materially adverse to (a) the assets, liabilities,
business, financial condition or results of operations of the Company and
the Subsidiaries taken as a whole; or (b) the ability of the Company to
consummate the transactions contemplated by this Agreement; provided,
--------
however, that none of the following shall be deemed in itself, or in any
-------
combination, to constitute, and none of the following shall be taken into
account in determining whether there has been or will be, a Material Adverse
Effect: (i) any adverse change, effect, event, occurrence, state of facts or
development directly attributable to the announcement or pendency of the
transactions contemplated by this Agreement; (ii) any adverse change,
effect, event, occurrence, state of facts or development attributable to
conditions affecting the industry in which the Company and the Subsidiaries
participate, the U.S. economy as a whole or the markets in which the Company
and each Subsidiary operates (except for any disproportionate effect on the
Company and the Subsidiaries; (iii) any adverse change, effect, event,
occurrence, state of facts or development resulting from or relating to
compliance with the terms of, or the taking of any action required by, this
Agreement; (iv) any adverse change, effect, event, occurrence, state of
facts or development arising from or relating to any change, after the date
of this Agreement, in accounting requirements or principles or any change,
after the date in applicable Laws, rules or regulations or the
interpretation thereof; or (v) any adverse change, effect, event,
occurrence, state of facts or development arising from or relating to the
commencement, continuation or escalation of a war, material armed
hostilities or other material international or national calamity or act of
terrorism directly or indirectly involving the United States of America.
"Person" means an individual, a partnership, a corporation, a
------
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a Governmental Entity or
any department, agency or political subdivision thereof.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Sellers" means the holders of the shares of Common Stock
-------
prior to the Effective Time.
"Subsidiary" means any corporation, company, partnership,
----------
organization or other entity of which the securities or other ownership
interests having a majority of the ordinary
- 15 -
voting power in electing the board of directors or other governing body are,
at the time of such determination, owned by the Company or another
Subsidiary.
"Tax" or "Taxes" means any federal, state, local or foreign
--- -----
income, gross receipts, franchise, estimated, alternative minimum, add-on
minimum, sales, use, transfer, real property gains, registration, value
added, excise, natural resources, severance, stamp, occupation, premium,
windfall profit, environmental, customs, duties, real property, special
assessment, personal property, capital stock, social security, unemployment,
disability, payroll, license, employee or other withholding, or other tax,
of any kind whatsoever, including any interest, penalties or additions to
tax or additional amounts in respect of the foregoing.
"Tax Returns" means any return, report, information return or
-----------
other document (including schedules or any related or supporting
information) filed with any Governmental Entity or other authority in
connection with the determination, assessment or collection of any Tax or
the administration of any Laws, regulations or administrative requirements
relating to any Tax.
"Transaction Expenses" means all fees and expenses payable in
--------------------
connection with the transactions contemplated by this Agreement to the
extent set forth on the Transaction Expenses Schedule attached to the LLC
-----------------------------
Merger Agreement (which schedule may be updated from time to time by the
Company).
9.02 Cross-Reference of Other Definitions.
------------------------------------
Each capitalized term listed below is defined in the indicated
Section of this Agreement:
Term Section No.
---- -----------
Agreement Preamble
Blue Sky Laws 4.05(b)
Buyer Preamble
Buyer's Representatives 6.02
Certificate of Merger 1.02
Closing 2.04
Closing Date 2.04
Company Preamble
Effective Time 1.02
GCL 1.01
HSR Act 4.05(b)
Letter of Transmittal 2.05(b)
Merger Preamble
Merger Sub Preamble
Paying Agent 2.05(a)
Securityholder Documents 2.05(b)
Seller Group 8.05
Surviving Corporation 1.01
- 16 -
ARTICLE X
MISCELLANEOUS
10.01 Press Releases and Communications. No press release or public
---------------------------------
announcement related to this Agreement or the transactions contemplated
herein, or prior to the Closing, any other announcement or communication to
the employees, independent contractors, customers or suppliers of the
Company and its Subsidiaries, shall be issued or made by any party hereto
without the joint approval of Buyer, Merger Sub and the Company, unless
required by Law (in the reasonable opinion of counsel) in which case Buyer,
Merger Sub and the Company shall have the right to review such press
release, announcement or communication prior to its issuance, distribution
or publication.
10.02 Expenses. Except as otherwise expressly provided herein, the
--------
Company, Buyer and Merger Sub shall pay all of their own expenses (including
attorneys' and accountants' fees and expenses) in connection with the
negotiation of this Agreement, the performance of their obligations
hereunder and the consummation of the transactions contemplated by this
Agreement; provided that Buyer and Merger Sub shall pay all Transaction
-------- ----
Expenses as provided in the LLC Merger Agreement.
10.03 Knowledge Defined. For purposes of this Agreement, the term
-----------------
"the Company's knowledge" or "knowledge of the Company" as used herein shall
----------------------- ------------------------
mean the actual knowledge, without imputation of any other Person and
without independent inquiry and investigation, of Xxxxx Xxxxxxx.
10.04 Notices. Except as may be otherwise provided herein, all
-------
notices, requests, demands and other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing
and shall be deemed to have been given (a) when personally delivered, (b)
when received when sent by facsimile at the applicable facsimile number set
forth below, (c) one day after deposit with Federal Express or similar
overnight courier service or (d) three days after being mailed by first
class mail, return receipt requested. Notices, requests, demands and
communications to Buyer, Merger Sub and the Company shall, unless another
address is specified in writing, be sent to the addresses indicated below:
Notices to Buyer or Merger Sub:
-------------------------------
Xxxxxxx Denver, Inc.
0000 Xxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Corporate Secretary
Facsimile No.: (000) 000-0000
with a copy to:
--------------
(which shall not constitute notice to Buyer or Merger Subs)
Xxxxx & XxXxxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
- 17 -
Notices to Company (prior to the Closing):
------------------
nash_elmo Corp.
c/o Audax Group
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
--------------
(which shall not constitute notice to the Company)
Xxxxxxxx & Xxxxx LLP
Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
Notices to Company (following the Closing):
------------------
nash_elmo Corp.
c/x Xxxxxxx Denver, Inc.
0000 Xxxxxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Corporate Secretary
Facsimile No.: (000) 000-0000
with a copy to:
--------------
(which shall not constitute notice to the Company)
Xxxxx & XxXxxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxxxx
Facsimile No.: (000) 000-0000
10.05 Assignment. This Agreement and all of the provisions hereof
----------
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. Neither this Agreement
nor any of the rights, interests or obligations hereunder may be assigned or
delegated by any party hereto without the prior written consent of the other
parties hereto.
10.06 Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid
under applicable Law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable Law, such provision
- 18 -
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
10.07 Third Party Beneficiaries. Certain provisions of this
-------------------------
Agreement are intended for the benefit of, and shall be enforceable by, the
Sellers. Unless expressly stated herein to the contrary, no other
third-party beneficiary shall have any legal or equitable right, remedy or
claim under or with respect to any provision of this Agreement.
10.08 References. The table of contents and the section and other
----------
headings and subheadings contained in this Agreement and the exhibits hereto
are solely for the purpose of reference, are not part of the agreement of
the parties hereto, and shall not in any way affect the meaning or
interpretation of this Agreement or any exhibit hereto. All references to
days or months shall be deemed references to calendar days or months, unless
otherwise stated. All references to "$" shall be deemed references to United
States dollars. Unless the context otherwise requires, any reference to a
"Section," "Exhibit," or "Schedule" shall be deemed to refer to a section of
this Agreement, exhibit to this Agreement or a schedule to this Agreement,
as applicable. The words "hereof," "herein" and "hereunder" and words of
similar import referring to this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. The terms
"include" and "including" indicate examples of a foregoing general statement
and not a limitation on that general statement.
10.09 No Strict Construction. The language used in this Agreement
----------------------
shall be deemed to be the language chosen by the parties hereto to express
their mutual intent, and no rule of strict construction shall be applied
against any Person.
10.10 Amendment and Waiver. Any provision of this Agreement or the
--------------------
schedules or exhibits may be amended or waived only in a writing duly
authorized and signed by Buyer, Merger Sub and the Company. No waiver of any
provision hereunder or any breach or default thereof shall extend to or
affect in any way any other provision or prior or subsequent breach or
default, and no failure or delay to enforce, or partial enforcement of, any
provision hereof shall operate as a waiver of such provision or of any other
provision.
10.11 Complete Agreement. This Agreement and the documents referred
------------------
to herein (including the LLC Merger Agreement, the Confidentiality
Agreements and the schedules and exhibits hereto) contain the complete
agreement among the parties hereto and supersede 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.
10.12 Counterparts. This Agreement may be executed in multiple
------------
counterparts (including by means of facsimile signature pages), any one of
which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same instrument.
10.13 Governing Law. All matters relating to the interpretation,
-------------
construction, validity and enforcement of this Agreement shall be governed
by and construed in accordance with the domestic Laws of the State of New
York without giving effect to any choice or conflict of law
- 19 -
provision or rule (whether of the State of New York or any other
jurisdiction) that would cause the application of Laws of any jurisdiction
other than the State of New York.
10.14 Governing Language. This Agreement is written in English and
------------------
therefore English shall be the governing language of this Agreement.
10.15 Waiver of Trial by Jury. THE PARTIES HERETO WAIVE THE RIGHT
-----------------------
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING UNDER THIS AGREEMENT OR ANY
ACTION OR PROCEEDING ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY,
REGARDLESS OF WHICH PARTY INITIATES SUCH ACTION OR PROCEEDING.
* * * *
- 20 -
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement and Plan of Merger on the day and year first above written.
COMPANY:
-------
NASH_ELMO CORP.
By:
---------------------------------
Name:
-------------------------------
Its:
--------------------------------
BUYER:
-----
XXXXXXX DENVER, INC.
By:
---------------------------------
Name:
-------------------------------
Its:
--------------------------------
MERGER SUB:
----------
NEPTUNE HOLDINGS II, INC.
By:
---------------------------------
Name:
-------------------------------
Its:
--------------------------------
[Signature Page to Agreement and Plan of Merger]
