AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER is made and entered into as of the 16th
day of July, 1996, by and between Magnetec Corporation, a Connecticut
corporation (hereinafter called "Magnetec"), and Ithaca Peripherals
Incorporated, a Delaware corporation (hereinafter called "Ithaca"), pursuant to
33-371 of the Connecticut General Statutes and 252 of the General Corporation
Law of Delaware.
WHEREAS, the authorized capital stock of Ithaca consists of 4,000,000
shares of common stock, par value $.10 per share, of which 100 shares were
issued and outstanding as of July 8, 1996 and owned of record by Tridex
Corporation, a Connecticut corporation ("Tridex") on such date, and 2,000,000
shares of preferred stock, par value $1.50 per share, of which none were issued
and outstanding as of July 8, 1996;
WHEREAS, the authorized capital stock of Magnetec consists of 5,000 shares
of common stock, no par value per share, of which 1,000 shares were issued and
outstanding as of July 8, 1996 and owned of record by Tridex;
WHEREAS, the respective Boards of Directors and shareholders of Magnetec
and Ithaca have deemed it advisable and to the advantage of the two corporations
that Ithaca merge into Magnetec upon the terms and conditions herein provided;
WHEREAS, Magnetec and Ithaca intend that the merger contemplated hereby
qualify as a tax-free reorganization within the meaning of Section 368(a)(1) of
the Internal Revenue Code of 1986, as amended; and
WHEREAS, the Boards of Directors and shareholders of Magnetec and Ithaca
approved this Agreement and Plan of Merger on July __, 1996.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Magnetec and Ithaca hereby agree to merge in accordance with the
following plan:
1. Merger. Ithaca shall be merged with and into Magnetec and Magnetec shall
survive the merger. As required under 33-371 of the Connecticut General Statutes
and 252 of the Delaware General Corporation Law (a) an appropriate Certificate
of Merger shall be signed, verified and delivered for filing with the Secretary
of the State of Connecticut, and (b) an appropriate Certificate of Merger and
Secretary's Certificate shall be signed, verified and delivered for filing with
the Secretary of the State of Delaware.
2. Effective Time. The Agreement and Plan of Merger shall become effective
for purposes of Delaware and Connecticut law, respectively, at the date and time
of the completion of the filing of the Certificate of Merger in such states
(hereinafter referred to as the "Effective Time").
3. Directors and Officers and Governing Documents.
(a) The directors and officers of Magnetec shall be the same upon the
Effective Time as they are for Magnetec immediately prior thereto.
(b) The by-laws of Magnetec, as in effect at the Effective Time, are the
same as those of the surviving corporation.
(c) The Agreement and Plan of Merger effects no change in the Certificate
of Incorporation of the surviving corporation, Magnetec, and said Certificate of
Incorporation shall continue in full force and effect as the Certificate of
Incorporation of the corporation surviving the merger.
(d) The Certificate of Incorporation of Magnetec was filed with the
Secretary of the State of Connecticut on September7, 1973.
3. Rights and Liabilities of Magnetec. At and after the Effective Time,
Magnetec shall possess all the rights, privileges, immunities and franchises, as
well as of a public and private nature of each of the merging corporations; and
property, real, personal and mixed, and all debts due Ithaca on whatever
account, and all other choses in action, and all and every other interest of, or
belonging to or due to each of the corporations so merged, shall be taken and
transferred to and vested in Magnetec without further act or deed; and the title
to any real estate, or any interest therein, vested in either of such
corporations shall not prevent or be in any way impaired by reason of the
merger.
4. Further Assurances. From time to time, as and when required by Magnetec,
there shall be executed and delivered on behalf of Ithaca 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 or necessary in order to vest,
perfect or confirm, of record or otherwise, in Magnetec the title to and
possession of all property, interest, assets, rights, privileges, immunities,
powers, franchises and authority of Ithaca, and otherwise carry out the purposes
of this Agreement and Plan of Merger, and the officers and directors of Magnetec
are fully authorized in the name and on behalf of Ithaca or otherwise to take
any and all such action and to execute and deliver any and all such deeds and
other instruments.
5. Stock of Magnetec and Ithaca. No shares of Magnetec shall be issued as a
result of the merger. The 100 shares of common stock of Ithaca issued and
outstanding immediately prior to the Effective Time owned by Magnetec shall
automatically be cancelled without any conversion thereof into any other
security or right to receive any form of compensation and no payment shall be
made with respect thereto.
6. Appointment of Agent. Magnetec hereby consents to service of process in
the State of Delaware in any action or special proceeding for the enforcement of
any liability or obligation of Ithaca and for the enforcement of the right of
holders of Common Stock of Ithaca to receive payment for the shares owned by
such holders, and hereby irrevocably appoints the Secretary of State of Delaware
as its agent to accept service of process in any action or special proceeding
for the enforcement of any such liability or obligation. The address to which a
copy of such process shall be mailed by the Secretary of State to Ithaca is: c/o
Magnetec Corporation, 0 Xxxxx Xxxx, Xxxxxxxxxxx, XX 00000 Attention: Corporate
Secretary.
7. Amendment. At any time prior to the Effective Time this Agreement and
Plan of Merger may be amended in any manner as may be determined in the judgment
of the respective Boards of Directors of Magnetec and Ithaca, to be necessary,
desirable or expedient.
13. Abandonment. At any time before the Effective Time, this Agreement and
Plan of Merger may be terminated and the merger may be abandoned by the Board of
Directors and shareholders of either Magnetec or Ithaca or both.
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14. Counterparts. In order to facilitate the filing and recording of this
Agreement and Plan of Merger, the same may be executed in two or more
counterparts, each of which shall be deemed to be an original and the same
agreement.
IN WITNESS WHEREOF, each of the corporate parties hereto, pursuant to
authority granted by the Boards of Directors of Magnetec and Ithaca, has caused
this Agreement and Plan of Merger to be executed by its President and attested
to by its Secretary and its corporate seal to be affixed hereto, as of the date
first above written.
ATTEST: MAGNETEC CORPORATION
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
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Secretary Xxxx X. Xxxxxxxx, President
ATTEST: ITHACA PERIPHERALS INCORPORATED
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxx
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Secretary Xxxxxxx X. Xxxx, Vice President
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