EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
OF
IFR SYSTEMS, INC.
WITH
IFR MERGER CORPORATION
__________________________________
This Agreement and Plan of Merger (this "Agreement"), dated as of January
30, 1998, is entered into by IFR Systems, Inc., a Delaware corporation ("IFR
Systems"), IFR Merger Corporation, a Delaware corporation ("Merger
Corporation"), and IFR Holding Corporation, a Delaware Corporation ("IFR
Holding").
RECITALS
A. The Board of Directors of IFR Systems has determined it to be in the
best interests of IFR Systems and its stockholders to effect a restructuring
whereby IFR Systems will be become the wholly owned subsidiary of a new holding
company; and
B. It is intended that the holding company structure be effected without a
vote of the stockholders of IFR Systems pursuant to and in accordance with
Section 251(g) of the Delaware General Corporation Law (the "DGCL").
C. The Boards of Directors of IFR Systems, Merger Corporation, and IFR
Holding, and IFR Holding acting as the sole stockholder of Merger Corporation,
have approved the merger of Merger Corporation with and into IFR Systems (the
"Merger").
D. It is intended that, for federal income tax purposes, the Merger shall
qualify as a reorganization under the provisions of Section 368(a) of the
Internal Revenue Code, as amended, and the rules and regulations promulgated
thereunder.
E. The Certificate of Incorporation and the By-Laws of IFR Holding
immediately after the Effective Time (as hereinafter defined) will contain
provisions identical to the Certificate of Incorporation and Bylaws of IFR
Systems immediately before the Effective Time other than with respect to matters
excepted by Section 251(g) of the DGCL.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements contained in this Agreement, the parties hereto agree as follows:
ARTICLE I
THE MERGER
Section 1.1. THE MERGER. At the Effective Time (as defined in Section
1.2) and subject to and upon the terms and conditions of this Agreement, Merger
Corporation shall be merged with and into IFR Systems in accordance with the
DGCL, whereupon the separate corporate existence of Merger Corporation shall
cease and IFR Systems shall be the surviving corporation in the Merger (the
"Surviving Corporation") and shall succeed to and assume all of the rights and
obligations of Merger Corporation in accordance with the DGCL.
Section 1.2. EFFECTIVE TIME. The Merger shall become effective on the
date of the filing of a certified copy of this Agreement with the Secretary of
State of Delaware as required by the DGCL (the "Effective Time").
Section 1.3. EFFECT OF THE MERGER. The effects of the Merger shall be
as provided in the applicable provisions of the DGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Effective time all the
rights, privileges, powers, franchises, and property of Merger Corporation and
IFR Systems shall vest in the Surviving Corporation, and all restrictions,
disabilities, duties, debts, and liabilities of Merger Corporation and IFR
Systems shall become the restrictions, disabilities, duties, debts, and
liabilities of the Surviving Corporation.
Section 1.4. CERTIFICATES OF INCORPORATION AND BYLAWS. (a) At the
Effective Time, the Certificate of Incorporation of IFR Systems shall be the
Certificate of Incorporation of the Surviving Corporation except that, effective
as of the Effective Time, such Certificate of Incorporation shall be amended as
follows:
(i) Paragraph (a) of Article I shall be amended to read in its entirety as
follows:
(a) NAME. The name of this Corporation is IFR Instruments, Inc.
(ii) Paragraph (d) of Article I shall be amended to read in its entirety
as follows:
(d) SHARES OF CAPITAL STOCK. The aggregate number of shares which
the Corporation shall have the authority to issue is 1,000 shares of common
stock, par
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value $1.00 per share ("Common Stock"). No shares of the previously authorized
preferred stock have been issued and all provisions previously contained in this
Certificate authorizing preferred stock are hereby withdrawn.
(iii) Article VII is repealed in its entirety and the following Article
VII is substituted to read in its entirety as follows:
ARTICLE VII
REQUIRED STOCKHOLDER APPROVAL
Any act or transaction by or involving the Corporation that requires for
its adoption under the General Corporation Law of the State of Delaware or this
Certificate of Incorporation the approval of the stockholders of the Corporation
shall, pursuant to Section 251(g) of the General Corporation Law of the State of
Delaware, require, in addition, the approval of the stockholders of IFR Holding
Corporation, a Delaware corporation (or any successor by merger), by the same
vote as is required by the General Corporation Law of the State of Delaware or
this Certificate of Incorporation so long as IFR Holding Corporation (whose name
is being changed to IFR Systems, Inc.) or its successor is the ultimate parent
of the Corporation. For the purposes of this Article VII, the term "parent"
shall mean a corporation that owns, directly or indirectly at least a majority
of the outstanding capital stock of the Corporation entitled to vote in the
election of directors without regard to the occurrence of any contingency.
(b) Substantially concurrently with the filing of this Agreement with the
Secretary of the State of Delaware, IFR Holding Corporation shall cause to be
filed with the Secretary of the State of Delaware an Amended and Restated
Certificate of Incorporation of IFR Holding Corporation substantially in the
form of Exhibit "A" hereto.
(c) At the Effective Time, the Bylaws of IFR Holding Corporation shall be
in the form of the Bylaws of IFR Systems immediately prior to the Effective
Time.
Section 1.5. ADDITIONAL ACTIONS. Subject to the terms of this
Agreement, the parties hereto shall take all such reasonable and lawful actions
as may be necessary or appropriate in order to effectuate the Merger. If at
any time after the Effective Time, the Surviving Corporation shall consider or
be advised that any deeds, bills of sale, assignments, assurances, or any other
actions or things are necessary to vest, perfect, or confirm, of record or
otherwise, in the Surviving Corporation its right, title, or interest in, to, or
under any of the rights, properties, or assets acquired or to be acquired by the
Surviving Corporation as a result of, or in connection with, the Merger or
otherwise to carry out this Agreement, the officers and directors of the
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Surviving Corporation shall be authorized to execute and deliver, in the name
and on behalf of each of Systems and Merger Corporation, all such deeds, bills
of sale, assignments, and assurances and to take all such other actions and
things as may be necessary or desirable to vest, perfect, or confirm any and all
rights titles, and interests, in, to and under such rights, properties, or
assets in the Surviving Corporation or otherwise to carry out this Agreement.
Section 1.6. DIRECTORS AND OFFICERS. The directors and officers of the
Surviving Corporation shall be the directors and officers, respectively, of IFR
Systems immediately prior to the Effective Time, in each case until their
respective successors are duly elected or appointed and qualified.
Section 1.7. RIGHTS PLANS. Prior to the Effective Time IFR Systems and
IFR Holding Corporation shall take all necessary action to substitute IFR
Holding Corporation for IFR Systems under the existing Rights Agreement, dated
as of February 28, 1989, between IFR Systems and Xxxxxx Trust & Savings Bank
(the "Rights Agreement") and all rights granted thereunder as of the Effective
Time, so that, as of the Effective Time, IFR Holding Corporation shall have
assumed all of the rights and obligations under the Rights Agreement and the
preferred stock purchase rights ("Rights") granted thereunder.
ARTICLE II
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS;
NO EXCHANGE OF CERTIFICATES
Section 2.1. CONVERSION OF SECURITIES. At the Effective time, by virtue
of the Merger and without any action on the part of IFR Systems, IFR Holding,
Merger Corporation, or the holders of any of the securities of any of them, IFR
Systems will become a wholly owned subsidiary of IFR Holding, and the
stockholders of IFR Systems will become stockholders of IFR Holding. To effect
the foregoing:
(a) each share of common stock, par value $0.01, of IFR Systems
("IFR Systems Common Stock") then held by IFR Systems as a treasury share or
then held by Merger Corporation or IFR Holding Corporation shall be canceled
and extinguished without payment of any consideration therefor and without
any conversion thereof;
(b) each share of IFR Systems Common Stock then issued and
outstanding (other than those described in Section 2.1(a)) together with the
associated Right shall, without necessity of exchange or surrender thereof,
be converted into and thereafter shall represent one validly issued, fully
paid, and non-assessable share of common stock, par value $1.00 par share, of
IFR Holding ("IFR Holding Common Stock") and one associated Right;
(c) each then outstanding warrant, option, or other right to
purchase or receive one share of IFR Systems Common Stock (collectively "IFR
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Systems Options") shall, automatically represent the right to receive one
validly issued, fully paid, and non-assessable warrant, option, or other
right (as the case may be) representing the right to purchase or receive,
subject to the identical terms and provisions of the respective agreements
applicable to the IFR Systems Options (collectively the "IFR Systems Options
Agreements"), one share of IFR Holding Common Stock ("IFR Holding Options").
(d) each share of common stock, par value $1.00 per share, of
Merger Corporation issued and outstanding immediately prior to the Effective
Time shall be converted into and thereupon and thereafter shall represent one
validly issued, fully paid, and non-assessable share of common stock of the
Surviving Corporation; and
(e) each share of common stock, par value $1.00 per share, of IFR
Holding held by IFR Systems immediately prior to the Effective Time shall be
contributed to the capital of IFR Holding and canceled and extinguished
without payment of any consideration therefor and without any conversion
thereof.
(f) IFR Holding and IFR Systems shall (i) make any necessary or
desirable amendments to the various IFR Systems Options Agreements; (ii) use
all reasonable best efforts to obtain any required consents or releases;
(iii) prepare and execute appropriate agreements granting or creating the IFR
Holding Options; and (iv) take any other action necessary to effect the
transactions contemplated by this Section 2.1.
(g) Each certificate representing shares of IFR Systems Common
Stock immediately prior to the Effective Time not being expressly canceled
pursuant to this Agreement shall be deemed to represent the same number of
shares of IFR Holding Common Stock at the Effective Time and shall no longer
represent shares of IFR Systems Common Stock and it shall not be necessary
for any holder thereof to exchange any such stock certificate.
ARTICLE III
AMENDMENT;TERMINATION
This Agreement may be amended by the parties hereto by action taken by or
on behalf of their respective boards of directors at any time prior to the
Effective Time. This Agreement may be terminated at any time prior to the
Effective Time by the Boards of Directors of the parties hereto notwithstanding
approval of this Agreement by the stockholders of any party hereto.
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ARTICLE IV
GENERAL PROVISIONS
Section 4.1. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
Section 4.2. SEVERABILITY. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
Section 4.3. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
IN WITNESS WHEREOF, IFR Holding, IFR Systems, and Merger Corporation have
caused this Agreement to be executed by their respective duly authorized
officers.
IFR HOLDING CORPORATION
By:_______________________________
Xxxxxx X. Xxxx, III, President
ATTEST:
_________________________
Xxxxxxx X. Xxxxxx, Secretary
IFR SYSTEMS, INC.
By:________________________________
Xxxxxx X. Xxxx, III, President
ATTEST:
_________________________
Xxxxxxx X. Xxxxxx, Secretary
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IFR MERGER CORPORATION
By:_________________________________
Xxxxxx X. Xxxx, III, President
ATTEST:
__________________________
Xxxxxxx X. Xxxxxx, Secretary
This Agreement has been adopted pursuant to Section 251(g) of the General
Corporation Law of the State of Delaware, and all of the conditions specified in
the first sentence of that Section 251(g) have been satisfied.
DATED: January _____, 1998
___________________________________________
Xxxxxxx X. Xxxxxx, Secretary
IFR Systems, Inc.
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