<PAGE>
Exhibit 2.3
EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
by and among
GARDNER DENVER, INC.,
NEPTUNE HOLDINGS II, INC.,
and
NASH_ELMO CORP.
July 28, 2004
TABLE OF CONTENTS
Article I THE
MERGER.......................................................1
Article II EFFECT ON THE CONSTITUENT
ENTITIES..............................2
Article III CONDITIONS TO
CLOSING..........................................4
Article IV REPRESENTATIONS AND WARRANTIES
OF THE COMPANY...................7
Article V REPRESENTATIONS AND WARRANTIES OF
BUYER AND MERGER SUB..........10
Article VI PRE-CLOSING
COVENANTS..........................................11
Article VII
TERMINATION...................................................11
Article VIII ADDITIONAL COVENANTS AND
AGREEMENTS..........................12
Article IX
DEFINITIONS....................................................13
Article X
MISCELLANEOUS...................................................17
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EXHIBITS
Exhibit A
Form of Letter of Transmittal
Exhibit B
Form of Closing Certificate of the Company
Exhibit C
Form of Closing Certificate of Buyer and Merger Sub
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SCHEDULES
Section Reference
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Authorization Schedule..........3.01(d),
3.02(c), 4.05(a), 4.05(b), 5.04, 8.04
Business Conduct
Schedule.................................................6.01
Litigation
Schedule.......................................................4.06
Stockholders
Schedule............................................4.03,
4.07(f)
Taxes
Schedule............................................................4.07
Transaction Expenses
Schedule.............................................4.08
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AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is
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made as of July 28, 2004, by and among
Gardner Denver, Inc., a Delaware
corporation ("Buyer"), Neptune Holdings II,
Inc., a Delaware corporation and
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a wholly owned Subsidiary of Buyer ("Merger
Sub"), and nash_elmo Corp., a
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Delaware corporation (the "Company").
Capitalized terms used and not
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otherwise defined herein have the meanings
set forth in Article IX.
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WHEREAS, the Company is a corporation duly organized and
validly existing under the Laws of the
State of Delaware;
WHEREAS, Merger Sub is a corporation duly organized and
validly existing under the Laws of the
State of Delaware; and
WHEREAS, the respective Boards of Directors of Buyer,
Merger Sub and the Company have approved
this Agreement, the merger of
Merger Sub with and into the Company (the
"Merger") and the related
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transactions contemplated hereby, upon the
terms and subject to the
conditions set forth herein.
NOW, THEREFORE,
in consideration of the premises,
representations and warranties and mutual
covenants contained herein and of
other good and valuable consideration, the
receipt and sufficiency of which
are hereby acknowledged, the parties
hereto, intending to be legally bound,
do hereby agree as follows:
ARTICLE I
THE MERGER
1.01 The Merger. On the terms and subject to the conditions set
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forth in this Agreement, at the Effective
Time, Merger Sub shall be merged
with and into the Company, the separate
existence of Merger Sub shall cease,
the Company shall continue in existence as
a wholly owned Subsidiary of
Buyer (as such, the "Surviving
Corporation") and the Merger shall in all
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respects have the effects provided for by
the General Corporation Law of
Delaware (the "GCL"). Without limiting the
generality of the foregoing, the
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Surviving Corporation shall succeed to all
the assets, rights, privileges,
powers and franchises and be subject to all
of the liabilities,
restrictions, disabilities and duties of
the Company and Merger Sub,
including under this Agreement, all as
provided under the GCL.
1.02
Effective Time. Prior to the Closing the Company shall
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prepare, and on the Closing Date, upon
satisfaction of the terms and
conditions set forth herein, the Company
shall file with the Secretary of
State of the State of Delaware, a
certificate of merger (the "Certificate of
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Merger") executed in accordance with the
relevant provisions of the GCL and
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shall make all other filings or recordings
required under the GCL. The
Merger shall become effective at such time
as the Certificate of Merger is
duly filed with such Secretary of State or
at such other time as Buyer and
the Company shall agree and specify in the
Certificate of Merger (the time
the Merger becomes effective being the
"Effective Time").
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1.03 Certificate of Incorporation and Bylaws. From and after
the
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Effective Time:
(a) The certificate of incorporation of Merger Sub, as in
effect immediately prior to the Effective
Time, shall be amended at the
Effective Time to change the corporate name
set forth therein to "nash_elmo
Corp." and, as so amended, shall be the
certificate of incorporation of the
Surviving Corporation until thereafter
changed or amended in accordance with
the provisions thereof and applicable
Law.
(b) The bylaws of Merger Sub as in effect immediately prior to
the Effective Time shall be the bylaws of
the Surviving Corporation until
thereafter changed or amended in accordance
with the provisions thereof, the
provisions of the certificate of
incorporation of the Surviving Corporation
and applicable Law.
1.04 Directors. From and after the Effective Time, the directors
of
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Merger Sub immediately prior to the
Effective Time shall be the directors of
the Surviving Corporation, until the
earlier of their resignation or removal
or until their respective successors are
duly elected and qualified, as the
case may be.
1.05 Officers. From and after the Effective Time, the officers
of
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Merger Sub immediately prior to the
Effective Time shall be the officers of
the Surviving Corporation, until the
earlier of their resignation or removal
or until their respective successors are
duly elected and qualified, as the
case may be.
ARTICLE II
EFFECT ON THE CONSTITUENT ENTITIES
2.01 Effect on Capital Stock of Merger Sub. At the Effective
Time,
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each issued and outstanding share of common
stock of Merger Sub, par value
$0.001 per share, by virtue of the Merger
and without any action on the part
of the holder thereof, shall be converted
into and become one fully paid and
nonassessable share of common stock, par
value $0.01 per share, of the
Surviving Corporation.
2.02 Effect on Capital Stock of the Company. At the Effective
Time,
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each issued and outstanding share of Common
Stock by virtue of the Merger
and without any action on the part of the
holder thereof, shall be converted
into the right to receive, subject to the
terms of this Agreement, an amount
in cash equal to the Final Common Share
Price; provided, however, that the
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amount paid at the Effective Time pursuant
to Section 2.05 below in respect
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of such share of Common Stock shall be an
amount in cash equal to the
Closing Common Share Price. Following the
Effective Time, the Final Common
Share Price (to the extent not paid
pursuant to the preceding sentence)
shall be paid in respect of each share of
Common Stock in accordance with
the provisions set forth in this Agreement,
the LLC Merger Agreement and the
Escrow Agreement (as defined in the LLC
Merger Agreement). Notwithstanding
the foregoing, any shares of Common Stock
owned by the Company, Merger Sub
or Buyer shall not convert as described in
this Section 2.02 but shall
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instead by virtue of the Merger and without
any action on the part of the
holder thereof be canceled and retired and
shall cease to exist with no
payment being made hereunder with respect
thereto.
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2.03 Delivery of Closing Common Share Price Calculation. At
least
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two business days prior to the Closing
Date, the Company shall deliver to
Buyer its good faith calculation of the
Closing Common Share Price as of the
Closing Date.
2.04 The Closing. The closing of the transactions contemplated
by
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this Agreement (the "Closing") shall take
place at the offices of Kirkland &
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Ellis LLP located at 200 East Randolph
Drive, Chicago, Illinois, on the same
day as, and immediately prior to, the
closing of the LLC Merger Transaction.
The date and time of the Closing are
referred to herein as the "Closing
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Date."
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2.05 Exchange Procedures.
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(a) Paying Agent. The Company (and, after the Effective Time,
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the Surviving Corporation) shall act as
paying agent (the "Paying Agent") in
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effecting the payment of the Closing Date
Merger Consideration to the
holders of shares of Common Stock thereto
in accordance with this Article II.
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Simultaneous with the Closing, each holder
who has delivered its respective
Securityholder Documents shall be paid at
the Effective Time the
consideration to which he, she or it is
entitled under Section 2.02. Payment
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to each holder of such amount shall be made
by wire transfer of funds to an
account designated in writing by such
holder to the Paying Agent.
(b) Payment of Closing Date Merger Consideration; Delivery of
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Securityholder Documents at the Closing. At
the Closing, Buyer shall pay to
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the Paying Agent, by wire transfer of
immediately available funds to an
account designated by the Paying Agent no
later than two days prior to the
Closing Date, an amount equal to the
Closing Date Merger Consideration. At
the Effective Time (or after the Effective
Time in the case of a holder of
record not delivering the appropriate
Securityholder Documents until after
the Effective Time), the Paying Agent shall
deliver to each holder of
record, as of the Effective Time, of
outstanding shares of Common Stock,
upon each holder's delivery of the
respective Securityholder Documents, the
consideration payable to such holder as set
forth in Section 2.02 above by
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wire transfer of immediately available
funds to an account designated by
such holder to the Paying Agent prior to
the Closing. The documents to be
delivered by holders of shares of Common
Stock (referred to herein as the
"Securityholder Documents") shall be a duly
executed letter of transmittal
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substantially in the form attached hereto
as Exhibit A (the "Letter of
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---------
Transmittal").
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(c) Delivery of Securityholder Documents After the Closing.
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With respect to each share of Common Stock
for which the respective
Securityholder Documents were not so
delivered at or prior to the Closing,
the Paying Agent shall promptly thereafter
mail to the holder thereof
instructions for delivering such
Securityholder Documents in exchange for
the payment to such holder of the
consideration to which he, she or it is
entitled under Section 2.02 above. Upon
delivery to the Paying Agent of such
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Securityholder Documents, the Paying Agent
shall deliver to such holder in
exchange therefor the amounts set forth in
Section 2.02 above.
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(d) No Interest Accrual; Conditions to Payment. No interest
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will be paid or accrued on the amounts
payable upon the delivery of the
Securityholder Documents. If payment is to
be made to a Person other than
the Person in whose name a share of Common
Stock is registered, it shall be
a condition of payment that the Person
requesting such payment shall pay
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any transfer or similar taxes required by
reason of the payment to a Person
other than the holder of record or shall
establish to the satisfaction of
the Paying Agent that such tax has been
paid or is not applicable. Until the
respective Securityholder Documents are
delivered with respect to any share
of Common Stock, such share shall represent
for all purposes only the right
to receive payment of the amounts specified
in Section 2.02 above in respect
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of such share.
(e) Unclaimed Funds. Any portion of the funds deposited with
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the Paying Agent which remains
undistributed to the holders of shares of
Common Stock for one year after the
Effective Time shall become available to
the Surviving Corporation for all purposes,
and any holder of shares of
Common Stock who has not theretofore
complied with this Section 2.05 shall
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thereafter look only as a general claimant
to the Surviving Corporation for
payment of the sums to which such holder is
entitled pursuant to this
Agreement.
(f) No Liability. Neither Buyer nor the Surviving Corporation
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shall be liable to any holder of shares of
Common Stock for any cash
delivered by the Paying Agent or the
Surviving Corporation in good faith to
a public official pursuant to an applicable
abandoned property, escheat or
similar Law.
(g) No Further Ownership Rights in Common Stock; Transfer
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Books. After the Effective Time, there
shall be no further registration of
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transfers on the stock transfer books of
the Surviving Corporation of shares
of Common Stock that were outstanding
immediately prior to the Effective
Time. At the Effective Time, the stock
ledger of the Company shall be
closed.
2.06 Post-Closing Reconciliation. For the avoidance of doubt,
each
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Seller shall be entitled to its share
(determined in accordance with Section
2.08 of the LLC Merger Agreement) of any
Settlement Payment paid to the
Representative under Section 2.08 of the
LLC Merger Agreement (as such terms
are defined in the LLC Merger
Agreement).
ARTICLE III
CONDITIONS TO CLOSING
3.01 Conditions to Buyer's Obligations. The obligation of Buyer
to
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consummate the transactions contemplated by
this Agreement is subject to the
satisfaction of the following conditions as
of the Closing Date:
(a) The representations and warranties set forth in Article IV
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shall be true and correct at and as of the
date hereof and at and as of the
Closing Date (without giving any effect to
any update or amendment to the
schedules hereto between the date of this
Agreement and the Closing Date and
without giving effect to any materiality or
Material Adverse Effect
qualifications contained therein) with the
same force and effect as though
made at and as of the Closing Date (except
to the extent any representation
or warranty is made as of a particular
date, in which case such
representation or warranty shall be true
and correct at and as of such
particular date), except where the failure
of such representations and
warranties to be so true and correct would
not have a Material Adverse
Effect;
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(b) The Company shall have performed in all respects all of
the covenants, obligations and other
agreements required to be performed or
complied with by it under this Agreement at
or prior to the Closing, except
where any failure to perform any covenant,
obligation or agreement would not
have a Material Adverse Effect;
(c) No Material Adverse Effect shall have occurred except as
such relates to any matter in existence on
the date hereof and to the extent
set forth specifically on any schedule
attached hereto (without giving
effect to any update or amendment to such
schedules between the date of this
Agreement and the Closing Date);
(d) Each of the material clearances, consents, waivers and
approvals or other authorizations of
Governmental Entities listed on the
Authorization Schedule and marked with an
asterisk shall have been obtained
----------------------
or satisfied and the applicable waiting
periods, if any, under the HSR Act
shall have expired or have been terminated,
in each case, subject to Section
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8.03;
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(e) No judgment, decree or order shall have been entered which
would prevent the performance of this
Agreement or the consummation of any
material part of the transactions
contemplated hereby, declare void or
unlawful the transactions contemplated by
this Agreement or cause such
transactions to be rescinded;
(f) The Company shall have delivered to Buyer each of the
following:
(i) a certificate of the Company
in the form set forth in
Exhibit B, dated the Closing Date, stating
that the preconditions specified
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in subsections (a) and (b) have been
satisfied;
(ii) a copy of the
Company's certificate of incorporation
certified by the Secretary of State of the
State of Delaware and a
certificate of good standing from Delaware,
in each case dated within ten
days of the Closing Date;
(iii) certified copies of the resolutions duly adopted by
the Company's Board of Directors
authorizing its execution, delivery and
performance of this Agreement and the other
agreements contemplated hereby
to which it is a party, and the
consummation of all transactions
contemplated hereby and thereby; and
(iv) certified copies
of the resolutions duly adopted by
the Company's stockholders authorizing the
Company to execute, deliver and
perform this Agreement and the other
agreements contemplated hereby to which
it is a party, and the consummation of all
transactions contemplated hereby
and thereby; and
(g) All other conditions set out in Section 3.01 of the LLC
Merger Agreement shall have been (or shall
be capable of being as of such
date) satisfied or duly waived by Buyer in
accordance with the terms of such
LLC Merger Agreement.
If the Closing occurs, all closing conditions set forth in this
Section 3.01 which have not been fully
satisfied as of the Closing shall be
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deemed to have been fully waived by
Buyer.
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3.02 Conditions to the Company's Obligations. The obligation of
the
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Company to consummate the transactions
contemplated by this Agreement is
subject to the satisfaction of the
following conditions as of the Closing
Date:
(a) The representations and warranties set forth in Article V
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shall be true and correct at and as of the
date hereof and at and as of the
Closing Date (without giving any effect to
any update or amendment to the
schedules hereto between the date of this
Agreement and the Closing Date and
without giving effect to any materiality
qualifications contained therein)
with the same force and effect as though
made at and as of the Closing Date
(except to the extent any representation or
warranty is made as of a
particular date, in which case, such
representation or warranty shall be
true and correct at and as of such
particular date), except where the
failure of such representations and
warranties to be so true and correct
would not be materially adverse to the
ability of Buyer and Merger Sub to
consummate the transactions contemplated by
this Agreement;
(b) Each of Buyer and Merger Sub shall have performed in all
respects all the covenants, obligations and
other agreements required to be
performed or complied with by it under this
Agreement at or prior to the
Closing, except where any failure to
perform any covenant, obligation or
agreement would not be materially adverse
to the ability of Buyer and Merger
Sub to consummate the transactions
contemplated by this Agreement;
(c) Each of the material clearances, waivers, consents and
approvals or other authorizations of
Governmental Entities listed on the
Authorization Schedule and marked with an
asterisk shall have been obtained
----------------------
or satisfied and the applicable waiting
periods, if any, under the HSR Act
shall have expired or have been terminated,
in each case, subject to Section
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8.03;
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(d) No judgment, decree or order shall have been entered which
would prevent the performance of this
Agreement or the consummation of any
material part of the transactions
contemplated hereby, declare void or
unlawful the transactions contemplated by
this Agreement or cause such
transactions to be rescinded;
(e) Buyer and Merger Sub shall have delivered to the Company a
certificate in the form set forth as
Exhibit C, dated the Closing Date,
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stating that the preconditions specified in
subsections (a) and (b) have
been satisfied;
(f) Each of Buyer and Merger Sub shall have delivered to the
Company certified copies of the resolutions
duly adopted by its respective
board of directors (or its equivalent
governing body), and, in the case of
Merger Sub, also by its stockholders,
authorizing its execution, delivery
and performance of this Agreement and the
other agreements contemplated
hereby to which it is a party, and the
consummation of all transactions
contemplated hereby and thereby;
(g) All other conditions set out in Section 3.02 of the LLC
Merger Agreement shall have been (or shall
be capable of being as of such
date) satisfied or duly waived in
accordance with the terms of such LLC
Merger Agreement; and
(h) Buyer shall have delivered the consideration contemplated
by Section 2.05(b).
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If the Closing occurs, all closing conditions set forth in this
Section 3.02 which have not been fully
satisfied as of the Closing shall be
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deemed to have been fully waived by the
Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in a disclosure schedule referenced
herein, the Company represents and warrants
to Buyer and Merger Sub that:
4.01 Organization and Qualification; Subsidiaries. The Company is
a
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corporation duly organized, validly
existing and in good standing under the
Laws of the State of Delaware and has the
requisite power and authority to
own, lease and operate its properties and
to carry on its business as it is
now being conducted. Except in connection
with (a) its incorporation and
organization, (b) tax filing obligations
(subject to Section 4.07), (c) the
purchase and ownership of the Class A Units
(including the obligations
incurred in connection with the (i) Call
Option Agreement, dated May 7,
2002, between the Company and Audax Private
Equity Fund, L.P. and (ii) Call
Option Agreement, dated May 7, 2002,
between the Company and Audax Trust
Co-Invest, L.P.), in each case pursuant to
which the Company shall have no
further liabilities as of the Closing Date,
(d) the Agreement, dated May 7,
2002, between the Company and Audax
Management Company, LLC, pursuant to
which the Company shall have no further
liabilities as of the Closing Date
and (e) the negotiation and consummation of
this Agreement and the
documents, agreements, instruments and
transactions contemplated hereby, the
Company has not (x) engaged in any business
or activity of any type or kind
whatsoever; (y) incurred (and does not
currently have) any indebtedness,
obligation or liability of any kind
(absolute, accrued, contingent or
otherwise); or (z) entered into any
agreement or arrangement with any
Person. The Company has no Subsidiaries
other than Holdings LLC. Other than
its ownership interest in Holdings LLC, the
agreements referenced in this
Section 4.01, the corporate governance
documents and the rights attendant to
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any Delaware corporation, the Company owns
or leases no other assets.
4.02 Governance Documents. The Company has heretofore made
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available to Buyer a true, complete and
correct copy of the certificate of
incorporation and bylaws, each as amended
to date, of the Company. Such
certificate of incorporation and bylaws are
in full force and effect. The
Company is not in violation in any material
respect of any provision of its
certificate of incorporation or bylaws.
4.03 Capitalization. The authorized capital stock of the
Company
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consists of 1,000 shares of Common Stock,
of which 100.0002 shares are
issued and outstanding as of the date
hereof and the attached Stockholders
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Schedule sets for the names of all
stockholders of the Company and the
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number of shares of capital stock owned by
each stockholder. All issued and
outstanding shares of the Company are duly
authorized and validly issued.
Except as set forth on the attached
Stockholders Schedule or in this Section
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4.03, there are no options, warrants,
calls, commitments, rights to convert,
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purchase rights, subscription rights,
"phantom stock" rights, or other
rights relating to issued or unissued
equity securities of the Company or
obligating the Company to issue or sell any
equity securities of, or other
equity interests in, the Company. Except as
set forth on the attached
Stockholders Schedule, there are no
outstanding contractual
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obligations of the Company to repurchase,
redeem or otherwise acquire any
equity securities of the Company, or make
any investment (in the form of a
loan, capital contribution or otherw
