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AGREEMENT AND PLAN OF MERGER
dated as of February 25, 1999
among
CHART INDUSTRIES, INC.,
CHART ACQUISITION COMPANY
and
MVE INVESTORS LLC
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Page
TABLE OF CONTENTS
ARTICLE I
THE MERGER....................................... 1
SECTION 1.1. The Merger....................................... 1
SECTION 1.2. Closing.......................................... 2
SECTION 1.3. Effective Time................................... 2
SECTION 1.4. Effects of the Merger............................ 2
SECTION 1.5. Certificate of Incorporation; By-laws............ 2
SECTION 1.6. Directors........................................ 3
SECTION 1.7. Officers......................................... 3
ARTICLE II
EFFECT OF THE MERGER ON THE SECURITIES
OF THE CONSTITUENT ENTITIES....................... 3
SECTION 2.1. Effect on Ownership Interests..................... 3
SECTION 2.2. Payment........................................... 4
SECTION 2.3. No Further Ownership Rights in the Company........ 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY................................... 4
SECTION 3.1. Organization and Qualification; Subsidiaries..... 4
SECTION 3.2. Members.......................................... 5
SECTION 3.3. Authority Relative to This Agreement; Member
Approval..................................... 5
SECTION 3.4. No Liabilities................................... 5
SECTION 3.5. Consents and Approvals; No Violations............ 5
SECTION 3.6. Class A Preferred Stock.......................... 6
SECTION 3.7. Litigation....................................... 6
SECTION 3.8. Compliance with Laws............................. 6
SECTION 3.9. No Employees..................................... 6
SECTION 3.10. Company Activities............................... 6
SECTION 3.11. No Assets........................................ 6
SECTION 3.12. Net Worth........................................ 7
SECTION 3.13. Tax Status....................................... 7
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SECTION 3.14. Brokers......................................... 7
SECTION 3.15. Full Disclosure................................. 7
ARTICLE IV
REPRESENTATION AND WARRANTIES
OF PARENT AND SUB................................ 7
SECTION 4.1. Organization..................................... 7
SECTION 4.2. Authority Relative to This Agreement............. 8
SECTION 4.3. Consents and Approvals; No Violations............ 8
SECTION 4.4. No Prior Activities.............................. 9
ARTICLE V
COVENANTS RELATED TO CONDUCT OF BUSINESS......... 9
SECTION 5.1. Conduct of Business of the Company............... 9
SECTION 5.2. Access to Information............................ 10
ARTICLE VI
ADDITIONAL AGREEMENTS............................ 11
SECTION 6.1. Member Consent................................... 11
SECTION 6.2. Reasonable Best Efforts.......................... 11
SECTION 6.3. Public Announcements............................. 13
SECTION 6.4. Indemnification of Parent and Surviving
Company...................................... 13
SECTION 6.5. Obligations of Sub............................... 15
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER......... 15
SECTION 7.1. Conditions to Each Party's Obligations
to Effect the Merger......................... 15
SECTION 7.2. Additional Conditions to Parent's and
Sub's Obligations to Effect the Merger....... 16
SECTION 7.3. Additional Conditions to the Company's
Obligations to Effect the Merger............. 16
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ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER................... 17
SECTION 8.1. Termination...................................... 17
SECTION 8.2. Effect of Termination............................ 17
SECTION 8.3. Fees and Expenses................................ 17
SECTION 8.4. Amendment........................................ 17
SECTION 8.5. Extension; Waiver................................ 17
ARTICLE IX
MISCELLANEOUS.................................... 18
SECTION 9.1. Nonsurvival of Representations and Warranties.... 18
SECTION 9.2. Entire Agreement; Assignment..................... 18
SECTION 9.3. Notices.......................................... 19
SECTION 9.4. Governing Law.................................... 19
SECTION 9.5. Descriptive Headings............................. 20
SECTION 9.6. Parties in Interest.............................. 20
SECTION 9.7. Severability..................................... 20
SECTION 9.8. Specific Performance............................. 20
SECTION 9.9. Counterparts..................................... 21
SECTION 9.10. Interpretation.................................. 21
SECTION 9.11. Definitions..................................... 22
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Page
Glossary of Defined Terms
Defined Terms Defined in Section
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Antitrust Law.....................................................6.2(b)
Certificate of Merger................................................1.3
Closing..............................................................1.2
Code................................................................3.13
Company.........................................................Recitals
Confidentiality Agreement.........................................5.2(b)
DGCL.................................................................1.1
DLLCA................................................................1.1
DOJ...............................................................6.2(b)
Effective Time.......................................................1.3
FTC...............................................................6.2(b)
Governmental Entity..................................................3.5
HSR Act..............................................................3.5
Liens................................................................3.6
Material Adverse Effect..........................................9.11(e)
Merger..............................................................p. 1
Merger Consideration..............................................2.1(b)
Parent..........................................................Recitals
Preferred Stock...................................................2.1(b)
subsidiary.......................................................9.11(g)
Surviving Company....................................................1.1
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AGREEMENT AND PLAN OF MERGER (this "Agreement") dated as of February
25, 1999 among CHART INDUSTRIES, INC., a Delaware corporation ("Parent"), Chart
Acquisition Company, a Delaware corporation and wholly owned subsidiary of
Parent ("Sub"), and MVE INVESTORS LLC, a Delaware limited liability company (the
"Company").
W I T N E S S E T H :
WHEREAS, the Boards of Directors of Parent and Sub and the Members
of the Company have adopted resolutions approving this Agreement, pursuant to
which the Company shall be merged with and into Sub and Sub shall remain a
wholly owned direct subsidiary of Parent (the "Merger"), and has determined that
the Merger would be fair and in the best interests of the stockholders of Parent
and the members of the Company; and
WHEREAS, Parent, Sub and MVE Holdings, Inc., a Delaware corporation
("Holdings"), have entered into an Agreement and Plan of Merger dated February
16, 1999 (the "Holdings Merger Agreement"), whereby immediately following the
consummation of the Merger, Sub will merge with and into Holdings (the "Holdings
Merger");
WHEREAS, Parent, Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger;
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, the parties agree as
follows:
ARTICLE I
THE MERGER
SECTION I.1. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the Delaware
General Corporation Law (the
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"DGCL") and the Delaware Limited Liability Company Act (the "DLLCA"), the
Company shall be merged with and into Sub at the Effective Time (as hereinafter
defined). At the Effective Time, the separate existence of the Company shall
cease, and Sub shall continue as the surviving corporation (the "Surviving
Company").
SECTION I.2. Closing. Unless this Agreement shall have been
terminated and the transactions herein contemplated shall have been abandoned
pursuant to Section 8.1 and subject to the satisfaction or waiver of the
conditions set forth in Article VII, the consummation of the Merger (the
"Closing") will take place at 9 a.m., on the date (the "Closing Date") on which
the Holdings Merger is consummated, at the offices of Weil, Gotshal & Manges
LLP, 767 Fifth Avenue, New York, New York, unless another date, time or place is
agreed to in writing by the parties hereto.
SECTION I.3. Effective Time. The parties hereto will file with the
Secretary of State of the State of Delaware (the "Delaware Secretary of State")
on the Closing Date (or on such other date as Parent and the Company may agree)
a certificate of merger (the "Certificate of Merger") or other appropriate
documents, executed in accordance with the relevant provisions of the DGCL and
the DLLCA, and make all other filings or recordings required under the DGCL and
the DLLCA in connection with the Merger. The Merger shall become effective upon
the filing of the Certificate of Merger with the Delaware Secretary of State, or
at such later time as is specified in the Certificate of Merger (the "Effective
Time").
SECTION I.4. Effects of the Merger. The Merger shall have the
effects set forth in Section 264 of the DGCL and Section 18-209 of the DLLCA.
Without limiting the generality of the foregoing, and subject thereto, at the
Effective Time, all the properties, rights, privileges, powers and franchises of
the Company and Sub shall vest in the Surviving Company, and all debts,
liabilities and duties of the Company and Sub shall become the debts,
liabilities and duties of the Surviving Company.
SECTION I.5. Certificate of Incorporation; By-laws. (a) At the
Effective Time, Sub's Certificate of Incorporation shall be the Certificate of
Incorporation of the Surviving Company.
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(b) The By-laws of Sub as in effect at the Effective Time shall,
from and after the Effective Time, be the By-laws of the Surviving Company until
thereafter changed or amended as provided therein or by applicable law.
SECTION I.6. Directors. The directors of Sub at the Effective Time
shall, from and after the Effective Time, become the directors of the Surviving
Company, until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be.
SECTION I.7. Officers. At the Effective Time, the officers of Sub
shall be the officers of the Surviving Company, until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be.
ARTICLE II
EFFECT OF THE MERGER ON THE SECURITIES OF THE CONSTITUENT
ENTITIES
SECTION II.1. Effect on Ownership Interests. As of the Effective
Time, by virtue of the Merger and without any action on the part of the members
of the Company (the "Members") or the holders of any shares of capital stock of
Sub:
(a) Common Stock of Sub. Each share of common stock of Sub issued
and outstanding immediately prior to the Effective Time shall remain outstanding
from and after the Effective Time.
(b) Conversion of Company Membership Interests. The Membership
Interests (as defined in the Limited Liability Company Agreement of the Company
(the "LLC Agreement")) of the Company shall be converted into the right to
receive an amount equal to the Liquidation Preference (as defined in the
Certificate of Designation of Holdings, dated August 26, 1996, with respect to
the 12 1/2% Class A Cumulative Convertible Participating Preferred Stock, par
value $100.00 per share, of Holdings (the "Class A Preferred Stock")), plus any
accrued but unpaid dividends thereon as of the Effective Time multiplied by
4,700, the number of shares of Class A Preferred Stock outstanding as of the
Effective Time, minus $400,000, net to the holder in cash, without interest (the
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"Merger Consideration").
SECTION II.2. Payment. At or immediately after the Effective Time
but not later than the Effective Time of the Holdings Merger, Parent shall pay
to the Members or a designee chosen by the Members, pro rata in proportion to
their respective Percentage Interests (as defined in the LLC Agreement and as
set forth on Exhibit A hereto), by wire transfer of immediately available funds,
the Merger Consideration.
SECTION II.3. No Further Ownership Rights in the Company. The Merger
Consideration paid in accordance with the terms of this Article II shall be
deemed to have been paid in full satisfaction of all rights pertaining to the
Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY
The Company hereby represents and warrants to each of Parent and Sub
as follows:
SECTION III.1. Organization and Qualification; Subsidiaries. (a) The
Company is a limited liability company duly organized, validly existing and in
good standing under the Laws of the State of Delaware and has all requisite
power and authority to own, lease and operate its properties and to carry on its
businesses as now conducted and proposed by the Company to be conducted.
(b) Except for the ownership of the Class A Preferred Stock, the
Company does not own, directly or indirectly, beneficially or of record, any
shares of capital stock or other securities of any other entity or any other
investment in any other entity.
(c) The Company is duly qualified or licensed and in good standing
to do business in each jurisdiction in which the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification or licensing necessary.
(d) The Company has heretofore delivered to Parent accurate and
complete copies of the Certificate of
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Formation of the Company and the LLC Agreement.
SECTION III.2. Members. Exhibit A hereto sets forth a list of all of
the Members of the Company and their respective Percentage Interests and all of
the managers of the Company (the "Managers"). There are no outstanding options,
warrants, subscriptions or other rights or agreements providing for the issuance
or sale of any Membership Interests or other ownership interests in the Company.
The Company is not required to repurchase, redeem or otherwise acquire or make
any payment in respect of the Membership Interests. Other than Holdings, the
Company does not have any subsidiaries.
SECTION III.3. Authority Relative to This Agreement; Member
Approval. The Company has all necessary power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby
(other than the approval of the Members referred to in Section 6.1 below). No
other proceedings on the part of the Company are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by the Company and constitutes
a valid, legal and binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
SECTION III.4. No Liabilities. Except for the Powell Claims (as
defined in the Holdings Merger Agreement), the Company has no liabilities or
obligations of any nature, whether or not accrued, contingent or otherwise, and
whether due or to become due or asserted or unasserted.
SECTION III.5. Consents and Approvals; No Violations. Except for
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and the filing and
recordation of the Certificate of Merger as required by the DLLCA and the DGCL,
no filing with or notice to, and no permit, authorization, consent or approval
of, any
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United States or foreign court or tribunal or administrative, governmental or
regulatory body, agency or authority (a "Governmental Entity") or any person
under any Contract to which the Company is a party or to which any of its
properties or assets is subject, is necessary for the execution and delivery by
the Company of this Agreement or the consummation by the Company of the
transactions contemplated hereby. Neither the execution, delivery and
performance of this Agreement by the Company nor the consummation by the Company
of the transactions contemplated hereby will (i) conflict with or result in any
breach of any provision of the Certificate of Formation of the Company or the
LLC Agreement, (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, amendment, cancellation or acceleration or Lien) under,
any of the terms, conditions or provisions of any Contract to which the Company
is a party or by which it or any of its properties or assets may be bound, or
(iii) violate any Law applicable to the Company or any of its properties or
assets.
SECTION III.6. Class A Preferred Stock. The Company has good,
marketable and valid title in and to the Class A Preferred Stock, free and clear
of any liens, claims, charges, encumbrances, restrictions or limitations
("Liens").
SECTION III.7. Litigation. There is no suit, claim, action,
proceeding or investigation pending or, to the Company's knowledge, threatened
against the Company or its properties or assets. The Company is not subject to
any outstanding order, writ, injunction or decree.
SECTION III.8. Compliance with Laws. The Company is in compliance
with all applicable Laws.
SECTION III.9. No Employees. The Company has no employees.
SECTION III.10. Company Activities. The Company has not been and is
not engaged in any activities other than the purchase and ownership of the Class
A Preferred Stock and activities incident thereto and the maintenance of its
existence and good standing.
SECTION III.11. No Assets. Other than the Class A Preferred Stock,
the Company has no assets whatsoever.
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SECTION III.12. Net Worth. (i) The Members collectively owned all of
the membership interests of the Company during the period of time from January
1, 1999 until the date hereof and (ii) the aggregate net worth of the Members as
of the date hereof is not less than $50,000,000.
SECTION III.13. Tax Status. The Company is currently treated as a
partnership for Federal tax purposes. The Company is not a publicly traded
limited partnership under the Internal Revenue Code of 1986, as amended.
SECTION III.14. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission or expense
reimbursement in connection with the transactions contemplated by this Agreement
based upon arrangements made by and on behalf of the Company or any of its
Members.
SECTION III.15. Full Disclosure. No representation or warranty by
the Company in this Agreement contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements contained
herein, in light of the circumstances in which they are made, not misleading.
ARTICLE IV
REPRESENTATION AND WARRANTIES
OF PARENT AND SUB
Parent and Sub hereby represent and warrant to the Company as
follows:
SECTION IV.1. Organization. (a) Each of Parent and Sub is a
corporation duly organized, validly existing and in good standing under the Laws
of the State of Delaware and has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its businesses as now
conducted or proposed by Parent to be conducted.
(b) Each of Parent and Sub is duly qualified or licensed and in good
standing to do business in each jurisdiction in which the property owned, leased
or operated by it or the nature of the business conducted by it makes such
qualification or licensing necessary, except where the failure to be so duly
qualified or licensed and in good
7
standing does not and would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect on Parent.
SECTION IV.2. Authority Relative to This Agreement. (a) Each of
Parent and Sub has all necessary corporate or other power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. No other corporate or other proceedings on the part of
Parent or Sub are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by each of Parent and Sub and constitutes a valid, legal
and binding agreement of each of Parent and Sub, enforceable against each of
Parent and Sub in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally, and subject, as to enforceability, to general
principles of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(b) The Board of Directors of each of Parent and Sub, and Parent as
the sole stockholder of Sub, have duly and validly authorized the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby, and have taken all corporate or other actions required to be taken by
such Boards of Directors and Parent as the sole stockholder of Sub for the
consummation of the transactions contemplated hereby.
SECTION IV.3. Consents and Approvals; No Violations. Except for
filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, the HSR Act, and the filing and
recordation of the Certificate of Merger as required by the DLLCA and the DGCL,
no filing with or notice to, and no permit, authorization, consent or approval
of, any Governmental Entity, or any person under any Contract to which Parent or
Sub is a party or to which any of their respective properties or assets is
subject, is necessary for the execution and delivery by Parent or Sub of this
Agreement or the consummation by Parent or Sub of the transactions contemplated
hereby. Neither the execution, delivery and performance of this Agreement by
Parent or Sub nor the consummation by Parent or Sub of the transactions
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contemplated hereby will (i) conflict with or result in any breach of any
provision of the respective certificates of incorporation or bylaws (or similar
governing documents) of Parent or any of Parent's subsidiaries, (ii) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, amendment,
cancellation or acceleration or Lien) under, any of the terms, conditions or
provisions of any Contract to which Parent or Sub is a party or by which any of
them or any of their respective properties or assets may be bound or (iii)
violate any Law applicable to Parent or Sub or any of their respective
properties or assets, except in the case of (ii) or (iii) for violations,
breaches or defaults which do not or would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on Parent.
SECTION IV.4. No Prior Activities. Except for obligations incurred
in connection with its formation or organization or the negotiation and
consummation of this Agreement and the Holdings Merger Agreement and the
transactions contemplated hereby and thereby, Sub has neither incurred any
obligation or liability nor engaged in any business or activity of any type or
kind whatsoever or entered into any agreement or arrangement with any person.
ARTICLE V
COVENANTS RELATED TO CONDUCT OF BUSINESS
SECTION V.1. Conduct of Business of the Company. During the period
from the date hereof to the Effective Time, the Company will conduct its
operations in the ordinary and usual course of business consistent with past
practice. Without limiting the generality of the foregoing, except as otherwise
expressly provided in this Agreement prior to the Effective Time, the Company
will not, without the prior written consent of Parent, which consent shall not
be unreasonably withheld or delayed:
(a) amend its Certificate of Formation or the LLC Agreement;
(b) authorize for issuance, issue, sell, deliver or agree or commit
to issue, sell or deliver any interests in the Company;
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(c) make any distributions or other payments to its Members;
(d) adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other reorganization
of the Company or any of its subsidiaries (other than the Merger or the
transactions contemplated by the Holdings Merger Agreement);
(e) alter through merger, liquidation, reorganization, restructuring
or in any other fashion the ownership of the Company;
(f) incur or assume any obligations or liabilities (other than
obligations or liabilities incurred in connection with maintaining its existence
and good standing in the State of Delaware);
(g) employ any person;
(h) acquire, sell, lease or dispose of any assets;
(i) enter into any agreement or arrangement that limits or otherwise
restricts the Company or any of its subsidiaries or any successor thereto or
that could, after the Effective Time, limit or restrict the Surviving Company or
any of its Affiliates (including Parent) or any successor thereto, from engaging
or competing in any line of business or in any geographic area;
(j) conduct any business or engage in any activities other than as
required to continue its ownership interest in Holdings; or
(k) take, propose to take, or agree in writing or otherwise to take,
any of the actions described in Sections 5.1(a) through 5.1(j).
SECTION V.2. Access to Information. (a) Between the date hereof and
the Effective Time, the Company will give Parent and Sub and their authorized
representatives (including counsel, financial advisors and auditors) reasonable
access during normal business hours upon reasonable notice to all Members,
plants, offices, warehouses
10
and other facilities and to all books and records of the Company, will permit
Parent and Sub to make such inspections as Parent and Sub may reasonably require
and will cause the Company's officers to furnish Parent and Sub with such
financial and operating data and other information with respect to the business,
properties and personnel of the Company as Parent or Sub may from time to time
reasonably request, provided that no investigation pursuant to this Section
5.2(a) shall affect or be deemed to modify any of the representations or
warranties made by the Company.
(b) Prior to the Effective Time, each of Parent and Sub will hold
and will cause their authorized representatives to hold in confidence all
documents and information concerning the Company and its subsidiaries furnished
to Parent or Sub in connection with the transactions contemplated by this
Agreement and the Holdings Merger Agreement pursuant to the terms of that
certain Confidentiality Agreement entered into between MVE Holdings and Parent
dated November 16, 1998 (the "Confidentiality Agreement").
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION VI.1. Member Consent. Prior to the Effective Time, the
Company will take all action necessary in accordance with applicable Law and the
LLC Agreement to cause the Members to approve, by written consent, this
Agreement and the Merger and such other matters as may be necessary to
effectuate the transactions contemplated hereby.
SECTION VI.2. Reasonable Best Efforts. (a) Subject to the terms and
conditions of this Agreement, each party will use its reasonable best efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under applicable Laws to consummate the
Merger and the other transactions contemplated by this Agreement. In furtherance
and not in limitation of the foregoing, each party hereto agrees to supply as
promptly as practicable any information and documentary material that may be
requested pursuant to the HSR Act and use its reasonable best efforts to take,
or cause to be taken, all other actions consistent with this Section 6.2
necessary to cause the expiration or termination
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of the applicable waiting periods under the HSR Act as soon as practicable.
(b) Each of Parent and the Company shall, in connection with the
efforts referenced in Section 6.2(a) to obtain all requisite approvals and
authorizations for the transactions contemplated by this Agreement under the HSR
Act or any other Antitrust Law, use its reasonable best efforts to (i) cooperate
in all respects with each other in connection with any filing or submission and
in connection with any investigation or other inquiry, including any proceeding
initiated by a private party; and (ii) keep the other party informed in all
material respects of any material communication received by such party from, or
given by such party to, the Federal Trade Commission (the "FTC"), the Antitrust
Division of the Department of Justice (the "DOJ") or any other Governmental
Entity and of any material communication received or given in connection with
any proceeding by a private party, in each case regarding any of the
transactions contemplated hereby. For purposes of this Agreement, "Antitrust
Law" means the Sherman Act, as amended, the Clayton Act, as amended, the HSR
Act, the Federal Trade Commission Act, as amended, and all other Laws that are
designed or intended to prohibit, restrict or regulate actions having the
purpose or effect of monopolization or restraint of trade or lessening of
competition through merger or acquisition.
(c) In furtherance and not in limitation of the covenants of the
parties contained in Sections 6.2(a) and (b), each of Parent and the Company
shall use its reasonable best efforts to resolve such objections, if any, as may
be asserted by a Governmental Entity or other person with respect to the
transactions contemplated hereby under any Antitrust Law. In connection with the
foregoing, if any administrative or judicial action or proceeding, including any
proceeding by a private party, is instituted (or threatened to be instituted)
challenging any transaction contemplated by this Agreement as violative of any
Antitrust Law, each of Parent and the Company shall cooperate in all respects
with each other and use its respective reasonable best efforts to contest and
resist any such action or proceeding and to have vacated, lifted, reversed or
overturned any decree, judgment, injunction or other order, whether temporary,
preliminary or permanent, that is in effect and that prohibits, prevents or
restricts consummation of the transactions contemplated by this Agreement. In
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connection with the receipt of any necessary approvals under any Antitrust Laws,
none of the Company, Parent, Sub or their respective subsidiaries shall be
required to divest or to hold separate, or otherwise to take or commit to take
any action that limits its freedom of action with respect to, or its ability to
retain, any material businesses, product lines or assets; provided, however,
that the Company agrees to take any action requested by Parent, such actions to
be conditional upon the consummation of the Merger and the Holdings Merger, in
order to comply with any Antitrust Laws or to satisfy any conditions imposed
upon the consummation of the transactions contemplated hereby by the FTC, the
DOJ or any other Governmental Entity responsible for the enforcement of such
Antitrust Laws. Notwithstanding the foregoing or any other provision of this
Agreement, nothing in this Section 6.2 shall limit a party's right to terminate
this Agreement pursuant to Section 8.1 so long as such party has up to then
complied in all material respects with its obligations under this Section 6.2.
SECTION VI.3. Public Announcements. Each of Parent, Sub and the
Company will consult with one another before issuing any press release or
otherwise making any public statements with respect to the transactions
contemplated by this Agreement, including, without limitation, the Merger, and
shall not issue any such press release or make any such public statement prior
to obtaining the consent of the other party, which consent shall not be
unreasonably withheld, except as may be required by applicable Law or by
obligations pursuant to any listing agreement with the New York Stock Exchange,
as determined by Parent, Sub or the Company, as the case may be. Notwithstanding
anything to the contrary herein, Parent shall have the right to discuss publicly
available information concerning the Company on conference calls or during
meetings with analysts and current or prospective investors or at the conference
sponsored by Schroder & Co., Inc. scheduled to take place on or about March 2,
1999.
SECTION VI.4. Indemnification of Parent and Surviving Company. (a)
From and after the Effective Time, each of the Members shall jointly and
severally, indemnify, defend and hold harmless Parent and Surviving Company
against all losses, expenses (including reasonable attorneys' fees and
expenses), claims, damages or liabilities or, subject to the proviso of the next
succeeding sentence, amounts paid in settlement (collectively, "Damages"),
arising out of (i) any
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misrepresentation or breach of warranty or covenant made by the Company in this
Agreement or (ii) actions or omissions occurring at or prior to the Effective
Time and whether asserted or claimed prior to, at or after the Effective Time
that are based on, arising out of or pertaining to the operations of the Company
prior to the Effective Time, (including without limitation any amounts paid, and
any fees and expenses incurred, in connection with, the indemnification of any
persons under Section 6.7 of the LLC Agreement, under the Company's Certificate
of Formation or under the DGCL or DLLCA or otherwise, except with respect to
Misallocation Claims to the extent Parent has agreed to provide indemnification
to certain persons under the Indemnification and Warrant Purchase Agreement to
be entered into by and among Parent, Holdings and the Members (the
"Indemnification and Warrant Purchase Agreement"). In the event of any such
Damages (whether or not arising before the Effective Time), (i) the Members
shall pay the reasonable fees and expenses of counsel selected by Parent and the
Surviving Company, which counsel shall be reasonably satisfactory to the
Members, promptly after statements therefor are received and otherwise advance
to Parent and the Surviving Company upon request reimbursement of documented
expenses reasonably incurred and (ii) the Members will cooperate in the defense
of any such matter.
(b) Parent shall give prompt written notification to the Members of
the assertion of any third party claim or commencement of any action, suit or
proceeding relating to a third party claim for which indemnification pursuant to
this Section 6.4 may be sought. Within 20 days after delivery of such
notification, the Members may, upon written notice thereof to Parent, assume
control of the defense of such claim, action, suit or proceeding with counsel
reasonable satisfactory to Parent, provided that the Members acknowledge in
writing, and in form and substance acceptable to Parent, that any Damages that
may be assessed against Parent in connection with such action, suit or
proceeding constitute Damages for which Parent shall be entitled to
indemnification pursuant to this Section 6.4; and provided, further, that Parent
shall have the right to control the defense to the extent of any claim or demand
seeking equitable relief or remedial action on the part of Parent. If the
Members do not so assume control of such defense, Parent shall control such
defense. The party not controlling such defense may participate therein at its
own expense; provided that if the Members assume control of such defense and
Parent reasonably
14
concludes that the Members and Parent have a conflict of interest or different
defenses available with respect to such action, suit or proceeding, the
reasonable fees and expenses of counsel to Parent shall be considered "Damages"
for purposes of this Agreement. The party controlling such defense shall keep
the other party advised of the status of such action, suit or proceeding and the
defense thereof and shall consider in good faith recommendations made by the
other party with respect thereto. Parent shall not agree to any settlement of
such claim, action, suit or proceeding without the prior written consent of the
Members, which consent shall not be unreasonably withheld or delayed. The
Members shall not agree to any settlement of such action, suit or proceeding
without the prior written consent of Parent, which consent shall not be
unreasonably withheld or delayed.
SECTION VI.5. Obligations of Sub. Parent will take all action
necessary to cause Sub to perform its obligations under this Agreement and to
consummate the Merger on the terms and conditions set forth in this Agreement.
ARTICLE VII
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION VII.1. Conditions to Each Party's Obligations to Effect the
Merger. The respective obligations of each party to consummate the transactions
contemplated by this Agreement are subject to the fulfillment at or prior to the
Effective Time of each of the following conditions, any or all of which may be
waived in whole or in part by the party being benefitted thereby, to the extent
permitted by applicable Law:
(a) Any waiting period applicable to the Merger under the HSR Act
shall have expired or early termination thereof shall have been granted without
limitation, restriction or condition and all required consents or approvals
under foreign antitrust Laws shall have been obtained; and
(b) No temporary restraining order, preliminary or permanent
injunction or other order issued by any Governmental Entity, and no other legal
restraint or prohibition, shall be in effect preventing or prohibiting the
15
consummation of the Merger.
(c) Each of the conditions set forth in the Holdings Merger
Agreement shall have been fulfilled or waived (other than the condition that the
transactions contemplated by this Agreement shall have been consummated).
SECTION VII.2. Additional Conditions to Parent's and Sub's
Obligations to Effect the Merger. The obligations of Parent and Sub to
consummate the transactions contemplated by this Agreement are subject to the
fulfillment at or prior to the Effective Time of the following condition, which
may be waived in whole or in part by Parent and Sub:
The representations and warranties of the Company set forth in this
Agreement shall be true and accurate in all material respects as of the
Effective Time as though made on or as of such date (except for those
representations and warranties that address matters only as of a particular date
or only with respect to a specific period of time which need only be true and
accurate as of such date or with respect to such period) and the Company shall
not have failed to perform or comply in any material respect with any
obligation, agreement or covenant required by this Agreement to be performed or
complied with by it.
SECTION VII.3. Additional Conditions to the Company's Obligations to
Effect the Merger. The obligation of the Company to consummate the transactions
contemplated by this Agreement is subject to the fulfillment at or prior to the
Effective Time of the following condition, which may be waived in whole or in
part by the Company:
The representations and warranties of Parent and Sub set forth in
this Agreement shall be true and accurate in all material respects as of the
Effective Time as though made on or as of such date (except for those
representations and warranties that address matters only as of a particular date
or only with respect to a specific period of time which need only be true and
accurate as of such date or with respect to such period) and Parent and Sub
shall not have failed to perform or comply in any material respect with any
obligation, agreement or covenant required by this Agreement to be performed or
complied with by it.
16
ARTICLE VIII
TERMINATION; AMENDMENT; WAIVER
SECTION VIII.1. Termination. This Agreement may be terminated and
the Merger contemplated herein may be abandoned at any time prior to the
Effective Time:
(a) By the mutual written consent of Parent and the Company.
(b) By either party if the Holdings Merger Agreement is terminated
by any party thereto for any reason.
SECTION VIII.2. Effect of Termination. In the event of termination
of this Agreement by either the Company or Parent or Sub as provided in Section
8.1, this Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of Parent, Sub or the Company, other than
the provisions of Section 5.2(b), this Section 8.2, Section 8.3 and Article IX,
which shall survive.
SECTION VIII.3. Fees and Expenses. Except as otherwise provided
herein, all fees and expenses incurred in connection with the Merger, this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such fees or expenses, whether or not the Merger is consummated.
SECTION VIII.4. Amendment. This Agreement may not be amended except
by an instrument in writing signed on behalf of the parties hereto.
SECTION VIII.5. Extension; Waiver. At any time prior to the
Effective Time, each party hereto (for these purposes, Parent and Sub shall
together be deemed one party and the Company shall be deemed the other party)
may (i) extend the time for the performance of any of the obligations or other
acts of the other party, (ii) waive any inaccuracies in the representations and
warranties of the other party contained herein or in any document, certificate
or writing delivered pursuant hereto, or (iii) waive compliance by the other
party with any of the agreements or conditions contained herein. Any agreement
on the part of either party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of either party hereto to assert any
17
of its rights hereunder shall not constitute a waiver of such rights.
ARTICLE IX
MISCELLANEOUS
SECTION IX.1. Nonsurvival of Representations and Warranties. None of
the representations, warranties, covenants and agreements in this Agreement or
in any exhibit, schedule or instrument delivered pursuant to this Agreement
shall survive beyond the Effective Time, except for those covenants and
agreements contained herein and therein that by their terms apply or are to be
performed in whole or in part after the Effective Time including, but not
limited to, Sections 5.2(b), 6.4 and this Article IX. This Section 9.1 shall not
limit any covenant or agreement of the parties which by its terms contemplates
performance after the Effective Time.
SECTION IX.2. Entire Agreement; Assignment. (a) This Agreement, the
Holdings Merger Agreement and the Indemnification and Warrant Purchase Agreement
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and thereof and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and thereof other than the Confidentiality Agreement.
(b) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by operation of Law (including, but not
limited to, by merger or consolidation) or otherwise; provided, however, that
Sub may assign, in its sole discretion, any or all of its rights, interests and
obligations under this Agreement to any direct wholly owned subsidiary of
Parent, but no such assignment shall relieve Parent or Sub of its obligations
hereunder if such assignee does not perform such obligations; provided, further,
Parent may assign its rights and obligations hereunder in connection with a sale
or transfer of all or substantially all of its assets or a merger of Parent with
and into another person; provided, further, Parent may assign its rights
hereunder to any of its creditors. Any assignment in violation of the preceding
sentence shall be 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.
18
SECTION IX.3. Notices. All notices, requests, instructions or other
documents to be given under this Agreement shall be in writing and shall be
deemed given, (i) five business days following sending by registered or
certified mail, postage prepaid, (ii) when sent if sent by facsimile; provided
that the fax is promptly confirmed by telephone confirmation thereof, (iii) when
delivered, if delivered personally to the intended recipient and (iv) one
business day following sending by overnight delivery via a national courier
service, and in each case, addressed to a party at the following address for
such party:
if to Parent or to
Sub, to: Chart Industries, Inc.
5885 Landerbrook Drive
Suite 150
Mayfield Heights, Ohio 44124
Attention: Arthur S. Holmes
Facsimile: (440) 753-1491
with a copy to: Calfee, Halter & Griswold LLP
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114-2688
Attention: Thomas F. McKee
Facsimile: (216) 241-0816
if to the Company, to: MVE Investors LLC
707 Westchester Avenue
White Plains, NY 10604
Attention: Kevin Penn
Facsimile: (914) 681-9856
with a copy to: Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attention: Stephen Besen, Esq.
Facsimile: (212) 310-8007
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
SECTION IX.4. Governing Law. This Agreement shall
19
be governed by and construed in accordance with the Laws of the State of
Delaware, without giving effect to the conflict of Law principles thereof.
SECTION IX.5. Descriptive Headings. The descriptive headings 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.
SECTION IX.6. Parties in Interest. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto and its successors and
permitted assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
SECTION IX.7. Severability. The provisions of this Agreement shall
be deemed severable and the invalidity or unenforceability of any provision
shall not affect the validity or enforceability of the other provisions hereof.
If any provision of this Agreement, or the application thereof to any person or
any circumstance, is invalid or unenforceable, (a) if necessary, a suitable and
equitable provision shall be substituted therefor in order to carry out, so far
as may be valid and enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of such provision, or the
application thereof, in any other jurisdiction.
SECTION IX.8. Specific Performance. The parties agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any court of
the United States located in the State of Delaware or in Delaware state court,
this being in addition to any other remedy to which they are entitled at Law or
in equity. In addition, each of the parties hereto (a) consents to submit itself
to the personal jurisdiction of any federal court located in the
20
State of Delaware or any Delaware state court in the event any dispute arises
out of this Agreement or any of the transactions contemplated hereby, (b) agrees
that it will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court and (c) agrees that it will not
bring any action relating to this Agreement or any of the transactions
contemplated hereby in any court other than a federal or state court sitting in
the State of Delaware.
SECTION IX.9. 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 parties.
SECTION IX.10. Interpretation. (a) The words "hereof," "herein" and
"herewith" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and article, section, paragraph, exhibit and
schedule references are to the articles, sections, paragraphs, exhibits and
schedules of this Agreement unless otherwise specified. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation." All terms defined in
this Agreement shall have the defined meanings contained herein when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein. The definitions contained in this Agreement are applicable to
the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such terms. Any agreement,
instrument or statute defined or referred to herein or in any agreement or
instrument that is referred to herein means such agreement, instrument or
statute as from time to time, amended, qualified or supplemented, including (in
the case of agreements and instruments) by waiver or consent and (in the case of
statutes) by succession of comparable successor statutes and all attachments
thereto and instruments incorporated therein. References to a person are also to
its permitted successors and assigns.
(b) The phrases "the date of this Agreement," "the date hereof" and
terms of similar import, unless the context otherwise requires, shall be deemed
to refer to February 25, 1999. The phrase "made available" in this
21
agreement shall mean that the information referred to has been actually
delivered to the party to whom such information is to be made available.
(c) The parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provisions of this
Agreement.
SECTION IX.11. Definitions. (a) "Affiliate" means, with respect to
any person, any other person controlling, controlled by or under common control
with such particular person, where "control" means the possession, directly or
indirectly, of the power to direct the management and policies of a person
whether through the ownership of voting securities, by Contract or otherwise.
(b) "beneficial ownership" or "beneficially own" shall have the
meaning provided in Section 13(d) of the and the rules and regulations
thereunder.
(c) "Contract" means any contract, commitment, understanding,
instrument, lease, pledge, mortgage, indenture, note, license, agreement,
purchase or sales order, promise or other arrangement evidencing or creating any
obligation, whether written or oral.
(d) "Law" means any domestic or foreign law, order, writ,
injunction, decree, ordinance, award, stipulation, statute, judicial or
administrative doctrine, rule or regulation entered by a Governmental Entity.
(e) "Material Adverse Effect" means with respect to any entity, any
change, circumstance or effect that, individually or in the aggregate with all
other changes, circumstances and effects, is or is reasonably likely to be
materially adverse to (i) the assets, properties, condition (financial or
otherwise) or results of operations of such entity and its subsidiaries taken as
a whole, other than any change, circumstance or effect relating (x) to the
economy or financial markets in general, (y) changes in general political or
regulatory conditions in the United States or any foreign jurisdictions in which
such entity conducts business, (y) generally to the industries in which such
22
entity operates and not specifically relating to such entity or (z) to the
announcement or pendency of the Merger or (ii) the ability of such party to
consummate the transactions contemplated by this Agreement.
(f) "person" means an individual, corporation, limited liability
company, partnership, association, trust, unincorporated organization, other
entity or group (as defined in the ).
(g) "subsidiary" means, when used with reference to any entity, any
corporation or other organization, whether incorporated or unincorporated, (i)
of which such party or any other subsidiary of such party is a general or
managing partner or (ii) the outstanding voting securities or interests of,
which having by their terms ordinary 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 owned or controlled
by such party or by any one or more of its subsidiaries.
[signature page follows]
23
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed on its behalf as of the day and year first above written.
CHART INDUSTRIES, INC.
By: /s/ James R. Sadowski
-------------------------------------
Name: James R. Sadowski
Title: President and Chief
Operating Officer
CHART ACQUISITION COMPANY
By: /s/ James R. Sadowski
-------------------------------------
Name: James R. Sadowski
Title: Vice President
MVE INVESTORS LLC
By: /s/ Kevin S. Penn
-------------------------------------
Name: Kevin S. Penn
Title: President, ACI Captial I, LLC
As Manager
Accepted and Agreed With Respect
to Section 6.5 Only:
ACI CAPITAL I, LLC
By: /s/ Kevin S. Penn
-------------------------------------
Name: Kevin S. Penn
Title: President
AMERICAN SECURITIES PARTNERS, L.P.
By: American Securities Associates, L.P.,
its general partner
By: American Securities Partners GP
(Management) Corp.
By: Authorized Representative
-------------------------------------
Name:
Title:
MVE CRYOGENICS LLC
By: Authorized Representative
-------------------------------------
Name:
Title:
CRM/MVE CAPITAL LLC
By: Cramer Rosenthal McGlynn, Inc.,
as Manager
By: /s/ Eugene A. Trainor
-------------------------------------
Name: Eugene A. Trainor
Title: EVP, COO
TANGENT LLC
By: Authorized Representative
-------------------------------------
Name:
Title:
FERTOSA LLC
By: Authorized Representative
-------------------------------------
Name:
Title:
BURDEN DIRECT INVESTMENT FUND II
By: William A.M. Burden & Co., L.P.,
its general partner
By: Burden Brothers, Inc.,
its sole general partner
By: /s/ Jeffrey A. Weber
-------------------------------------
Name: Jeffrey A. Weber
Title: President and CEO