AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.2
AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER is made as of November 9, 2006 (this “Amendment”), by and among GENERAC POWER SYSTEMS, INC., a Wisconsin corporation (“Generac”), GPS CCMP ACQUISITION CORP., a Delaware corporation (“Buyer”), GPS CCMP MERGER CORP., a Wisconsin corporation (“Merger Sub”), and XXXXXXX X. XXXXXXXX, as Representative (“Representative”).
RECITAL
The parties hereto are all of the parties to an Agreement and Plan of Merger dated September 13, 2006 by and among Generac, Buyer, Merger Sub and Representative (the “Merger Agreement”), and desire to amend the Merger Agreement as set forth below.
AGREEMENTS
In consideration of the promises and the mutual agreements herein contained, the parties hereto agree as follows:
1. The last sentence of §1(c) of the Merger Agreement is amended and restated in its entirety to read as follows:
The Merger shall become effective (the “Effective Time”) as provided in the Articles of Merger filed with the DFI, which shall be in the form required by Wisconsin Law and otherwise conform to the requirements of Wisconsin Law.
2. The first sentence of §1(f) of the Merger Agreement is amended and restated in its entirety to read as follows:
On the Closing Date, except for Xxxxxxx X. Xxxxxxxx, Xxxx X. Xxxxx and Xxxxx X. Xxxxxxxx, the officers and directors listed on §1(f) of the Disclosure Schedule shall resign, effective as of the Effective Time, from their respective position(s) with Generac set forth on §1(f) of the Disclosure Schedule.
3. §8(a)(vi) of the Merger Agreement is amended and restated in its entirety to read as follows:
on or before the Closing Date, Shareholder Xxxx X. Xxxxx shall have paid and fully satisfied the total outstanding principal and interest payable by Xxxx Xxxxx to Generac pursuant to the Promissory Note executed by Xxxx Xxxxx and payable to Generac dated December 31, 2005;
4. The opening phrase of §5(m) of the Merger Agreement is amended and restated to read “On or prior to the Closing Date,” instead of “Prior to the Closing Date,”.
5. Except as specifically set forth in this Amendment the provisions of the Merger Agreement shall not be amended and shall remain in full force and effect.
6. All capitalized terms in this Amendment not defined herein shall have the meanings set forth in the Merger Agreement.
7. This Agreement may be executed in counterparts, all of which taken together shall constitute one and the same instrument. This Agreement may be executed and/or delivered by facsimile. Signatures and/or copies of this Agreement executed and/or delivered by facsimile shall be deemed to be originals for purposes of creating a valid and binding contract.
[Signatures on following page.]
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement and Plan of Merger as of the date first above written.
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Generac: |
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GENERAC POWER SYSTEMS, INC. |
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/s/ Xxxxxxx X. Xxxxxxxx |
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Xxxxxxx X. Xxxxxxxx, Chief Executive Officer |
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Buyer: |
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GPS CCMP ACQUISITION CORP. |
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[Illegible] |
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Its |
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Merger Sub: |
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GPS CCMP MERGER CORP. |
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[Illegible] |
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Its |
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Representative: |
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/s/ Xxxxxxx X. Xxxxxxxx |
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Xxxxxxx X. Xxxxxxxx, as Representative |
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