AGREEMENT AND PLAN OF MERGER
Exhibit 10.1
EXECUTION COPY
THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of March 30, 2011, is
by and among Northrop Grumman Corporation, a Delaware corporation (“NGC”), New P, Inc., a
Delaware corporation and a direct, wholly owned subsidiary of NGC (“New NGC”), and Titan
Merger Sub Inc., a Delaware corporation and an indirect, wholly owned subsidiary of New NGC
(“Merger Sub”).
RECITALS
A. The Boards of Directors of NGC and Merger Sub deem it advisable and in the best interests
of NGC and Merger Sub, respectively, that Merger Sub merge with and into NGC, in accordance with
Section 251(g) of the Delaware General Corporation Law (the “DGCL”) and upon the terms and
subject to the conditions of this Agreement (the “Merger”), and have approved and adopted
this Agreement.
B. The Restated Certificate of Incorporation and the Bylaws of New NGC immediately following
the Effective Time (as defined below) will contain provisions identical to the Restated Certificate
of Incorporation and the Bylaws of NGC immediately prior to the Effective Time (other than with
respect to matters excepted by Section 251(g) of the DGCL).
C. The Restated Certificate of Incorporation and the Bylaws of the Surviving Corporation (as
defined below) immediately following the Effective Time will contain provisions identical to the
Restated Certificate of Incorporation and the Bylaws of NGC immediately prior to the Effective Time
(other than with respect to matters excepted by Section 251(g) of the DGCL).
D. The directors and officers of Merger Sub immediately prior to the Merger will be the
directors and officers of the Surviving Corporation as of the Effective Time.
E. The directors and officers of NGC immediately prior to the Merger will be the directors and
officers of New NGC as of the Effective Time.
F. The Board of Directors of NGC has received evidence in form and substance reasonably
satisfactory to it indicating that (i) the Merger qualifies as a tax-free reorganization under
Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”) and as a
tax-free exchange under section 351(a) of the Code, and the rules and regulations promulgated under
such sections and related provisions of the Code and (ii) that the holders of NGC common stock will
not recognize gain or loss for United States federal income tax purposes as a result of the Merger.
AGREEMENT
In consideration of the foregoing and the mutual covenants and agreements herein contained,
and intending to be legally bound hereby, the parties agree as follows:
1. The Merger. Upon the terms and subject to the conditions set forth in this
Agreement, and in accordance with the provisions of Section 251(g) of the DGCL, Merger Sub shall be
merged with and into NGC and NGC shall be the entity surviving the Merger (in this capacity, the
“Surviving Corporation”). Merger Sub and NGC are the only constituent entities to the
Merger.
2. Filing Time; Effective Time. At such time as mutually agreed upon by the parties
hereto, NGC shall cause a properly executed certificate of merger conforming to the requirements of
the DGCL to be filed with the Secretary of State of the State of Delaware. The Merger shall become
effective at the time specified in the aforementioned certificate of merger or, if no such time is
specified, upon such filing (the “Effective Time”).
3. Effects of the Merger. At the Effective Time (a) Merger Sub shall be merged with
and into NGC and the separate existence of Merger Sub shall cease and (b) the Merger shall have the
effects provided for herein and in the DGCL (including, without limitation, Section 251(g) and
Section 259).
4. Certificate of Incorporation and Bylaws.
(a) Surviving Corporation.
(i) The Restated Certificate of Incorporation of NGC as in effect immediately prior to the
Effective Time shall be the certificate of incorporation of the Surviving Corporation, except for
the following amendments thereto:
Article FIRST shall be amended to read in its entirety as follows:
FIRST: The name of the corporation is Titan II Inc. (the “Corporation”).
The first sentence of Article FOURTH shall be amended to read in its entirety as
follows:
FOURTH: 1. The total number of shares of stock which the Corporation shall
have authority to issue is Two Hundred (200), consisting of One Hundred
(100) shares of Common Stock, par value One Dollar ($1.00) per share (the
“Common Stock”), and One Hundred (100) shares of Preferred Stock, par value
One Dollar ($1.00) per share (the “Preferred Stock”).
A new article SIXTEENTH shall be added, reading as follows:
SIXTEENTH: Any act or transaction by or involving the Corporation, other
than the election or removal of directors of the Corporation, that requires
for its adoption under the General Corporation Law of the State of Delaware
or this Restated Certificate of Incorporation the approval of the
stockholders of the Corporation shall, pursuant to Section 251(g)(7)(i) of
the General
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Corporation Law of the State of Delaware, require, in addition, the
approval of the stockholders of Northrop Grumman Corporation (or any
successor by merger), by the same vote as is required by the General
Corporation Law of the State of Delaware and/or by this Restated
Certificate of Incorporation.
(ii) The Bylaws of Merger Sub in effect at the Effective Time shall be the bylaws of the
Surviving Corporation until amended in accordance with applicable law, the certificate of
incorporation of the Surviving Corporation and such bylaws.
(b) New NGC.
(i) In accordance with Section 251(g) of the DGCL, New NGC agrees to file (and NGC as the sole
stockholder of New NGC agrees to approve the filing of) a Restated Certificate of Incorporation of
New NGC with the Secretary of State of the State of Delaware prior to the Effective Time (without,
for the avoidance of doubt, giving effect to any of the amendments contemplated by Section 4(a) of
this Agreement) containing provisions identical to those in the Restated Certificate of
Incorporation of NGC in effect immediately prior to the Effective Time, except as otherwise
permitted by Section 251(g) of the DGCL.
(ii) New NGC agrees to adopt Bylaws effective prior to the Effective Time containing
provisions identical to those in the Bylaws of NGC in effect immediately prior to the Effective
Time.
5. Directors and Officers.
(a) Surviving Corporation. The directors and officers of Merger Sub immediately prior
to the Effective Time shall be the directors and officers of the Surviving Corporation, each to
hold office in accordance with the certificate of incorporation and bylaws of the Surviving
Corporation until their respective successors are duly elected or appointed and qualified or until
their earlier death, resignation or removal.
(b) New NGC. The directors and officers of NGC immediately prior to the Effective
Time shall be the directors and officers of New NGC immediately after the Effective Time, each to
hold office in accordance with the Restated Certificate of Incorporation and Bylaws of New NGC
until their respective successors are duly elected or appointed and qualified or until their
earlier death, resignation or removal.
6. Conversion of Stock. At the Effective Time, by virtue of the Merger and without
any further action on the part of NGC, New NGC, Merger Sub or any holder of any shares of NGC
Common Stock (as defined below) or any shares of capital stock of Merger Sub:
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(a) each share (or fraction of a share, as applicable) of common stock, par value $1.00 per
share, of NGC (the “NGC Common Stock”) outstanding immediately prior to the Effective Time
(other than any shares of NGC Common Stock described in Section 6(b)) shall be converted into one
(or equal fraction of one, as applicable) fully paid and nonassessable share of common stock, par
value $1.00 per share, of New NGC (the “New NGC Common Stock”) having the same
designations, rights, powers and preferences, and the qualifications, limitations and restrictions
thereof, as the share (or fraction of a share) of NGC Common Stock being converted in the Merger;
(b) each share of NGC Common Stock that is held in the treasury of NGC or owned by NGC
immediately prior to the Effective Time shall automatically be cancelled and retired and shall
cease to exist, and no cash or other consideration shall be delivered or deliverable in exchange
therefor; and
(c) each share of common stock, par value $1.00 per share, of Merger Sub issued and
outstanding immediately prior to the Effective Time shall be converted into one fully paid share of
common stock, par value $1.00 per share, of the Surviving Corporation.
7. Stock Options and Other Equity Awards.
(a) Each issued and outstanding option to purchase NGC Common Stock (whether vested or
unvested) shall automatically be deemed converted into an option to purchase an equivalent number
of shares of New NGC Common Stock, on the same terms and subject to the same conditions as applied
to the option to purchase NGC Common Stock being so converted.
(b) All other outstanding equity-related awards with respect to NGC Common Stock, whether
vested or unvested (including, without limitation restricted stock rights, restricted performance
stock rights and cash performance units), shall automatically be deemed converted into equivalent
awards with respect to an equivalent number of shares of New NGC Common Stock, on the same terms
and subject to the same vesting and other conditions as applied to the awards with respect to NGC
Common Stock being so converted.
8. No Surrender of Certificates; Stock Transfer Books. At the Effective Time, the
designations, rights, powers and preferences, and qualifications, limitations and restrictions
thereof, of the capital stock of New NGC will, in each case, be identical with the capital stock of
NGC immediately prior to the Effective Time. Accordingly, until thereafter surrendered for
transfer or exchange in the ordinary course, each outstanding certificate that, immediately prior
to the Effective Time, evidenced NGC Common Stock shall, from the Effective Time, be deemed and
treated for all corporate purposes to evidence the ownership of the same number of shares of New
NGC Common Stock.
9. Plan of Reorganization. This Agreement is intended to constitute a “plan of
reorganization” within the meaning of Treasury Regulation Section 1.368-2(g). Each party hereto
shall use its commercially reasonable efforts to cause the Merger to qualify, and will
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not knowingly take any actions or cause any actions to be taken which could reasonably be
expected to prevent the Merger from qualifying, as a reorganization within the meaning of Section
368(a) of the Code.
10. Section 351. The Merger will constitute a transaction as to which the rights of
the holders of the NGC Common Stock have been previously defined, and in which such holders will
exchange such stock for all the New NGC Common Stock (constituting all the issued and outstanding
stock of New NGC and “control” of New NGC within the meaning of Section 368(c) of the Code),
subject to Section 351(a) and related provisions of the Code.
11. Termination. This Agreement may be terminated and the Merger abandoned at any
time prior to the Effective Time (whether before or after the approval of the stockholder of Merger
Sub entitled to vote thereon) only upon the mutual written consent of each of the boards of
directors of the parties hereto.
12. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any person other than the parties and their respective successors
and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by
reason of this Agreement.
13. Severability of Provisions. Each provision of this Agreement shall be considered
severable and if for any reason any provision or provisions herein are determined to be invalid,
unenforceable or illegal under any existing or future law, such invalidity, unenforceability or
illegality shall not impair the operation of or affect those portions of this Agreement that are
valid, enforceable and legal.
14. Entire Agreement. This Agreement constitutes the entire agreement of the parties
with respect to the subject matter hereof.
15. Governing Law. This Agreement shall be governed by, and construed under, the laws
of the State of Delaware (without regard to conflict of laws principles), all rights and remedies
being governed by said laws.
16. Amendments. This Agreement may be amended at any time prior to the Effective Time
by the parties hereto, whether before or after the approval of the stockholder of Merger Sub
entitled to vote thereon; provided that after such stockholder approval has been obtained no
amendment shall be made that by law requires the further approval or authorization of the
stockholder of Merger Sub without such further approval or authorization.
17. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original of this Agreement, and all of which together shall constitute
one and the same instrument.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed
this Agreement as of the date first written above.
| NORTHROP GRUMMAN CORPORATION |
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| By: | /s/ Xxxx Xxxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxxx | |||
| Title: | Corporate Vice President & Treasurer |
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| NEW P, INC. |
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| By: | /s/ Xxxx Xxxxxxxxxx | |||
| Name: | Xxxx Xxxxxxxxxx | |||
| Title: | President & Treasurer |
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| TITAN MERGER SUB INC. |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Secretary | |||
[Signature page to Agreement and Plan of Merger]
