| Preview
Subscribers | 2003 |
Purchase Agreement and Plan of Merger [Amended and Restated]
Purchase Agreement and Plan of Merger [Amended and Restated] (255K)
Doc #161640: Click preview link for longer preview.
AMENDED AND RESTATED PURCHASE AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED PURCHASE AGREEMENT AND PLAN OF MERGER (this Agreement) is entered into on November 13, 2003 by WALTER INDUSTRIES, INC., a Delaware corporation (the Seller), Applied Industrial Materials Corporation, a Delaware corporation and a wholly owned subsidiary of Seller (AIMCOR DE), Gans Transport Agencies (USA), Inc., a Delaware corporation and a wholly owned subsidiary of AIMCOR DE (GANS), AIMCOR (FAR EAST), Inc., a Delaware corporation (AIMCOR FAR EAST), and a wholly owned subsidiary of AIMCOR Enterprises International Incorporated, a Nevada corporation and a wholly owned subsidiary of AIMCOR DE (AIMCOR Enterprises), and OXBOW CARBON & MINERALS LLC, a Delaware limited liability company (the Buyer). AIMCOR DE, GANS and AIMCOR FAR EAST are collectively referred to herein as the Merging Entities.
RECITALS
WHEREAS, Seller and Buyer entered into that certain Stock Purchase Agreement, dated as of September 22, 2003 (the Original Stock Purchase Agreement), as amended by the First Amendment thereto, dated September 22, 2003 (the Amended Stock Purchase Agreement);
WHEREAS, this Agreement amends and restates the Amended Stock Purchase Agreement in its entirety;
WHEREAS, the respective Boards of Directors of each of Seller and the Merging Entities and the sole member of Buyer, upon the terms and subject to the conditions set forth in this Agreement, have approved, and declared advisable, the merger of each of the Merging Entities into Buyer; and
WHEREAS, the Buyer desires to indirectly acquire all of the outstanding shares of capital stock (the Shares) of Applied Industrial Materials Germany GmbH, a company organized under the laws of Germany (AIMCOR GmbH, and together with AIMCOR DE, the Sold Companies), owned by the Seller; and
WHEREAS, the Board of Directors of each of the Seller and the Buyer has approved the indirect acquisition of the Shares and the sale and purchase of the Gans Transport PSI (as defined below) (collectively with the Mergers, the Purchase).
NOW, THEREFORE, in consideration of the premises and the mutual promises contained herein, the parties hereby agree as follows:
THE MERGERS AND THE SALE AND TRANSFER OF SECURITIES
1.1 The Mergers. Upon the terms and subject to the satisfaction or waiver of the conditions set forth in this Agreement, at the Closing, the following transactions shall take place in accordance with the provisions of Section 264 of the Delaware General Corporation Law (the DGCL) and Section 18-209 of the Delaware Limited Liability Company Act (the DLLCA):
10
(a) At the Subsidiaries Mergers Effective Times (as defined in Section 1.2) each of GANS and AIMCOR FAR EAST will be merged into the Buyer and shall cease to exist (the Subsidiaries Mergers), and the Buyer shall be the surviving limited liability company in each of the Subsidiaries Mergers and shall continue its existence under the laws of the State of Delaware and shall succeed to all rights, privileges, powers, franchises, assets, liabilities and obligations of each of GANS and AIMCOR FAR EAST and Buyer in accordance with the provisions of the DGCL and the DLLCA.
(b) Promptly following the Subsidiaries Mergers Effective Times, and on the Closing Date, AIMCOR DE will be merged into Buyer and shall cease to exist (the AIMCOR DE Merger), and Buyer shall be the surviving limited liability company in the AIMCOR DE Merger and shall continue its existence under the laws of the State of Delaware and shall succeed to all rights, privileges, powers, franchises, assets, liabilities and obligations of each of AIMCOR DE and Buyer in accordance with the provisions of the DGCL and the DLLCA. The AIMCOR DE Merger and the Subsidiaries Mergers are collectively referred to herein as the Mergers.
1.2 Effective Time.
(a) Each of the Subsidiaries Mergers shall become effective at the time of the filing of the applicable Subsidiaries Certificates of Merger (as defined in Section 8.1(c)) with the Secretary of State of the State of Delaware (or at such later time as shall be agreed by Seller and Buyer and as shall be set forth in such certificates) in accordance with the DGCL and the DLLCA. The dates and times when the Subsidiaries Mergers become effective are herein referred to as the Subsidiaries Mergers Effective Times.
(b) Promptly following the Subsidiaries Mergers Effective Times, and on the Closing Date, the AIMCOR DE Merger shall become effective at the time of the filing of the AIMCOR DE Certificate of Merger (as defined in Section 8.1(b)) with the Secretary of State of the State of Delaware (or at such later time as shall be agreed to by Seller and Buyer and as shall be set forth in such certificate) in accordance with the DGCL and the DLLCA. The date and time when the AIMCOR DE Merger becomes effective is herein referred to as the AIMCOR DE Merger Effective Time.
1.3 Limited Liability Company Agreement. The limited liability company agreement of Buyer, as in effect immediately prior to the Subsidiaries Mergers Effective Times, shall continue in effect as the limited liability company agreement of Buyer, as the surviving limited liability company in each Merger, until thereafter amended.
1.4 Officers. The officers of Buyer immediately prior to the Subsidiaries Mergers Effective Times shall be the officers of the surviving limited liability company in each Merger, each to hold office until their respective successors are duly elected or appointed and qualified or until their earlier death, resignation or removal.
1.5 Status and Conversion of the Securities.
(a) At the Subsidiaries Mergers Effective Times, and substantially concurrently and without any action on the part of the holder thereof, by virtue of the Subsidiaries Mergers, each share of common stock of each of GANS and AIMCOR FAR EAST
161640
|
Citibank
As referenced in this Purchase Agreement and Plan of Merger [Amended and Restated]:
Citibank, N.A. – the date of payment at a rate of interest equal to the prime rate per annum publicly announced from time to time by Citibank, N.A. at its principal office in New York City (the Prime Rate), and shall be payable by wire transfer of immediately available funds
_____________
dt 146019
;
Walter Indus.
As referenced in this Purchase Agreement and Plan of Merger [Amended and Restated]:
WALTER INDUSTRIES, – 10.22
Exhibit 10.22
AMENDED AND RESTATED
PURCHASE AGREEMENT AND PLAN OF MERGER
Among
WALTER INDUSTRIES, INC.,
APPLIED INDUSTRIAL MATERIALS CORPORATION,
GANS TRANSPORT AGENCIES (USA), INC.,
AIMCOR (FAR EAST), INC.
WALTER INDUSTRIES, – AGREEMENT AND PLAN OF MERGER (this Agreement) is entered into on November 13, 2003 by WALTER INDUSTRIES, INC., a Delaware corporation (the Seller), Applied Industrial Materials Corporation, a Delaware corporation and
Walter Industries, – Prior to or on the Closing Date, the Seller shall cause the trustee of the Walter Industries, Inc. Subsidiaries Master Pension Trust (the Seller Master Trust) to segregate the assets in
Walter Industries – each Employee to become fully vested and (B) the participation of each Employee in the Walter Industries 401(k) Plan (the Seller 401(k) Plan) shall cease. Each Employee (including any alternate
Walter Industries, – FL 33401
Attention: J. Michael Smith, Counsel
Fax: (561) 640-8812
If to the Seller:
Walter Industries, Inc.
4211 W. Boy Scout Boulevard
Tampa, Florida 33607
Attention:
Charles Cauthen, Controller and
dt 36545
;
 BofA
As referenced in this Purchase Agreement and Plan of Merger [Amended and Restated]:
Bank of America, – D) AIMCOR (Far East) Inc., each pledged, as of the date of this Agreement, to Bank of America, N.A. pursuant to the Securities Pledge Agreement, dated as of April 17, 2003,
Bank of America, – Seller, each of the subsidiaries of the Seller from time to time party thereto and Bank of America, N.A., as administrative agent.
(ii) The security interests granted to Bank of America,
Bank of America, – and Bank of America, N.A., as administrative agent.
(ii) The security interests granted to Bank of America, N.A. pursuant to the Security Agreement, dated as of April 17, 2003, among
Bank of America, – Seller, each of the subsidiaries of the Seller from time to time party thereto and Bank of America, N.A. (the Security Agreement) by each of AIMCOR DE, AIMCOR Enterprises International, Incorporated
Bank of America, – Credit Agreement, dated as of April 17, 2003, among the Seller, the lenders parties thereto, Bank of America, N.A., as administrative agent, SunTrust Bank, as syndication agent, and BNP Paribas and
dt 40221
;
|
Citibank
As referenced in this Purchase Agreement and Plan of Merger [Amended and Restated]:
Citibank, N.A. – the date of payment at a rate of interest equal to the prime rate per annum publicly announced from time to time by Citibank, N.A. at its principal office in New York City (the Prime Rate), and shall be payable by wire transfer of immediately available funds
_____________
dt 146019
;
 Simpson Thacher
As referenced in this Purchase Agreement and Plan of Merger [Amended and Restated]:
(Simpson Thacher – LEGAL OPINION
(Steel Hector & Davis LLP)
Exhibit C
FORM OF SELLERS COUNSELS LEGAL OPINION
(Simpson Thacher & Bartlett LLP)
Exhibit D
FORM OF SELLERS COUNSELS LEGAL OPINION
(Victor Patrick, Esquire)
Simpson Thacher – shall have received opinions, dated the Closing Date and addressed to the Buyer, of (i) Simpson Thacher & Bartlett LLP, substantially
58
in the form of Exhibit C hereto, and of (
Simpson Thacher – Cauthen, Controller and
Victor Patrick, General Counsel
Fax: 813-871-4420
With a copy to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
Attention: Peter J.
dt 34032
;
More... |
| Preview
Subscribers | 2001 |
Merger Agreement
Merger Agreement (790K)
Doc #289939: Click preview link for longer preview.
MERGER AGREEMENT
BY AND AMONG
WESTERN POWER & EQUIPMENT CORP., WESTERN POWER ACQUISITION CORP.,
A WHOLLY OWNED SUBSIDIARY OF WESTERN POWER AND
SUPPLYPOINT, INC.
================================================================================
{PAGE}
MERGER AGREEMENT
Agreement dated as of the 1st day of May, 2001 by and among, Western Power
& Equipment Corp., a Delaware corporation, with an address at 4601 N.E. 77th
Avenue, Suite 200, Vancouver, WA, 98662 ("Western"), Western Power Acquisition
Corp., a Delaware corporation with an address at 4601 N.E. 77th Avenue, Suite
200, Vancouver, WA, 98662 ("Acquisition Corp."), and SupplyPoint, Inc., a
Delaware corporation, with an address at 1811 Chestnut Street, Suite 120,
Philadelphia, PA 19103 ("SPI").
WITNESSETH
WHEREAS, Acquisition Corp. is a wholly owned subsidiary of Western.
WHEREAS, the Board of Directors of Western, Acquisition Corp. and SPI deem
it advisable and in the best interests of each corporation and their respective
stockholders that Acquisition Corp. and SPI combine in order to advance the
long-term business interests of Western, Acquisition Corp., and SPI;
WHEREAS, the Board of Directors of Western shall cause Acquisition Corp.
to carry on SupplyPoint's business as it was carried on or prior to the date of
this Agreement and use its best efforts to preserve SupplyPoint's organization,
retain its employees and maintain its business relationships;
1
{PAGE}
WHEREAS, the stockholders of SPI (hereinafter sometimes referred to,
individually, as a "Stockholder" and collectively as the "Stockholders"), who
are listed on Exhibit "A" ("Page 2") which is annexed hereto and made a part
hereof (the "Stockholders Schedule") are each the owner of the number of shares
of common stock, par value $ .01, of SPI which is set forth on Exhibit "A"
("Page 2") (the total of such shares of SupplyPoint's common stock is
hereinafter referred to as the "SPI Shares");
WHEREAS, the SPI Shares represent all of the issued and outstanding shares
of SPI's Common Stock on the date of this Agreement;
WHEREAS, for Federal income tax purposes, it is intended that the
transactions which are contemplated in this Agreement qualify as a "plan of
reorganization" within the meaning of Section 354(a)(1) of the Internal Revenue
Code of 1986, as amended (the "Code"); and a "reorganization" within the meaning
of Section 368 (a)(1)(A) and Section 368 (a)(2)(D) of the Code;
WHEREAS, at the Effective Time (hereinafter defined in Paragraph "(A)" of
Article "2" of this Agreement), SPI shall be merged with and into Acquisition
Corp.;
WHEREAS, the Boards of Directors of Western, Acquisition Corp and SPI have
approved this Agreement and those Ancillary Documents (hereinafter defined in
Paragraph "(C)" of Article "9" of this Agreement), to which it is a party; and
2
{PAGE}
NOW, THEREFORE, in consideration of the mutual covenants of the parties
hereinafter set forth, and for good and valuable consideration, receipt of which
is hereby acknowledged,
IT IS AGREED:
1. Recitals. The parties hereby adopt as part of this Agreement each of
the recitals which is contained in the WHEREAS clauses, and agree that such
recitals shall be binding upon the parties hereto by way of contract and not
merely by way of recital or inducement; and such clauses are hereby confirmed
and ratified as being true and accurate by each party as to itself.
2. Merger. (A) Subject to, and consistent with, the provisions of this
Agreement, and in accordance with the relevant provisions of the Delaware
General Corporation Law (the "DGCL"), SPI will merge with and into Acquisition
Corp. (the "Merger"), the separate existence of SPI shall cease, and Acquisition
Corp. shall be the surviving party in the Merger (the "Surviving Corporation")
at the Effective Time. The articles of merger with respect to the Merger (the
"Certificate of Merger") shall be in the form of Exhibit "B" (Article "2(A)")
which is annexed hereto and made a part hereof, and shall be duly executed and
acknowledged and promptly delivered to the Secretary of State of the State of
Delaware for filing, as provided in the DGCL as early as practicable on the
Effective Date (hereinafter defined in Paragraph "(B)" of this Article "2" of
this Agreement). The Merger shall become effective upon the filing of the
Certificate of Merger with the Secretary of
3
{PAGE}
State of the State of Delaware (the "Effective Time"). On the Effective Date,
the effect of the Merger shall be as provided in the applicable provisions of
the DGCL.
Without limiting the generality of the foregoing, and subject
thereto, on the Effective Date, all the property, rights, privileges, powers and
franchises of SPI and Acquisition Corp. shall vest in the Surviving Corporation,
and all debts, liabilities and duties of SPI and Acquisition Corp. shall become
the debts, liabilities and duties of the Surviving Corporation. The Merger will
be effected in a single transaction.
(B) The Effective Date shall be the date upon which the Escrow Agent
(hereinafter defined in Paragraph "A" of Article "21" of this Agreement)
notifies the parties that it is releasing the Escrow Items (hereinafter defined
in Paragraph "C" of Article "21" of this Agreement), pursuant to the Escrow
Agreement (hereinafter defined in Paragraph "A" of Article "21" of this
Agreement).
(C) On the Effective Date, the certificate of incorporation of
Acquisition Corp., as in effect immediately prior to the Effective Date, shall
be the certificate of incorporation of the Surviving Corporation and thereafter
shall continue to be its certificate of incorporation until amended as provided
therein and pursuant to DGCL. The bylaws of Acquisition Corp., as in effect
immediately prior to the Effective Date, shall be the bylaws of the Surviving
Corporation and thereafter shall continue to be its bylaws until amended as
provided therein and pursuant to the DGCL.
(D) Two directors of Western and the directors of SPI immediately
prior to the Effective Date shall be the directors of the Surviving Corporation,
with each to hold office in
289939
|
BEA Systems
As referenced in this Merger Agreement:
BEA Systems, Inc. – from Mortice Kern
Systems International SRL ("MKS").
(3) Oracle Program License Terms, from Oracle Corporation.
(4) Interact Commerce Corporation License Agreement, from Interact
Commerce Corporation, for ACT! 2000 software.
(5) BEA Systems, Inc. Software License Agreement.
{PAGE}
(6) StarTeam License from StarBase Corp.
II.
SCHEDULE APPLICABLE TO ARTICLE 7(BB)(ii)
A. Exceptions to Ownership
(1) SPI is aware of the following
_____________
dt 1323254
;
BEA Systems
As referenced in this Merger Agreement:
BEA Systems, Inc. – from Mortice Kern
Systems International SRL ("MKS").
(3) Oracle Program License Terms, from Oracle Corporation.
(4) Interact Commerce Corporation License Agreement, from Interact
Commerce Corporation, for ACT! 2000 software.
(5) BEA Systems, Inc. Software License Agreement.
{PAGE}
(6) StarTeam License from StarBase Corp.
II.
SCHEDULE APPLICABLE TO ARTICLE 7(BB)(ii)
A. Exceptions to Ownership
(1) SPI is aware of the following
_____________
dt 1467098
;
Computer
As referenced in this Merger Agreement:
Computer Associates International, Inc. – Peoducts, Inc. 02/19/2001 9 945.84
02/09/2001 February'Ol American Express - Acct#3787-378488-22004 02/19/2001 9 1,442.97
02/12/2001 CAW2125 Computer Associates International, Inc. 02/22/2001 6 3,800.00
02/12/2001 March'01 UNUM Life Insurance 02/22/2001 6 605.49
02/11/2001 l-103312 Armada Group, The
_____________
dt 1467478
;
|
Computer
As referenced in this Merger Agreement:
Computer Associates International, Inc. – Peoducts, Inc. 02/19/2001 9 945.84
02/09/2001 February'Ol American Express - Acct#3787-378488-22004 02/19/2001 9 1,442.97
02/12/2001 CAW2125 Computer Associates International, Inc. 02/22/2001 6 3,800.00
02/12/2001 March'01 UNUM Life Insurance 02/22/2001 6 605.49
02/11/2001 l-103312 Armada Group, The
_____________
dt 1467642
;
SanDisk
As referenced in this Merger Agreement:
Sandisk, Corp. – each Cancelled
Darrell Dukes Insurance month 04/30/01
{/TABLE}
{PAGE}
SUPPLYPOINT, INC.
Exhibit X
Contracts Schedule
================================================================================
1. J2N, Inc.
28402 Via Del Sereno
San Juan Capistrano, CA 92675
2. Sandisk, Corp.
140 Caspian Court
Sunnyvale, CA 94089
3. Promissory Notes
(see Exhibit O, Disclosure Schedule)
4. Employment Agreement / Letters
(see Exhibits LL, MM and NN , Employment Agreements/Offer Letters
5.
_____________
dt 1451524
;
More... |
| Preview
Subscribers | 2001 |
Merger Agreement [Amendment No. 1]
Merger Agreement [Amendment No. 1] (8K)
Doc #289940: Click preview link for longer preview.
FIRST AMENDMENT to the
MERGER AGREEMENT
This First Amendment to the Merger Agreement (the "Agreement") is entered
into as of the 14th day of May, 2001, by and between WESTERN POWER & EQUIPMENT
CORP., a Delaware corporation (the "Company") and SUPPLYPOINT, INC., a Delaware
corporation ("SupplyPoint").
RECITALS
WHEREAS, the Parties entered into a Merger Agreement dated as of 1st day
of May, 2001, and
WHEREAS, the Parties desire to amend the Agreement,
NOW, THEREFORE, in consideration of the mutual covenants of the
Parties hereinafter set forth, and for good and valuable consideration, receipt
of which is hereby acknowledged,
IT IS AGREED:
1. Recitals Adopted. The parties hereto adopt as part of this First
Amendment each of the recitals which are contained above in the WHEREAS clauses,
and agree that such recitals shall be binding upon the parties hereto by way of
contract and not merely by way of recital or inducement; and such clauses are
hereby confirmed and ratified as being true and accurate by each party as to
itself.
2. Paragraph "C" of Article "7". Paragraph "C' of Article "7" of the
Agreement, is hereby deleted and the following is substituted in its place and
stead:
1
{PAGE}
C. Stockholder Approval. The holders of 84% of the issued and
outstanding shares of SPI have consented to SPI entering into this Agreement and
the transactions set forth in this Agreement. A certified consent of such
Stockholders is annexed hereto and made a part hereof as Exhibit "N" (Article
"7(C)".
3. Paragraph "K" of Article "7". Paragraph "K" of Article "7 of the
Agreement, is hereby deleted and the following is substituted in its place and
stead:
Financial Statements. Annexed hereto and made a part hereof as
Exhibit "P" (Article "7(K)") are true copies of a draft of SPI's audited
statement of profit and loss and balance sheet for the fiscal years ended
December 31, 1999 and 2000, (collectively, the Financial Statements; the
Financial Statements dated December 31, 2000 are hereinafter referred to as the
289940
|
WP&E
As referenced in this Merger Agreement [Amendment No. 1]:
WESTERN POWER & EQUIPMENT
CORP – This First Amendment to the Merger Agreement (the "Agreement") is entered
into as of the 14th day of May, 2001, by and between WESTERN POWER & EQUIPMENT
CORP ., a Delaware corporation (the "Company") and SUPPLYPOINT, INC., a Delaware
corporation ("SupplyPoint").
RECITALS
WHEREAS, the Parties entered into a Merger Agreement dated
_____________
WESTERN POWER & EQUIPMENT CORP – intending to be legally bound, have
executed this First Amendment to the Merger Agreement as of the day and year
first above written.
WESTERN POWER & EQUIPMENT CORP .
By:_____________________________________
Name:___________________________________
Title:__________________________________
SUPPLYPOINT, INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
6
{/TEXT}
{/DOCUMENT}
_____________
dt 233721
| |
| Preview
Subscribers | 2004 |
Articles of Merger
Articles of Merger (21K)
Doc #380959: Click preview link for longer preview.
ARTICLES OF MERGER
OF
OCC ACQUISITION INC.
WITH AND INTO
OPPORTUNITY CONCRETE CORPORATION
Pursuant to Section 29-368 of the
District of Columbia Business Corporation Act
Opportunity Concrete Corporation, a District of Columbia corporation (the �Company�), and OCC Acquisition Inc., a Delaware corporation (�OCC Acquisition�), do hereby certify to the following facts relating to the merger of OCC Acquisition with and into the Company (the �Merger�):
1. The Company and OCC Acquisition are . . .
380959
|
U.S. Concrete
As referenced in this Articles of Merger:
U.S. Concrete, Inc – and into the Company (the Merger):
1. The Company and OCC Acquisition are parties to an Agreement and Plan of Reorganization dated as of March 22, 1999 by and among U.S. Concrete, Inc ., a Delaware corporation, OCC Acquisition, the Company, and the Stockholders named therein (the Reorganization Agreement). The Reorganization Agreement includes a plan of merger pursuant to which OCC Acquisition will
_____________
U.S. Concrete, Inc – corporations, that USC Sub merge with and into the Company under and pursuant to the terms and conditions set forth hereinafter and under the Agreement and Plan of Reorganization among U.S. Concrete, Inc ., a Delaware corporation of which USC Sub is a wholly owned subsidiary (USC), USC Sub, the Company and the stockholders named therein (the Reorganization Agreement);
NOW, THEREFORE, the corporations
_____________
dt 1548050
| |
| Subscribers | 2004 |
Articles of Merger
Articles of Merger (22K)
Doc #426063: This document is immediately available for purchase, but does not have a preview available for viewing.
426063
| | |
| Preview
Subscribers | 2004 |
Merger Agreement
Merger Agreement (173K)
Doc #427135: Click preview link for longer preview.
MERGER AGREEMENT
among
A.S.V., INC.,
LMI MERGER CORP.,
LOEGERING MFG. INC.,
THE MARILYN A. LOEGERING REVOCABLE TRUST
and
MARILYN A. LOEGERING
dated
October 1, 2004
Execution Copy
{PAGE}
TABLE OF CONTENTS
{TABLE}
{S} {C}
Recitals.......................................................................................................... 1
I. Definitions.................................................................................................... 1
II. The Merger.................................................................................................... 7
2.1 The Merger.......................................................................................... 7
2.2 Conversion of Securities............................................................................ 7
2.3 Escrow.............................................................................................. 8
2.4 The Closing......................................................................................... 8
2.5 Stock Certificates.................................................................................. 10
2.6 Effect of Merger.................................................................................... 11
2.7 Taking of Necessary Action; Further Action.......................................................... 11
2.8 Tax-Free Reorganization............................................................................. 11
2.9 Buyer Common Stock.................................................................................. 12
III. Representations and Warranties of Shareholder................................................................ 12
3.1 Power and Authority................................................................................. 12
3.2 Valid and Binding Agreement......................................................................... 12
3.3 No Breach; Consents................................................................................. 12
3.4 Stock Ownership..................................................................................... 12
3.5 Investment.......................................................................................... 13
IV. Representations and Warranties of the Company and Shareholder................................................. 13
4.1 Incorporation; Power and Authority.................................................................. 13
4.2 Valid and Binding Agreement......................................................................... 13
4.3 No Breach; Consents................................................................................. 13
4.4 Capitalization...................................................................................... 14
4.5 Subsidiaries........................................................................................ 14
4.6 Financial Statements................................................................................ 14
4.7 Absence of Undisclosed Liabilities.................................................................. 15
4.8 Books and Records................................................................................... 15
4.9 Absence of Certain Developments..................................................................... 15
4.10 Property............................................................................................ 17
4.11 Accounts Receivable................................................................................. 18
4.12 Inventory........................................................................................... 18
4.13 Tax Matters......................................................................................... 18
4.14 Intellectual Property Rights........................................................................ 20
4.15 Material Contracts.................................................................................. 23
4.16 Litigation.......................................................................................... 24
4.17 Insurance........................................................................................... 24
4.18 Compliance with Laws; Government Authorizations..................................................... 25
4.19 Environmental Matters............................................................................... 25
4.20 Warranties.......................................................................................... 27
4.21 Employees........................................................................................... 28
4.22 Employee Benefits................................................................................... 29
{/TABLE}
Execution Copy
i
{PAGE}
{TABLE}
{S} {C}
4.23 Customers........................................................................................... 31
4.24 Suppliers........................................................................................... 31
4.25 Affiliate Transactions.............................................................................. 31
4.26 Brokerage........................................................................................... 32
4.27 Availability of Documents........................................................................... 32
4.28 Disclosure.......................................................................................... 32
V. Representations and Warranties of Buyer........................................................................ 32
5.1 Incorporation; Power and Authority.................................................................. 32
5.2 Valid and Binding Agreement......................................................................... 32
5.3 No Breach; Consents................................................................................. 33
5.4 Certain Tax Matters................................................................................. 33
5.5 Brokerage........................................................................................... 33
5.6 Investment Intent................................................................................... 33
5.7 Buyer Common Stock.................................................................................. 33
5.8 SEC Filings; Financial Statements................................................................... 33
VI. Agreements of the Company..................................................................................... 34
6.1 Tax Matters......................................................................................... 34
VII. Agreements of Buyer.......................................................................................... 34
7.1 Tax Matters......................................................................................... 35
7.2 Board of Directors.................................................................................. 35
7.3 Registration Statement.............................................................................. 35
7.4 Listing............................................................................................. 36
7.5 Employment; Employee Benefits....................................................................... 37
7.6 Litigation.......................................................................................... 37
VIII. Indemnification............................................................................................. 37
8.1 Indemnification Obligation.......................................................................... 37
8.2 Basket.............................................................................................. 38
8.3 Cap................................................................................................. 38
8.4 Buyer Claims........................................................................................ 38
8.5 Third Party Action.................................................................................. 39
8.6 Escrow Fund......................................................................................... 41
8.7 Survival............................................................................................ 41
IX. General....................................................................................................... 41
9.1 Press Releases and Announcements.................................................................... 41
9.2 Expenses............................................................................................ 41
9.3 Amendment and Waiver................................................................................ 42
9.4 Notices............................................................................................. 42
9.5 Assignment.......................................................................................... 43
9.6 No Third Party Beneficiaries........................................................................ 43
9.7 Severability........................................................................................ 43
9.8 Complete Agreement.................................................................................. 43
9.9 Schedules........................................................................................... 43
{/TABLE}
Execution Copy
ii
{PAGE}
{TABLE}
{S} {C}
9.10 Signatures; Counterparts............................................................................ 44
9.11 Governing Law....................................................................................... 44
9.12 Specific Performance................................................................................ 44
9.13 Jurisdiction........................................................................................ 44
9.14 Waiver of Jury Trial................................................................................ 44
9.15 Construction........................................................................................ 45
9.16 Time of Essence..................................................................................... 45
9.17 LBW Release......................................................................................... 45
9.18 Steve and George Loegering.......................................................................... 45
9.19 George Loegering's Intellectual Property............................................................ 46
9.20 S Corp.............................................................................................. 46
{/TABLE}
Exhibit A - Form of Escrow Agreement
Exhibit B - Form of Release
Exhibit C - Form of Articles of Merger
Exhibit D - Form of Plan of Merger
Exhibit E - Form of Real Property Transfer Agreement - Plant
Exhibit F - Form of Real Property Transfer Agreement - Lot
Exhibit G - Form of Employment Agreement - Wanda Mangin
Exhibit H - Form of Employment Agreement - Steve Loegering
Exhibit I - Release of LBW Management, LLC
Execution Copy
iii
{PAGE}
MERGER AGREEMENT
This MERGER AGREEMENT (this "Agreement") is made as of October 1, 2004,
among A.S.V., Inc., a Minnesota corporation ("Buyer"), LMI Merger Corp., a North
Dakota corporation and wholly owned subsidiary of Buyer ("Merger Subsidiary"),
Loegering Mfg. Inc., a North Dakota corporation (the "Company"), Marilyn A.
Loegering and her successors in trust, as trustees of The Marilyn A. Loegering
Revocable Trust March 28, 1996, the sole shareholder of the Company (the
"Loegering Trust"), and Marilyn A. Loegering, an individual resident of the
State of North Dakota (the Loegering Trust and Marilyn A. Loegering are
collectively referred to in this Agreement as the "Shareholder").
RECITALS
WHEREAS, the respective Boards of Directors of Buyer, Merger Subsidiary
and the Company have determined that it is advisable and in the best interests
of the respective corporations and their shareholders that Merger Subsidiary be
merged with and into the Company (the "Merger") in accordance with the North
Dakota Business Corporation Act (the "NDBCA") and the terms of this Agreement,
pursuant to which the Company will be the surviving corporation and will be a
wholly owned subsidiary of Buyer.
WHEREAS, for United States federal income tax purposes, the parties intend
that the Merger will qualify as a "reorganization" under Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code"), and that this Agreement
constitutes a "plan of reorganization" within the meaning of the Code.
WHEREAS, Buyer, Merger Subsidiary, the Company and Shareholder desire to
make certain representations, warranties and agreements in connection with, and
establish various conditions precedent to, the Merger.
NOW, THEREFORE, in consideration of the mutual representations, warranties
and agreements contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
I. DEFINITIONS
The following terms not defined below are defined in the sections of
Articles II through V, inclusive, and Articles VII through VIII, inclusive,
indicated below:
{TABLE}
{CAPTION}
DEFINITION DEFINED
---------- -------
{S} {C}
Accredited Investor 3.5
Admitted Claim 8.4(a)
Agreement Preamble
Annual Financial Statements 4.6
Basket Amount 8.2
Buyer Preamble
Buyer Claim 8.4(a)
Buyer Common Stock 2.2(a)
{/TABLE}
Execution Copy
{PAGE}
{TABLE}
{CAPTION}
DEFINITION DEFINED
---------- -------
{S} {C}
Buyer Common Stock Price 2.2(a)
Buyer Indemnified Parties 8.5(a)
Buyer SEC Reports 5.8(a)
Cap Amount 8.3
Closing 2.4(a)
Closing Date 2.4(a)
Code Recitals
Company Preamble
Company Common Stock 2.2(a)
Continuing Employee 7.5(a)
Converted Company Common Stock 2.2(a)
Environmental Costs 4.19(a)(i)
Environmental Law 4.19(a)(ii)
Escrow Account 2.3(a)
Escrow Amount 2.3(a)
Escrow Agent 2.3(a)
Escrow Agreement 2.3(a)
Escrow Cash 2.3(a)
Escrow Shares 2.3(a)
Escrow Fund 2.3(a)
Exchange Ratio 2.2(a)
Form S-3 Registration Statement 7.3(a)
Hazardous Materials 4.19(a)(iii)
Last Fiscal Year End 4.6
Latest Balance Sheet 4.6
Latest Balance Sheet Date 4.6
Latest Financial Statements 4.6
Leased Real Property 4.10(b)
List 4.19(a)(iv)
Loegering Trust Preamble
Loss 8.1
Material Contracts 4.15(a)
Merger Recitals
Merger Consideration 2.2(a)
Merger Subsidiary Preamble
NDBCA Recitals
Property 4.19(a)(v)
Real Property 4.10(b)
Regulatory Action 4.19(a)(vi)
Release 4.19(a)(vii)
Shareholder Preamble
Surviving Corporation 2.1
Surviving Corporation Common Stock 2.2(b)
Third Party Action 8.5(a)
Third-Party Environmental Claim 4.19(a)(viii)
{/TABLE}
Execution Copy
2
{PAGE}
"Acquisition Proposal" means any offer, proposal, inquiry or indication of
interest (other than by Buyer) contemplating or otherwise relating to any
Acquisition Transaction.
"Acquisition Transaction" means any transaction or series of transactions
involving (a) any merger, consolidation, share exchange, business combination,
issuance of securities, acquisition of securities, tender offer, exchange offer
or other similar transaction (i) in which the Company is a constituent
corporation, (ii) in which a Person or "group" (as defined in the Exchange Act
and the rules promulgated thereunder) of Persons directly or indirectly acquires
beneficial or record ownership of securities representing more than 15% of the
outstanding securities of any class of voting securities of the Company or (iii)
in which the Company issues or sells securities representing more than 20% of
the outstanding securities of any class of voting securities of the Company; or
(b) any sale (other than sales of inventor in the ordinary course of business),
lease (other than in the ordinary course of business), exchange, transfer (other
than sales of inventory in the ordinary course of business), license (other than
nonexclusive licenses in the ordinary course of business), acquisition or
disposition of any business or businesses or assets that constitute or account
for 20% or more of the consolidated net revenues, net income or assets of the
Company.
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the Person specified.
"Ancillary Agreements" means the Escrow Agreement, the Releases, the
Employment Agreements with Wanda Mangin and Steve Loegering, the Real Property
Transfer Agreements and the Release of LBW Management, LLC.
"Capital Lease" means a lease to which the Company is a party that is a
capital lease as determined in accordance with GAAP.
"Consent" means any authorization, consent, approval, filing, waiver,
exemption or other action by or notice to any Persons.
"Constituent Corporations" means the Company and Merger Subsidiary as the
parties to the Merger.
"Contract" means a contract, agreement, commitment or binding
understanding, whether oral or written, that is in effect as of the date of this
Agreement or any time after the date of this Agreement.
"Disclosure Schedule" means the schedules referred to in the Agreement,
and delivered by the Company to Buyer on the date of this Agreement.
"Encumbrance" means any charge, claim, community property interest,
condition, equitable interest, lien, option, pledge, security interest, right of
first refusal or restriction of any kind, including any restriction on use,
voting, transfer, receipt of income or exercise of any other attribute of
ownership.
Execution Copy
3
{PAGE}
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations thereunder.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
"GAAP" means United States generally accepted accounting principles, as in
effect from time to time prior to the Closing Date.
"Governmental Authorization" means any approval, consent, license, permit,
waiver, registration or other authorization issued, granted, given, made
available or otherwise required by any Governmental Entity or pursuant to Law.
"Governmental Entity" means any federal, state, local, foreign,
international or multinational entity or authority exercising executive,
legislative, judicial, regulatory, administrative or taxing functions of or
pertaining to government.
"Governmental Order" means any judgment, injunction, writ, order, ruling,
award or decree by any Governmental Entity or arbitrator.
"Insider" means (i) a shareholder, officer, director or employee of the
Company, (ii) any Member of the Immediate Family of any shareholder, officer,
director or employee of the Company or (iii) any entity in which any of the
Persons described in clause (i) or (ii) owns any beneficial interest (other than
427135
| |
Wells Fargo Bank
As referenced in this Merger Agreement:
Wells Fargo Bank, N – Shares") and the sum of $100,000 cash from the Merger Consideration (the
"Escrow Cash" and, together with the Escrow Shares, the "Escrow Amount") will be
deposited by Shareholder with Wells Fargo Bank, N .A., as escrow agent (the
"Escrow Agent"), to be held in escrow (the "Escrow Fund") in an account (the
"Escrow Account") pursuant to the terms of the Escrow Agreement (
_____________
dt 1433001
|
| Preview
Subscribers | 2000 |
Merger Agreement
Merger Agreement (124K)
Doc #516981: Click preview link for longer preview.
MERGER AGREEMENT
AMONG
A.C.F. IMPORTS, INC.
A.C.F. ACQUISITION, INC.
DOWLING'S FLEET SERVICE CO., INC.
AND
OAKHURST COMPANY, INC.
DATED: JUNE 30, 2000
2
MERGER AGREEMENT
THIS MERGER AGREEMENT (this "Agreement") is entered into as of the 30th
day of June, . . .
516981
| | |
| Preview
Subscribers | 2000 |
Merger Agreement
Merger Agreement (79K)
Doc #1593647: Click preview link for longer preview.
MERGER AGREEMENT
AMONG
JLK DIRECT DISTRIBUTION INC.
AND
KENNAMETAL INC.
AND
PEGASUS ACQUISITION CORPORATION
DATED SEPTEMBER 8, 2000
Disclosure materials, including a tender offer statement, will be filed with the
Securities and Exchange Commission (SEC) and transmitted to the minority
shareholders of JLK for their . . .
1593647
|
Kennametal
As referenced in this Merger Agreement:
KENNAMETAL INC –
EXHIBIT 99.2
1
EXHIBIT 99.2
MERGER AGREEMENT
AMONG
JLK DIRECT DISTRIBUTION INC.
AND
KENNAMETAL INC .
AND
PEGASUS ACQUISITION CORPORATION
DATED SEPTEMBER 8, 2000
Disclosure materials, including a tender offer statement, will be filed with the
Securities and Exchange Commission (SEC) and transmitted to the
_____________
Kennametal Inc –
PAGE
----
8.16 Counterparts...................................................................................14
-iii-
5
MERGER AGREEMENT
This Merger Agreement ("Agreement") is made as of September 8, 2000, by
and among Kennametal Inc ., a Pennsylvania corporation ("Kennametal"), Pegasus
Acquisition Corporation, a Pennsylvania corporation and a wholly owned indirect
subsidiary of Kennametal ("Acquisition"), and JLK Direct Distribution Inc., a
Pennsylvania corporation (the "Company").
_____________
Kennametal Inc – 647-8587
and Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Attn: Howard L. Shecter, Esq.
Tel: (212) 309-6384
Fax: (212) 309-6273
KENNAMETAL OR ACQUISITION: Kennametal Inc .
1600 Technology Way
P.O. Box 231
Latrobe, PA 15650
Attention: David T. Cofer
Facsimile No.: (724) 539-3839
Telephone No.: (724) 539-5206
and a copy to: Buchanan
_____________
KENNAMETAL INC – WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
JLK DIRECT DISTRIBUTION INC.
By: /s/ Diana L. Scott
Title: VP, CFO & Treasurer
KENNAMETAL INC .
By: /s/ Markos I. Tambakeras
Title: President & CEO
PEGASUS ACQUISITION CORPORATION
By: /s/ Markos I. Tambakeras
Title: President
-15-
20
ANNEX A
CERTAIN CONDITIONS OF THE OFFER
Notwithstanding
_____________
Kennametal Inc – that may be asserted at any time and from time to time.
A-2
22
ANNEX B
PLAN OF MERGER
PLAN OF MERGER ("Plan of Merger") by and among Kennametal Inc ., a
Pennsylvania corporation ("Kennametal"), Pegasus Acquisition Corporation, a
Pennsylvania corporation and a wholly owned subsidiary of Kennametal
("Acquisition"), and JLK Direct Distribution Inc., a Pennsylvania corporation
(the "Company").
RECITALS
_____________
dt 1865338
;
CIBC World
As referenced in this Merger Agreement:
CIBC World Markets Corp. – REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents and warrants to Acquisition and Kennametal as
follows:
3.1 OPINION OF FINANCIAL ADVISOR.
The Company has received the opinion of CIBC World Markets Corp. , dated
as of September 8, 2000, a copy of which has been provided to Kennametal and
Acquisition, to the effect that, as of such date, the cash consideration to
_____________
dt 1353971
;
|
Buchanan
As referenced in this Merger Agreement:
Buchanan
Ingersoll – and date when the Merger shall become effective is referred to
as the "Effective Time."
2.3 CLOSING.
The closing of the Merger will take place at the offices of Buchanan
Ingersoll Professional Corporation, 20th Floor, One Oxford Centre, 301 Grant
Street, Pittsburgh, PA at 10:00 a.m. (local time) on the date of the
satisfaction of the conditions set forth
_____________
Buchanan Ingersoll – Kennametal Inc.
1600 Technology Way
P.O. Box 231
Latrobe, PA 15650
Attention: David T. Cofer
Facsimile No.: (724) 539-3839
Telephone No.: (724) 539-5206
and a copy to: Buchanan Ingersoll Professional
Corporation
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219-1410
Attention: Lewis U. Davis, Jr.
Facsimile No.: (412) 562-1041
Telephone No.: (412) 562-8953
-11-
<
_____________
Buchanan
Ingersoll – specify in the Articles of Merger (the
time the Merger becomes effective being the "Effective Time").
3. CLOSING.
The closing of the Merger will take place at the offices of Buchanan
Ingersoll Professional Corporation, 20th Floor, One Oxford Centre, 301 Grant
Street, Pittsburgh, PA at 10:00 a.m. (local time) on the date of the
satisfaction of the conditions set forth
_____________
dt 1435717
;
Morgan Lewis
As referenced in this Merger Agreement:
Morgan, Lewis & Bockius – SC 29928
Tel: (843) 363-5502
Fax: (843) 363-9090
and Irwin L. Elson
633 Edgemere Court
Bloomfield Hills, MI 48304
Tel: (248) 647-1888
Fax: (248) 647-8587
and Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Attn: Howard L. Shecter, Esq.
Tel: (212) 309-6384
Fax: (212) 309-6273
KENNAMETAL OR ACQUISITION: Kennametal Inc.
1600 Technology Way
_____________
dt 1373101
|
| Preview
Subscribers | 2000 |
Merger Agreement
Merger Agreement (79K)
Doc #1593649: Click preview link for longer preview.
MERGER AGREEMENT
AMONG
JLK DIRECT DISTRIBUTION INC.
AND
KENNAMETAL INC.
AND
PEGASUS ACQUISITION CORPORATION
DATED SEPTEMBER 8, 2000
Disclosure materials, including a tender offer statement, will be filed with the
Securities and Exchange Commission (SEC) and transmitted to the minority
shareholders of JLK for their . . .
1593649
|
Kennametal
As referenced in this Merger Agreement:
KENNAMETAL INC –
EXHIBIT 99.1 (MERGER AGREEMENT)
1
EXHIBIT 99.1
MERGER AGREEMENT
AMONG
JLK DIRECT DISTRIBUTION INC.
AND
KENNAMETAL INC .
AND
PEGASUS ACQUISITION CORPORATION
DATED SEPTEMBER 8, 2000
Disclosure materials, including a tender offer statement, will be filed with the
Securities and Exchange Commission (SEC) and transmitted to the
_____________
Kennametal Inc –
PAGE
----
8.16 Counterparts...................................................................................14
-iii-
5
MERGER AGREEMENT
This Merger Agreement ("Agreement") is made as of September 8, 2000, by
and among Kennametal Inc ., a Pennsylvania corporation ("Kennametal"), Pegasus
Acquisition Corporation, a Pennsylvania corporation and a wholly owned indirect
subsidiary of Kennametal ("Acquisition"), and JLK Direct Distribution Inc., a
Pennsylvania corporation (the "Company").
_____________
Kennametal Inc – 647-8587
and Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
Attn: Howard L. Shecter, Esq.
Tel: (212) 309-6384
Fax: (212) 309-6273
KENNAMETAL OR ACQUISITION: Kennametal Inc .
1600 Technology Way
P.O. Box 231
Latrobe, PA 15650
Attention: David T. Cofer
Facsimile No.: (724) 539-3839
Telephone No.: (724) 539-5206
and a copy to: Buchanan
_____________
KENNAMETAL INC – WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
JLK DIRECT DISTRIBUTION INC.
By: /s/ Diana L. Scott
Title: VP, CFO & Treasurer
KENNAMETAL INC .
By: /s/ Markos I. Tambakeras
Title: President & CEO
PEGASUS ACQUISITION CORPORATION
By: /s/ Markos I. Tambakeras
Title: President
-15-
20
ANNEX A
CERTAIN CONDITIONS OF THE OFFER
Notwithstanding
_____________
Kennametal Inc – that may be asserted at any time and from time to time.
A-2
22
ANNEX B
PLAN OF MERGER
PLAN OF MERGER ("Plan of Merger") by and among Kennametal Inc ., a
Pennsylvania corporation ("Kennametal"), Pegasus Acquisition Corporation, a
Pennsylvania corporation and a wholly owned subsidiary of Kennametal
("Acquisition"), and JLK Direct Distribution Inc., a Pennsylvania corporation
(the "Company").
RECITALS
_____________
dt 1868298
;
CIBC World
As referenced in this Merger Agreement:
CIBC World Markets Corp. – REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company represents and warrants to Acquisition and Kennametal as
follows:
3.1 OP |