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8-K Agreement And Plan of Merger

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Sectors: Materials and Construction
Governing Law: United States
Effective Date: February 25, 1995
Related Agreement Types:
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AGREEMENT AND PLAN OF MERGER


Among


KUHLMAN CORPORATION


SPINNER ACQUISITION CORP.


And


SCHWITZER, INC.


_________________________________________________________________


6
TABLE OF CONTENTS


Page


ARTICLE I


THE MERGER . . . . . . 1


Section 1.1 The Merger. . . . . . . . . . . . 1


Section 1.2 Effective Time. . . . . . . . . . . 2


Section 1.3 Effects of the Merger . . . . . . . . 2


Section 1.4 Certificate of Incorporation, By-laws,
Directors and Officers. . . . . . . . . . . 2


Section 1.5 Conversion of Securities. . . . . . . . 2


Section 1.6 Parent to Make Certificates Available . . . . 4


(a) Exchange of Certificates . . . . . . . . 4


(b) Exchange Procedures. . . . . . . . . . 4


Section 1.7 Dividends; Transfer Taxes . . . . . . . 5


Section 1.8 No Fractional Securities. . . . . . . . 6


Section 1.9 Return of Exchange Fund . . . . . . . . 6


Section 1.10 Adjustment of Exchange Ratio . . . . . . 6


Section 1.11 No Further Ownership Rights in Company Common
Stock . . . . . . . . . . . . . . 7


Section 1.12 Closing of Company Transfer Books. . . . . . 7


Section 1.13 Further Assurances . . . . . . . . . 7


Section 1.14 Closing. . . . . . . . . . . . 7


ARTICLE II


REPRESENTATIONS AND WARRANTIES OF PARENT. 7


Section 2.1 Organization, Standing and Power. . . . . . 7


Section 2.2 Capital Structure . . . . . . . . . 8


Section 2.3 Authority; Non-Contravention. . . . . . . 9 7 Section 2.4 Parent SEC Documents. . . . . . . . . 11


Section 2.5 Registration Statement and Proxy
Statement/Prospectus. . . . . . . . . . . 12


Section 2.6 Absence of Material Adverse Change. . . . . . 12


Section 2.7 Pooling of Interests; Reorganization. . . . . 12


Section 2.8 Dividends . . . . . . . . . . . 13


Section 2.9 No Violation or Infringement. . . . . . . 13


Section 2.10 Litigation . . . . . . . . . . . 13


Section 2.11 Taxes. . . . . . . . . . . . . 13


Section 2.12 Parent Benefit Plans . . . . . . . . 14


Section 2.13 Environmental Matters. . . . . . . . . 14


Section 2.14 Title to Property. . . . . . . . . . 15


Section 2.15 Brokers. . . . . . . . . . . . 15


ARTICLE III


REPRESENTATIONS AND WARRANTIES OF THE COMPANY . 15


Section 3.1 Organization, Standing and Power. . . . . . 15


Section 3.2 Capital Structure . . . . . . . . . 16


Section 3.3 Authority; Non-Contravention. . . . . . . 17


Section 3.4 Company SEC Documents . . . . . . . . 18


Section 3.5 Registration Statement and Proxy
Statement/Prospectus. . . . . . . . . . . 18


Section 3.6 Absence of Material Adverse Change. . . . . . 19


Section 3.7 Pooling of Interests; Reorganization. . . . . 19


Section 3.8 Dividends . . . . . . . . . . . 19


Section 3.9 No Violation or Infringement. . . . . . . 19


Section 3.10 Litigation . . . . . . . . . . . 19


Section 3.11 Taxes. . . . . . . . . . . . . 20


8 Section 3.12 Company Benefit Plans. . . . . . . . . 20


Section 3.13 Environmental Matters. . . . . . . . . 21


Section 3.14 Title to Property. . . . . . . . . . 21


Section 3.15 Brokers. . . . . . . . . . . . 21


ARTICLE IV


REPRESENTATIONS AND WARRANTIES REGARDING SUB. . . 22


Section 4.1 Organization and Standing . . . . . . . 22


Section 4.2 Capital Structure . . . . . . . . . 22


Section 4.3 Authority; Non-Contravention. . . . . . . 22


ARTICLE V


COVENANTS RELATING TO CONDUCT OF BUSINESS 23


Section 5.1 Conduct of Business Pending the Merger. . . . 23


(a) Actions. . . . . . . . . . . . . 23


(b) Advice of Changes. . . . . . . . . . . 25


Section 5.2 No Solicitation . . . . . . . . . . 25


Section 5.3 Pooling of Interests; Reorganization. . . . . 26


Section 5.4 Conduct of Business of Sub Pending the Merger 26


ARTICLE VI


ADDITIONAL AGREEMENTS . . . . . 26


Section 6.1 Stockholder Approval. . . . . . . . . 26


Section 6.2 Registration Statement and Proxy Statement. . 27


Section 6.3 Access to Information . . . . . . . . 28


(a) By Parent. . . . . . . . . . . . . 28


(b) By the Company . . . . . . . . . . . 29


Section 6.4 Compliance with the Securities Act and Pooling
Requirements. . . . . . . . . . . . . 29 9


Section 6.5 Stock Exchange Listing. . . . . . . . . 30


Section 6.6 Fees and Expenses . . . . . . . . . 30


Section 6.7 Reasonable Efforts. . . . . . . . . . 30


Section 6.8 Public Announcements. . . . . . . . . 31


Section 6.9 Real Estate Transfer and Gains Tax. . . . . . 31


Section 6.10 State Takeover Laws; Company Rights Agreement 32


Section 6.11 Indemnification; Directors and Officers
Insurance . . . . . . . . . . . . . 32


Section 6.12 Employee Benefits. . . . . . . . . . 32


Section 6.13 Job Vacancies. . . . . . . . . . . 33


Section 6.14 Parent's Board of Directors. . . . . . . 33


ARTICLE VII


CONDITIONS PRECEDENT TO THE MERGER . . 33


Section 7.1 Conditions to Each Party's Obligation to Effect
the Merger. . . . . . . . . . . . . . 33


(a) Stockholder Approvals. . . . . . . . . . 33


(b) NYSE Listing . . . . . . . . . . . 34


(c) Improvements Act Waiting Period. . . . . . . 34


(d) Registration Statement . . . . . . . . . 34


(e) Tax Opinion. . . . . . . . . . . . 34


(f) No Order . . . . . . . . . . . . 35


(g) Resignations of Company Directors. . . . . . . 35


(h) Other Approvals. . . . . . . . . . . 35


Section 7.2 Conditions to Obligation of the Company to
Effect the Merger . . . . . . . . . . . 35


(a) Performance of Obligations; Representations and
Warranties. . . . . . . . . . . . . . 35


(b) Fairness Opinion . . . . . . . . . . 36 10


(c) Opinion of Counsel . . . . . . . . . . 36


(d) Other Documents. . . . . . . . . . . 39


Section 7.3 Conditions to Obligations of Parent and Sub to
Effect the Merger . . . . . . . . . . . 39


(a) Performance of Obligations; Representations and
Warranties. . . . . . . . . . . . . . 39


(b) Third Party Consents . . . . . . . . . 40


(c) Redemption of Rights . . . . . . . . . 40


(d) Accounting . . . . . . . . . . . . 40


(e) Fairness Opinion . . . . . . . . . . 40


(f) Opinion of Counsel . . . . . . . . . . 40


(g) Opinion of Other Counsel . . . . . . . . 42


(h) Other Documents. . . . . . . . . . . 44


ARTICLE VIII


TERMINATION, AMENDMENT AND WAIVER . . 44


Section 8.1 Termination . . . . . . . . . . . 44


Section 8.2 Effect of Termination . . . . . . . . 46


Section 8.3 Amendment . . . . . . . . . . . 46


Section 8.4 Waiver. . . . . . . . . . . . . 47


ARTICLE IX


GENERAL PROVISIONS . . . . . 47


Section 9.1 Non-Survival of Representations and Warranties 47


Section 9.2 Notices . . . . . . . . . . . . 47


Section 9.3 Interpretation. . . . . . . . . . . 48


Section 9.4 Counterparts. . . . . . . . . . . 48


Section 9.5 Entire Agreement; No Third-Party Beneficiaries 48


11 Section 9.6 Governing Law . . . . . . . . . . 49


Section 9.7 Assignment. . . . . . . . . . . . 49


Section 9.8 Severability. . . . . . . . . . . 49


Section 9.9 Enforcement of this Agreement . . . . . . 49


12


AGREEMENT AND PLAN OF MERGER


AGREEMENT AND PLAN OF MERGER, dated as of February 25, 1995 (this "Agreement"), among Kuhlman Corporation, a Delaware corporation ("Parent"), Spinner Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Parent ("Sub"), and Schwitzer, Inc., a Delaware corporation (the "Company") (Sub and the Company being hereinafter collectively referred to as the "Constituent Corporations").


W I T N E S S E T H:


WHEREAS, the respective Boards of Directors of Parent, Sub and the Company have approved and declared advisable the merger of Sub and the Company (the "Merger"), upon the terms and subject to the conditions set forth herein, whereby each issued and outstanding share of Common Stock, par value $.10 per share, of the Company ("Company Common Stock") not owned directly or indirectly by Parent or the Company will be converted into shares of Common Stock, par value $1.00 per share, of Parent ("Parent Common Stock");


WHEREAS, for federal income tax purposes, it is intended that the Merger shall qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code");


WHEREAS, it is intended that the Merger shall be recorded for accounting purposes as a pooling of interests; and


WHEREAS, Parent, Sub and the Company desire to make certain representations, warranties and agreements in connection with the Merger and also to prescribe various conditions to the Merger;


NOW, THEREFORE, in consideration of the premises and the representations, warranties and agreements herein contained, the parties agree as follows:


ARTICLE I


THE MERGER


Section 1.1 The Merger. Upon the terms and subject to the conditions hereof, and in accordance with the General Corporation Law of the State of Delaware (the "DGCL"), Sub shall be merged with and into the Company at the Effective Time (as 13 hereinafter defined). Following the consummation of the Merger, the separate corporate existence of Sub shall cease and the Company shall continue as the surviving corporation (the "Surviving Corporation") and shall succeed to and assume all the rights and obligations of Sub in accordance with the DGCL.


Section 1.2 Effective Time. The Merger shall become effective when a Certificate of Merger (the "Certificate of Merger"), executed in accordance with the relevant provisions of the DGCL, is filed with the Secretary of State of the State of Delaware; provided, however, that, upon mutual consent of the Constituent Corporations the Certificate of Merger may provide for a later date of effectiveness of the Merger not more than 30 days after the date the Certificate of Merger is filed. When used in this Agreement, the term "Effective Time" shall mean the later of the date and time at which the Certificate of Merger is accepted for filing or such later time established by the Certificate of Merger. The filing of the Certificate of Merger shall be made as soon as practicable after the satisfaction or waiver of the conditions to the Merger set forth herein.


Section 1.3 Effects of the Merger. The Merger shall have the effects set forth in Section 259 of the DGCL.


Section 1.4 Certificate of Incorporation, By-laws, Directors and Officers. The Restated Certificate of Incorporation and the By-laws of the Company, as in effect immediately prior to the Effective Time, shall be the Certificate of Incorporation and the By-laws of the Surviving Corporation, in each case until thereafter changed or amended as provided therein or by applicable law. The directors of the Surviving Corporation shall be Gary G. Dillon, whose term of office shall expire at the 1996 annual meeting of stockholders of the Surviving Corporation, Curtis G. Anderson, whose term of office shall expire at its 1997 annual meeting of stockholders, and Robert S. Jepson, Jr., whose term of office shall expire at its 1998 annual meeting of stockholders, in each case to hold office until the expiration of his term of office and his successor shall have been duly elected and qualified or until his earlier death, resignation or removal.


The officers of the Company at the Effective Time shall be the officers of the Surviving Corporation, except that Vernon J. Nagel shall be a Vice President and an Assistant Treasurer, Ward D. Richards shall be an Assistant Secretary, Jeffrey B. Samuels shall be an Assistant Treasurer and Richard A. Walker shall be an Assistant Secretary, in each case to hold office until the next annual election of officers and his successor shall have been duly chosen or until his earlier death, resignation or removal.


Section 1.5 Conversion of Securities. As of the Effective Time, by virtue of the Merger and without any action on the part of any stockholder of the Company:


14
(a) All shares of Company Common Stock that are held
in the treasury of the Company or by any wholly-owned
Subsidiary (as hereinafter defined) of the Company
immediately prior to the Effective Time and any shares of
Company Common Stock owned by Parent, Sub or any other
wholly-owned Subsidiary of Parent immediately prior to the
Effective Time shall be cancelled and no capital stock of
Parent or other consideration shall be delivered in exchange
therefor.


(b) Each share of capital stock of Sub outstanding
immediately prior to the Effective Time shall be converted
into and become one fully paid and nonassessable share of
Common Stock, par value $.10 per share, of the Surviving
Corporation.


(c) Subject to the provisions of Sections 1.8 and 1.10
hereof, each share of Company Common Stock outstanding
immediately prior to the Effective Time (other than shares
to be cancelled in accordance with Section 1.5(a)) shall be
converted into 0.9615 validly issued, fully paid and
nonassessable share (the "Exchange Ratio") of Parent Common
Stock. All such shares of Company Common Stock, when so
converted, shall no longer be outstanding and shall
automatically be cancelled and retired and each holder of a
Certificate (as defined in Section 1.6(a)) representing any
such shares shall cease to have any rights with respect
thereto, except the right to receive certain dividends and
other distributions as contemplated by Section 1.7 and
shares of Parent Common Stock and any cash, without
interest, in lieu of fractional shares to be issued or paid
in consideration therefor pursuant to Section 1.8 upon the
surrender of such Certificate in accordance with Section
1.6.


(d) Each option to purchase shares of Company Common
Stock (a "Company Stock Option") outstanding immediately
prior to the Effective Time pursuant to the Company's Long-
term Executive Incentive Compensation Plan (the "Company
Stock Plan") shall be converted into an option (a "New
Parent Stock Option") to purchase, in lieu of the shares of
Company Common Stock purchasable thereunder immediately
prior to the Effective Time, the number of whole shares of
Parent Common Stock into which the shares of Company Common
Stock subject to such Company Stock Option would have been
converted pursuant to Section 1.5(c) had such Company Stock
Option been exercised in full immediately prior to the
Effective Time, without any change in the aggregate option
exercise price. Fractional shares shall not be issued upon
the exercise of any New Parent Stock Option, but upon the
exercise of any New Parent Stock Option for the largest
number of whole shares of parent Common Stock then subject
thereto, the Company shall pay to the holder of such New 15
Parent Stock Option a sum in cash equal to the proportional
part of the per share exercise price of such New Parent
Stock Option represented by such fractional share. Each New
Parent Stock Option shall otherwise be upon the same terms
and conditions as set forth in the Company Stock Plan and
the related option agreement.


(e) Each warrant to purchase shares of Company Common
Stock (a "Company Warrant") outstanding immediately prior to
the Effective Time pursuant to the Note Agreement dated as
of April 15, 1992 among the Company, Schwitzer U.S. Inc. and
Massachusetts Mutual Life Insurance Company (the "Company
Warrant Agreement") shall be converted into a warrant (a
"New Parent Warrant") to purchase, in lieu of the shares of
Company Common Stock purchasable thereunder immediately
prior to the Effective Time, the number of whole shares of
Parent Common Stock into which the shares of Company Common
Stock subject to such Company Warrant would have been
converted pursuant to Section 1.5(c) had such Company
Warrant been exercised in full immediately prior to the
Effective Time, without any change in the aggregate option
exercise price. Fractional shares shall not be issued upon
the exercise of any New Parent Warrant, but upon the
exercise of any New Parent Warrant for the largest number of
whole shares of parent Common Stock then subject thereto,
the Company shall pay to the holder of such New Parent
Warrant a sum in cash equal to the proportional part of the
per share exercise price of such New Parent Warrant
represented by such fractional share. Each New Parent
Warrant shall otherwise be upon the same terms and
conditions as set forth in the Company Warrant Agreement.


Section 1.6 Parent to Make Certificates Available.


(a) Exchange of Certificates. Parent shall authorize a commercial bank (or such other person or persons as shall be acceptable to Parent and the Company) to act as Exchange Agent hereunder (the "Exchange Agent"). As soon as practicable after the Effective Time, Parent shall deposit with the Exchange Agent, in trust for the holders of certificates which immediately prior to the Effective Time represented shares of Company Common Stock (the "Certificates"), (i) certificates representing the aggregate number of shares of Parent Common Stock issuable to such holders pursuant to Section 1.5(c) in exchange for outstanding shares of Company Common Stock and (ii) the aggregate amount of cash payable to such holders in lieu of fractional shares pursuant to Section 1.8. Such shares of Parent Common Stock and cash in lieu of fractional shares, together with any dividends or distributions with respect to such shares, is hereinafter referred to as the "Exchange Fund". Parent may instruct the Exchange Agent to invest any cash held in the Exchange Fund in obligations of the United States government or certificates of deposit insured by an agency of the United States government and 16 any interest or other earnings resulting from such investments shall be the exclusive property of Parent.


(b) Exchange Procedures. As soon as practicable after the Effective Time, Parent shall cause the Exchange Agent to mail to each holder of record of a Certificate whose shares were converted pursuant to Section 1.5(c) into shares of Parent Common Stock 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 actual delivery of the Certificates to the Exchange Agent and shall contain instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Parent Common Stock). Upon surrender of a Certificate for cancellation to the Exchange Agent, together with such letter of transmittal, duly executed, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Parent Common Stock which such holder has the right to receive pursuant to this Article I, and the Certificate so surrendered shall forthwith be cancelled. Until surrendered as contemplated by this Section 1.6, each Certificate shall, at and after the Effective Time, be deemed to represent only the right to receive, upon surrender of such Certificate, the certificate representing the appropriate number of shares of Parent Common Stock in accordance with Section 1.5(c), cash in lieu of fractional shares as provided for in Section 1.8 and certain dividends and other distributions as contemplated by Section 1.7.


Section 1.7 Dividends; Transfer Taxes. No dividends or other distributions that are declared on or after the Effective Time on Parent Common Stock or are payable to the holders of record thereof on or after the Effective Time will be paid to persons entitled by reason of the Merger to receive certificates representing Parent Common Stock until such persons surrender their Certificates, as provided in Section 1.6, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 1.8 until such holder of such Certificate shall so surrender such Certificate. Subject to the effect of applicable law, there shall be paid to the record holder of the certificates representing such Parent Common Stock (a) at the time of such surrender or as promptly as practicable thereafter, the amount of any dividends or other distributions theretofore paid with respect to whole shares of such Parent Common Stock and having a record date on or after the Effective Time and a payment date prior to such surrender and (b) at the appropriate payment date or as promptly as practicable thereafter, the amount of dividends or other distributions payable with respect to whole shares of Parent Common Stock and having a record date on or after the Effective Time but prior to surrender and a payment date subsequent to surrender. In no event shall the person entitled to receive such dividends or other distributions be entitled to receive interest on such divi- dends or other distributions. If any cash or certificate 17 representing shares of Parent Common Stock is to be paid to or issued in a name other than that in which the Certificate surrendered in exchange therefor is registered, it shall be a condition of such exchange that the Certificate so surrendered shall be properly endorsed and otherwise in proper form for transfer and that the person requesting such exchange shall pay to the Exchange Agent any transfer or other taxes required by reason of the issuance of certificates for such shares of Parent Common Stock in a name other than that of the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Exchange Agent that such tax has been paid or is not applicable.


Section 1.8 No Fractional Securities. No certificates or scrip representing fractional shares of Parent Common Stock shall be issued upon the surrender for exchange of Certificates pursuant to this Article I, no Parent dividend or other distribution or stock split shall relate to any fractional share and such fractional share shall not entitle the owner thereof to vote or to any rights of a stockholder of Parent. In lieu of any such fractional shares, each holder of shares of Company Common Stock who would otherwise have been entitled to a fraction of a share of Parent Common Stock upon surrender of Certificates for exchange pursuant to this Article I shall, in lieu thereof, be paid an amount in cash (without interest) equal to the value of such fractional share based on the Closing Price of Parent Common Stock on the business day immediately preceding the Effective Time. The "Closing Price" of Parent Common Stock on any business day shall for purposes of this Section 1.8 be: (a) the last sale price, or the closing bid price if no sale occurred, of Parent Common Stock on the principal securities exchange on which Parent Common Stock is listed, if so listed, or (b) if not listed, the mean between the closing high bid and low asked quotations of Parent Common Stock on the National Association of Securities Dealers, Inc. Automated Quotation System, or any similar system of automated dissemination of quotations of securities prices then in common use, if so quoted. If the closing price of Parent Common Stock on any business day cannot be determined under the provisions of the immediately preceding sentence, the Closing Price of Parent Common Stock on such business day shall be the fair market value of Parent Common Stock as determined by a member firm of the New York Stock Exchange, Inc. selected by Parent and reasonably acceptable to the Company.


Section 1.9 Return of Exchange Fund. Any portion of the Exchange Fund which remains undistributed to the former stockholders of the Company for one year after the Effective Time (and any interest or other earnings thereon) shall be delivered to Parent, upon demand of Parent, and any former stockholders of the Company who have not theretofore complied with this Article I shall thereafter look only to Parent for payment of their claim for Parent Common Stock, any cash in lieu of fractional shares of Parent Common Stock and any dividends or distributions with 18 respect to Parent Common Stock.


Section 1.10 Adjustment of Exchange Ratio. In the event of any reclassification, recapitalization, stock split or stock dividend with respect to Parent Common Stock (or if a record date with respect to any of the foregoing should occur) prior to the Effective Time, appropriate and proportionate adjustments, if any, shall be made to the Exchange Ratio, and all references to the Exchange Ratio in this Agreement shall be deemed t
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