Exhibit 99.2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of April 11,
2001 by and between Venturian Holdings, LLC, a Delaware limited liability
company ("PURCHASER"), and Venturian Corp., a Minnesota corporation (the
"COMPANY" and, together with Purchaser, hereinafter sometimes referred to as the
"CONSTITUENT ENTITIES").
WHEREAS, the Company and its Napco International Inc. subsidiary
("Napco") have entered into an agreement with JATA LLC pursuant to which JATA
LLC is acquiring substantially all of the assets, and assuming certain
liabilities, of the Napco business (the "Napco Purchase Agreement"); and
WHEREAS, in connection with the Napco Purchase Agreement, the Company,
Napco and JATA LLC have entered into a management agreement (the "Napco
Management Agreement") pursuant to which JATA LLC will manage the Napco business
pending the closing of the purchase and sale contemplated in the Napco Purchase
Agreement; and
WHEREAS, Purchaser has proposed acquiring the Company by effecting the
Merger (as defined in Section 1.02 hereof) pursuant to this Agreement, whereby
the shares of the outstanding common stock, par value $1.00 per share, of the
Company (the "SHARES" or "COMPANY COMMON STOCK"), except as otherwise provided
herein, will be converted into cash at a price of $5.00 per Share;
WHEREAS, the Board of Directors of Purchaser and the Board of Directors
of the Company, based upon the recommendation of a special committee of the
Company's independent directors (the "COMPANY SPECIAL COMMITTEE"), have approved
this Agreement and determined that it is in the best interests of their
respective companies and shareholders to consummate this Agreement and the
transactions provided for herein; and
WHEREAS, the members of Purchaser ("PURCHASER MEMBERS") are, or will be
prior to the consummation of the Merger, the owners of approximately 38% of the
Shares; and
WHEREAS, the Company and Purchaser desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger.
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, covenants and agreements set forth
herein, the parties hereto agree as follows:
ARTICLE I.
THE MERGER
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Section 1.01 Company Actions. The Company hereby approves of the Merger
and represents that, upon the recommendation of the Company Special Committee,
its Board of Directors, at a meeting duly called and held, has (i) approved this
Agreement (including all terms and conditions set forth herein) and the
transactions contemplated hereby, including the Merger, determining that the
Merger is advisable and that the terms of the Merger are fair to, and in the
best interests of, the Company and its shareholders (the "COMPANY
SHAREHOLDERS"), (ii) directed that this Agreement and the Merger be submitted to
a vote of the Company Shareholders, and (iii) resolved to recommend that the
Company Shareholders approve and adopt this Agreement and the Merger. The
Company represents that Section 302A.673 of the Minnesota Business Corporation
Act, as amended (the "MBCA"), does not limit in any respect the transactions
contemplated by this Agreement. The Company hereby consents to the inclusion in
the Proxy Documents (as defined in Section 1.06 hereof) of the recommendation of
its Board of Directors described in clause (iii) of the first sentence of this
Section 1.01.
Section 1.02 The Merger. Subject to the terms and conditions of this
Agreement, the provisions of the MBCA and the provisions of the Delaware Limited
Liability Company Act, as amended (the "DLLCA"), at the Effective Time (as
defined in Section 1.03 hereof), the Company and the Purchaser shall consummate
a merger (the "MERGER") pursuant to which (a) the Company shall be merged with
and into the Purchaser and the separate corporate existence of the Company shall
thereupon cease, (b) the Purchaser shall be the surviving entity in the Merger
(the "SURVIVING ENTITY"), and (c) the Surviving Entity shall possess all the
rights, privileges, immunities, and franchises of each of the Company and the
Purchaser. Pursuant to the Merger, (x) the Certificate of Formation of the
Purchaser shall be the Certificate of Formation of the Surviving Entity until
thereafter amended as provided by law and such Certificate of Formation, and (y)
the Limited Liability Company Agreement of the Purchaser, as in effect
immediately prior to the Effective Time, shall be the Limited Liability Company
Agreement of the Surviving Entity until thereafter amended as provided by law,
the Certificate of Formation and such Limited Liability Company Agreement. The
Merger shall have the effects set forth in the MBCA and the DLLCA.
Section 1.03 Effective Time. Purchaser shall cause the Purchaser to,
and the Company shall, execute and file on the Closing Date (as defined in
Section 1.04 hereof) (or on such later date as Purchaser and the Company may
agree) an appropriate Certificate of Merger (the "CERTIFICATE OF MERGER") with
the Secretary of State of the State of Delaware (the "DE SECRETARY OF STATE")
and appropriate Articles of Merger (the "ARTICLES OF MERGER") with the Secretary
of State of the State of Minnesota (the "MN SECRETARY OF STATE"). The Merger
shall become effective on the date on which the Certificate of Merger and
Articles of Merger are duly filed with the DE Secretary of State and the MN
Secretary of State, respectively, or such later date and time as is agreed upon
by the Constituent Entities and specified in the Certificate of Merger and in
the Articles of Merger, and such date and time is hereinafter referred to as the
"EFFECTIVE TIME." Purchaser shall also comply with MBCA Section 302A.651 Subd. 4
relating to a foreign surviving organization.
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Section 1.04 Closing. The closing of the Merger (the "CLOSING") shall
take place at 10:00 a.m., on a date to be specified by the parties, which shall
be as soon as practicable, but in no event later than the third business day,
after satisfaction or waiver of all of the conditions set forth in Article VI
hereof (the "CLOSING DATE"), at the offices of Xxxxxxx, Street and Deinard, 000
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx, unless another date,
time or place is agreed to in writing by the parties hereto.
Section 1.05 Governors and Officers of the Surviving Entity. The Board
of Governors and officers of the Purchaser immediately prior to the Effective
Time shall, from and after the Effective Time, be the governors and officers,
respectively, of the Surviving Entity until their successors shall have been
duly elected or appointed or qualified or until their earlier death, resignation
or removal in accordance with the Surviving Entity's Certificate of Formation
and Limited Liability Company Agreement.
Section 1.06 Meeting of Company Shareholders.
(a) As required by applicable law in order to consummate the Merger,
the Company, acting through its Board of Directors, shall, in accordance with
applicable law: (i) use its reasonable efforts to duly call, give notice of,
convene and hold a special meeting of the Company Shareholders (the "SPECIAL
MEETING") as soon as practicable following the date of this Agreement for the
purpose of considering and taking action upon this Agreement; (ii) prepare and
file with the Securities and Exchange Commission ("SEC") a preliminary proxy or
information statement relating to the Merger and this Agreement and use its
reasonable efforts (x) to obtain and furnish the information required to be
included by the federal securities laws (and the rules and regulations
thereunder) in the Proxy Statement (as hereinafter defined) and, after
consultation with Purchaser, to respond promptly to any comments made by the SEC
with respect to the preliminary proxy or information statement and cause a
definitive proxy or information statement (the "PROXY STATEMENT") to be mailed
to the Company Shareholders, and (y) to obtain the necessary approvals of the
Merger and this Agreement by the Company Shareholders; and (iii) include in the
Proxy Statement the recommendation of the Board that Company Shareholders vote
in favor of the approval of the Merger and this Agreement (the Proxy Statement,
together with such related materials sent to the Company Shareholders,
collectively, the "PROXY DOCUMENTS").
(b) Purchaser shall provide the Company with the information concerning
Purchaser required to be included in the Proxy Statement. Purchaser shall vote,
or cause to be voted, all of the shares of Company Common Stock then owned by
it, the Purchaser or any of its Affiliates (as defined in the Securities Act of
1933, as amended (the "SECURITIES ACT")) in favor of the approval of the Merger
and of this Agreement.
ARTICLE II.
CONVERSION OF SECURITIES
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Section 2.01 Conversion of Capital Stock. The manner and basis of
converting the shares of capital stock or membership interests of each of the
Constituent Entities is set forth in this Section 2.01. As of the Effective
Time, by virtue of the Merger and without any action on
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the part of the holders of any shares of Company Common Stock or membership
interests in the Purchaser (the "PURCHASER MEMBERSHIP INTEREST"):
(a) Purchaser Membership Interests; Interest in Surviving Entity. Each
issued and outstanding Purchaser Membership Interest shall remain as a
membership interest in the Purchaser and thus, will a constitute membership
interest in the Surviving Entity immediately after the Effective Time. Each
share of Company Common Stock held by those persons listed on Schedule 2.01(a)
("CERTAIN SHAREHOLDERS") shall be converted into and become one validly issued,
fully paid and nonassessable membership interest in the Surviving Entity, which,
along with those Purchaser Membership Interests referred to in the foregoing
sentence, shall constitute the only issued and outstanding membership interests
in the Surviving Entity immediately after the Effective Time.
(b) Cancellation of Certain Shares. All shares of Company Common Stock
owned by any Subsidiary (as defined in Section 3.01 hereof) of the Company or by
Purchaser or any other wholly owned Subsidiary of Purchaser shall be cancelled
and retired and shall cease to exist and no consideration shall be delivered in
exchange therefor.
(c) Conversion of Shares of Company Common Stock. Each issued and
outstanding share of Company Common Stock (other than Shares held by Certain
Shareholders, Shares to be cancelled in accordance with Section 2.01(b) and any
Dissenting Common Stock (as defined in Section 2.03 hereof)), shall be converted
into the right to receive cash in the amount of $5.00 (the "MERGER
CONSIDERATION"), without interest, payable to the holder thereof, prorated for
fractional shares, upon surrender of the certificate formerly representing such
share of Company Common Stock in the manner provided in Section 2.02 hereof. All
such shares of Company Common Stock, when so converted, shall no longer be
outstanding and shall automatically be cancelled and retired and shall cease to
exist, and each holder of a certificate representing any such shares shall cease
to have any rights with respect thereto, except the right to receive the Merger
Consideration therefor upon the surrender of such certificate in accordance with
Section 2.02 hereof, without interest.
Section 2.02 Exchange of Certificates.
(a) Paying Agent. American Stock Transfer & Trust Company (the "PAYING
AGENT") shall make the payments of the funds to which holders of shares of
Company Common Stock shall become entitled pursuant to Section 2.01(c) hereof.
On the Closing Date, Purchaser shall take all steps necessary to deposit or
cause to be deposited with the Paying Agent at least $1,300,000 of the funds
required for timely payment thereunder. Such funds shall be invested by the
Paying Agent as directed by Purchaser or the Surviving Entity. The Surviving
Entity will be obligated to fund all additional payments of the funds to which
holders of shares of Company Common Stock shall become entitled to pursuant to
Section 2.01(c) hereof. Within five (5) business days after the Effective Time,
the Surviving Entity will deposit or cause to be deposited with the Paying Agent
such additional amount necessary to cover payment to such holders.
(b) Exchange Procedures. As soon as reasonably practicable after the
Effective Time, but in no event more than three (3) business days thereafter,
Purchaser shall cause the Paying Agent to mail to each holder of record of a
certificate or certificates, which
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immediately prior to the Effective Time represented outstanding shares of
Company Common Stock (the "CERTIFICATES"), whose shares were converted pursuant
to Section 2.01(c) hereof into the right to receive the Merger Consideration,
(i) a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Paying Agent and shall be in such form and
have such other provisions as Purchaser and the Surviving Entity may reasonably
specify), and (ii) instructions for use in effecting the surrender of the
Certificates in exchange for payment of the Merger Consideration. Upon surrender
of a Certificate for cancellation to the Paying Agent, together with such letter
of transmittal, duly executed, the holder of such Certificate shall be entitled
to receive in exchange therefor the Merger Consideration (subject to subsection
(f) below), for each share of Company Common Stock (prorated for fractional
shares) formerly represented by such Certificate and the Certificate so
surrendered shall forthwith be cancelled. If payment of the Merger Consideration
is to be made to a person other than the person in whose name the surrendered
Certificate is registered, it shall be a condition of payment that the
Certificate so surrendered shall be properly endorsed or shall be otherwise in
proper form for transfer and that the person requesting such payment shall have
paid any transfer and other taxes required by reason of the payment of the
Merger Consideration to a person other than the registered holder of the
Certificate surrendered or shall have established to the satisfaction of the
Surviving Entity that such tax either has been paid or is not applicable. Until
surrendered as contemplated by this Section 2.02, each Certificate shall be
deemed at any time after the Effective Time to represent only the right to
receive the Merger Consideration in cash as contemplated by this Section 2.02.
No interest will be paid or will accrue on any shares of Company Common Stock.
As soon as reasonably practicable after the Effective Time, but in no
event more than three (3) business days thereafter, Purchaser shall mail to each
Certain Shareholder, whose shares were converted pursuant to Section 2.01(a)
hereof into the right to receive membership interest in the Surviving Entity,
(i) a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
delivery of the Certificates to the Purchaser and shall be in such form and have
such other provisions as Purchaser and the Surviving Entity may reasonably
specify), and (ii) instructions for use in effecting the surrender of the
Certificates in exchange for membership interests in the Surviving Entity. Upon
surrender of a Certificate to Purchaser, together with such letter of
transmittal, duly executed, a Certain Shareholder shall be entitled to receive
in exchange therefor one membership interest in the Surviving Entity for each
share of Company Common Stock (prorated for fractional shares) formerly
represented by such Certificate and the Certificate so surrendered shall
forthwith be cancelled. Until surrendered as contemplated by this Section 2.02,
each Certificate held by a Certain Shareholder shall be deemed at any time after
the Effective Time to represent only the right to receive a membership interest
in the Surviving Entity as contemplated by this Section 2.02.
(c) Lost, Stolen or Destroyed Certificates. In the event that any
Certificate or Certificates shall have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming such Certificate or
Certificates to have been lost, stolen or destroyed, the amount to which such
person would have been entitled under Section 2.02(b) hereof but for failure to
deliver such Certificate or Certificates to the Paying Agent shall nevertheless
be paid to such person; PROVIDED, HOWEVER, that the Surviving Entity may, in its
sole discretion and as a condition precedent to such payment, require such
person to give the Surviving Entity an
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indemnity agreement in form and substance satisfactory to the Surviving Entity
and if reasonably deemed advisable by the Surviving Entity, a bond in such sum
as it may reasonably direct as indemnity against any claim that may be had
against the Surviving Entity or Purchaser with respect to the Certificate or
Certificates alleged to have been lost, stolen or destroyed.
(d) Transfer Books; No Further Ownership Rights in Company Common
Stock. At the Effective Time, the stock transfer books of the Company shall be
closed and thereafter there shall be no further registration of transfers of
shares of Company Common Stock on the records of the Company. From and after the
Effective Time, the holders of Certificates evidencing ownership of shares of
Company Common Stock outstanding immediately prior to the Effective Time shall
cease to have any rights with respect to such Shares, except as otherwise
provided for herein or by applicable law. If, after the Effective Time,
Certificates for Shares subject to Section 2.01(c) are presented to the
Surviving Entity for any reason, they shall be cancelled in exchange for the
Merger Consideration for each Share represented by such Certificate as provided
in this Article II.
(e) Termination of Fund; No Liability. At any time following six months
after the Effective Time, the Surviving Entity shall be entitled to require the
Paying Agent to deliver to it any funds (including any interest received with
respect thereto) which had been made available to the Paying Agent and which
have not been disbursed to holders of Certificates, and thereafter such holders
shall be entitled to look only to the Surviving Entity (subject to any
applicable abandoned property, escheat or other similar laws) as general
creditors thereof with respect to the payment of any Merger Consideration that
may be payable upon surrender of any Certificates such shareholder holds, as
determined pursuant to this Agreement, without any interest thereon.
Notwithstanding the foregoing, neither the Surviving Entity nor the Paying Agent
shall be liable to any holder of a Certificate for Merger Consideration
delivered to a public official pursuant to any applicable abandoned property,
escheat or similar law.
(f) Withholding Taxes. As specified in the Proxy Documents or otherwise
required by law, Purchaser, the Purchaser, the Surviving Entity and the Paying
Agent shall be entitled to deduct and withhold from the consideration otherwise
payable to a holder of Shares pursuant to the Merger such amounts as Purchaser,
the Purchaser, the Surviving Entity or the Paying Agent is required to deduct
and withhold with respect to the making of such payment under the Internal
Revenue Code of 1986, as amended (the "CODE"), or any provision of state, local
or foreign tax law. To the extent amounts are so withheld by Purchaser, the
Purchaser, the Surviving Entity or the Paying Agent, the withheld amounts (i)
shall be treated for all purposes of this Agreement as having been paid to the
holder of the Shares in respect of which the deduction and withholding was made,
and (ii) shall be promptly paid over to the applicable taxing authority.
Section 2.03 Dissenting Common Stock. Notwithstanding any provision of
this Agreement to the contrary, if and to the extent required by the MBCA,
shares of Company Common Stock which are issued and outstanding immediately
prior to the Effective Time and which are held by holders of such shares of
Company Common Stock who have properly exercised dissenters' rights with respect
thereto in accordance with Sections 302A.471 and 302A.473 of the MBCA and have
not withdrawn or lost such rights (the "DISSENTING COMMON STOCK"), shall not be
converted into or represent the right to receive the Merger Consideration,
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but rather, holders of such shares of Dissenting Common Stock shall be entitled
to receive payment of the fair value of such shares of Dissenting Common Stock
in accordance with the provisions of Section 302A.473 of the MBCA unless and
until such holders fail to perfect or effectively withdraw or otherwise lose
their rights to dissent and payment under Sections 302A.471 and 302A.473 of the
MBCA. If, after the Effective Time, any such holder fails to perfect or
effectively withdraws or loses such right, such shares of Dissenting Common
Stock shall thereupon be treated as if they had been converted into and to have
become, for each such share, at the Effective Time, the right to receive the
Merger Consideration, without any interest thereon. Notwithstanding anything to
the contrary contained in this Section 2.03, if (i) the Merger is rescinded or
abandoned or (ii) the Company Shareholders do not approve the Merger and this
Agreement, then the right of any shareholder to be paid the fair value of such
shareholder's shares of Dissenting Common Stock pursuant to Section 302A.473 of
the MBCA shall cease. The Company shall give Purchaser prompt notice of any
notice of intent to demand payment of fair value of any shares of Company Common
Stock under Section 302A.473 of the MBCA received by the Company with respect to
shares of Dissenting Common Stock, and Purchaser shall have the right to
participate in all negotiations and proceedings with respect to such demands.
The Company shall not, except with the prior written consent of Purchaser, make
any payment with respect to any dissenters' rights or offer to settle or settle
any demands made by holders of any shares of Dissenting Common Stock.
Section 2.04 Company Option Plans. Purchaser and the Company shall take
all actions necessary (including, without limitation, the execution and delivery
by the Company and each of the holders of employee stock options to purchase
shares of Company Common Stock ("OPTIONS") of one or more agreements to provide
that, effective as of the Effective Time, (i) each outstanding Option granted
under the Company's 1995 Stock Option Plan, as amended, and under the Company's
Non-Employee Director Stock Plan (collectively, the "STOCK PLAN"), whether or
not then exercisable or vested, shall be cancelled, and (ii) in consideration of
such cancellation, the Company (or, at Purchaser's option, the Purchaser) shall
pay to each such holder of Options an amount in cash in respect thereof equal to
the sum of (A) $250.00; PLUS (B) the number of shares of Company Common Stock
subject to the unexercised Options to be surrendered by the holder thereof with
a purchase or exercise price less than $5.00 per share, multiplied by the
difference, if any, between $5.00 and the purchase or exercise price for such
Option as set forth in the applicable option agreement; PLUS (C) the number of
shares of Company Common Stock subject to the unexercised Options to be
surrendered by the holder thereof with a purchase or exercise price in excess of
$5.00 per share multiplied by $.10 (such payment to be net of applicable
withholding taxes). As of the Effective Time, the Stock Plan shall terminate and
all rights under any provision of any other plan, program or arrangement
providing for the issuance or grant of any other interest in respect of the
capital stock of the Company or any Subsidiary of the Company shall be
cancelled. The Company shall take all action necessary to ensure that, after the
Effective Time, no person shall have any right under the Stock Plan or any other
plan, program or arrangement with respect to equity securities of the Company,
or any direct or indirect Subsidiary of the Company.
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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The Company represents and warrants to Purchaser, as of the date hereof
and at the Closing Date, that except as set forth in the disclosure schedule of
the Company delivered to Purchaser concurrently herewith (the "COMPANY
DISCLOSURE SCHEDULE"):
Section 3.01 Corporate Organization. Each of the Company and its
Subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization and has the
corporate power and authority to own or lease all of its properties and assets
and to carry on its business as it is now being conducted. Each of the Company
and its Subsidiaries is duly licensed or qualified to do business in each
jurisdiction in which the nature of the business conducted by it or the
character or location of the properties and assets owned or leased by it makes
such licensing or qualification necessary, except where the failure to be so
licensed or qualified would not reasonably be expected to have, when aggregated
with all other such failures, a Material Adverse Effect (as defined below) on
the Company ("COMPANY MATERIAL ADVERSE EFFECT"). As used in this Agreement, (a)
the term "MATERIAL ADVERSE EFFECT" means, (i) a material adverse effect on the
business, results of operations, financial condition or prospects of such party
or any of its Subsidiaries, either individually or in the aggregate, including,
without limitation, any adverse effect that results in or gives rise to, or is
reasonably likely to result in or give rise to, the creation, incurrence or
imposition of any liability, individually or in the aggregate, in excess of
$100,000, with respect to such party (including, in the case of the Company, the
Surviving Entity), or (ii) a material adverse effect on the party's ability to
consummate the transactions contemplated hereby, and (b) the term "SUBSIDIARY"
when used with respect to any party means any corporation, partnership or other
organization, whether incorporated or unincorporated, of which (i) at least a
majority of the securities or other interests having by their terms voting power
to elect a majority of the board of directors or others performing similar
functions with respect to such corporation or other organization is directly or
indirectly beneficially owned or controlled by such party or by any one or more
of its subsidiaries, or by such party and one or more of its subsidiaries, or
(ii) such party or any subsidiary of such party is a general partner of a
partnership or a manager of a limited liability company. The copies of the
Articles of Incorporation and Bylaws (or similar organizational documents) of
the Company, which have previously been made available to Purchaser, are true,
complete and correct copies of such documents as in effect as of the date of
this Agreement and as of the Closing Date.
Section 3.02 Capitalization.
(a) The authorized capital stock of the Company consists of 30,000,000
shares of Company Common Stock. At the close of business on March 2, 2001, there
were 1,297,539 shares of Company Common Stock issued and outstanding. As of
March 2, 2001, there were 257,015 shares of Company Common Stock issuable upon
the exercise of outstanding Options pursuant to the Stock Plan. All of the
issued and outstanding shares of Company Common Stock have been duly authorized
and validly issued and are fully paid, nonassessable and free of preemptive
rights. Since March 2, 2001 the Company has not issued any shares of its capital
stock or any securities convertible into or exercisable for any shares of its
capital stock, other than pursuant to the exercise of stock options referred to
above. Except as set forth above or as
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otherwise contemplated or permitted by Section 5.01(a) hereof, as of the date of
this Agreement there are not and, as of the Effective Time there will not be,
any shares of capital stock issued and outstanding or any subscriptions,
options, warrants, calls, commitments or agreements of any character calling for
the purchase or issuance of any securities of the Company, including any
securities representing the right to purchase or otherwise receive any shares of
Company Common Stock.
(b) The Company owns, directly or indirectly, all of the issued and
outstanding shares of capital stock of each of its Subsidiaries, free and clear
of any liens, charges, encumbrances, pledges, hypothecations, adverse rights or
claims and security interests whatsoever (collectively, "LIENS"), and all of
such shares are duly authorized and validly issued and are fully paid,
nonassessable and free of preemptive rights, with no personal liability
attaching to the ownership thereof. None of the Company's Subsidiaries has or is
bound by any outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or issuance of any security
of such Subsidiary, including any securities representing the right to purchase
or otherwise receive any shares of capital stock or any other equity security of
such Subsidiary.
Section 3.03 Authority.
(a) The Company has full corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
subject to obtaining the approval of holders of a majority of the outstanding
shares of Company Common Stock prior to the consummation of the Merger in
accordance with Section 302A.613 of the MBCA. The execution, delivery and
performance by the Company of this Agreement, and the consummation by it of the
transactions contemplated hereby, have been duly authorized by its Board of
Directors and, except for obtaining the approval of the Company Shareholders as
contemplated by Section 1.06 hereof, no other corporate action on the part of
the Company is necessary to authorize the execution and delivery by the Company
of this Agreement and the consummation by it of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Company and,
assuming due and valid authorization, execution and delivery hereof by the other
parties hereto, is a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms.
(b) The Company Special Committee and Board of Directors of the Company
have approved and taken all corporate action required to be taken by the Company
Special Committee and Board of Directors, respectively, for the consummation of
the transactions contemplated by this Agreement.
Section 3.04 Consents and Approvals; No Violations. Except for (i) the
filing with the SEC of the Proxy Documents relating to the meeting of the
Company Shareholders to be held in connection with this Agreement and the
transactions contemplated hereby, (ii) the filing of the Articles of Merger with
the MN Secretary of State pursuant to the MBCA and with the DE Secretary of
State pursuant to the DLLCA, (iii) the adoption of this Agreement by approval of
holders of a majority of the shares of outstanding Company Common Stock and (iv)
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), no
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consents or approvals of, or filings, declarations or registrations with, any
federal, state or local court, administrative or regulatory agency or commission
or other governmental authority or instrumentality, domestic or foreign (each a
"GOVERNMENTAL ENTIT ), are necessary for the consummation by the Company of the
transactions contemplated hereby, except for such consents, approvals, filings,
declarations or registrations which, if not obtained prior to or at the Closing
would not, either individually or in the aggregate, result in or give rise to a
Company Material Adverse Effect. Neither the execution and delivery of this
Agreement by the Company nor the consummation by the Company of the transactions
contemplated hereby, nor compliance by the Company with any of the terms or
provisions hereof, will conflict with or violate any provision of the Articles
of Incorporation or Bylaws of the Company or any of the similar organizational
documents of any of its Subsidiaries.
Section 3.05 Financial Statements. Each consolidated balance sheet of
the Company (including the related notes and schedules) included in the Company
Reports (defined below) fairly presents, in all material respects, the
consolidated financial position of the Company and its Subsidiaries as of the
date thereof, and the other financial statements included in the Company Reports
(including the related notes, where applicable) fairly present, in all material
respects (subject, in the case of the unaudited statements, to audit adjustments
normal in nature and amount), the results of the consolidated operations and
changes in shareholders' equity and consolidated financial position of the
Company and its Subsidiaries for the respective periods or dates therein set
forth. As used in this Agreement, "Company Reports" means all required forms,
notices, reports, schedules and documents (including all exhibits, schedules,
annexes, amendments and supplements thereto) filed with the SEC.
Section 3.06 Opinion of Financial Advisor. The Company Special
Committee has received the opinion of Xxxxxxxxx & Company LLC ("Xxxxxxxxx") to
the effect that, as of the date of such opinion, the consideration to be
received in the Merger is fair to the Company Shareholders, other than Purchaser
and the Purchaser Members, from a financial point of view.
Section 3.07 Takeover Statutes. The Company has taken all actions
necessary such that no restrictive provision of any "fair price," "moratorium,"
"control share acquisition," "interested shareholder" or other similar
anti-takeover statute or regulation (including, without limitation, Section
302A.671 or Section 302A.673 of the MBCA) (each a "TAKEOVER STATUTE") or
restrictive provision of any applicable anti-takeover provision in the governing
documents of the Company limits or otherwise affects, or at or after the
Effective Time will limit or otherwise affect, in any respect, the Purchaser,
the Surviving Entity the Merger or any other transaction contemplated by this
Agreement, the voting by Purchaser of its shares of Company Common Stock with
respect to this Agreement or the Merger, or any business combination between the
Company and Purchaser or any Affiliate thereof (other than stock purchases
following any tender offer by the Purchaser or any Affiliate thereof after the
date of this Agreement which would be subject to the Section 302A.675 of the
MBCA).
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
10
Purchaser represents and warrants to the Company, as of the date hereof
and at the Closing Date, that except as set forth in disclosure schedule of the
Purchaser delivered to the Company concurrently herewith (the "PURCHASER
DISCLOSURE SCHEDULE"):
Section 4.01 Corporate Organization. Purchaser is a limited liability
company duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization and has the organizational power and
authority to own or lease all of its properties and assets and to carry on its
business as it is now being conducted. Purchaser is duly licensed or qualified
to do business in each jurisdiction in which the nature of the business
conducted by it or the character or location of the properties and assets owned
or leased by it makes such licensing or qualification necessary, except where
the failure to be so licensed or qualified would not reasonably be expected to
have, when aggregated with all other such failures, a Material Adverse Effect on
the Purchaser ("PURCHASER MATERIAL ADVERSE EFFECT"). The copies of the
Certificate of Formation and Limited Liability Company Agreement (or similar
organizational documents) of the Purchaser, which have previously been made
available to Company, are true, complete and correct copies of such documents as
in effect as of the date of this Agreement and as of the Closing Date.
Section 4.02 Authority. Purchaser has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance by
Purchaser of this Agreement, and the consummation of the transactions
contemplated hereby, have been duly authorized by its Board of Directors and by
the Purchaser Members and no other organizational action on the part of
Purchaser is necessary to authorize the execution and delivery by Purchaser of
this Agreement and the consummation by it of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by Purchaser and,
assuming due and valid authorization, execution and delivery hereof by the
Company, is a valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its terms.
Section 4.03 Consents and Approvals; No Violation. Except for (i) the
filing of the Proxy Documents with the SEC, (ii) the filing of the Articles of
Merger with the MN Secretary of State pursuant to the MBCA and with the DE
Secretary of State pursuant to the DLLCA, and (iii) filings, permits,
authorizations, consents and approvals as may be required under, and other
applicable requirements of, the Exchange Act and the Securities Act, no consents
or approvals of, or filings, declarations or registrations with, any
Governmental Entity are necessary for the consummation by Purchaser of the
transactions contemplated hereby, other than such other consents, approvals,
filings, declarations or registrations that, if not obtained, made or given,
would not reasonably be expected to have, in the aggregate, a Purchaser Material
Adverse Effect. Neither the execution and delivery of this Agreement by
Purchaser, nor the consummation by Purchaser of the transactions contemplated
hereby, nor compliance by Purchaser with any of the terms or provisions hereof,
will conflict with or violate any provision of the Certificate of Formation or
Limited Liability Company Agreement of Purchaser.
Section 4.04 Purchaser's Operations. The Purchaser was formed solely
for the purpose of engaging in the transactions contemplated hereby and has not
engaged in any business activities or conducted any operations other than in
connection with the transactions contemplated hereby.
11
Section 4.05 Available Funds. Purchaser currently has or the Surviving
Entity, upon consummation of the Merger will have, available cash and/or the
ability to borrow funds under existing credit arrangements in the ordinary
course of business that are adequate to fund the payment obligations of
Purchaser and the Surviving Entity pursuant to Section 2.01 and 2.02 of this
Agreement.
Section 4.06 Purchaser Information. The information relating to
Purchaser and its Subsidiaries and Affiliates to be provided by Purchaser to be
contained in the Proxy Documents, or in any other document filed with any other
Governmental Entity in connection herewith, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances in which they are made,
not misleading. The Proxy Documents (except that no representation is made as to
such portions thereof that relate only to the Company or any of its
Subsidiaries) shall comply in all material respects with the provisions of the
Exchange Act and the rules and regulations thereunder and the Securities Act and
the rules and regulations thereunder, respectively.
Section 4.07 Representations and Warranties of Company. Purchaser has
no knowledge of any breach by Company of the representations and warranties set
forth in Article III hereof.
ARTICLE V.
COVENANTS
----------
Section 5.01 Conduct of Businesses Prior to the Effective Time. Except
as expressly contemplated or permitted by this Agreement, or as required by
applicable law, rule or regulation, during the period from the date of this
Agreement to the Effective Time, unless Purchaser otherwise agrees in writing,
the Company shall, and shall cause its Subsidiaries to: (i) conduct its business
in the usual, regular and ordinary course consistent with past practice; and
(ii) maintain and preserve intact its business organization, employees and
advantageous business relationships and retain the services of its officers and
key employees (except that Purchaser hereby consents to the Napco Management
Agreement).
Section 5.02 No Solicitation.
(a) The Company shall immediately cease and terminate any existing
solicitation, initiation, encouragement, activity, discussion or negotiation
with any person or entity conducted heretofore by the Company, its Subsidiaries
or any of their respective officers, directors, employees, agents or
representatives (collectively, "REPRESENTATIVES") with respect to any proposed,
potential or contemplated Acquisition Proposal (as defined in Section 5.02(e)
hereof).
(b) From and after the date hereof, without the prior written consent
of the Purchaser, the Company will not, and will not authorize or permit any of
its Subsidiaries or Representatives to, directly or indirectly, solicit,
initiate or encourage (including by way of furnishing information) or take any
other action reasonably designed to facilitate any inquiries or the making of
any proposal which constitutes or would reasonably be expected to lead to an
Acquisition Proposal.
12
(c) Notwithstanding any other provision hereof, the Company may engage
in discussions or negotiations with a third party who (without any solicitation,
initiation or encouragement, directly or indirectly, by or with the Company or
any of its Representatives) seeks to initiate such discussions or negotiations
and may furnish such third party information concerning the Company and its
business, properties and assets if, and only to the extent that, (i)(A) the
third party has first made a bona fide Acquisition Proposal to the Board of
Directors of the Company in writing prior to the date upon which this Agreement
and the Merger shall have been approved by the required vote of the Company
Shareholders, (B) the Company's Board of Directors concludes in good faith
(after consultation with its financial advisor) that the transaction
contemplated by such Acquisition Proposal is reasonably capable of being
completed, taking into account all legal, financial, regulatory and other
aspects of the Acquisition Proposal and the party making such Acquisition
Proposal, and could, if consummated, reasonably be expected to result in a
transaction more favorable to the Company Shareholders from a financial point of
view than the Merger contemplated by this Agreement (any such Acquisition
Proposal, a "COMPANY SUPERIOR PROPOSAL"), and (C) the Company's Board of
Directors shall have concluded in good faith, after considering applicable
provisions of state law, and after consultation with outside counsel, that such
action is required for the Board of Directors to act in a manner consistent with
its fiduciary duties under applicable law; (ii) the Company (A) shall as
promptly as practicable notify Purchaser (1) that the Company has received a
bona fide Acquisition Proposal from a third party, (2) that the Company is
permitted to furnish information to, or to enter into discussions or
negotiations with, such third party pursuant to clause (i) of this Section
5.02(c), and (3) of the identity of the third party making such Acquisition
Proposal and of all the terms and conditions of such proposal, and (B) shall
keep Purchaser reasonably informed of the status and material terms of such
Acquisition Proposal; and (iii) the Company shall promptly advise the third
party making such Acquisition Proposal that the Company will not participate in
negotiations or discussions with or provide information to such Person, unless
and until such person authorizes the Company to comply with clause (ii) of this
Section 5.02(c).
(d) Without limiting the foregoing, it is understood that any violation
of the restrictions set forth in the preceding sentence by a director or an
officer of the Company or any of its Subsidiaries, or any investment banker,
attorney or other Representative of the Company or any of its Subsidiaries,
whether or not such person is purporting to act on behalf of the Company or any
of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section
5.02 by the Company.
(e) The term "ACQUISITION PROPOSAL" shall mean any proposal or offer
(other than by Purchaser) for a tender or exchange offer, merger, consolidation
or other business combination involving the Company or any Subsidiary of the
Company, or any proposal to acquire in any manner an equity interest which could
result in such party having a direct or indirect equity interest in or acquiring
all or material portion of the assets of the Company or any Subsidiary of the
Company, other than the transactions contemplated by this Agreement and the
transactions contemplated in the Napco Purchase Agreement.
Section 5.03 Regulatory Matters. The Company and Purchaser shall take
all actions necessary to comply promptly with all legal requirements which may
be imposed on it with respect to this Agreement and the transactions
contemplated hereby (which actions shall, as
13
applicable, include, without limitation, filing the notification and report form
and furnishing all other information required in connection with approvals of or
filings with any other Governmental Entity) and shall promptly cooperate with
and furnish information to each other in connection with any such requirements
imposed upon any of them or any of their Subsidiaries in connection with this
Agreement and the transactions contemplated hereby. Each of the Company and
Purchaser shall and shall cause its respective Subsidiaries to, use its best
efforts to take all actions necessary to obtain (and shall cooperate with each
other in obtaining) any consent, authorization, order or approval of, or any
exemption by, any Governmental Entity or other public or private third party
required to be obtained or made by Purchaser, the Company or any of their
respective Subsidiaries in connection with the Merger or the taking of any
action contemplated thereby or by this Agreement.
Section 5.04 Publicity. The initial press release with respect to the
execution of this Agreement shall be a joint press release reasonably acceptable
to Purchaser and the Company. Thereafter, so long as this Agreement is in
effect, neither the Company, the Purchaser nor any of their respective
Affiliates shall issue or cause the publication of any press release or other
announcement with respect to the Merger, this Agreement or the other
transactions contemplated hereby without the prior approval of the other party,
except as may be required by law, by any listing agreement with a national
securities exchange or by any rule or regulation of the NASD (in which event,
the non-disclosing party shall nevertheless have the opportunity to review and
consult with the disclosing party regarding such disclosure prior to the making
thereof).
Section 5.05 Notification of Certain Matters. The Company shall give
prompt notice to Purchaser, and Purchaser shall give prompt notice to the
Company, of (i) the occurrence, or non-occurrence of any event the occurrence or
non-occurrence of which would cause any representation or warranty contained in
this Agreement to be untrue or inaccurate in any material respect at or prior to
the Effective Time, and (ii) any material failure of the Company or Purchaser,
as the case may be, to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by it hereunder; PROVIDED, HOWEVER,
that the delivery of any notice pursuant to this Section 5.06 shall not limit or
otherwise affect the remedies available hereunder to the party receiving such
notice.
Section 5.06 Further Assurances. Subject to the terms and conditions of
this Agreement, each of Purchaser and the Company shall use all reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable to consummate and make
effective, as soon as practicable after the date of this Agreement, the
transactions contemplated hereby, including, without limitation, using all
reasonable efforts to lift or rescind any injunction or restraining order or
other order adversely affecting the ability of the parties to consummate the
transactions contemplated hereby and using all reasonable efforts to defend any
litigation seeking to enjoin, prevent or delay the consummation of the
transactions contemplated hereby or seeking material damages.
Section 5.07 Additional Agreements. In case at any time after the
Effective Time any further action is necessary or desirable to carry out the
purposes of this Agreement or to vest the Surviving Entity with full title to
all properties, assets, rights, approvals, immunities and franchises of any of
the parties to the merger, the proper officers and directors of each party
14
to this Agreement and their respective Subsidiaries shall take all such
necessary action as may be reasonably requested by Purchaser.
Section 5.08 Actions by Company. Except as otherwise required by
applicable law, any actions contemplated to be taken under this Agreement by the
Board of Directors of the Company or the Company may be taken by the Company
Special Committee on behalf of the Company or its Board of Directors.
Notwithstanding any other provisions contained herein, (i) any amendment or
modification of, or supplement to, this Agreement that is adverse to the Company
Shareholders shall require the consent of the Company Special Committee and (ii)
the waiver of any obligation, covenant, agreement or condition herein, or the
giving of any consent or the exercise of any material right thereunder by the
Company or its Board of Directors shall require the consent of the Company
Special Committee.
ARTICLE VI.
CONDITIONS
----------
Section 6.01 Conditions to Each Party's Obligation To Effect the
Merger. The respective obligation of each party to effect the Merger shall be
subject to the satisfaction on or prior to the Closing Date of each of the
following conditions:
(a) Shareholder Approval. This Agreement shall have been approved and
adopted by the requisite vote of the Company Shareholders required by applicable
law and the Articles of Incorporation of the Company in order to consummate the
Merger.
(b) Statutes; Consents. No statute, rule, order, decree or regulation
shall have been enacted or promulgated by any foreign or domestic Governmental
Entity or authority of competent jurisdiction which prohibits the consummation
of the Merger and all foreign or domestic governmental consents, orders and
approvals required for the consummation of the Merger and the transactions
contemplated hereby shall have been obtained and shall be in effect at the
Effective Time.
(c) Injunctions. There shall be no order or injunction of a foreign or
United States federal or state court or other Governmental Entity of competent
jurisdiction in effect precluding, restraining, enjoining or prohibiting
consummation of the Merger.
Section 6.02 Additional Conditions to Purchaser's Obligation to Effect
the Merger. In addition to the conditions set forth in Section 6.01, Purchaser's
obligation to effect the Merger shall also be subject to the satisfaction on the
Closing Date of each of the following additional conditions:
(a) Representations and Warranties of the Company. The representations
and warranties of the Company shall be true and correct in all material
respects, except for representations and warranties that are qualified by
materiality or Material Adverse Effect, which shall be true and correct in all
respects.
(b) Compliance With Covenants. The Company and each Subsidiary of the
Company shall have complied with or performed all covenants to be complied with
or performed
15
by the Company or such Subsidiary pursuant to the terms of this Agreement,
including without limitation, those set forth in Article V hereof.
(c) Dissenting Common Stock. The holders of not more than ten percent
(10%) of the issued and outstanding shares of Company Common Stock immediately
prior to the Effective Time shall have purported to exercise, or delivered
notice to the Company of their intention to exercise, dissenters' rights with
respect to such Shares (which purported exercise shall include notice of intent
to demand payment of fair value of shares of Company Common Stock under Section
302A.473 of the MBCA).
(d) Napco Sale. The purchase and sale contemplated in the Napco
Purchase Agreement shall have been consummated in accordance with the terms of
such agreement.
(e) No Material Adverse Effect. There shall not have occurred any
change, event, development or circumstance that has had, or could reasonably be
expected to have, a Company Material Adverse Effect.
(f) Withdrawal of Recommendation. The Company Special Committee and the
Board of Directors shall not have withdrawn or rescinded their respective
recommendations, referred to in Section 3.03(b), that the shareholders vote in
favor of this Agreement and the Merger.
(g) Agreements Regarding Cancellation of Options. The Company shall
have entered into written agreements, in accordance with Section 2.04 hereof,
regarding cancellation of Options with each employee of the Company who
currently holds Options.
Section 6.03 Additional Conditions to Company's Obligation to Effect
the Merger. In addition to the conditions set forth in Section 6.01, the
Company's obligation to effect the Merger shall also be subject to the
satisfaction on the Closing Date of each of the following additional conditions:
(a) Representations and Warranties of Purchaser. The representations
and warranties of the Purchaser shall be true and correct in all material
respects, except for representations and warranties that are qualified by
materiality or Material Adverse Effect, which shall be true and correct in all
respects.
(b) Compliance With Covenants. The Purchaser shall have complied with
or performed all covenants to be complied with or performed by it pursuant to
the terms of this Agreement, including without limitation, those set forth in
Article V hereof.
(c) No Withdrawal of Opinion of Financial Advisor or the Recommendation
of the Company Special Committee. Neither Xxxxxxxxx nor the Company Special
Committee shall have withdrawn its opinion referred to in Section 3.06 or its
recommendation referred to in Section 3.03(b), respectively, prior to the
Closing Date.
ARTICLE VII.
TERMINATION
-----------
16
Section 7.01 Termination. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and the Merger contemplated
herein may be abandoned at any time prior to the Effective Time, whether before
or after Company Shareholder approval thereof:
(a) by the mutual consent of the Purchaser and the Company Special
Committee;
(b) by the Purchaser in the event that the Napco Purchase Agreement is
terminated;
(c) by either of the Company Special Committee or the Purchaser: (i) if
any Governmental Entity shall have issued an order, decree or ruling or taken
any other action (which order, decree, ruling or other action the parties hereto
shall use their respective commercially reasonable efforts to lift), in each
case permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such order, decree, ruling or
other action shall have become final and non-appealable; provided that the party
seeking to terminate this Agreement shall have used all commercially reasonable
efforts to challenge such order, decree or ruling; or (ii) if the Effective Time
shall not have occurred by November 30, 2001, unless the Effective Time shall
not have occurred because of a material breach of this Agreement by the party
seeking to terminate this Agreement;
(d) by the Purchaser if any of the conditions specified in Sections
6.01 or 6.02 shall not have been satisfied on or prior to November 30, 2001;
(e) by the Company if any of the conditions specified in Sections 6.01
or 6.03 shall not have been satisfied on or prior to November 30, 2001; or
(f) by the Company (but only after the Company has made such payments
as are provided for in Section 7.02 and only prior to the approval of this
Agreement and the Merger by the Company Shareholders), if (i) the Board of
Directors of the Company shall conclude in good faith, after considering
applicable state law and consulting with outside legal counsel, that failure to
enter into a definitive agreement with respect to a Company Superior Proposal
would result in the non-compliance by the Board of Directors of the Company with
its fiduciary duties to the Company Shareholders under applicable law, (ii)
simultaneously with such termination, the Company shall enter into a definitive
and binding acquisition or similar agreement with respect to such Company
Superior Proposal and (iii) the Company shall have notified Purchaser at least
five (5) business days prior to the earlier of such determination by the Board
of Directors of the Company and the entering into such definitive and binding
agreement; PROVIDED, HOWEVER, that such termination under this Section 7.01(f)
shall not be effective until the Company shall have made payment of such amounts
as are provided for in Section 7.02.
Section 7.02 Effect of Termination. In the event of the termination of
this Agreement as provided in Section 7.01, written notice thereof shall
forthwith be given to the other party or parties specifying the provision hereof
pursuant to which such termination is made in accordance with the terms thereof,
and this Agreement shall forthwith become null and void, and there shall be no
liability on the part of the Purchaser or the Company; PROVIDED, HOWEVER,
17
that nothing in this Section 7.02 shall relieve any party of liability for fraud
or for breach of this Agreement (other than a breach of this Agreement arising
solely out of the inaccuracy of a representation or warranty of the Company that
was accurate when made on the date hereof and which inaccuracy was not caused by
any willful and intentional actions or omissions by the Company); PROVIDED,
FURTHER, that in the event that the Company terminates this Agreement pursuant
to Section 7.01(f), then, simultaneously with, and as condition precedent to,
such termination, the Company shall pay to Purchaser, by wire transfer of
immediately available funds, cash in an amount equal to $200,000 (which amount
the parties agree are reasonable liquidated damages and not a penalty).
ARTICLE VIII.
MISCELLANEOUS
-------------
Section 8.01 Amendment and Modification. Subject to applicable law,
this Agreement may be amended, modified and supplemented in any and all
respects, whether before or after any vote of the Company Shareholders
contemplated hereby, by written agreement of the parties hereto (which, in the
case of the Company, shall require approval of its Board of Directors upon the
recommendation of the Company Special Committee), at any time prior to the
Closing Date with respect to any of the terms contained herein, provided that
after approval of the Agreement by the Company Shareholders, the amount of the
Merger Consideration shall not be decreased and the form of the Merger
Consideration shall not be altered without the approval of the Company
Shareholders.
Section 8.02 Nonsurvival of Representations and Warranties. None of the
representations and warranties in this Agreement, the Company Disclosure
Schedule, the Purchaser Disclosure Schedule or in any other schedule, instrument
or other document delivered pursuant to this Agreement shall survive the
Effective Time.
Section 8.03 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally, sent by
facsimile (which is confirmed) or sent by an overnight courier service, such as
Federal Express, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(a) if to Purchaser, to:
Venturian Holdings, LLC
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxx & Brand LLP
3300 Xxxxx Fargo Center
00 Xxxxx Xxxxxxx Xxxxxx
00
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(b) if to the Company, to:
Venturian Corp.
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx, Street and Deinard
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Section 8.04 Entire Agreement; Third Party Beneficiaries. This
Agreement (including the Company Disclosure Schedule, the Purchaser Disclosure
Schedule and each other schedule, instrument and other document delivered
pursuant hereto) (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof, and (b) except as provided in Section 1.02
and Section 2.04, is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder.
Section 8.05 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void, unenforceable or against its regulatory
policy, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
Section 8.06 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Minnesota without giving
effect to the principles of conflicts of law thereof or of any other
jurisdiction.
Section 8.07 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties, except that the Purchaser may assign, in its sole
discretion, any or all of its rights, interests and obligations hereunder to any
direct or indirect wholly owned Subsidiary of Purchaser. Subject to the
19
preceding sentence, this Agreement shall be binding upon, inure to the benefit
of and be enforceable by the parties and their respective successors and
assigns.
Section 8.08 Headings; Construction. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement. "Include,"
"includes," and "including" shall be deemed to be followed by "without
limitation" whether or not they are in fact followed by such words or words of
like import.
Section 8.09 Waiver. Any party hereto may waive any condition to its
obligations hereunder, or any breach, default or misrepresentation of any other
party hereunder (which, in the case of a waiver by the Company, shall require
the approval of its Board of Directors upon the recommendation of the Company
Special Committee); PROVIDED, HOWEVER, that no waiver by any party of any
default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
Section 8.10 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 two or more counterparts have been signed by
each of the parties and delivered to the other parties, it being understood that
all parties need not sign the same counterpart.
[SIGNATURE PAGE FOLLOWS] "
20
IN WITNESS WHEREOF, Purchaser and the Company have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date
first above written.
VENTURIAN HOLDINGS, LLC
By:
------------------------------
Name:
-----------------------
Title:
-----------------------
VENTURIAN CORP.
By:
------------------------------
Name:
-----------------------
Title:
-----------------------
21
SCHEDULE 2.01(a)
Xxxx X. Xxxxxxxxx
Xxxx Trust under the will of Max E. Xxxxxxxxx
Xxxxx Trust under the will of Xxx X. Xxxxxxxxx
Marital Trust under the will of Xxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
Xxx Xxxxxx
Quarterdeck Public Equities, LLC
Xxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx as Custodian for Xxx Xxxxxxxxx
Xxxxxxxx X. Xxxxxxxxx Irrevocable Trust #2, Xxxxx Xxxxxxxxx Trustee
