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AGREEMENT AND PLAN OF MERGER dated as of November 1, 1995, between ITT
CORPORATION, a Delaware corporation ("ITT"), and ITT INDIANA, INC., an Indiana
corporation and a wholly owned subsidiary of ITT ("ITT Indiana").
WHEREAS ITT has authorized capital stock consisting of (a) 200,000,000
shares of Common Stock, par value $1 per share ("ITT Common Stock"), of which
116,641,417 shares were issued and outstanding and 28,506,591 shares were held
in the treasury of ITT as of October 23, 1995, and (b) 50,000,000 shares of
Preferred Stock, without par value, of which none are issued and outstanding;
WHEREAS ITT Indiana has authorized capital stock consisting of (a)
200,000,000 shares of Common Stock, par value $1 per share ("ITT Indiana Common
Stock" and after the Effective Time of the Merger, as defined below, "Surviving
Corporation Common Stock"), of which 100 shares are issued and outstanding and
held by ITT, and (b) 50,000,000 shares of Preferred Stock, without par value, of
which none are issued and outstanding; and
WHEREAS ITT and ITT Indiana desire that ITT merge with and into ITT Indiana
and that ITT Indiana shall continue as the surviving corporation in such merger,
upon the terms and subject to the conditions herein set forth and in accordance
with the laws of the State of Delaware and the laws of the State of Indiana.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
MERGER
SECTION 1.01. Merger. Subject to the terms and conditions of this
Agreement, ITT shall be merged (the "Merger") with and into ITT Indiana in
accordance with the General Corporation Law of the State of Delaware (the
"DGCL") and the Business Corporation Law of the State of Indiana (the "IBCL"),
the separate existence of ITT shall cease and ITT Indiana shall be the surviving
corporation (hereinafter sometimes referred to as the "Surviving Corporation")
and continue its corporate existence under the laws of the State of Indiana. The
Surviving Corporation shall succeed, insofar as permitted by law, to all the
rights, assets, liabilities and obligations of ITT (including, without
limitation, as contemplated by Article IV).
SECTION 1.02. Effective Time of the Merger. The Merger shall become
effective as of the date and time (the "Effective Time of the Merger") the
following actions are completed: (a) this Agreement or an appropriate
certificate of merger is filed with the Secretary of State of the State of
Delaware in accordance with the DGCL and (b) appropriate articles of merger are
filed with the Secretary of State of the State of Indiana in accordance with the
IBCL.
SECTION 1.03. Further Assurances. From time to time, as and when required
by the Surviving Corporation or by its successors or assigns, there shall be
executed and delivered on behalf of ITT such deeds and other instruments, and
there shall be taken or caused to be taken by it all such further and other
action, as shall be appropriate, advisable or necessary in order to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation the
title to and possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of ITT, and otherwise to carry out
the purpose of this Agreement, and the officers and directors of the Surviving
Corporation are fully authorized in the name and on behalf of ITT or otherwise,
to take any and all such action and to execute and deliver any and all such
deeds and other instruments.
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ARTICLE II
NAME, ARTICLES OF INCORPORATION,
BY-LAWS, DIRECTORS AND
OFFICERS OF THE SURVIVING CORPORATION
SECTION 2.01. Name of Surviving Corporation. The name of the Surviving
Corporation shall be ITT Industries, Inc.
SECTION 2.02. Articles of Incorporation. At the Effective Time of the
Merger, Article First of the Articles of Incorporation of ITT Indiana shall be
amended to read in its entirety as follows:
The name of the corporation is ITT Industries, Inc.
The Articles of Incorporation of ITT Indiana in effect immediately prior to
the Effective Time of the Merger, as so amended, shall be the Articles of
Incorporation of the Surviving Corporation after the Effective Time of the
Merger until further amended thereafter as provided therein or by law.
SECTION 2.03. By-laws. The By-laws of ITT Indiana in effect at the
Effective Time of the Merger shall be the By-laws of the Surviving Corporation
after the Effective Time of the Merger until amended thereafter as provided
therein or by law.
SECTION 2.04. Directors and Officers. The directors and officers of ITT
at the Effective Time of the Merger shall continue to be the directors and
officers, respectively, of the Surviving Corporation after the Effective Time of
the Merger until expiration of their current terms as such, or prior
resignation, removal or death, subject to the Articles of Incorporation and
By-laws of the Surviving Corporation.
ARTICLE III
CONVERSION AND EXCHANGE OF STOCK
SECTION 3.01. Conversion. At the Effective Time of the Merger, each of
the following transactions shall be deemed to occur simultaneously:
(a) Each share of ITT Common Stock issued and outstanding or held in
the treasury of ITT immediately prior to the Effective Time of the Merger
shall, by virtue of the Merger and without any action on the part of the
holder thereof, be converted into and become one validly issued, fully paid
and nonassessable share of Surviving Corporation Common Stock.
(b) Each share of ITT Indiana Common Stock issued and outstanding
immediately prior to the Effective Time of the Merger and held by ITT shall
be cancelled without any consideration being issued or paid therefor.
SECTION 3.02. Exchange. (a) After the Effective Time of the Merger, each
certificate theretofore representing issued and outstanding shares of ITT Common
Stock shall represent the same number of shares of Surviving Corporation Common
Stock.
(b) At any time on or after the Effective Time of the Merger, any
holder of certificates theretofore evidencing ownership of shares of ITT
Common Stock will be entitled, upon surrender of such certificates to the
transfer agent of the Surviving Corporation, to receive in exchange
therefor one or more new stock certificates evidencing ownership of the
number of shares of Surviving Corporation Common Stock into which the ITT
Common Stock shall have been converted in the Merger. If any certificate
representing shares of Surviving Corporation Common Stock is to be issued
in a name other than that in which the certificate surrendered in exchange
therefor is registered, it shall be a condition of the issuance therefor
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 transfer agent any transfer or other taxes
required by reason of the issuance of a certificate representing shares of
Surviving Corporation Common Stock in any name other than that of the
registered holder of the certificate surrendered, or otherwise
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required, or shall establish to the satisfaction of the transfer agent that
such tax has been paid or is not payable.
(c) As soon as reasonably practicable after the Effective Time of the
Merger, the transfer agent for the Surviving Corporation or other designee
shall mail to each holder of record of a certificate or certificates of
Surviving Corporation Common Stock (i) a letter of transmittal (which shall
be in such form as Surviving Corporation may specify) and (ii) instructions
for use in effecting an exchange of certificates contemplated by paragraph
(b) of this Section 3.02 and the distribution of certificates contemplated
by the distribution by ITT of shares of common stock of ITT Destinations,
Inc. and ITT Hartford Group, Inc. to shareholders of ITT.
ARTICLE IV
EMPLOYEE STOCK, EMPLOYEE BENEFIT, INCENTIVE COMPENSATION
AND DIVIDEND REINVESTMENT PLANS
At the Effective Time of the Merger, each employee stock plan, employee
benefit plan, incentive compensation plan and dividend reinvestment plan to
which ITT is then a party shall be assumed by, and continue to be the plan of,
the Surviving Corporation. To the extent any employee stock plan, employee
benefit plan, incentive compensation plan or dividend reinvestment plan of ITT
or any of its subsidiaries provides for the issuance or purchase of, or
otherwise relates to, ITT Common Stock, after the Effective Time of the Merger
such plan shall be deemed to provide for the issuance or purchase of, or
otherwise relate to, Surviving Corporation Common Stock.
ARTICLE V
CONDITIONS
Consummation of the Merger is subject to the satisfaction at or prior to
the Effective Time of the Merger of the following conditions:
SECTION 5.01. Stockholder Approval. This Agreement and the Merger shall
have been adopted and approved by the vote of the majority of the shares of ITT
Common Stock outstanding on the record date fixed for determining the
stockholders of ITT entitled to vote thereon. This Agreement and the Merger
shall also have been adopted and approved by ITT as the holder of all the
outstanding shares of ITT Indiana Common Stock prior to the Effective Time of
the Merger.
SECTION 5.02. Listing. The shares of Surviving Corporation Common Stock
to be issued in the Merger, or reserved for issuance immediately after the
Effective Time of the Merger, shall have been approved for listing, subject to
official notice of issuance, by the NYSE.
SECTION 5.03. Distribution. The distribution by ITT of all the
outstanding shares of common stock of (a) ITT Destinations, Inc., and (b) ITT
Hartford Group, Inc., each wholly owned subsidiaries of ITT, shall have
occurred.
SECTION 5.04. Tax Opinion. ITT shall have received an opinion from its
legal counsel, with respect to the tax consequences of the Merger, in form and
substance satisfactory to ITT.
ARTICLE VI
APPOINTMENT OF AGENT FOR SERVICE OF PROCESS
Pursuant to Section 252(d) of the DGCL, the Surviving Corporation
irrevocably appoints the Secretary of State of Delaware to accept service of
process in any proceeding for enforcement of any obligation of ITT, as well as
for enforcement of any obligation of the Surviving Corporation arising from the
Merger. The Delaware Secretary of State shall mail a copy of such process to ITT
Industries, Four Xxxx Xxx Xxx Xxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000.
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ARTICLE VII
GENERAL
SECTION 7.01. Termination and Abandonment. At any time prior to the
consummation of the Merger, this Agreement may be terminated and the Merger
abandoned by the Board of Directors of ITT.
SECTION 7.02. Amendment. This Agreement may be amended at any time prior
to the Effective Time of the Merger with the mutual consent of the Boards of
Directors of ITT and ITT Indiana; provided, however, that this Agreement may not
be amended after it has been adopted by the stockholders of ITT in any manner
not permitted under applicable law.
SECTION 7.03. Headings. The headings set forth herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
SECTION 7.04. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, and all of which, when
taken together, shall constitute one and the same instrument.
SECTION 7.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, except to the
extent the laws of the State of Indiana shall mandatorily apply to the Merger.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed on its behalf and attested by its officers hereunto duly authorized,
all as of the day and year first above written.
ITT CORPORATION,
by /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
Attest:
/s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary
ITT INDIANA, INC.,
by /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
Attest:
/s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: Assistant Secretary
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CERTIFICATES
The undersigned, Assistant Secretary of ITT CORPORATION, a Delaware
corporation, hereby certifies, pursuant to Section 252(c) of the General
Corporation Law of the State of Delaware, that the foregoing Agreement and Plan
of Merger to which this Certificate is attached, which has been duly signed on
behalf of ITT CORPORATION by its Vice President and attested to by its Assistant
Secretary, was duly submitted to the stockholders of ITT CORPORATION at a
meeting thereof called for the purpose of considering and acting upon said
Agreement and Plan of Merger, held after due notice on September 21, 1995, and
at said meeting said Agreement and Plan of Merger was adopted by the
stockholders of ITT CORPORATION in accordance with the General Corporation Law
of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on the
27th day of November, 1995.
/s/ Xxxxxx X. Xxxxxx
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Assistant Secretary
The undersigned, Assistant Secretary of ITT INDIANA, INC., an Indiana
corporation, hereby certifies, pursuant to Section 252(c) of the General
Corporation Law of the State of Delaware, that the foregoing Agreement and Plan
of Merger to which this Certificate is attached, which has been duly signed on
behalf of ITT INDIANA, INC. by its Vice President and attested to by its
Assistant Secretary, was duly submitted to the sole stockholder of ITT INDIANA,
INC. at a meeting thereof called for the purpose of considering and acting upon
said Agreement and Plan of Merger, held on October 10, 1995, and that at said
meeting said Agreement and Plan of Merger was adopted by the sole stockholder of
ITT INDIANA, INC. in accordance with the Business Corporation Law of the State
of Indiana.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on the
27th day of November, 1995.
/s/ Xxxxxx X. Xxxxx, Xx.
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Assistant Secretary
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