Exhibit 2.2
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This First Amendment to the Agreement and Plan of Merger (the
"First Amendment") is made and entered into as of the 31st day of August,
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2004 by and among Xxxxxxx Denver, Inc., a Delaware corporation ("Buyer"),
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Neptune Holdings I, Inc., a Delaware corporation ("Merger Sub"), nash_elmo
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Holdings LLC, a Delaware limited liability company (the "Company"), and
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Audax Vacuum Corp., a Delaware corporation, as representative of the Sellers
(in such capacity, the "Representative").
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W I T N E S S E T H:
WHEREAS, Buyer, Merger Sub, the Company and the Representative are
parties to that certain Agreement and Plan of Merger dated as of July 28,
2004 (the "Merger Agreement"); and
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WHEREAS, Buyer, Merger Sub, the Company and the Representative have
agreed to certain matters incidental to the consummation of the transactions
contemplated by the Merger Agreement and, as a result thereof, desire to
amend the Merger Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and undertakings contained herein, subject to and on the terms and
conditions herein set forth, and intending to be bound hereby, the parties
agree as follows:
1. DEFINITIONS.
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Capitalized terms used herein and not otherwise defined in this
First Amendment shall have the respective meanings ascribed to them in the
Merger Agreement.
2. SUBSIDIARY.
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The word "Subsidiary" when used in (a) the introductory paragraph
of the Merger Agreement and (b) the first sentence of Section 1.01 of the
Merger Agreement is hereby amended and restated as "subsidiary". The
definition of "BC Merger Agreement" in the Merger Agreement is hereby
amended and restated as "means that certain Agreement and Plan of Merger,
dated as of the date hereof, by and among Buyer, Neptune Holdings II, Inc.,
a Delaware corporation and wholly owned subsidiary of Buyer, and BC, as
amended from time to time in accordance with its terms."
3. EFFECTIVE TIME.
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The first sentence of Section 1.02 of the Merger Agreement is
hereby amended and restated in its entirety as follows:
Prior to the Closing, the Company shall prepare, and on the Closing
Date 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
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accordance with the relevant provisions of the GCL and the LLC Act
and shall make all other filings or recordings required under the
GCL and the LLC Act.
4. CLOSING DATE.
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Section 2.06(a) of the Merger Agreement is hereby amended and
restated in its entirety as follows:
Immediately following the consummation of the transaction
referenced in clause (b) below, the closing of the transactions
contemplated by this Agreement (the "Closing") shall take place at
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the offices of Xxxxxxxx & Xxxxx LLP located at 000 Xxxx Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx at 10:00 a.m. on September 1, 2004, or, if
any of the conditions to the Closing set forth in Article III
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(other than those to be satisfied at the Closing) have not been
satisfied or waived by the party entitled to the benefit thereof,
then on or prior to the third business day following satisfaction
or waiver of all of the conditions to the Closing set forth in
Article III other than those to be satisfied at the Closing or on
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such other date as is mutually agreeable to Buyer and the Company.
The date of the Closing is referred to herein as the "Closing
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Date."
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5. BC MERGER AGREEMENT.
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Section 2.06(b) of the Merger Agreement is hereby amended and
restated in its entirety as follows:
Immediately prior to the Closing, Buyer and the other parties
thereto shall consummate the BC Merger Transaction. For the
avoidance of doubt, it is agreed and understood that the aggregate
amount paid by Buyer under the BC Merger Agreement (including
payment of the Promissory Note Amount (as defined in the BC Merger
Agreement)) shall, as further described in the BC Merger Agreement,
be equal to the result obtained by multiplying (i) the number of
Class A Units owned by BC by (ii) the Final Unit Price; provided,
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however, that the amount paid at the closing of the BC Merger
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Transaction shall be determined by substituting the Estimated
Closing Unit Price for the Final Unit Price. Following the
Effective Time, the Final Unit Price (to the extent not paid
pursuant to the preceding sentence) shall be paid in respect of
each such Class A Unit previously owned by BC in accordance with
the terms of the BC Merger Agreement and the Escrow Agreement.
The first sentence of Section 2.07(b) of the Merger Agreement is
hereby amended and restated in its entirety as follows:
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At the Closing, Buyer shall pay to 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 (it being
understood that Buyer shall have separately paid the purchase price
and the Promissory Note Amount (as defined in the BC Merger
Agreement) to the stockholders of BC pursuant to the BC Merger
Agreement).
6. PAYMENTS.
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(a) The words "at the Effective Time" when used with respect to any
payment to be made, or any consideration to be delivered, under Article II
of the Merger Agreement are hereby amended and restated as "at the Closing".
(b) For purposes of the second sentence of Section 2.07(b) of the
Merger Agreement, the delivery of consideration payable to holders of
Options shall be accomplished by check or electronic deposit generated from
the Company's payroll system at, or as soon as reasonably practicable after,
the Closing Date, but in no event later than ten (10) days following the
Closing Date.
(c) The parties to the Merger Agreement and the BC Merger Agreement
intend to execute a Closing Sequence and Flow of Funds Memorandum, dated as
of the Closing Date (the "Funds Flow Memo"), which will describe the
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sequence of events, and the flow of funds, to occur at the Closing. For
purposes of efficiency and convenience only, certain payments and transfers
of funds pursuant to the Merger Agreement which are to occur on the Closing
Date shall be made in accordance with the Funds Flow Memo notwithstanding
that such payments and transfers of funds shall be deemed made in accordance
with the Merger Agreement.
7. FIRPTA.
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Section 4.15(g) of the Merger Agreement is hereby amended and
restated in its entirety as follows:
Except as specifically identified on the Unitholders
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Schedule attached hereto, none of the Sellers is a "foreign person"
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within the meaning of Section 1445 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.
The following language shall be inserted immediately following
Section 3.01(f)(vii) of the Merger Agreement under the heading
3.01(f)(viii):
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a certificate of partnership assets, in substantially the form
attached as Exhibit J, duly executed by the parties thereto; and
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Exhibit J attached hereto shall be deemed attached to the Merger
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Agreement as Exhibit J thereto for all purposes thereunder.
8. FOREIGN CURRENCY.
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The words "on the Closing Date" in Section 13.04 of the Merger
Agreement are hereby amended and restated as "on August 27, 2004".
9. TERMINATION.
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The words "by August 31, 2004" in Section 8.01(e) of the Merger
Agreement are hereby amended and restated as "by 11:59 pm on September 1,
2004".
10. CONFIDENTIALITY.
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Notwithstanding any terms of the Confidentiality Agreements or the
Merger Agreement to the contrary, the parties acknowledge and agree that
Buyer has disclosed to its banks, and certain of their agents and
representatives, the fact of, and certain information relating to, the
Merger, along with certain information pertaining to the Company and the
Subsidiaries, for purposes of obtaining a financing facility to be used for
the Merger.
11. GENERAL PROVISIONS.
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11.1 Except as provided above, this First Amendment shall not
constitute an amendment or waiver of any provision of the Merger Agreement,
which shall continue and remain in full force and effect in accordance with
its terms. The Merger Agreement, as amended by this First Amendment is
hereby ratified and affirmed in all respects. For the avoidance of doubt, to
the extent that the provisions of this First Amendment conflict or are
inconsistent with the provisions of the Merger Agreement, the provisions of
this First Amendment shall prevail.
11.2 All matters relating to the interpretation, construction,
validity and enforcement of this First Amendment 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 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.
11.3 This First Amendment may be executed in multiple counterparts
(including by means of facsimile signature pages), any one of which need not
contain the
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signatures of more than one party, but all such counterparts taken together
shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed or caused
this First Amendment to be executed as of the date first written above.
COMPANY:
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NASH_ELMO HOLDINGS LLC
By:
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Name:
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Its:
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BUYER:
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XXXXXXX DENVER, INC.
By:
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Name:
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Its:
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MERGER SUB:
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NEPTUNE HOLDINGS I, INC.
By:
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Name:
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Its:
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REPRESENTATIVE
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AUDAX VACUUM CORP.
By:
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Name:
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Its:
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