EXHIBIT 2.3
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is entered into by
and between M&G Holdings, Inc, an Illinois corporation ("M&G"), AND MOTORS AND
GEARS HOLDINGS, INC., a Delaware corporation ("MOTORS AND GEARS").
1. M&G is a corporation duly organized and existing under the laws of the
State of Illinois.
2. Motors and Gears is a corporation duly organized and existing under the
laws of the State of Delaware.
3. On the date of this Merger Agreement, M&G's authorized capital consists of
10,000 shares of common stock, par value $0.01 per share, of which 9,700 common
shares are issued and outstanding; and 2,750 shares of preferred stock, par
value $1.00 per share, of which 2,750 shares are issued and outstanding;
4. On the date of this Merger Agreement, Motor and Gears' authorized capital
consists of 10,000 shares of common stock, par value $0.01 per share, of which
9,700 shares are issued and outstanding; and 2,750 shares preferred stock, par
value $1.00 per share, of which 2,750 shares are issued and outstanding.
ARTICLE I
THE MERGER
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SECTION 1.01. The Merger. At the Effective Time (as defined in Section 1.02),
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upon the terms and conditions hereof, and in accordance with The General
Corporation Law of the State of Delaware and the Business Corporation Act of the
State of Illinois, M&G shall be merged with and into Motors and Gears (the
"Merger") and Motors and Gears shall be the surviving corporation in the Merger
(the "Surviving Corporation").
SECTION 1.02. Effective Time. As soon as practicable after approval of the
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Merger by M&G and Motors and Gears, as set forth herein (a) a Certificate of
Merger with respect to the Merger shall be filed with the Secretary of State of
the State of Delaware in accordance with the provisions of Section 252 of the
General Corporation Law of the State of Delaware and (b) Articles of Merger
shall be filed with the Secretary of State of the State of Illinois in
accordance with Section 11.25 of the Illinois Business Corporation Act. The
Merger shall be effective at such time as the Certificate of Merger shall have
been issued by the Secretary of State (the "Effective Time").
SECTION 1.03. CERTAIN EFFECTS OF THE MERGER. As of the Effective Time of the
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Merger, (i) the separate existence of M&G shall cease and M&G shall be merged
with and into Motors and Gears and (ii) the Merger shall have all the effects
set forth in the applicable statutes of Illinois and Delaware. Motors and Gears
shall assume all of the
liabilities, obligations, responsibilities, rights, privileges and immunities of
M&G as of the Effective Time.
SECTION 1.04. CERTIFICATE OF INCORPORATION AND BY-LAWS. The Certificate of
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Incorporation and By-Laws of Motors and Gears as in effect immediately prior to
the Effective Time shall be the Articles of Incorporation and By-Laws of the
Surviving Corporation.
SECTION 1.05. Name. The name of the Surviving Corporation shall continue to he
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Motors and Gears Holdings, Inc..
SECTION 1.06. DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION. The
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directors and officers of Motors and Gears in office immediately prior to the
Effective Time shall be the directors and officers of the Surviving Corporation
until such time as their respective successors shall have been duly elected and
qualified or until their earlier death, resignation or removal.
ARTICLE II
EFFECT OF MERGER ON CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS
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SECTION 2.01. NO CONVERSION OF SHARES OF MOTORS AND GEARS. At the Effective
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Time, each share of the common stock, $0.01 par value, of Motors and Gears
outstanding immediately prior to the Effective Time shall not be converted, and
each such share that is issued and outstanding on such date shall continue to
represent one issued and outstanding share of Motors and Gears, as the Surviving
Corporation. Each such share shall continue to possess the same rights and
limitations as it possessed prior to the Effective Time of the Merger. At the
Effective Time, each share of the preferred stock, $1.00 par value, of Motors
and Gears outstanding immediately prior to the Effective Time shall not be
converted, and each such share that is issued and outstanding on such date shall
continue to represent one issued and outstanding share of Motors and Gears, as
the Surviving Corporation. Each such share shall continue to possess the same
rights and limitations as it possessed prior to the Effective Time of the
Merger. No shares of stock of Motors and Gears shall be issued pursuant to this
Plan of Merger.
SECTION 2.02. CANCELLATION OF COMMON STOCK OF M&G At the Effective Time of the
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Merger, by virtue of the Merger and without any action on the part of any holder
thereof, each share of the $0.01 par value common stock of M&G outstanding
immediately prior to the Effective Time shall be cancelled for no consideration.
All of the issued shares of common stock of Motors and Gears and M&G are owned
by the same shareholders in identical proportions. At the Effective Time of the
Merger, by virtue of the Merger and without any action on the part of any holder
thereof, each share of the $1.00 par value preferred stock of M&G outstanding
immediately prior to the Effective Time shall be cancelled for no consideration.
All of the issued shares of preferred stock of Motors and Gears and M&G are
owned by the same shareholders in identical proportions.
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ARTICLE III
CONDITIONS TO MERGER
SECTION 3.01 CONDITIONS. The consummation of the Merger is subject to
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satisfaction of the following conditions prior to the Effective time:
a. The Merger shall have received the requisite approval of the holders of M&G
common stock and all necessary action shall have been taken to authorize the
execution, delivery and performance of the Merger Agreement by each of M&G and
Motors and Gears.
b. All approvals and consents necessary or desirable, if any, in connection
with the consummation of the Merger shall have been obtained.
SECTION 3.02 DEFERRAL OR ABANDONMENT. At any time prior to the Effective Time,
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the Merger may be abandoned or the time of consummation of the Merger may be
deferred for a reasonable time by the Board of Directors of either of the
parties hereto, notwithstanding approval of this Plan of Merger by the
stockholders of M&G, if circumstances arise which, in the opinion of the Board
of Directors of either of said corporations make the Merger inadvisable or such
deferral of the time of consummation thereof advisable.
ARTICLE IV
SERVICE OF PROCESS;DISSENTERS' RIGHTS
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SECTION 4.01 SERVICE OF PROCESS. It is agreed that upon and after the Effective
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Time:
a. The Surviving Corporation may be served with process in the State of
Illinois in any proceeding for the enforcement of any obligation of M&G.
b. The Secretary of State of the State of Illinois shall be and hereby is
irrevocably appointed as the agent of the Surviving Corporation to accept
service of process in any proceeding to enforce any obligation of M&G; the
address to which the service of process in any such proceeding shall be mailed
is 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000,
Attention: Corporation Trust Company.
SECTION 4.02 DISSENTERS' RIGHTS. The Surviving Corporation agrees to pay to
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any shareholder of M&G dissenting to the Merger the amount, if any, to which
such shareholder is entitled under the provisions of the Illinois Business
Corporation Act.
(SIGNATURES ON THE FOLLOWING PAGE)
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IN WITNESS WHEREOF, M&G and Motors and Gears have caused this
Merger Agreement to be signed by their respective duly authorized officers and
delivered this 1 day of November, 1996.
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M&G Holdings, Inc., an Illinois corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx, Its Vice President
ATTEST:
By: /s/ G. Xxxxxx Xxxxxx
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G. Xxxxxx Xxxxxx, Its Assistant Secretary
Motors and Gears Holdings, Inc., a Delaware
corporation
By: /s/ Xxxxxxxx X. Xxxxxxx
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Xxxxxxxx X. Xxxxxxx, Its Vice President
ATTEST:
By: /s/ G. Xxxxxx Xxxxxx
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G. Xxxxxx Xxxxxx, Its Assistant Secretary
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SECRETARY'S CERTIFICATE
The undersigned Assistant Secretary of Motors and Gears Holdings, Inc.
("Motors and Gears"), hereby certifies that the foregoing Agreement and Plan of
Merger has been adopted pursuant to Subsection (f) of Section 251 of the
Delaware Corporation Law by action of the board of directors of Motors and Gears
and without any vote of its stockholders and that the following conditions of
said section have been satisfied: (i) the Agreement and Plan of Merger does not
amend the Certificate of Incorporation of Motors and Gears; (ii) each share of
stock of Motors and Gears outstanding immediately prior to the effective date of
the Merger is to be an identical outstanding share of the Surviving Corporation;
(iii) no shares of common stock of the Surviving Corporation and no shares
convertible into such stock are to be issued or delivered under the Plan of
Merger.
MOTORS AND GEARS HOLDINGS, INC., A DELAWARE
CORPORATION
By: /s/ G. Xxxxxx Xxxxxx
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G. Xxxxxx Xxxxxx, Its Assistant Secretary
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SECRETARY'S CERTIFICATE
The undersigned Assistant Secretary of M&G Holdings, Inc., an Illinois
corporation ("M&G"), hereby certifies that pursuant to subsection (c) of Section
251 of the Delaware Corporation Law, the foregoing Agreement and Plan of Merger
has been adopted by the vote of the holders of all of the outstanding stock of
M&G entitled to vote thereon.
M&G HOLDINGS, INC., AN ILLINOIS CORPORATION
By: /s/ G. Xxxxxx Xxxxxx
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G. Xxxxxx Xxxxxx, Its Assistant Secretary
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