Agreement and Plan of Merger (2015)Full Document 

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AGREEMENT AND PLAN OF MERGER

among

FRI Holding Company, LLC, a Delaware limited liability company

and

FRI Merger Sub, LLC, an Ohio limited liability company

and

Frisch’s Restaurants, Inc., an Ohio corporation

dated as of

May 21, 2015

ARTICLE 1. THE MERGER 1
1.1 The Merger. 1
1.2 Closing. 1
1.3 Effective Time. 2
1.4 Effects of the Merger. 2
1.5 Articles of Incorporation; Code of Regulations. 2
1.6 Directors and Officers of the Surviving Corporation. 2
1.7 Further Actions. 2
ARTICLE 2. CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES 3
2.1 Effect on Capital Stock. 3
2.2 Changes in Capital Stock. 3
2.3 Exchange of Certificates. 3
2.4 Company Stock Plan. 5
2.5 Dissenting Shares. 6
2.6 Company Executive Savings Plan. 7
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY 7
3.1 Organization; Standing; Power. 7
3.2 Capitalization. 7
3.3 Subsidiaries. 9
3.4 Authority; No Violation. 10
3.5 Consents and Approvals. 10
3.6 SEC Filings; Financial Statements; Information Provided. 11
3.7 No Undisclosed Liabilities. 13
3.8 Absence of Certain Changes or Events. 13
3.9 Legal Proceedings. 13
3.10 Compliance with Laws. 14
3.11 Tax Matters. 14
3.12 Employee Benefit Matters. 15
3.13 Labor Matters. 18
3.14 Contracts. 19
3.15 Property. 20
3.16 Intellectual Property. 22
3.17 Environmental Matters. 23
3.18 Insurance. 24
3.19 No Rights Plan. 24
3.20 Broker’s Fees. 24
3.21 Opinion of Financial Advisor. 25
3.22 Certain Business Practices. 25
3.23 Related Party Transactions. 25

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3.24 Franchise Matters. 25
3.25 No Other Representations or Warranties. 26
3.26 Full Disclosure. 27
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB 27
4.1 Organization, Qualification, Subsidiaries, Etc. 27
4.2 Authority; No Violation. 27
4.3 Legal Proceedings. 28
4.4 Proxy Statement; Other Information. 28
4.5 Operations of Merger Sub. 29
4.6 Available Funds; Financing Commitments. 29
4.7 Agreements with Company Shareholders, Directors, Officers and Employees. 30
4.8 Parent Ownership of Company Securities. 30
4.9 Broker’s Fees. 30
4.10 Access to Information; Disclaimer. 30
4.11 Solvency. 31
4.12 Guarantee. 31
4.13 Organization and Financial Condition of Guarantor. 31
ARTICLE 5. COVENANTS AND AGREEMENTS 31
5.1 Conduct of the Company’s Business Before the Effective Time. 31
5.2 Conduct of Business of Parent and Merger Sub. 35
5.3 Financing Transactions. 36
5.4 Proxy Statement. 36
5.5 Shareholder Approval. 37
5.6 Access to Information; Confidentiality. 37
5.7 Non-Solicitation. 38
5.8 Efforts. 40
5.9 Public Disclosure. 41
5.10 Employees; Benefit Plans. 41
5.11 Indemnification; Directors’ and Officers’ Insurance. 44
5.12 Notice of Certain Events. 46
5.13 Stock Exchange Delisting; Exchange Act Deregistration. 46
5.14 Control of Operations. 46
5.15 Section 16 Matters. 46
5.16 Financing Cooperation. 46
5.17 Transaction Costs. 47
5.18 Further Assurances. 47
ARTICLE 6. CONDITIONS PRECEDENT 48
6.1 Conditions to Each Party’s Obligation To Effect the Merger. 48
6.2 Conditions to Obligations of Parent and Merger Sub. 48

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6.3 Conditions to Obligations of the Company. 49
6.4 Frustration of Closing Conditions. 50
ARTICLE 7. TERMINATION AND AMENDMENT 50
7.1 Termination. 50
7.2 Effect of Termination. 51
7.3 Fees and Expenses. 52
7.4 Amendment. 53
7.5 Extension; Waiver. 53
ARTICLE 8. GENERAL PROVISIONS 53
8.1 Nonsurvival of Representations, Warranties and Agreements. 53
8.2 Notices. 53
8.3 Interpretation. 54
8.4 Certain Definitions. 54
8.5 Counterparts. 54
8.6 Entire Agreement. 55
8.7 Governing Law; Jurisdiction. 55
8.8 WAIVER OF JURY TRIAL. 55
8.9 Assignment; Third-Party Beneficiaries. 55
8.10 Enforcement. 56
8.11 Disclosure Schedules. 57

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EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER is dated as of May 21, 2015 (this “Agreement”), by and among FRI Holding Company, LLC, a Delaware limited liability company (“Parent”), FRI Merger Sub, LLC, an Ohio limited liability company, and a wholly owned subsidiary of Parent (“Merger Sub”), and Frisch’s Restaurants, Inc., an Ohio corporation (the “Company”). Each of the aforementioned entities is referred to herein as a “Party” and, together, as the “Parties.”

WITNESSETH:

WHEREAS, the Parties intend that Merger Sub be merged with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Parent in a transaction intended to qualify as a taxable stock acquisition under Section 1001 of the Internal Revenue Code of 1986, as amended (the “Code”);

WHEREAS, the Board of Directors of the Company (the “Company Board”) has (i) determined that it is in the best interests of the Company and its shareholders, and declared it advisable, to enter into this Agreement, (ii) adopted this Agreement, (iii) approved the execution, delivery and performance of this Agreement and the transactions contemplated hereby, and (iv) resolved to recommend adoption of this Agreement by the shareholders of the Company;

WHEREAS, the sole member of Parent has adopted and approved this Agreement, and has caused Merger Sub to adopt and approve this Agreement, and declared it advisable for Parent and Merger Sub, respectively, to enter into this Agreement;

WHEREAS, concurrently with the execution and delivery of this Agreement, as a condition and inducement to the willingness of the Company to enter into this Agreement, NRD Partners I, L.P. (“Guarantor”) has executed and delivered a guarantee in favor of the Company dated concurrently with this Agreement (the “Guarantee”), pursuant to which Guarantor is guaranteeing certain obligations of Parent and Merger Sub in connection with this Agreement; and

WHEREAS, the Parties desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe certain conditions to the Merger;

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:

ARTICLE 1. THE MERGER

1.1 The Merger. Subject to the terms and conditions of this Agreement, in accordance with the laws of the State of Ohio (“Ohio Law”), at the Effective Time (as defined in Section 1.3, below), Merger Sub shall merge with and into the Company. The Company shall be the surviving corporation in the Merger (the “Surviving Corporation”) and shall continue its corporate existence under Ohio Law. As of the Effective Time, the separate corporate existence of Merger Sub shall cease.

1.2 Closing. The closing of the Merger (the “Closing”) shall take place at 10:00 a.m., Eastern time, on a date to be specified by Parent and the Company (the “Closing Date”), which shall be no later than the earlier of (i) the first Tuesday after satisfaction or waiver of the conditions set forth in Article 6 (other than the delivery of items to be delivered at the Closing and other than satisfaction of those conditions that by their nature are to be satisfied at the Closing, it being understood that the occurrence of the Closing shall remain subject to the delivery of such items and the satisfaction or waiver of such conditions at the Closing), or (ii) September 30, 2015. The Closing will take place at the offices of Cummins & Brown LLC, 312 Walnut Street, Suite 1000, Cincinnati, Ohio 45243, unless another place is agreed to in writing by Parent and the Company.

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1.3 Effective Time. The Merger shall become effective upon the filing of the Articles of Merger with the Ohio Secretary of State (the “Articles of Merger”) or at such later time as is agreed to by Parent and the Company and set forth in the Articles of Merger (the “Effective Time”).

1.4 Effects of the Merger. At and after the Effective Time, the Merger shall have the effects set forth in this Agreement, the Articles of Merger and Ohio Law.

1.5 Articles of Incorporation; Code of Regulations.

(a) At the Effective Time, the Company’s Third Amended Articles of Incorporation (“Company Articles”) shall be amended in form and substance satisfactory to Parent, and, as so amended, shall be the Articles of Incorporation of the Surviving Corporation until thereafter amended.

(b) At the Effective Time, the Company’s Amended and Restated Code of Regulations dated October 2, 2006 (“Company Regulations”) shall be amended in form and substance satisfactory to Parent, shall be the Code of Regulations of the Surviving Corporation until thereafter amended.

1.6 Directors and Officers of the Surviving Corporation.

(a) Each of the Parties shall take all necessary action to cause the managers of Merger Sub immediately before the Effective Time to be the directors of the Surviving Corporation immediately following the Effective Time, until their respective successors are duly elected or appointed and qualified or their earlier death, resignation or removal in accordance with the Articles of Incorporation and Regulations of the Surviving Corporation.

(b) The officers of Merger Sub immediately before the Effective Time shall be the officers of the Surviving Corporation until their respective successors are duly appointed and qualified or their earlier death, resignation or removal in accordance with the Articles of Incorporation and Regulations of the Surviving Corporation.

1.7 Further Actions. If at any time after the Effective Time, the Surviving Corporation shall determine, in its sole discretion, or shall be advised, that any deeds, bills of sale, instruments of conveyance, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm its right, title or interest in, to or under any of the rights, properties or assets of either of the Company or Merger Sub, or otherwise to carry out this Agreement, then the officers and directors of the Surviving Corporation shall be authorized to execute and deliver, in the name and on behalf of either the Company or Merger Sub, all such deeds, bills of sale, instruments of conveyance, assignments and assurances and to take and do, in the name and on behalf of each of such parties or otherwise, all such other actions and things as may be necessary or desirable to vest, perfect or confirm any and all right, title or interest in, to and under such rights, properties or assets in the Surviving Corporation or otherwise to carry out this Agreement.

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ARTICLE 2. CONVERSION OF SHARES; EXCHANGE OF CERTIFICATES

2.1 Effect on Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holder of any of the following securities:

(a) Conversion of Common Stock. Subject to the adjustments set forth in Section 2.2, each share of common stock, no par value per share, of the Company issued and outstanding immediately before the Effective Time (collectively, the “Company Common Stock” and, each, a “Share”), including all Restricted Shares (as defined in Section 2.4(a)), shall be converted automatically into the right to receive $34.00 per Share in cash (the “Merger Consideration”), without interest, except for shares to be cancelled in accordance with Section 2.1(b) and Dissenting Shares as provided for in Section 2.5 below. All Shares that have been converted into the right to receive the Merger Consideration as provided in this Section 2.1(a) shall be automatically cancelled upon the conversion thereof and shall cease to exist, and the holders of certificates that immediately before the Effective Time represented such Shares shall cease to have any rights with respect to such Shares other than the right to receive the Merger Consideration pursuant to this Section 2.1(a) upon the surrender of such certificates in accordance with Section 2.3, without interest. Stock Options and the rights associated therewith pursuant to this Agreement are described in Section 2.4 of this Agreement.

(b) Parent- and Merger Sub-Owned Shares. Each Share that is owned directly by Parent, Merger Sub or the Company (as treasury stock or otherwise) or any of their respective direct or indirect Subsidiaries, immediately before the Effective Time (the “Cancelled Shares”) shall be cancelled and shall cease to exist, and no consideration shall be delivered in exchange for such cancellation.

(c) Conversion of Merger Sub Membership Interests. Each membership interest in Merger Sub issued and outstanding immediately before the Effective Time shall be converted at the Effective Time into and become one validly issued, fully paid and nonassessable share of common stock, no par value per share, of the Surviving Corporation. At the Effective Time, new stock certificates of the Surviving Corporation shall be issued and will be deemed for all purposes to represent all issued and outstanding shares of common stock of the Surviving Corporation into which membership interests in Merger Sub were converted in accordance with the immediately preceding sentence.

2.2 Changes in Capital Stock. The Merger Consideration shall be adjusted to reflect fully the effect of any reclassification, stock split, reverse split, stock dividend (including any dividend or distribution of securities convertible into Company Common Stock), reorganization, recapitalization or other like change with respect to Company Common Stock occurring (or for which a record date is established) after the date hereof and before the Effective Time.

2.3 Exchange of Certificates.

(a) Paying Agent. At or before the Effective Time, Parent shall deposit, or shall cause to be deposited, with U.S. Bank National Association, 425 Walnut Street, Cincinnati, Ohio 45202, or, in the alternative, an agent chosen by the Parent and acceptable to the Company, to act as paying agent hereunder (the “Paying Agent”), in trust for the benefit of holders of the Shares, cash in U.S. dollars sufficient to pay the aggregate Merger Consideration in exchange for all of the Shares outstanding immediately before the Effective Time, payable upon due surrender of the certificates that immediately before the Effective Time represented Shares (“Certificates”) (or effective affidavits of loss in lieu thereof) or noncertificated Shares represented by book entry (“Book-Entry Shares”) pursuant to the provisions of this Article 2 (such cash being hereinafter referred to as the “Exchange Fund”).

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(b) Payment Procedures.

(i) As soon as reasonably practicable after the Effective Time and in any event not later than the fifth business day following the Closing Date, the Surviving Corporation shall instruct the Paying Agent to mail to each holder of record of Shares that were converted into the Merger Consideration pursuant to Section 2.1 the following: (A) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to Certificates shall pass, only upon delivery of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares to the Paying Agent and shall be in such form and have such other provisions as Parent and the Company may mutually agree) and (B) instructions for use by the Shareholder in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares in exchange for the Merger Consideration.

(ii) Upon surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares to the Paying Agent together with such letter of transmittal, duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required by the Paying Agent, the holder of such Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares shall be entitled to receive from the Exchange Fund in exchange therefor an amount in cash equal to the product of (x) the number of Shares represented by such holder’s properly surrendered Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares and (y) the Merger Consideration. No interest will be paid or accrued on any amount payable upon due surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares. In the event of a transfer of ownership of Shares that is not registered in the transfer records of the Company, payment upon due surrender of the Certificate may be paid to such a transferee if the Certificate formerly representing such Shares is presented to the Paying Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid or are not applicable. The Merger Consideration, paid in full with respect to any Share in accordance with the terms hereof, shall be deemed to have been paid in full satisfaction of all rights pertaining to such Share. Any portion of the Merger Consideration made available to the Paying Agent in respect of any Dissenting Shares (as defined below) shall be dealt with in accordance with Section 2.5 below.

(iii) Each of the Paying Agent, the Company, Parent, Merger Sub and their respective Subsidiaries or agents, as applicable, shall be entitled to deduct and withhold from any amounts otherwise payable under this Agreement such amounts as it is required to deduct and withhold under the Code, and the regulations promulgated thereunder, or any provision of state, local or foreign Tax Law with respect to the making of such payment. To the extent that amounts are so deducted or withheld, such deducted or withheld amounts (A) shall be remitted by the applicable entity to the appropriate Governmental Entity (as defined in Section 3.5) within the period required under applicable Law and (B) shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction or withholding was made.

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(c) Closing of Transfer Books. At the Effective Time, the stock transfer books of the Company shall be closed, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the Shares that were outstanding immediately before the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation or Parent for transfer, the holder of Certificates shall be given a copy of the letter of transmittal referred to in Section 2.3(b) and instructed to comply with the instructions in that letter of transmittal in order to receive the cash to which such holder is entitled pursuant to this Article 2.

(d) Termination of Exchange Fund. Any portion of the Exchange Fund (including the proceeds of any investments thereof) that remains undistributed to the former holders of Shares for 180 days after the Effective Time shall be delivered to the Surviving Corporation upon demand, and any former holders of Shares who have not surrendered their Shares in accordance with this Section 2.3 shall thereafter look only to the Surviving Corporation for payment of their claim for the Merger Consideration, without any interest thereon, upon due surrender of their Shares.

(e) No Liability. Anything herein to the contrary notwithstanding, none of the Company, Parent, Merger Sub, the Surviving Corporation, the Paying Agent or any other person shall be liable to any holder or former holder of Shares or to any other person for any amount properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

(f) Investment of Exchange Fund. The Paying Agent shall invest all cash included in the Exchange Fund as reasonably directed by Parent; provided, however, that any investment of such cash shall be limited to direct short-term obligations of, or short-term obligations fully guaranteed as to principal and interest by, the U.S. government. Any interest and other income resulting from such investments shall be paid to the Surviving Corporation pursuant to Section 2.3(d).

(g) Lost Certificates. In the case of any Certificate that has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by the Paying Agent or Parent, the posting by such person of a bond in customary amount as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate a check in the amount of the number of Shares represented by such lost, stolen or destroyed Certificate multiplied by the Merger Consideration, without any interest thereon.

2.4 Company Stock Plan.

(a) Immediately before the Effective Time, each share of Company Common Stock granted subject to time-based, performance or other vesting or lapse restrictions pursuant to any Company Stock Plan (as defined in Section 2.4(b)) (each, a “Restricted Share”), that is outstanding and subject to such restrictions immediately before the Effective Time, shall automatically vest and any performance conditions shall be deemed to have been satisfied to the maximum extent possible such that the recipient shall be entitled to 100% of the shares of Company Common Stock subject to such Restricted Share, and the Company’s reacquisition right with respect to each Restricted Share shall lapse, and the holder thereof shall, subject to this Article 2, be entitled to receive the Merger Consideration (as defined in Section 2.1(a)) with respect to each such Restricted Share.

(b) The Company shall take such action as shall be required:

(i) to cause the vesting of any unvested options to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”) to be accelerated in full immediately before the Effective Time; and

(ii) to cause each outstanding Company Stock Option to represent, as of the Effective Time, solely the right to receive, in accordance with this Section 2.4 and subject to Section 2.3(b)(iii), a lump sum cash payment in the amount of the Option Consideration, if any, with respect to such Company Stock Option and to no longer represent the right to purchase Company Common Stock or any other equity security of the Company, Parent, the Surviving Corporation or any other person or any other consideration.

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(c) Each holder of a Company Stock Option cancelled pursuant to Section 2.4(b)(ii) shall receive from Parent or the Surviving Corporation, in respect and in consideration of each such Company Stock Option, as soon as practicable following the Effective Time (but in any event not later than five Business Days), an amount (net of applicable Taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per Share over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of Shares subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and shall have no further force or effect. The Option Consideration shall constitute the Merger Consideration for each Share that was subject to a Company Stock Option, and the holder of such Shares shall receive no other payment or consideration, and such Shares shall be cancelled immediately upon payment of the Option Consideration.

(d) Following the execution of this Agreement, (i) if and as required by the Company Stock Plans, the Company shall mail to each person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.4 and providing instructions for use in obtaining payment for such Company Stock Options, and (ii) the Company shall take all actions necessary or appropriate to terminate the Company Stock Plans as of the Effective Time (including any necessary or appropriate action of the Company Board). Parent shall, or shall cause the Surviving Corporation to, at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.4.

2.5 Dissenting Shares. Notwithstanding any provision of this Agreement to the contrary, including Section 2.1, shares of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than shares cancelled in accordance with Section 2.1(b)) and held by a holder who has not voted in favor of adoption of this Agreement or consented thereto in writing and who has properly exercised appraisal rights of such shares in accordance with Ohio Law (such shares of Company Common Stock being referred to collectively as the “Dissenting Shares” until such time as such holder fails to perfect or otherwise loses such holder's appraisal rights under Ohio Law with respect to such shares) shall not be converted into a right to receive the Merger Consideration, but instead shall be entitled to only such rights as are granted by Ohio Law; provided, however, that if, after the Effective Time, such holder fails to perfect, withdraws or loses such holder's right to appraisal pursuant to Ohio Law or if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Ohio Law, such shares of Company Common Stock shall be treated as if they had been converted as of the Effective Time into the right to receive the Merger Consideration in accordance with Section 2.1(a), without interest thereon, upon surrender of such Certificate or Book-Entry Share. The Company shall provide Parent prompt written notice of any demands received by the Company for appraisal of shares of Company Common Stock, any withdrawal of any such demand and any other demand, notice or instrument delivered to the Company prior to the Effective Time pursuant to Ohio Law that relates to such demand. The Company shall keep Parent fully informed of the status of all negotiations and proceedings with respect to such demands, and consult with Parent prior to making any payment with respect to, or settle or offer to settle, any such demands.

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2.6 Company Executive Savings Plan. For each share of Company Common Stock that has been allocated to participants under the Company’s Executive Savings Plan, such participant shall be entitled to receive the Merger Consideration, without interest, in the form and at the time specified by the terms of the Company’s Executive Savings Plan. Allocated Shares under the Company’s Executive Savings Plan shall be automatically cancelled and shall cease to exist upon payment of the Merger Consideration. Any Shares under the Company’s Executive Savings Plan that have been reserved for issuance, but that have not yet been allocated to participants immediately before the Effective Time, shall be cancelled and cease to exist and no consideration shall be delivered in exchanged for the cancellation of such Shares.

ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY

For purposes of this Agreement, “Company Material Adverse Effect” means any event, change, circumstance, occurrence, effect or state of facts that is or would reasonably be expected to become, individually or in the aggregate, (a) materially adverse to the business, assets, condition or results of operations of the Company taken as a whole, or (b) materially impairs or prevents or materially delays the ability of the Company to consummate the transaction contemplated by this Agreement; provided, however, that none of the following events, changes, circumstances, or statements of fact, either alone or in combination, will constitute a Company Material Adverse Effect under this definition: (i) those events generally affecting the industry of the Company or the economy or financial or securities markets of the United States, including effects resulting from any regulatory or political conditions or developments in general (unless such events, changes, circumstances, occurrences, effects and states of fact have a disproportionate impact on the Company taken as a whole); (ii) any outbreak or escalation of hostilities or declared or undeclared acts of war or terrorism; (iii) changes or proposed changes in Law or GAAP (unless such changes or proposed changes have a disproportionate impact on the Company taken as a whole); (iv) any change in the market price or trading volume of any securities of the Company; (v) any change of or failure to meet, in and of itself, any internal or public projections, forecasts, budgets or estimates of or relating to the Company for any period; (vi) any hurricane, tropical storm, flood, forest fire, earthquake, winter storm, snow storm, or any similar natural disaster; (vii) the execution, announcement, performance and existence of this Agreement; (viii) any action taken or not taken by the Company at the request of or with the approval of the Buyer; or (ix) any action taken by Parent, Merger Sub or any of their Affiliates.

The Company represents and warrants to Parent and Merger Sub that as of the date of this Agreement and at the Effective Time (as and if called for in the manner set forth in this Agreement), except as set forth in the disclosure schedule delivered by the Company to Parent and Merger Sub on the date of this Agreement (the “Company Disclosure Schedule”) (it being understood that any information set forth on one section or subsection of the Company Disclosure Schedule shall be deemed to apply and quality the section or subsection of this Agreement to the extent that it is reasonably apparent that such information is relevant to such other section or subsection):

3.1 Organization; Standing; Power. The Company is a corporation duly organized and validly existing under Ohio Law, has all requisite corporate power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted and is duly qualified to do business and is in good standing (where applicable as a legal concept) as a foreign corporation in each jurisdiction in which the character of the properties it owns, operates or leases or the nature of its activities makes such qualification necessary, except for such failures to be so organized, qualified or in good standing that would not be reasonably expected to have a Company Material Adverse Effect.

3.2 Capitalization.

(a) The authorized capital stock of the Company consists of 15,000,000 shares, consisting of 12,000,000 shares of Company Common Stock and 3,000,000 shares of Company Preferred Stock. The rights and privileges of each class of the Company’s capital stock are as set forth in the Company Articles. As of the close of business on the date hereof, (i) 5,131,579 shares of Company Common Stock were outstanding, and (ii) no shares of Company Preferred Stock were outstanding.

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(b) An aggregate of 38,750 shares of Company Common Stock were reserved for issuance pursuant to Company Stock Options, 95,190 shares of Company Common Stock were held as Restricted Shares (which Restricted Shares are included in the number of Shares listed in Section 3.2(a)). Section 3.2(b) of the Company Disclosure Schedule sets forth a complete and accurate list, as of the close of business on the date hereof, of (i) all outstanding Company Stock Options, indicating with respect to each such Company Stock Option the name of the holder thereof, the number of shares of Company Common Stock subject to such Company Stock Option, the exercise price and the date of grant, (ii) all outstanding Restricted Shares, indicating with respect to such Restricted Shares the name of the holder thereof and the number of Restricted Shares held thereby, and (iii) all other outstanding equity compensation arrangements relating to any Company Securities, including all shares of Company Common Stock that have been allocated to participants under the Company’s Executive Savings Plan, and the name of the holders thereof. The Company has made available to Parent complete and accurate copies of all Company Stock Plans, the forms of all stock option agreements evidencing Company Stock Options and the forms of all agreements pursuant to which the currently outstanding Restricted Shares were awarded.

(c) Except (i) as set forth in this Section 3.2, and (ii) as reserved for future grants under Company Stock Plans, (A) there are no equity securities of any class of, or other voting interests in, the Company or any Subsidiary or any security exchangeable into or exercisable for such equity securities issued, reserved for issuance or outstanding, and (B) there are no options, warrants, equity securities, calls, rights, commitments or agreements of any character to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound obligating the Company or any of its Subsidiaries to issue, exchange, transfer, deliver or sell, or cause to be issued, exchanged, transferred, delivered or sold, shares of capital stock or other equity interests of, or voting interests in, the Company or any security or rights convertible into or exchangeable or exercisable for any such shares or other equity interests or voting rights, or obligating the Company or any of its Subsidiaries to grant, extend, accelerate the vesting of, otherwise modify or amend or enter into any such option, warrant, equity security, call, right, commitment or agreement (the securities listed in clauses (A) and (B) above, collectively, “Company Securities”).

(d) Simultaneously with entering into this Agreement, Craig F. Maier and Karen F. Maier have each signed a Voting Agreement, in the form substantially approved by Parent, agreeing to vote each Share held by such person in favor of the transactions contemplated in this Agreement, subject to the reservations and conditions stated in each Voting Agreement. Except for those certain Voting Agreements identified on Section 3.2(d) of the Company Disclosure Schedule, neither the Company nor any of its Subsidiaries is a party to or is bound by any agreements or understandings with respect to the voting (including voting trusts and proxies) or sale or transfer (including agreements imposing transfer restrictions) of any Company Securities.

(e) All outstanding Company Securities, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be, duly authorized, validly issued, fully paid and nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of Ohio Law, the Company Articles or the Company Regulations, or any agreement to which the Company is a party or is otherwise bound. All outstanding Company Securities have been issued or granted, as applicable, in compliance in all material respects with all applicable securities Laws.

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(f) There are no obligations, contingent or otherwise, of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities or to provide funds to the Company or any Subsidiary for any such purpose other than as provided in award agreements relating to Company Stock Options or Restricted Shares as they relate to using shares of Company Common Stock to pay withholding of income Taxes at the minimum statutory levels.

(g) There was no outstanding indebtedness for borrowed money of the Company or its Subsidiaries other than as reflected in the consolidated balance sheet of the Company as of June 3, 2014, or as filed with the Company SEC Form 10-Q for the period ended March 10, 2015, or incurred in the ordinary course of business consistent in all material respects with past practice after the date of the such balance sheet.

3.3 Subsidiaries.

(a) Section 3.3(a) of the Company Disclosure Schedule sets forth, the name and jurisdiction of organization for each Subsidiary. For purposes of this Agreement, the term “Subsidiary” means, with respect to any Party, any corporation, partnership, trust, limited liability company or other noncorporate business enterprise in which such Party (or another Subsidiary of such Party) holds stock or other ownership interests representing more than 50% of the voting power of all outstanding stock or ownership interests of such entity.

(b) Each Subsidiary of the Company is duly organized, validly existing and in good standing (where applicable as a legal concept) under the Laws of the jurisdiction of its organization, has all requisite company power and authority to own, lease and operate its properties and assets and to carry on its business as now being conducted, and is duly qualified to do business and is in good standing (where applicable as a legal concept) as a foreign company in each jurisdiction where the character of its properties owned, operated or leased or the nature of its activities makes such qualification necessary, except for such failures to be so organized, qualified or in good standing that would not be reasonably expected to have a Company Material Adverse Effect. All of the outstanding shares of capital stock and other equity securities or interests of each Subsidiary are owned, of record and beneficially, by the Company or another of its Subsidiaries free and clear of all security interests, liens, claims, pledges, agreements, limitations in the Company’s voting rights, charges or other encumbrances. Except as set forth on Section 3.3(b) of the Company Disclosure Schedule, there are no outstanding or authorized options, warrants, rights, agreements or commitments to which the Company or any of its Subsidiaries is a party or which are binding on any of them providing for the issuance, disposition or acquisition of any capital stock of any Subsidiary of the Company. There is no outstanding equity compensation with respect to any Subsidiary of the Company. Except as listed on Section 3.3(b) of the Company Disclosure Schedule, there are no voting trusts, proxies or other agreements or understandings with respect to the voting of any capital stock of any Subsidiary of the Company.

(c) The Company does not control, directly or indirectly, or have any material direct or indirect equity participation or similar interest in any corporation, partnership, limited liability company, joint venture, trust or other business association or entity that is not a Subsidiary of the Company, other than as set forth on Section 3.3(c) of the Company Disclosure Schedule. Neither the Company nor any of its Subsidiaries has any funding commitment with respect to any of the entities or investments described in Section 3.3(c) of the Company Disclosure Schedule except as set forth in the governing documents for such entities or investments, all of which have been made available to Parent.

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3.4 Authority; No Violation.

(a) The Company has all requisite corporate power and authority to execute and deliver this Agreement and, subject to the approval of this Agreement by the minimum affirmative vote required by applicable Law of the holders of the outstanding shares of Company Common

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