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Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
▇▇▇▇▇▇▇ HOLDINGS INC.
AND
▇▇▇▇▇▇▇ FASTENERS INC.
August 3, 2001
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TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS........................................... 1
ARTICLE II THE MERGER................................................... 2
2.1. The Merger.......................................................... 2
2.2. Effective Time of the Merger........................................ 3
2.3. Effects of the Merger............................................... 3
2.4. Closing............................................................. 3
2.5. Certificate of Incorporation........................................ 3
2.6. By-Laws............................................................. 3
2.7. Directors........................................................... 3
2.8. Officers............................................................ 3
2.9. U.S. Federal Income Tax Treatment................................... 3
ARTICLE III CONVERSION OF SECURITIES.................................... 4
3.1. Effect of the Merger on Capital Stock............................... 4
3.2. No Further Ownership Rights in Holdings Common Stock................ 4
3.3. No Fractional Shares of Fasteners Common Stock...................... 4
3.4. Lost Certificates................................................... 4
3.5. Further Assurances.................................................. 5
3.6. Stock Transfer Books................................................ 5
ARTICLE IV GENERAL PROVISIONS........................................... 5
4.1. Termination......................................................... 5
4.2. Counterparts........................................................ 5
4.3. Entire Agreement.................................................... 5
4.4. Governing Law....................................................... 6
4.5. Severability........................................................ 6
4.6. Assignment.......................................................... 6
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This Agreement and Plan of Merger, dated as of August 3, 2001 (this
"Agreement"), by and between ▇▇▇▇▇▇▇ Holdings Inc., a Delaware corporation
("Holdings") and ▇▇▇▇▇▇▇ Fasteners Inc., a Delaware corporation ("Fasteners").
WITNESSETH:
WHEREAS, Holdings and Fasteners desire to restructure certain
indebtedness evidenced by Fasteners' outstanding 11 1/4% Senior Notes due 2007
(the "Old Notes"), and in connection therewith are entering into the Exchange
Agreement and certain other related agreements dated as of the date hereof (the
"Transaction") pursuant to which Fasteners will issue certain new bonds of
Fasteners and Fasteners Common Stock in exchange for the Old Notes (the
"Exchange");
WHEREAS, Fasteners is a wholly owned subsidiary of Holdings and the
Board of Directors of Holdings has approved and deemed it advisable and in the
best interest of Holdings and its stockholders to consummate the merger of
Holdings with and into Fasteners upon the terms and subject to the conditions
set forth herein; and
WHEREAS, it is intended for U.S. federal income tax purposes that
the Merger provided for herein shall qualify as a reorganization within the
meaning of Section 368(a)(1)(A) of the Code;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, and intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
respective meanings set forth below:
"Agreement" shall have the meaning set forth in the preamble.
"Amended and Restated Certificate of Incorporation" shall have the
meaning set forth in Section 2.5.
"Certificate of Ownership and Merger" shall have the meaning set
forth in Section 2.2.
"Closing" shall have the meaning set forth in Section 2.4.
"Closing Date" shall have the meaning set forth in Section 2.4.
"Code" means the Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder.
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"DGCL" means the Delaware General Corporation Law.
"Effective Time" shall have the meaning set forth in Section 2.2.
"Exchange" shall have the meaning set forth in the preamble.
"Exchange Agreement" means the Exchange Agreement dated as of August
3, 2001 entered into by Holdings, Fasteners, Saratoga and Greenwich and the
other noteholders listed on Exhibit A thereto.
"Fasteners" shall have the meaning set forth in the preamble.
"Fasteners Common Stock" means common stock, par value $0.01 per
share, of Fasteners.
"Greenwich" means, collectively, GSC Recovery II, L.P., GSCP
Recovery (US) L.L.C., Unione Italiana (U.K.) Reinsurance Company, Limited and
Greenwich Street Capital Partners II, L.P.
"Holdings" shall have the meaning set forth in the preamble.
"Holdings Certificate" shall have the meaning set forth in Section
3.1(b).
"Holdings Common Stock" means common stock, par value $0.0001 per
share, of Holdings.
"Merger" shall have the meaning set forth in Section 2.1.
"Merger Consideration" shall have the meaning set forth in Section
3.1(b).
"Old Notes" shall have the meaning set forth in the preamble.
"Saratoga" means, collectively, Saratoga Partners III, L.P.,
Saratoga Partners III, C.V. and Saratoga Management Company, LLC.
"Surviving Corporation" shall have the meaning set forth in Section
2.1.
"Transaction" shall have the meaning set forth in the preamble.
ARTICLE II
THE MERGER
2.1. The Merger. Upon the terms and subject to the conditions
hereof, and in accordance with the relevant provisions of the DGCL, at the
Effective Time, Holdings shall be merged (the "Merger") with and into Fasteners,
with Fasteners as the surviving corporation in the Merger (the "Surviving
Corporation"), and the separate existence of Holdings shall thereupon cease.
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2.2. Effective Time of the Merger. The Merger shall become effective
as set forth in a properly executed certificate of ownership and merger duly
filed with the Secretary of State of the State of Delaware (the "Certificate of
Ownership and Merger"), which filing shall be made on the Closing Date. As used
in this Agreement, the term "Effective Time" shall mean the date and time when
the Merger becomes effective, as set forth in the Certificate of Ownership and
Merger.
2.3. Effects of the Merger. The Merger shall have the effects set
forth in the applicable provisions of the DGCL. Without limiting the generality
of the foregoing, and subject thereto, at the Effective Time, except as
otherwise provided herein, all of the property, rights, privileges, powers and
franchises of Holdings shall vest in the Surviving Corporation, and all debts,
liabilities and duties of Holdings shall become the debts, liabilities and
duties of the Surviving Corporation.
2.4. Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") will take place at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
LLP, 1301 Avenue of the Americas, New York, New York simultaneously with the
closing of the Exchange contemplated by Article 2 of the Exchange Agreement,
unless another place, time or date is agreed to in writing by the parties hereto
(the date of the Closing being referred to herein as the "Closing Date").
2.5. Certificate of Incorporation. At the Effective Time, the
Certificate of Incorporation of the Surviving Corporation shall be the Amended
and Restated Certificate of Incorporation of Fasteners, as in effect immediately
prior to the Effective Time, until thereafter changed or amended as provided
therein or by applicable law.
2.6. By-Laws. The by-laws of Fasteners as in effect immediately
prior to the Effective Time shall be the by-laws of the Surviving Corporation,
until thereafter changed or amended as provided therein or by applicable law.
2.7. Directors. The directors of Fasteners at the Effective Time
shall be the directors of the Surviving Corporation, until the earlier of their
resignation or removal or until their respective successors shall have been duly
elected and qualified, as the case may be.
2.8. Officers. The officers of Fasteners 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
shall have been duly elected and qualified, as the case may be.
2.9. U.S. Federal Income Tax Treatment. The parties hereto (i) agree
that it is their intention that the Merger contemplated hereby qualify as a
reorganization within the meaning of Section 368(a)(1)(A) of the Code pursuant
to which no gain or loss is recognized and (ii) hereby adopt this Agreement as a
plan of reorganization within the meaning of Treasury Regulation Section
1.368-2(g).
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ARTICLE III
CONVERSION OF SECURITIES
3.1. Effect of the Merger on Capital Stock. At the Effective Time,
by virtue of the Merger and without any action on the part of any holder of any
capital stock of Holdings:
(a) Subject to Section 3.3, each outstanding share of Holdings
Common Stock issued and outstanding immediately prior to the Effective Time
shall be converted into the right to receive one share of Fasteners Common Stock
(the "Merger Consideration"), as set forth on Schedule 3.1(a) hereto. All of the
shares of Fasteners Common Stock to be issued as the Merger Consideration shall
be duly authorized, validly issued, fully paid and non-assessable and free of
preemptive rights, with no personal liability attaching to the ownership
thereof. All shares of Holdings Common Stock converted into the right to receive
the Merger Consideration pursuant to this Section 3.1(a) shall cease to be
outstanding and shall be canceled and retired and shall cease to exist, and each
holder of a certificate that immediately prior to the Effective Time represented
any such shares of Holdings Common Stock (a "Holdings Certificate") shall
thereafter cease to have any rights with respect to such shares of Holdings
Common Stock, except the right to receive the Merger Consideration to be issued
in consideration therefor in accordance with this Article III upon the surrender
of such Holdings Certificate. Fasteners shall, after the Effective Time, deliver
the Merger Consideration to the holders of Holdings Certificates as set forth on
Schedule 3.1(a).
(b) All shares of Fasteners capital stock which are held by Holdings
immediately prior to the Effective Time shall be cancelled and retired and shall
cease to exist.
(c) All other shares of capital stock of Holdings that are issued
and outstanding immediately prior to the Effective Time shall cease to be
outstanding and shall be cancelled and retired and shall cease to exist.
3.2. No Further Ownership Rights in Holdings Common Stock. All
shares of Fasteners Common Stock issued upon conversion of shares of Holdings
Common Stock in accordance with the terms of this Article III shall be deemed to
have been issued or paid in full satisfaction of all rights pertaining to the
shares of Holdings Common Stock.
3.3. No Fractional Shares of Fasteners Common Stock. No certificates
or scrip or shares of Fasteners Common Stock representing fractional shares of
Fasteners Common Stock shall be issued upon the surrender for exchange of
Holdings Certificates, and such fractional share interests will not entitle the
owner thereof to vote or to have any rights of a stockholder of Fasteners or a
holder of shares of Fasteners Common Stock.
3.4. Lost Certificates. If any Holdings Certificate shall have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
Person claiming such Holdings Certificate to be lost, stolen or destroyed and,
if required by Fasteners, the posting by such Person of a bond in such
reasonable amount as Fasteners may direct as indemnity against any claim that
may be made against it with respect to such Holdings Certificate, following the
Effective Time Fasteners will deliver in exchange for such lost, stolen or
destroyed Holdings
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Certificate the Merger Consideration with respect to the shares of Holdings
Common Stock formerly represented thereby, pursuant to this Agreement.
3.5. Further Assurances. At any time and from time to time upon and
after the Effective Time, as and when required or deemed desirable by the
Surviving Corporation or its successors or assigns, there shall be executed,
acknowledged, certified, sealed, delivered, filed, and/or recorded, in the name
and on behalf of each of Holdings and Fasteners, such deeds, contracts,
consents, certificates, notices, and other documents and instruments, and there
shall be done or taken or caused to be done or taken, in the name and on behalf
of each of Holdings and Fasteners, such further and other things and actions as
shall be appropriate, necessary, or convenient to acknowledge, vest, effect,
perfect, conform of record, or otherwise confirm the Surviving Corporation's (or
its successors' or assigns') right, title, and interest in kind to, and
possession of, all the property, interests, assets, rights, privileges,
immunities, powers, franchises, and authority of each of Holdings and Fasteners
held immediately prior to the Effective Time, and otherwise to carry out and
effect the intent and purposes of this Agreement and the Merger. The officers
and directors of the Surviving Corporation (or its successors or assigns), and
each of them, upon and after the Effective Time, are and shall be fully
authorized, in the name and on behalf of each of Holdings and Fasteners, to do
and take and cause to be done and taken any and all such things and actions, and
to execute, acknowledge, certify, seal, deliver, file, and/or record any and all
such deeds, contracts, consents, certificates, notices, and other documents and
instruments.
3.6. Stock Transfer Books. The stock transfer books of Holdings
shall be closed immediately upon the Effective Time, and there shall be no
further registration of transfers of shares of Holdings Common Stock thereafter
on the records of Holdings. On or after the Effective Time, any Holdings
Certificates presented to Fasteners or the Surviving Corporation for any reason
shall be converted into the right to receive the Merger Consideration with
respect to the shares of Holdings Common Stock formerly represented thereby
pursuant to the terms of this Agreement.
ARTICLE IV
GENERAL PROVISIONS
4.1. Termination. This Agreement may be terminated and the Merger
contemplated hereby may be abandoned at any time prior to the Effective Time by
mutual consent of the parties hereto.
4.2. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
4.3. Entire Agreement. This Agreement and the schedules hereto and
the other agreements and instruments of the parties delivered in connection
herewith and in connection with the Transaction constitute the entire agreement
and supersede all prior agreements and
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understandings, both written and oral, among the parties with respect to the
subject matter hereof.
4.4. Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of Delaware (without giving effect to
choice of law principles thereof).
4.5. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any law or public policy,
all other terms and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
4.6. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto, in whole or in part (whether by operation of law or otherwise), without
the prior written consent of the other party, and any attempt to make any such
assignment without such consent shall be null and void. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
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IN WITNESS WHEREOF, Holdings and Fasteners have caused this Agreement to
be signed by their respective officers thereunto duly authorized, all as of the
date first written above.
▇▇▇▇▇▇▇ HOLDINGS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
▇▇▇▇▇▇▇ FASTENERS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
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SCHEDULE 3.1(a)
Effect of the Merger on Capital Stock
Number of shares of Number of shares
Holdings Common of Fasteners Common
Holders of Holdings Stock to be Stock to be
Common Stock cancelled issued
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Saratoga Partners III, L.P. 4,269,172 4,269,172
Saratoga Partners III, C.V. 641,828 641,828
▇▇▇▇▇ Global Investments, LTD 1,148,000 1,148,000
Remington Investment Strategies, L.P. 252,000 252,000
WLD Partners, LTD 800,000 800,000
▇▇▇▇▇ University Third Century Fund 200,000 200,000
Co-Investment Partners, L.P. 2,000,000 2,000,000
SF Funding Company LLC 490,053 490,053
