Exhibit B-176
AGREEMENT AND PLAN OF MERGER
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XXXXXXXX ELECTRIC COMPANY INC.,
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A Colorado Corporation
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INTO
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XXXXXXXX ELECTRIC COMPANY, INC.,
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A Michigan Corporation
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THIS AGREEMENT AND PLAN OF MERGER ("Agreement") dated as of August
30, 1974, by and between Xxxxxxxx Electric Company, Inc., a Colorado
corporation, hereinafter referred to as "Xxxxxxxx of Colorado", and Xxxxxxxx
Electric Company, Inc., a Michigan corporation, hereinafter referred to as
"Xxxxxxxx of Michigan", said corporations being hereinafter sometimes referred
to as the "Constituent Corporations".
W I T N E S S E T H :
WHEREAS, the Boards of Directors of the Constituent Corporations
deem it advisable for the general welfare and advantage of the Constituent
Corporations and their respective shareholders that the Constituent Corporations
merge into a single corporation pursuant to this Agreement and pursuant to the
applicable provisions of the laws of the States of Colorado and Michigan.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereby agree, in accordance with the
applicable provisions of the laws of the State of Colorado, that the Constituent
Corporations shall be merged into a single corporation, to-wit, Xxxxxxxx
Electric Company, Inc., a Michigan Corporation, which shall continue its
corporate existence and be the surviving corporation in the merger (hereinafter
referred to as "Surviving Corporation"), and the terms and conditions of the
merger which the parties covenant to observe, keep and perform and the mode of
carrying the same into effect are and shall be as hereinafter set forth:
1. Effective Date of the Merger. The merger shall be effective
upon compliance with the corporation codes of the States of Colorado and
Michigan.
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2. Governing Law and Articles of Incorporation. The Michigan
Corporation Code, as amended from time to time, shall govern the Surviving
Corporation, and the Articles of Incorporation of Xxxxxxxx of Michigan as
amended shall be and continue as the Articles of Incorporation of the Surviving
Corporation until the same shall be amended or altered in accordance with the
provisions thereof.
3. By-Laws. The By-Laws of Xxxxxxxx of Michigan at the effective
time of the merger shall be the By-Laws of the Surviving Corporation until the
same shall be altered or amended in accordance with the provisions thereof.
4. Directors and Officers. The directors of Xxxxxxxx of
Michigan now serving shall at the effective time of the merger be the
directors of the Surviving Corporation until their respective successors are
duly elected and qualified. Subject to the authority of the Board of
Directors as provided by law and the By-laws of the Surviving Corporation,
the officers of the Surviving Corporation at the effective time of the merger
shall be: Xxxxxx X. Xxxxxxx, President, Xxxxxx X. Xxxxxx, Vice-President, X.
X. Xxxxxx, Secretary and Xxxxx Xxxx, Treasurer.
5. Conversion of Shares in a Merger. The mode of carrying into
effect the merger provided in this Agreement and the manner and basis of
converting the shares of the Constituent Corporations into shares of the
Surviving Corporation are as follows:
5.1. The one share of voting common stock, no par value, of
Xxxxxxxx of Michigan issued and outstanding at the effective time of
the merger shall be surrendered and cancelled as a result of the
merger.
5.2. At the effective time of the merger, each share of common
stock, no par value, voting and non-voting shares issued and
outstanding, shall be converted into and in like manner become one
share of the voting or non-voting, as the case may be, common stock,
no par value, of the Surviving Corporation, and each holder of
common stock of Xxxxxxxx of Colorado, upon surrender to the
Surviving Corporation of one or more stock certificates for the
common stock of Xxxxxxxx of Colorado for cancellation, shall be
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entitled to receive one or more stock certificates for the common
stock designated voting or non-voting of the Surviving Corporation,
into which the common stock of Xxxxxxxx of Colorado so surrendered
shall have been converted as aforesaid. Each share of Xxxxxxxx of
Colorado common stock held in its treasury, if any, at the effective
time of the merger, shall be cancelled and shall not be converted.
5.3. Immediately after the merger becomes effective, the stock
certificates representing Xxxxxxxx of Colorado common stock issued
and outstanding, shall be surrendered for exchange.
5.4. All shares of common stock of the Surviving Corporation
into which shares of the common stock of Xxxxxxxx of Colorado are
converted as herein provided shall be fully paid and nonassessable
and shall be issued in full satisfaction of all rights pertaining to
such shares of Xxxxxxxx of Colorado, subject only to the obligations
of any shareholder affected to pay the purchase price thereon in
accordance with the evidence of such obligation given by such
shareholder to Xxxxxxxx of Colorado.
6. Effect of the Merger. At the effective time of the merger, the
Surviving Corporation shall succeed to, without other transfer, and shall
possess and enjoy, all the rights, privileges, immunities, powers and franchises
both of a public and a private nature, and be subject to all the restrictions,
disabilities and duties of each of the Constituent Corporations, and all the
rights, privileges, immunities, powers and franchises of each of the Constituent
Corporations and all property, real, personal and mixed, and all debts due to
either of said Constituent Corporations on whatever account, for stock
subscriptions as well as for all other things in action or belonging to each of
said corporations, shall be vested in the Surviving Corporation; and all
property, rights, privileges, immunities, powers and franchises, and all and
every other interest shall be thereafter as effectually the property of the
Surviving Corporation as they were of the respective Constituent Corporations,
and the title to any real estate vested by deed or otherwise in either of said
Constituent Corporations shall not revert or be in any way impaired by reason of
the merger; provided, however, that all rights of creditors and all liens
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upon any property of either of said Constituent Corporations shall be preserved
unimpaired, limited in lien to the property affected by such liens at the
effective time of the merger, and all debts, liabilities and duties of said
Constituent Corporations, respectively, shall thenceforth attach to the
Surviving Corporation and may be enforced against it to the same extent as if
said debts, liabilities and duties had been incurred or contracted by the
Surviving Corporation.
7. Accounting Matters. The assets and liabilities of the Constituent
Corporations as at the effective time of the merger shall be taken up on the
books of the Surviving Corporation at the amounts at which they were carried on
the books of the respective Constituent Corporations at the effective date of
the merger. The amount of capital of the Surviving Corporation after the merger
shall be as it was stated in Xxxxxxxx of Colorado immediately prior to such
effective date.
8. Approval of Shareholders; Filing of Certificate of Merger. This
Agreement shall be submitted to the shareholders of each of the Constituent
Corporations as provided by law and their respective Articles of Incorporation
at meetings which shall be held on or before August 29, 1974, or such later date
as the Boards of Directors of the Constituent Corporations shall mutually
approve. After such adoption and approval and subject to the conditions
contained in this Agreement, Articles of Merger or other required documents
shall be signed verified and delivered to the Secretary of State of the State of
Colorado and the Michigan Department of Commerce for filing as provided by their
respective Codes.
9. Representations and Warranties. Xxxxxxxx of Michigan is a newly
organized corporation under the laws of Michigan. It was formed solely for the
purpose of creating an entity in Michigan into which Xxxxxxxx of Colorado could
merge for the corporate objective and purpose of enabling Xxxxxxxx of Michigan
(the Surviving Corporation in this merger) to later enter into a corporate
reorganization of a form and type not recognized under Colorado law. Xxxxxxxx of
Michigan has no assets but upon this merger will succeed to all the rights and
liabilities and will acquire all the assets and liabilities of Xxxxxxxx of
Colorado. The sole effect of the merger is, therefore, to reincorporate Xxxxxxxx
of Colorado as a Michigan corporation with a continuation in every respect of
the business and ownership of Xxxxxxxx of Colorado.
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10. Closing. The Constituent Corporations shall cause Articles of
Merger or other necessary documents reflecting the merger provided for herein to
be executed and filed immediately following the time when the shareholders of
the Constituent Corporations shall have approved this Agreement. In this
respect, the Boards of Directors of each of the Constituent Corporations agree
hereby to call a special meeting of their shareholders immediately following the
execution of this Agreement for the purposes of submission of this Agreement and
Plan of Merger.
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