Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
by and among
CYANCO HOLDING CORP.,
CALYPSO ACQUISITION CORP.
and
NEVADA CHEMICALS, INC.
dated as of
September 5, 2008
TABLE OF CONTENTS
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Page
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ARTICLE I
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THE OFFER AND MERGER
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2
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Section 1.1
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The Offer
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2
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Section 1.2
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Company Actions
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3
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Section 1.3
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Directors
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4
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Section 1.4
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The Merger
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5
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Section 1.5
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Top-Up Option
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6
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Section 1.6
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[Intentionally Omitted]
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7
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Section 1.7
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Effective Time
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7
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Section 1.8
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Closing
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7
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Section 1.9
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Directors and Officers of the Surviving
Corporation
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8
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ARTICLE II
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CONVERSION OF SECURITIES
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8
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Section 2.1
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Conversion of Capital Stock
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8
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Section 2.2
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Exchange of Certificates
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9
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Section 2.3
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Dissenting Shares
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10
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Section 2.4
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Company Stock Options;
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11
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Section 2.5
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Adjustment of Merger Consideration
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12
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Section 2.6
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Withholding
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12
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ARTICLE III
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REPRESENTATIONS AND WARRANTIES OF THE
COMPANY
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12
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Section 3.1
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Organization; Subsidiaries
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12
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Section 3.2
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Capitalization
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13
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Section 3.3
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Authorization; Validity of Agreement; Company
Action
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14
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Section 3.4
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No Violations; Consents and Approvals
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15
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Section 3.5
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SEC Reports and Financial Statements
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15
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Section 3.6
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Absence of Certain Changes or Events
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16
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Section 3.7
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Schedule 14D-9; Offer Documents; Proxy
Statement
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17
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Section 3.8
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Employee Benefit Plans; ERISA
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17
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Section 3.9
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Litigation
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18
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Section 3.10
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Environmental and Safety Matters
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19
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Section 3.11
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Taxes
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20
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Section 3.12
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Labor and Employment Matters
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22
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Section 3.13
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Compliance with Laws
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23
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Section 3.14
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Contracts
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23
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Section 3.15
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Properties
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23
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Section 3.16
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Intellectual Property
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24
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Section 3.17
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Opinion of Financial Advisor
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25
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Section 3.18
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Brokers
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25
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Section 3.19
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State Takeover Statutes
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25
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Section 3.20
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Rights Plan
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25
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Section 3.21
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Major Customers and Suppliers
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25
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Section 3.22
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Transactions with Affiliates
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26
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ARTICLE IV
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REPRESENTATIONS AND WARRANTIES OF PARENT AND THE
PURCHASER
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26
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Section 4.1
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Organization
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26
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Section 4.2
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Authorization; Validity of Agreement; Necessary
Action
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26
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Section 4.3
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No Violations; Consents and Approvals
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27
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Section 4.4
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Information in the Offer Documents; Proxy
Statement; Schedule 14D-9
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27
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Section 4.5
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Financing
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28
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Section 4.6
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Brokers
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28
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Section 4.7
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Litigation
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28
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ARTICLE V
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CONDUCT OF BUSINESS PENDING MERGER
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28
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Section 5.1
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Conduct of Business by the Company Pending the
Merger
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28
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ARTICLE VI
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ADDITIONAL AGREEMENTS
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31
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Section 6.1
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Stockholders’ Meeting
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31
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Section 6.2
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Preparation of Proxy Statement
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32
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Section 6.3
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Merger Without Meeting of
Stockholders
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33
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Section 6.4
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Consents; Filings; Further Assurances
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33
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Section 6.5
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Access to Information;
Confidentiality
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34
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Section 6.6
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No Solicitation
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35
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Section 6.7
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Public Announcements
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37
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Section 6.8
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Notification of Certain Matters
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38
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Section 6.9
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Directors’ and Officers’ Insurance
and Indemnification
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38
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Section 6.10
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No Control of Other Party’s
Business
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39
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ARTICLE VII
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CONDITIONS
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39
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Section 7.1
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Conditions to Each Party’s Obligation To
Effect the Merger
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39
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ARTICLE VIII
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TERMINATION
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40
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Section 8.1
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Termination
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40
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Section 8.2
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Method of Termination; Effect of
Termination
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42
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Section 8.3
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Fees and Expenses
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42
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ARTICLE IX
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MISCELLANEOUS
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43
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Section 9.1
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Non-Survival of Representations and
Warranties
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43
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Section 9.2
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Notices
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43
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Section 9.3
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Definitions
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44
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Section 9.4
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Severability
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49
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Section 9.5
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Entire Agreement; Assignment
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49
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Section 9.6
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Parties in Interest
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49
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Section 9.7
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Specific Performance
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50
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Section 9.8
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Governing Law
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50
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Section 9.9
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Headings
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50
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Section 9.10
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Counterparts
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50
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Section 9.11
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Construction
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AGREEMENT AND PLAN OF
MERGER
AGREEMENT AND PLAN OF MERGER, dated
as of September 5, 2008, by and among Cyanco Holding Corp., a
Delaware corporation (“ Parent ”), Calypso
Acquisition Corp., a Utah corporation and direct, wholly owned
subsidiary of Parent (the “ Purchaser ”), and
Nevada Chemicals, Inc., a Utah corporation (the “
Company ”). Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such
terms in Section 9.3 hereof.
WHEREAS, the Board of Directors of
each of Parent, the Purchaser and the Company have approved, and
deem it advisable and in the best interests of their respective
stockholders to consummate, the acquisition of the Company by
Parent upon the terms and subject to the conditions set forth
herein;
WHEREAS, in furtherance thereof, it
is proposed that the Purchaser make the Offer (as defined in
Section 1.1 hereof) to acquire all shares of the issued
and outstanding common stock, par value $0.001 per share, of the
Company (referred to herein as either the “ Shares
” or “ Company Common Stock ”) for $13.37
per share, net to the seller in cash, upon the terms and subject to
the conditions set forth herein;
WHEREAS, also in furtherance of such
acquisition, the Board of Directors of each of Parent, the
Purchaser and the Company have approved this Agreement and the
Merger (as defined in Section 1.4 hereof) following the
Offer in accordance with the Utah Revised Business Corporation Act
(the “ URBCA ”) and upon the terms and subject
to the conditions set forth herein;
WHEREAS, the Board of Directors of
the Company has approved and adopted the Offer and the Merger and
has resolved to recommend that the holders of the Shares accept the
Offer and approve this Agreement and each of the transactions
contemplated by this Agreement, including the Offer and the Merger
(the “ Transactions ”), upon the terms and
subject to the conditions set forth herein;
WHEREAS, as a condition and
inducement to Parent and the Purchaser entering into this Agreement
and incurring the obligations set forth herein, certain
stockholders of the Company (the “ Principal Company
Stockholders ”) are entering into an agreement (the
“ Support Agreement ” and, together with this
Agreement, the “ Transaction Agreements ”)
pursuant to which the Principal Company Stockholders will agree to
take specified actions in furtherance of the Offer and the Merger;
and
WHEREAS, Parent, the Purchaser and
the Company desire to make certain representations, warranties,
covenants and agreements in connection with the Offer and
Merger.
NOW, THEREFORE, in consideration of
the foregoing and the respective representations, warranties,
covenants and agreements set forth herein, the parties hereto agree
as follows:
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ARTICLE I
THE OFFER AND MERGER
Section 1.1
The Offer.
(a)
Provided that this Agreement shall
not have been terminated in accordance with Section 7.1 hereof
and none of the events set forth in clause (iii) of Annex A
hereto shall have occurred and be continuing, the Purchaser shall
(and Parent shall cause the Purchaser to), as promptly as
reasonably practicable and in any event within ten
(10) Business Days after the date hereof, commence (within the
meaning of Rule 14d-2 under the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”)) an
offer (the “ Offer ”) to purchase for cash all
Shares at a price of $13.37 per Share, net to the seller in cash
(such price, or such higher price per Share as may be paid in the
Offer, being referred to herein as the “ Offer Price
”). Subject to the condition that the holders of Shares
have validly tendered and not withdrawn prior to the expiration of
the Offer a number of Shares which, together with the Shares
beneficially owned by Parent or the Purchaser, represents at least
a majority of the outstanding Shares, determined on a fully diluted
basis (the “ Minimum Condition ”), and subject
to the prior satisfaction or waiver (except that the Minimum
Condition may not be amended or waived) of the other conditions of
the Offer set forth in Annex A, the Purchaser shall (and Parent
shall cause the Purchaser to) consummate the Offer in accordance
with its terms and accept for payment and pay for Shares tendered
pursuant to the Offer as soon as it is legally permitted to do so
under applicable law. The obligations of the Purchaser to
consummate the Offer and accept for payment and to pay for all
Shares validly tendered on or prior to the expiration of the Offer
and not withdrawn shall be subject only to the Minimum Condition
and the other conditions set forth in Annex A hereto. The
Offer shall be made by means of an offer to purchase (the
“Offer to Purchase”) containing the terms set forth in
this Agreement, the Minimum Condition and the other conditions set
forth in Annex A hereto. The Purchaser shall not decrease the
Offer Price, change the consideration payable, impose additional
conditions to the Offer, decrease the number of Shares sought, or
amend any other condition of the Offer in any manner adverse to the
holders of the Shares (other than with respect to insignificant
changes or amendments) without the written consent of the Company
(such consent to be authorized by the Board of Directors of the
Company or a duly authorized committee thereof). The Offer
Price may be increased, and, in connection therewith, the Offer may
be extended, to the extent required by applicable federal
securities laws, in each case without the consent of the
Company. The Offer shall expire at 12:00 midnight (New York
City time) on the twentieth business day (as such term is defined
in Rule 14d-1(g)(3) under the Exchange Act) following the
commencement of the Offer (determined using Rule 14d-2 under
the Exchange Act) (such date, the “ Initial Expiration
Date ”), unless extended in accordance with this
Section 1.1 (the Initial Expiration Date, or such later date
to which the Initial Expiration Date has been extended, the “
Expiration Date ”). Except for any period
required by any rule, regulation, interpretation or position of the
United States Securities and Exchange Commission (the “
SEC ”) applicable to the Offer, or as set forth below,
the Purchaser shall not extend the Offer beyond the Initial
Expiration Date if all of the conditions set forth in Annex A
hereto have been satisfied or waived as of the Initial Expiration
Date and Purchaser is permitted under applicable law to accept for
payment and pay for tendered Shares. Notwithstanding anything
contained in this subsection , Purchaser may, in its sole
discretion,
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extend the Offer one or more times at any time
and from time to time, for an aggregate period of not more than
twenty (20) Business Days if, at the then-scheduled Expiration
Date, any of the conditions set forth in Annex A hereto shall not
have been satisfied or waived, until such time as such conditions
are satisfied or waived; provided that any extension shall
be in increments of not more than ten (10) Business Days
(unless a longer period of time is agreed to by the Company in
writing, such agreement not to be unreasonably withheld).
Additionally, if the Minimum Condition has been satisfied and all
other conditions set forth in Annex A hereto are satisfied or
waived, and Shares have been accepted for payment, but the number
of Shares tendered and not withdrawn pursuant to the Offer,
together with any other Shares owned of record by Purchaser or its
Affiliates, is less than 90% of the then outstanding Shares on a
fully diluted basis, the Purchaser may extend the Offer in
accordance with Rule 14d-11 under the Exchange Act.
(b)
As soon as reasonably practicable
after the date the Offer is commenced, and in any event in
accordance with the rules of the Exchange Act, Parent and the
Purchaser shall file with the SEC a Tender Offer Statement on
Schedule TO with respect to the Offer (together with all amendments
and supplements thereto and including the exhibits thereto, the
“ Schedule TO ”). The Schedule TO will
include all exhibits required by applicable federal securities
laws, including the Offer to Purchase, a form of letter of
transmittal and summary advertisement (collectively, together with
any amendments and supplements thereto, the “ Offer
Documents ”). Parent and the Purchaser further
agree to take all steps necessary to cause the Offer Documents to
be filed with the SEC and to be disseminated to holders of Shares,
in each case as and to the extent required by applicable federal
securities laws. Parent and the Purchaser, on the one hand,
and the Company, on the other hand, agree promptly to correct any
information provided by it for use in the Offer Documents if and to
the extent that the information contained therein shall have become
false and misleading in any material respect, and the Purchaser
further agrees to take all steps necessary to cause the Offer
Documents as so corrected to be filed with the SEC and to be
disseminated to all holders of Shares, in each case as and to the
extent required by applicable federal securities laws;
provided , that the costs and expenses of filing and
disseminating the corrected Offer Documents shall be borne by the
Company if such corrections are required as a result of information
provided by the Company becoming false and misleading in any
material respect. The Company and its counsel shall be given
the opportunity to review, and to propose reasonable comments to,
the Schedule TO before it is filed with the SEC. In addition,
Parent and the Purchaser agree to provide the Company and its
counsel with a copy of any comments Parent, the Purchaser or their
counsel may receive from time to time from the SEC or its staff
with respect to the Offer Documents promptly after the receipt of
such comments, and any written or oral responses
thereto.
Section 1.2
Company Actions.
(a)
Concurrently with
the commencement of the Offer, the Company shall file with the SEC
a Solicitation/Recommendation Statement on Schedule 14D-9 (together
with all amendments and supplements thereto and including the
exhibits thereto, the “ Schedule 14D-9 ”) which
shall, subject to the fiduciary duties of the Company’s
directors under applicable law and the provisions of this
Agreement, contain the recommendation referred to in clause
(iii) of Section 3.3(b) hereof. The
Company further agrees to take all steps necessary to cause the
Schedule 14D-9 to be filed with the SEC and to be disseminated to
all holders of Shares, in each case as and to the extent required
by applicable federal securities laws. The Company, on
the
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one hand, and Parent and the
Purchaser, on the other hand, agree promptly to correct any
information provided by it for use in the Schedule 14D-9 if and to
the extent that it shall have become false and misleading in any
material respect, and the Company further agrees to take all steps
necessary to cause the Schedule 14D-9 as so corrected to be filed
with the SEC and to be disseminated to all holders of the Shares,
in each case as and to the extent required by applicable federal
securities laws; provided , that the costs and expenses of
filing and disseminating a corrected Schedule 14D-9 shall be borne
by the Purchaser to the extent such corrections are required as a
result of information provided by the Purchaser becoming false and
misleading in any material respect. Parent, the Purchaser and
their counsel shall be given the opportunity to review, and to
propose reasonable comments to, the Schedule 14D-9 before it is
filed with the SEC. In addition, the Company agrees to
provide Parent, the Purchaser and their counsel with a copy of any
comments the Company or its counsel may receive from time to time
from the SEC or its staff with respect to the Schedule 14D-9
promptly after the receipt of such comments, and any written or
oral responses thereto.
(b)
In connection
with the Offer, the Company shall as soon as practicable (but in
any event within five (5) Business Days after the date
hereof), furnish or cause to be furnished to the Purchaser mailing
labels, security position listings and any available listing or
computer file containing the names and addresses of the record
holders of the Shares as of a date no more than five
(5) Business Days prior to delivery of such information, and
shall furnish the Purchaser with such information and assistance as
the Purchaser or its agents may reasonably request in communicating
the Offer to the record and beneficial holders of the Shares.
Except for such steps as are necessary to disseminate the Offer
Documents, Parent and the Purchaser shall hold in confidence the
information contained in any of such labels and lists and the
additional information referred to in the preceding sentence, shall
use such information only in connection with the Offer, the Merger
and the other Transactions, and, if this Agreement is terminated,
shall upon the request of the Company deliver or cause to be
delivered to the Company all copies of such information then in its
possession or the possession of its agents or
representatives.
Section 1.3
Directors.
(a)
Promptly upon the
purchase of and payment for any Shares by Parent, Purchaser and/or
any of their Affiliates which, together with all other Shares then
held by Parent, Purchaser and/or any of their Affiliates,
represents at least a majority of the outstanding Shares (on a
fully diluted basis), Parent shall be entitled to designate such
number of directors, rounded up to the next whole number, on the
Board of Directors of the Company as is equal to the product of the
total number of directors on such Board (giving effect to the
directors designated by Parent pursuant to this sentence)
multiplied by the percentage that the aggregate number of Shares
beneficially owned by Parent, the Purchaser and/or any of their
Affiliates bears to the total number of Shares then
outstanding. The Company shall, upon the request of Parent,
use its reasonable best efforts to promptly (but in any event
within ten (10) days after receipt of such request) either
increase the size of its Board of Directors, including amending the
by-laws of the Company if necessary to so increase the size of the
Board of Directors, or secure the resignations of such number of
its incumbent directors, or both, as is necessary to enable
Parent’s designees to be so elected or appointed to the
Company’s Board of Directors, and shall cause Parent’s
designees to be so elected or appointed at such time. At such
time, the Company shall,
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upon the request of Parent,
also cause Persons designated by Parent to constitute the same
percentage (rounded up to the next whole number) as is on the
Company’s Board of Directors of (i) each committee of
the Company’s Board of Directors, (ii) each board of
directors (or similar body) of each Subsidiary (as defined in
Section 3.1 hereof) of the Company and (iii) each
committee (or similar body) of each such board, in each case only
to the extent permitted by applicable law and the rules of any
stock exchange on which the Company Common Stock is listed.
Notwithstanding the foregoing sentences, in no event shall the
designees of Parent or its Affiliates be entitled to represent the
majority of any such board or committee, and no rounding-up of the
number of directors thereon shall occur, unless, at such time,
Parent and its Affiliates own at least a majority of the
outstanding Shares on a fully diluted basis. Notwithstanding
the foregoing, until the Effective Time (as defined in
Section 1.6 hereof), the Company shall use all
reasonable efforts to retain as members of its Board of Directors
at least two directors who are directors of the Company on the date
hereof; provided , that subsequent to the purchase of
and payment for Shares pursuant to the Offer, and if Parent and its
Affiliates at such time own a majority of the outstanding Shares on
a fully diluted basis, Parent shall always be entitled to have its
designees represent at least a majority of the entire Board of
Directors of the Company. The Company’s obligations
under this Section 1.3(a) shall be subject to
Section 14(f) of the Exchange Act and Rule 14f-1
promulgated thereunder. The Company shall promptly take all
actions required pursuant to such Section 14(f) and
Rule 14f-1 in order to fulfill its obligations under this
Section 1.3(a) , including mailing to stockholders the
information required by such Section 14(f) and
Rule 14f-1 as is necessary to enable Parent’s designees
to be elected or appointed to the Company’s Board of
Directors. Parent or the Purchaser will supply the Company
any information with respect to either of them and their nominees,
officers, directors and Affiliates required by such
Section 14(f) and Rule 14f-1. The provisions
of this Section 1.3(a) are in addition to and
shall not limit any rights which the Purchaser, Parent or any of
their Affiliates may have as a holder or Beneficial Owner of Shares
as a matter of law with respect to the election of directors or
otherwise.
(b)
From and after
the time, if any, that Parent’s designees constitute a
majority of the Company’s Board of Directors, any amendment
of this Agreement, any termination of this Agreement by the
Company, any extension of time for performance of any of the
obligations of Parent or the Purchaser hereunder, any waiver of any
condition or any of the Company’s rights hereunder or other
action by the Company hereunder may be effected only by the action
of a majority of the directors of the Company then in office who
were directors of the Company on the date hereof, which action
shall be deemed to constitute the action of the full Board of
Directors; provided , that if there shall be no such
directors, such actions may be effected by majority vote of the
entire Board of Directors of the Company.
Section 1.4
The Merger.
(a)
Subject to the
terms and conditions of this Agreement, at the Effective Time, the
Company and the Purchaser shall consummate a merger (the “
Merger ”) pursuant to which (i) the Purchaser
shall be merged with and into the Company and the separate
corporate existence of the Purchaser shall thereupon cease,
(ii) the Company shall be the successor or surviving
corporation in the Merger and shall continue to be governed by the
laws of the State of Utah, and (iii) the separate corporate
existence of the Company with all its rights, privileges,
immunities, powers and franchises shall continue unaffected by the
Merger. At
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Parent’s sole
election, the Merger may alternatively be structured so that
(x) the Company is merged with and into Parent, the Purchaser
or any other direct or indirect wholly owned Subsidiary (as defined
in Section 3.1 hereof) of Parent or (y) any direct
or indirect wholly owned Subsidiary of Parent other than the
Purchaser is merged with and into the Company. In the event
of such an election, the parties agree to execute an appropriate
amendment to this Agreement in order to reflect such
election. Notwithstanding the foregoing, any such election to
change the constituent parties to the Merger may be made by Parent
only if no material time delay in consummating the Merger shall
occur. The corporation surviving the Merger is sometimes
hereinafter referred to as the “ Surviving Corporation
.” The Merger shall have the effects set forth in the
URBCA.
(b)
Unless otherwise
determined by Parent in its sole discretion prior to the Effective
Time, the Articles of Incorporation of the Purchaser, as in effect
immediately prior to the Effective Time, shall be the Articles of
Incorporation of the Surviving Corporation, except as to the name
of the Surviving Corporation (in the case of a merger where the
Company is the Surviving Corporation), until thereafter amended as
provided by applicable law and such Articles of
Incorporation.
(c)
Unless otherwise
determined by Parent in its sole discretion prior to the Effective
Time, the By-laws of the Purchaser, as in effect immediately prior
to the Effective Time, shall be the By-laws of the Surviving
Corporation, except as to the name of the Surviving Corporation (in
the case of a merger where the Company is the Surviving
Corporation), until thereafter amended as provided by applicable
law, the Articles of Incorporation of the Surviving Corporation and
such By-laws.
Section 1.5
Top-Up Option.
(a)
The Company
hereby grants to Parent and Purchaser an option (the “
Top-Up Option ”), exercisable only if, at the
Expiration Date, the aggregate number of Shares validly tendered in
accordance with the terms of the Offer and not withdrawn, when
taken together with all Shares then owned by Parent, Purchaser and
their Affiliates (collectively, the “ Base Shares
”), equal or exceed 80% of the outstanding Shares on a fully
diluted basis immediately prior to such Expiration Date, to
purchase from the Company (the “ Top-Up Purchase
”), at a price per share equal to the Offer Price, that
number of newly issued shares of Company Common Stock as may be
designated in writing by the Parent or Purchaser (but not in excess
of the lowest number of shares of Company Common Stock that, when
added to the Base Shares, shall constitute a sufficient number of
shares of Company Common Stock to effect a short-form merger under
URBCA 16-10a-1104) (the “ Top-Up Shares
”). If such Top-Up Option is exercised, Parent and
Purchaser shall consummate the Top-Up Purchase within five
(5) Business Days of the Expiration Date and contemporaneously
with the acceptance for payment and purchase of all Shares validly
tendered pursuant to the Offer, whereupon the Company shall issue
the Top-Up Shares to Purchaser, and Purchaser shall (and Parent
shall cause Purchaser to) promptly pay to the Company, in, at the
option of Purchaser, (i) cash and/or (ii) a full-recourse
promissory note issued by Purchaser to the Company with a maturity
of one year, bearing interest at an annual rate equal to four
percent (4%), in a principal amount equal to the Offer Price
multiplied by the number of Top-Up Shares. The parties shall
cooperate to ensure that the issuance of the Top-Up Shares is
accomplished consistent with all applicable legal and
stock
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exchange listing
requirements. Notwithstanding anything in this Agreement to
the contrary (x) the Top-Up Option shall not be exercisable if
any provision of applicable laws or any judgment, injunction, order
or decree of any Governmental Entity would prohibit, or require any
action, consent, approval, authorization or permit of, or filing
with or notification to, any Governmental Entity or the
Company’s stockholders in connection with the exercise of the
Top-Up Option or the delivery of the Top-Up Shares in respect of
such exercise, which action, consent, approval, authorization,
permit, filing or notification has not theretofore been obtained or
made, as applicable (other than any filings required under the
Exchange Act or applicable stock exchange listing requirements),
and (y) the Top-Up Option shall be exercisable only up to the
number of authorized but unissued shares of the Company’s
Common Stock.
(b)
In the event
Purchaser wishes to exercise the Top-Up Option, Purchaser shall
deliver to the Company a notice (the “ Top-Up Notice
”) setting forth (i) the number of Top-Up Shares that
Purchaser intends to purchase pursuant to the Top-Up Option, (ii)
the manner in which Purchaser intends to pay the applicable
purchase price, and (iii) the place and time at which the closing
of the purchase of such Top-Up Shares is to occur. At such
closing, Parent and Purchaser shall cause to be delivered to the
Company the consideration required to be delivered in exchange for
the Top-Up Shares, and the Company shall cause to be issued to
Purchaser a certificate representing the Top-Up Shares. The
parties hereto agree to use their commercially reasonable efforts
to cause such closing to occur on the same day that the Top-Up
Notice is deemed received by the Company pursuant to this
Agreement, and if not so consummated on such day, as promptly
thereafter as possible. The parties further agree to use
their commercially reasonable efforts to cause the Merger to be
consummated in accordance with the URBCA as soon as practicable
following the issuance of the Top-Up Shares.
(c)
Parent and
Purchaser understand that the Top-Up Shares will not be registered
under any securities laws and will be issued in reliance upon an
exemption thereunder for transactions not involving a public
offering. Parent and Purchaser represent that the Top-Up
Option is being, and the Top-Up Shares will be, acquired by
Purchaser for the purpose of investment and not with a view to or
for resale in connection with any distribution thereof within the
meaning of any securities laws. Any certificates evidencing
Top-Up Shares may include any legends required by applicable
securities laws.
Section 1.6
[Intentionally
Omitted]
Section 1.7
Effective Time
. Parent, the Purchaser and
the Company will cause appropriate Articles of Merger (the
“Articles of Merger”) to be executed and filed on the
date of the Closing (as defined in Section 1.8 hereof) (or on
such other date as Parent and the Company may agree) with the Utah
Department of Commerce, Division of Corporations &
Commercial Code (the “Division”) as provided in the
URBCA. The Merger shall become effective on the date on which
the Articles of Merger has been duly filed with the Utah Department
of Commerce, Division of Corporations & Commercial Code or
such time as is agreed upon by the parties and specified in the
Articles of Merger, and such time is hereinafter referred to as the
“Effective Time.”
Section 1.8
Closing . The closing of the Merger (the
“Closing”) will take place at 10:00 a.m. on a date
to be specified by the parties and when the Division is open for
business,
7
which date shall be no later than the second
Business Day after satisfaction or waiver of all of the conditions
set forth in Article VI hereof (other than those conditions
that by their nature are to be satisfied at the Closing, but
subject to the fulfillment or waiver of those conditions) (the
“Closing Date”), at the offices of Kirkland &
Ellis LLP, 200 East Randolph Drive, Chicago, Illinois, unless
another date or place is agreed to in writing by the parties
hereto.
Section 1.9
Directors and Officers of the
Surviving Corporation. The directors and officers of the Company
shall resign as of the Effective Time and the directors of the
Purchaser immediately prior to the Effective Time shall, from and
after the Effective Time, be the directors of the Surviving
Corporation, and the officers of Purchaser immediately prior to the
Effective Time shall, from and after the Effective Time, be the
officers of the Surviving Corporation, in each case until their
respective successors shall have been duly elected or appointed or
qualified or until their earlier death, resignation or removal in
accordance with the Surviving Corporation’s Articles of
Incorporation and By-laws.
ARTICLE II
CONVERSION OF SECURITIES
Section 2.1
Conversion of Capital
Stock . As of the
Effective Time, by virtue of the Merger and without any action on
the part of the holders of any shares of Company Common Stock, any
other securities of the Company or any shares of the
Purchaser’s common stock, par value $0.001 per share (“
Purchaser Common Stock ”):
(a)
Conversion of
Purchaser Common Stock . Each issued and
outstanding share of Purchaser Common Stock shall be converted into
and become one fully paid and nonassessable share of common stock
of the Surviving Corporation.
(b)
Cancellation of Treasury Stock and Parent-Owned Shares
. All shares of Company Common Stock that are owned by the
Company as treasury stock and any shares of Company Common Stock
owned by Parent, the Purchaser or any other wholly owned Subsidiary
of Parent shall be cancelled and retired and shall cease to exist
and no consideration shall be delivered in exchange
therefor.
(c)
Conversion of
Shares . Each issued and
outstanding share of Company Common Stock (other than shares to be
cancelled in accordance with Section 2.1(b) hereof, and
other than Dissenting Shares (as defined in Section 2.3
hereof)), shall be converted into the right to receive the Offer
Price, payable to the holder thereof, without interest (the
“Merger Consideration”), upon surrender of the
certificate formerly representing such share of Company Common
Stock in the manner provided in Section 2.2 hereof. From
and after the Effective Time, all such shares of Company Common
Stock 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 2.2 hereof, without
interest.
8
(d)
Conversion of Company Stock Options . Each Company
Stock Option (as defined in Section 2.4(a) hereof),
issued and outstanding immediately prior to the Effective Time
shall be converted into (as provided in and subject to the
limitations set forth in this Article II) the right to receive
from the Surviving Corporation the Option Consideration (as defined
in Section 2.4(a) hereof) without interest thereon.
As of the Effective Time, all such Company Stock Options shall no
longer be outstanding and shall automatically be canceled and
retired and shall cease to exist, and each holder of any such
Company Stock Option shall cease to have any rights with respect
thereto, except the right to receive the Option Consideration into
which their Company Stock Options have been converted by the Merger
as provided in this Section 2.1(d) and
Section 2.4(a) hereof.
Section
2.2
Exchange of Certificates .
(a)
Paying Agent . Parent shall designate a bank or trust
company, which shall be reasonably acceptable to the Company, to
act as agent for the holders of Shares in connection with the
Merger (the “Paying Agent”) to receive the funds to
which holders of Shares shall become entitled pursuant to
Section 2.1(c) hereof. Promptly following the
Effective Time, Parent or the Purchaser shall deposit, or cause to
be deposited, with the Paying Agent the aggregate Merger
Consideration. Such funds shall be invested by the Paying
Agent as directed by Parent or the Surviving Corporation pending
payment thereof by the Paying Agent to the holders of the
Shares. Earnings from such investments shall be the sole and
exclusive property of Parent and the Surviving Corporation, and no
part of such earnings shall accrue to the benefit of holders of
Shares. To the extent that there are losses with respect to
any such investments, or the funds diminish for other reasons below
the level required to make prompt payment of the Merger
Consideration as contemplated hereby, Parent or the Survivng
Corporation shall promptly replace or restore such portion of the
funds to ensure that there are sufficient funds, at all times, to
make all payments in full.
(b)
Exchange Procedures . As soon as reasonably
practicable after the Effective Time, the Paying Agent shall mail
to each holder of record of a certificate or certificates, which
immediately prior to the Effective Time represented outstanding
shares of Company Common Stock (the “ Certificates
”), whose shares were converted pursuant to Section 2.1
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
Parent 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 or to such other
agent or agents as may be appointed by Parent, together with such
letter of transmittal, duly executed, the holder of such
Certificate shall be entitled to receive in exchange therefor the
Merger Consideration for each share of Company Common Stock
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
9
or shall have established to
the satisfaction of the Surviving Corporation that such tax either
has been paid or is not applicable. Until surrendered as
contemplated by this Section 2.2, 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 2.2, without interest thereon.
(c)
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 on the records of the
Company. From and after the Effective Time, the holders of
Certificates evidencing ownership of Shares 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
are presented to the Surviving Corporation for any reason, they
shall be cancelled and exchanged as provided in this
Article II.
(d)
Termination of Fund; No Liability . At any time
following six months after the Effective Time, the Surviving
Corporation 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 to the Surviving
Corporation (subject to abandoned property, escheat or other
similar laws) only as general creditors thereof with respect to the
Merger Consideration payable upon due surrender of their
Certificates, without any interest thereon. Notwithstanding
the foregoing, none of the Surviving Corporation, its Affiliates
(including the Company and the Affiliates of the Company), nor the
Paying Agent shall be liable to any holder of a Certificate for any
Merger Consideration delivered to a public official pursuant to the
proper following of any applicable abandoned property, escheat or
similar law.
(e)
If any Certificate shall have been lost, stolen or destroyed, upon
the making of an affidavit (acceptable to Parent in its reasonable
discretion) of that fact by the person claiming such
Certificate to be lost, stolen or destroyed and, if required by the
Surviving Corporation or the Paying Agent, the posting by such
person of a bond in such amount as the Surviving Corporation or the
Paying Agent may direct, the Paying Agent will issue the Merger
Consideration in exchange for the shares represented by such lost,
stolen or destroyed Certificate.
Section
2.3
Dissenting Shares .
(a)
Notwithstanding anything in this Agreement to the contrary, Shares
outstanding immediately prior to the Effective Time and held by a
holder who has not voted in favor of the Merger or consented
thereto in writing and who has complied with all of the relevant
provisions of Section 16-10a-1301, et seq. of the URBCA
(“Dissenting Shares”) shall not be converted into a
right to receive the Merger Consideration, unless such holder fails
to perfect or withdraws or otherwise loses his or her right to
appraisal. A holder of Dissenting Shares shall be entitled to
receive payment of the appraised value of such Shares held by him
or her in accordance with the provisions of
Section 16-10a-1301, et seq. of the URBCA, unless, after the
Effective Time, such holder fails to perfect or withdraws or loses
his or her right to
10
appraisal, in which case
such Shares shall be converted into and represent only the right to
receive the Merger Consideration, without interest thereon, upon
surrender of the Certificate or Certificates representing such
Shares pursuant to Section 2.2.
(b)
The Company shall give Parent (i) prompt notice of any written
demands for appraisal of any Shares, attempted withdrawals of such
demands and any other instruments served pursuant to the URBCA and
received by the Company relating to rights of appraisal and
(ii) the opportunity to direct all negotiations and
proceedings with respect to demands for appraisal under the
URBCA. Except with the prior written consent of Parent, the
Company shall not voluntarily make any payment with respect to any
demands for appraisal or settle or offer to settle any such demands
for appraisal.
(c)
Each holder of Dissenting Shares who becomes entitled under the
applicable URBCA provisions to payment for Dissenting Shares shall
receive payment therefor after the Effective Time from the
Surviving Corporation (but only after the amount thereof shall have
been agreed upon or finally determined pursuant to the applicable
URBCA provisions).
Section
2.4
Company Stock Options; Option Consideration . (a)
Except as disclosed in this Section 2.4 and except to the
extent that Parent, the Purchaser and the holder of any option
otherwise agree in writing prior to or contemporaneously with the
Effective Time, the Surviving Corporation shall promptly after the
Effective Time pay in cash to each holder of an outstanding option
to purchase Company Common Stock (a “ Company Stock
Option ”) granted pursuant to the Company’s 1988
Nonqualified Stock Option Plan (the “ Company Stock Option
Plan ”), in settlement of each such Company Stock Option,
whether or not exercisable or vested, an amount in respect thereof
equal to the product of (x) the excess, if any, of the Merger
Consideration over the exercise price of such Company Stock Option,
and (y) the number of shares of Company Common Stock subject to
such Company Stock Option immediately prior to its settlement (the
“ Option Consideration ”) (such payment to be
net of all applicable withholding taxes). Upon delivery of
the Option Consideration in respect of a Company Stock Option, such
Company Stock Option shall be canceled. The surrender of a
Company Stock Option to the Company in exchange for the Option
Consideration shall be deemed to be a release of all rights the
holder had or may have had in respect of such Company Stock
Option.
(b)
Termination of Company Stock Option Plan . Except as
may otherwise be agreed to in writing by Parent, the Purchaser and
the Company, the Company Stock Option Plan shall terminate as of
the Effective Time, and no holder of any Company Stock Option or
any participant in any Company Stock Option Plan shall have any
rights thereunder to acquire any capital stock or other equity
securities of the Company, the Surviving Corporation or any
Subsidiary thereof.
(c)
Termination of Other Plans and Programs . Except as
may otherwise be agreed to in writing by Parent, the Purchaser and
the Company, all other plans, programs, agreements and other
arrangements providing for the issuance or grant of any other
interest in respect of the capital stock or any other equity
securities of the Company or any of its Subsidiaries shall
terminate as of the Effective Time, and no participant under any
such plan, program, agreement or arrangement shall have any rights
thereunder (including any rights to
11
acquire any capital stock or
other equity securities of the Company, the Surviving Corporation
or any Subsidiary thereof).
Section
2.5
Adjustment of Merger Consideration . In the event
that, subsequent to the date of this Agreement but prior to the
Effective Time, the Shares shall have been changed into a different
number of shares or shares of a different class as a result of a
stock split, reverse stock split, stock dividend, subdivision,
reclassification, split, combination, exchange, recapitalization or
other similar transaction, the Merger Consideration and the Option
Consideration shall be appropriately adjusted to take into account
the effects of any such event.
Section
2.6
Withholding . Parent, the Purchaser, the Surviving
Corporation and Paying Agent shall be entitled to deduct and
withhold from the Merger Consideration and Option Consideration
otherwise payable or issuable pursuant to this Agreement to any
holder of Shares or Company Stock Options, as applicable, such
amount as is required to be deducted and withheld with respect to
such payment or issuance under any provision of federal, state,
local or foreign tax law. To the extent that amounts are so
withheld, such withheld amounts shall promptly be paid to the
appropriate Governmental Entity and shall be treated for all
purposes of this Agreement as having been paid to the holder of
Shares and Company Stock Options in respect of which such deduction
and withholding was made.
ARTICLE III
REPRESENTATIONS AND
WARRANTIES OF THE COMPANY
Except as disclosed in a separate
disclosure schedule referring to the Sections contained in this
Agreement, which has been delivered by the Company to Parent and
the Purchaser prior to the execution of this Agreement (the “
Company Disclosure Schedule ”), the Company hereby
represents and warrants to Parent and the Purchaser
that:
Section
3.1
Organization; Subsidiaries .
(a)
Each of the Company and its Subsidiaries (other than Cyanco) is a
corporation or other legal entity duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation or organization and has the requisite organizational
power and authority and all necessary governmental approvals to
own, lease and operate the properties and assets it currently owns,
operates or holds under lease and to carry on its business as it is
now being conducted. Each of the Company and its Subsidiaries
is duly qualified or licensed as a foreign entity to do business,
and is in good standing, in each jurisdiction where the character
of the properties owned, leased or operated by it or the nature of
its business makes such qualification or licensing necessary,
except for such failures to be so qualified or licensed and in good
standing that would not, individually or in the aggregate, have a
Company Material Adverse Effect. The Company has heretofore
furnished to Parent and Purchaser complete and correct copies of
its Articles of Incorporation and By-laws, each as amended to the
date hereof. Such Articles of Incorporation and By-laws are
in full force and effect. The Company is not in violation of
any provision of its Articles of Incorporation or
By-laws.
12
(b)
Cyanco company (“ Cyanco ”) is a non-corporate
joint venture pursuant to the joint venture agreement dated
May 23, 1992, as amended (the “ Joint Venture
Agreement ”), between Winnemucca Chemicals Inc., a Nevada
corporation (“ Winnemucca ”) and wholly-owned
Subsidiary of the Company, and CyPlus Corporation, a Delaware
corporation. The Company has made available to Purchaser a
true and complete copy of the Joint Venture Agreement. The
Joint Venture Agreement is valid, binding and enforceable in
accordance with its terms and shall be in full force and effect in
accordance with its terms upon consummation of the transactions
contemplated hereby. Winnemucca is not in default under or in
violation of any provision of the Joint Venture Agreement.
Section 3.1 of the Company Disclosure Schedule sets forth a
list of all of the officers and executive committee members of
Cyanco. Cyanco has all requisite power and authority and
possesses all governmental franchises, licenses, authorizations and
permits necessary to enable it to own, lease or otherwise hold and
operate its properties and assets, and to carry on its business as
presently conducted.
(c)
Except as disclosed in Section 3.1 of the Company Disclosure
Schedule, the Company does not directly or indirectly own any
equity or similar interest in, or any interest convertible into or
exchangeable or exercisable for any equity or similar interest in,
any corporation, partnership, limited liability company, joint
venture or other business association or entity. All
outstanding equity interests of each such Subsidiary of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable, and are owned, directly or indirectly, by the
Company free and clear of any Liens, and there are no outstanding
options, warrants, convertible securities, calls, rights,
commitments, preemptive rights or agreements or instruments or
understandings of any character, obligating any Subsidiary of the
Company to issue, deliver or sell, or cause to be issued, delivered
or sold, contingently or otherwise, additional equity interests in
such Subsidiary or any securities or obligations convertible or
exchangeable for such equity interests or to grant, extend or enter
into any such option, warrants, convertible security, call, right,
commitment, preemptive right or agreement.
Section
3.2
Capitalization .
(a)
The authorized capital stock of the Company consists of 500,000,000
shares of Company Common Stock. As of the date hereof,
7,004,172 shares of Company Common Stock are issued and
outstanding. There are no bonds, debentures, notes or other
indebtedness having general voting rights (or convertible into
securities having such rights) (“ Voting Debt ”)
of the Company or any of its Subsidiaries issued and
outstanding. Section 3.2 of the Company Disclosure
Schedule sets forth the maximum number of shares of Company Common
Stock issuable upon the exercise or conversion of each outstanding
Company Stock Option and the exercise or conversion price
thereof. Except for the Company Stock Options granted under
the Company Stock Option Plan and the Top-Up Option under
Section 1.5 hereof, and except as otherwise described
in Section 3.2 of the Company Disclosure Schedule, there are
no existing options, warrants, convertible securities, calls,
subscriptions, or other rights or other agreements or commitments
obligating the Company to issue, transfer or sell, or caused to be
issued, transferred or sold, contingently or otherwise, any shares
of capital stock or other equity securities or Voting Debt of the
Company or any other securities convertible into or evidencing the
right to subscribe for purchase any such shares, securities or
Voting Debt. Except as identified and described in
Section 3.2 of the Company Disclosure Schedule, there are
no
13
outstanding stock
appreciation rights or similar phantom equity securities with
respect to the capital stock of the Company. All issued and
outstanding shares of Company Common Stock are, and all shares of
Company Common Stock which may be issued pursuant to the exercise
of outstanding Company Stock Options or the Top-Up Option will be,
when issued in accordance with the terms thereof (including the
payment of the consideration therefor), duly authorized and validly
issued, fully paid, non-assessable and free of preemptive rights
with respect thereto. Except as expressly contemplated by any
of the Transaction Agreements, there are no outstanding contractual
obligations of the Company or any of its Subsidiaries to
repurchase, redeem or otherwise acquire any shares, or the capital
stock of the Company or any Subsidiary or Affiliate of the Company
or, except as set forth in Section 3.2 of the Company
Disclosure Schedule, to provide funds to make any investment (in
the form of a loan, capital contribution or otherwise) in any
Subsidiary or any other entity.
(b)
Except as identified and described in Section 3.2 of the
Company Disclosure Schedule, there are no voting trusts or other
agreements or understandings to which the Company or any of its
Subsidiaries is a party with respect to the voting of the capital
stock of the Company or any of its Subsidiaries.
(c)
Following the Effective Time, no holder of Company Stock Options
will have any right to receive shares of common stock of the
Surviving Corporation upon exercise of the Company Stock
Options.
(d)
The most recent balance sheets contained in the Company SEC Reports
and the Cyanco Financial Statements reflect the total indebtedness
of the Company and its Subsidiaries outstanding on the date of such
balance sheets. Since the date of such balance sheets neither
the Company nor its Subsidiaries has increased the amount of such
indebtedness except in the ordinary course of business, consistent
with past practices. Except as disclosed on
Section 3.2(d) of the Company Disclosure Schedule, no
indebtedness of the Company or any of its Subsidiaries contains any
restriction upon the prepayment of indebtedness of the Company or
any of its Subsidiaries.
Section
3.3
Authorization; Validity of Agreement; Company Action
.
(a)
The Company has all necessary corporate power and authority to
execute and deliver each of the Transaction Agreements, to perform
its obligations hereunder and to consummate the Merger and the
other Transactions. The execution and delivery of this
Agreement and the other Transaction Agreements by the Company and
the consummation by the Company of the Transactions have been duly
and validly authorized by all necessary corporate action and no
other corporate proceedings on the part of the Company are
necessary to authorize any of the Transaction Agreements or to
consummate any of the Transactions (other than, with respect to the
Merger, the adoption of this Agreement by the holders of a majority
of the outstanding shares of Company Common Stock and the filing
and recordation of appropriate merger documents in accordance with
Section 1.4 hereof). No other vote of the security
holders of the Company is required in order for the Company to
consummate the Merger and the transactions contemplated
hereby. This Agreement and the other Transaction Agreements
have been duly and validly executed and delivered by the Company
and, assuming the due authorization, execution and delivery by
Parent and the Purchaser, constitute legal, valid and
14
binding obligations of the
Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles.
(b)
The Board of Directors of the Company, at a meeting duly called and
held, has unanimously (i) determined that each of the
Transaction Agreements and each of the Transactions (including the
Offer and the Merger) are in the best interests of the stockholders
of the Company; (ii) approved and taken all other corporate
action required to be taken by the Board of Directors for the
consummation of the Transactions; and (iii) resolved to
recommend that the stockholders of the Company accept the Offer,
tender their Shares to the Purchaser pursuant to the Offer and
approve and adopt this Agreement and the Merger, and none of the
aforesaid actions by the Board of Directors of the Company has been
amended, rescinded or modified.
Section
3.4
No Violations; Consents and Approvals .
(a)
Except as disclosed in Section 3.4 of the Company Disclosure
Schedule, the execution and delivery of this Agreement, or any of
the other Transaction Agreements, by the Company does not, and the
consummation by the Company of the Transactions will not
(i) conflict with or result in any breach of any provision of
the Articles of Incorporation or By-laws or similar organizational
documents of the Company or any of its Subsidiaries,
(ii) subject to obtaining the approval of the stockholders of
the Company, require any material filing with, or material permit,
authorization, consent or approval of, any court, arbitral
tribunal, administrative agency or commission or other governmental
or other regulatory authority or agency (a “ Governmental
Entity ”), (iii) result in a material violation or
breach of, or constitute (with or without due notice or lapse of
time or both) a material default (or give rise to any right of
termination, amendment, cancellation or acceleration or result in
the creation of any Lien upon any of the properties or assets of
the Company or its Subsidiaries) under, any of the terms,
conditions or provisions of any material note, bond, mortgage,
indenture, lease, license, permit, franchise, concession, contract,
agreement or other instrument or obligation to which the Company or
any of its Subsidiaries is a party or by which any of them or any
of their properties or assets may be bound or (iv) violate any
material order, writ, injunction, judgment, decree, statute, law,
rule, regulation, ordinance, permit or license applicable to the
Company or any of its Subsidiaries or any of their properties or
assets.
(b)
Except as disclosed in Section 3.4 of the Company Disclosure
Schedule, the execution and delivery of this Agreement by the
Company does not, and the consummation by the Company of the
Transactions will not, require any material declaration, filing,
permit, consent, registration or notice to or authorization or
approval of any Governmental Entity, except for declarations,
filings, permits, consents, registrations, notices, authorizations
and approvals as may be required under, and other applicable
requirements of, the Exchange Act, the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the “ HSR Act
”), foreign antitrust or competition laws or regulations,
state securities or blue sky laws and the URBCA.
15
Section
3.5
SEC Reports and Financial Statements .
(a)
The Company has filed with the SEC, and has heretofore made
available to Parent true and complete copies of, all forms,
reports, schedules, statements and other documents required to be
filed by it since January 1, 2005 under the Exchange Act or
the Securities Act of 1933, as amended (the “ Securities
Act ”) (as such documents have been amended since the
time of their filing, collectively, the “ Company SEC
Reports ”). As of their respective dates or, if
amended, as of the date of the last such amendment, the Company SEC
Reports, including any financial statements or schedules included
therein (a) did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading and
(b) complied as to form in all material respects with the
applicable requirements of the Exchange Act and the Securities Act,
as the case may be, and the applicable rules and regulations
of the SEC thereunder. None of the Subsidiaries is required
to file any forms, reports or other documents with the SEC.
The Company will deliver to Parent and the Purchaser promptly after
they become publicly available true and complete copies of any
Company SEC Reports filed subsequent to the date hereof and prior
to the Effective Time.
(b)
Each of the financial statements (including, in each case, any
notes and schedules thereto) contained in the Company SEC Reports
complied as to form in all material respects with the applicable
accounting requirements and rules and regulations of the SEC
and was prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis
throughout the periods indicated (except as may be indicated in the
notes thereto) (“ GAAP ”), and each fairly
presented in all material respects the consolidated financial
position, results of operations and cash flows of the Company and
its consolidated Subsidiaries as at the respective dates thereof
and for the respective periods indicated therein in accordance with
GAAP, subject, in the case of unaudited statements, to the absence
of footnotes and to normal and recurring year-end adjustments none
of which are expected, individually or in the aggregate, to be
material in amount.
(c)
Section 3.5(c) of the Company Disclosure Schedule sets
forth true and complete copies of the (i) audited balance
sheet of Cyanco as of December 31, 2007 and the audited
statements of income, joint venture capital and cash flow of Cyanco
for the fiscal year then ended (collectively, the “
Audited Cyanco Financial Statements ”), and
(ii) unaudited balance sheet as of June 30, 2008 and the
unaudited statements of income, joint venture capital and cash flow
of Cyanco for the six-month period then ended (together with the
Audited Cyanco Financial Statements, the “ Cyanco
Financial Statements ”). The Cyanco Financial
Statements have been prepared in conformity with GAAP, consistently
applied throughout the periods covered thereby, and fairly present
in all material respects the financial condition of Cyanco as of
the respective dates thereof and the operating results of Cyanco
for the periods covered thereby, subject, in the case of the
unaudited statements, to the absence of footnotes and to normal and
recurring year-end adjustments none of which are expected,
individually or in the aggregate, to be material in
amount.
Section
3.6
Absence of Certain Changes or Events . Except as
disclosed in Section 3.6 of the Company Disclosure Schedule, since
January 1, 2008: (i) the Company and its Subsidiaries have, in all
material respects, conducted their respective businesses only in
the ordinary and usual course consistent with past practice, (ii)
there has not occurred any events or changes (including the
incurrence of any liabilities of any nature, whether or not
accrued,
16
contingent or otherwise) that have had or would
be reasonably likely to have, individually or in the aggregate, a
Company Material Adverse Effect, and (iii) neither the Company nor
any of its Subsidiaries has taken any action that would have been
prohibited under Section 5.1 hereof if such section applied to the
period between January 1, 2008 and the date of this
Agreement.
Section
3.7
Schedule 14D-9; Offer Documents; Proxy Statement .
Neither the Schedule 14D-9, nor any other document required to be
filed by the Company with the SEC in connection with the
Transactions, will, at the respective times the Schedule 14D-9, any
such other filings by the Company, or any amendments or supplements
thereto are filed with the SEC or are first mailed to Company
stockholders, as the case may be, contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made,
not misleading. Information provided by the Company for
inclusion in the Offer Documents will not, at the respective times
the Offer Documents are filed with the SEC or are first mailed to
Company stockholders, contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements made in light of the circumstances under which they were
made, not misleading. The Proxy Statement (or any amendment
thereof or supplement thereto), if any, will not, at the date
mailed to Company stockholders and at the time of the Special
Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
Notwithstanding the foregoing, the Company makes no representation
or warranty with respect to statements made in any of the foregoing
documents based on information supplied by Parent or the Purchaser
in writing for inclusion therein. The Schedule 14D-9, any
such other filings by the Company and the Proxy Statement, if any,
will comply in all material respects with the provisions of the
applicable federal securities laws and the rules and regulations
thereunder.
Section
3.8
Employee Benefit Plans; ERISA .
(a)
Section 3.8(a) of the Company Disclosure Schedule
contains a complete and correct list of each employee benefit plan
(as defined in Section 3(3) of ERISA) and each
other benefit or compensation plan, program, policy, practice,
arrangement or contract of any kind maintained, sponsored,
contributed or required to be contributed to by the Company or any
of its Subsidiaries or with respect to which the Company or any of
its Subsidiaries has any material current or potential liability or
obligation. Each item listed in Section 3.8(a) of
the Company Disclosure Schedule is referred to herein as a “
Benefit Plan .”
(b)
Each Benefit Plan that is intended to be qualified within the
meaning of Section 401(a) of the Code is a prototype plan
and is entitled to rely on an opinion letter from the IRS that such
Benefit Plan is qualified in form under Section 401(a) of
the Code, and nothing has occurred since the date of such IRS
opinion letter that could adversely affect the qualification of
such Benefit Plan. Each such Benefit Plan has been timely
amended to comply with the legislation commonly referred to as
“GUST” and “EGTRRA.”
(c)
None of the Company, its Subsidiaries or any ERISA Affiliate has
any current or potential liability to the Pension Benefit Guaranty
Corporation or otherwise under Title IV of ERISA. None of the
Company, its Subsidiaries or any ERISA Affiliate has
any
17
current or potential
liability or obligation (including any liability on account of a
“partial withdrawal” or a “complete
withdrawal” within the meaning of Sections 4205 and 4203 or
ERISA, respectively) under or with respect to (i) any
“employee pension benefit plan” (as such term is
defined in Section 3(2) of ERISA) that is subject to
Section 302 of ERISA, Title IV of ERISA or
Section 412 of the Code, or (ii) any “multiemployer
plan” (as such term is defined in Section 3(37) of
ERISA). Neither the Company nor any of its Subsidiaries
maintains, sponsors, contributes to or has any current or potential
obligation or liability under or with respect to (A) any
“multiple employer plan” (as defined in
Section 210 of ERISA or Section 413(c) of the Code),
(B) any “multiple employer welfare arrangement”
(as defined in Section 3(40) of ERISA), or (C) except as
disclosed on Section 3.8(c) of the Company Disclosure
Schedule, any plan or arrangement that provides for post-employment
or post-termination health or life insurance or other welfare or
welfare-type benefits to any Person. The Company, its
Subsidiaries and the ERISA Affiliates have complied with the
requirements of COBRA.
(d)
Each Benefit Plan and any related trust, insurance contract or fund
has been maintained, funded and administered in compliance in all
material respects with its respective terms and in compliance in
all material respects with all applicable laws, including ERISA and
the Code.
(e)
With respect to each Benefit Plan, the Company has provided to
Parent and the Purchaser true, complete and correct copies of (to
the extent applicable) (i) all documents pursuant to which the
Benefit Plan is maintained, funded and administered, (ii) the
most recent annual report (Form 5500 series) filed with the
IRS (with applicable attachments), (iii) the most recent
financial statements, and (iv) the most recent summary plan
description provided to participants.
(f)
With respect to each Benefit Plan, all required or
recommended premium payments, contributions, distributions,
reimbursements and accruals for all periods (or partial periods)
ending prior to or as of the Closing shall have been made or
properly accrued. None of the Benefit Plans has any material
unfunded liabilities.
(g)
There has been no prohibited transaction (as defined in
Section 406 of ERISA or Section 4975 of the Code) or
breach of fiduciary duty (as determined under ERISA) with respect
to any Benefit Plan. No action, suit, proceeding, hearing,
audit or investigation with respect to any Benefit Plan (other than
routine claims for benefits) is pending or, to the Company’s
knowledge, threatened.
(h)
Except as disclosed on Section 3.8(h) of the Company
Disclosure Schedule, neither the execution and delivery of this
Agreement, nor the consummation of the Transactions contemplated
hereby (either alone or in conjunction with any other event) will
(i) result in any payment (including severance, unemployment
compensation, golden parachute, bonus, or otherwise) becoming due
to any Person under any Benefit Plan, (ii) increase any
benefits or compensation payable under any Benefit Plan, or
(iii) result in the acceleration of the time of payment or
vesting of any such benefits or compensation.
Section
3.9
Litigation . Except as disclosed on Section 3.9 of the
Company Disclosure Schedule, there is no material litigation,
arbitration, suit, claim, action, proceeding,
18
investigation or review by or before any
Governmental Entity pending or, to the Company’s knowledge,
threatened against or affecting the Company or any of its
Subsidiaries, including any suit, claim, action, proceeding or
investigation which questions or challenges the validity of this
Agreement or any action to be taken by the Company or any of its
Subsidiaries pursuant to this Agreement or in connection with the
Transactions, and there is not known to the Company any reasonable
basis for any such suit, claim, action, proceeding or
investigation. Except as disclosed in Section 3.9 of the
Company Disclosure Schedule, neither the Company nor any of its
Subsidiaries is subject to any material judgments, awards, decrees,
injunctions or orders of any Governmental Entity applicable to the
Company or any of its Subsidiaries.
Section
3.10
Environmental and Safety Matters . Except as disclosed
in Section 3.10 of the Company Disclosure Schedule:
(a)
to its Knowledge, the Company and its Subsidiaries have complied in
all material respects, and are in compliance in all material
respects, with all Environmental and Safety Requirements, which
compliance has included obtaining and complying at all times in all
material respects with all permits, licenses and other
authorizations required pursuant to Environmental and Safety
Requirements for the occupation of the Real Property and the
operation of the business;
(b)
neither the Company nor any of its Subsidiaries has received any
written notice, report or other information regarding any actual or
alleged material violation of Environmental and Safety
Requirements, or any material liabilities or potential liabilities
(whether accrued, absolute, contingent, unliquidated or otherwise),
including any investigatory, remedial or corrective obligations,
relating to the business or the Real Property and arising under any
Environmental and Safety Requirements;
(c)
to its Knowledge, none of the Company, its Subsidiaries, or their
respective predecessors has treated, stored, disposed of, arranged
for or permitted the disposal of, transported, handled, released,
or exposed any person to, any substance, including any Hazardous
Substance, or owned or operated any property or facility (and no
such property or facility is contaminated by any such substance) in
a manner giving rise to any current or future material liabilities,
including any material liability for response costs, corrective
action costs, personal injury, property damage, natural resources
damages or attorney fees, or any investigative, corrective or
remedial obligations, pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
(“ CERCLA ”) or the Solid Waste Disposal Act, as
amended (“ SWDA ”) or any other Environmental
and Safety Requirements;
(d)
neither the Company nor any of its Subsidiaries has assumed,
undertaken, or otherwise become subject to any liability of another
Person, or provided an indemnity with respect to any liability,
relating to Environmental and Safety Requirements; and
(e)
the Company has furnished to Purchaser all envir
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