Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
By and Among
Dresser, Inc.,
Dresser, Ltd.
and
Dresser Mergerco, Inc.
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of July 3, 2002 (this "Merger
Agreement"), is by and among Dresser, Inc., a Delaware corporation ("Dresser"),
Dresser, Ltd., a Bermuda company and a wholly owned subsidiary of Dresser
("Dresser Bermuda"), and Dresser Mergerco, Inc., a Delaware corporation and a
wholly owned indirect subsidiary of each of Dresser and Dresser Bermuda
("Transitory Merger Sub").
RECITALS:
The Boards of Directors of each of Dresser, Dresser Bermuda and Transitory
Merger Sub have approved and adopted this Merger Agreement and the stockholders
of each of Dresser, Dresser Bermuda and Transitory Merger Sub have approved this
Merger Agreement and the Merger.
Upon the terms of this Merger Agreement and in accordance with the
applicable provisions of the Delaware General Corporation Law (the "DGCL"),
Transitory Merger Sub will merge with and into Dresser (the "Merger") and
Dresser will be the surviving corporation.
Upon the terms of this Merger Agreement, and in accordance with the
applicable provisions of the DGCL, each outstanding share of Dresser common
stock will be cancelled and the holders thereof will receive one class A common
share of Dresser Bermuda, par value $.01 (the "Bermuda Class A Common Shares"),
for each share of Dresser Class A Common Stock, par value $.001 per share (the
"Class A Common Stock"), and one class B common share of Dresser Bermuda, par
value $.01 (the "Bermuda Class B Common Shares" and, collectively with the
Bermuda Class A Common Shares, the "Bermuda Common Shares") for each share of
Dresser Class B Common Stock, par value $.001 per share (the "Class B Common
Stock"), respectively, held by such stockholder.
Upon the terms of this Merger Agreement, and in accordance with the
applicable provisions of the DGCL, each outstanding share of Transitory Merger
Sub common stock (the "Merger Sub Common Stock") will be cancelled and the
holder thereof will receive one newly-issued share of Dresser common stock (the
"New Dresser Common Stock") for each share of Merger Sub Common Stock held by
such stockholder.
The executed Merger Agreement is on file at the office of Dresser at 00000
Xxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000. A copy of the Merger Agreement
will be furnished by Dresser, on request and without cost, to any stockholder of
any constituent corporation.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree
as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Rules of Construction. Unless the context otherwise requires,
as used in this Merger Agreement: (a) a term has the meaning ascribed to it; (b)
an accounting term not otherwise defined has the meaning ascribed to it in
accordance with U.S. GAAP; (c) "or" is not exclusive; (d) "including" means
"including, without limitation;" (e) words in the singular include the plural;
(f) words in the plural include the singular; (g) words applicable to one gender
shall be construed to apply to each gender; (h) the terms "hereof," "herein,"
"hereby," "hereto" and derivative or similar words refer to this entire Merger
Agreement; and (i) the terms "Article" or "Section" shall refer to the specified
Article or Section of this Merger Agreement.
ARTICLE II.
TERMS OF MERGER
Section 2.01 Statutory Merger. Subject to the terms contained herein,
Transitory Merger Sub shall merge with and into Dresser upon the filing of this
Merger Agreement with the Secretary of the State of Delaware as contemplated by
Section 2.02 (the "Effective Time"). The terms and conditions of the Merger and
the mode of carrying the same into effect shall be as set forth in this Merger
Agreement. As a result of the Merger, the separate corporate existence of each
of the constituent corporations shall cease and Dresser shall continue as the
surviving corporation.
Section 2.02 Effective Time. Promptly after execution and delivery of this
Merger Agreement, the parties hereto shall cause the Merger to be consummated by
filing a certified copy of this Merger Agreement with the Secretary of State of
the State of Delaware.
Section 2.03 Effect of the Merger. At the Effective Time, the effect 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, except as otherwise provided herein, all the property, rights, privileges,
powers and franchises of the Transitory Merger Sub and Dresser shall vest in the
surviving corporation, and all debts, liabilities and duties of the Transitory
Merger Sub and Dresser shall become the debts, liabilities and duties of the
surviving corporation.
Section 2.04 Certificate of Incorporation; Bylaws
(a) At the Effective Time, the restated certificate of incorporation
attached hereto as Exhibit A shall be the certificate of incorporation of
the surviving corporation.
(b) At the Effective Time, the bylaws of Dresser, as in effect
immediately prior to the Effective Time, shall be the bylaws of the
surviving corporation.
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ARTICLE III.
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
Section 3.01 Merger Consideration; Conversion and Cancellation of
Securities. At the Effective Time, by virtue of the Merger and without any
action on the part of Dresser, Dresser Bermuda or the holders of any of the
following securities:
(a) Subject to the other provisions of this Article III, each
outstanding share of Dresser common stock will be cancelled and the holders
thereof will receive:
(i) one Bermuda Class A Common Share for each share of Class A Common
Stock held by such stockholder, and
(ii) one Bermuda Class B Common Share for each share of Class B Common
Stock held by such stockholder.
(b) Subject to the other provisions of this Article III, each
outstanding share of Merger Sub Common Stock will be cancelled and the
holder thereof will receive one share of New Dresser Common Stock for each
share of Merger Sub Common Stock held by such stockholder.
(c) Notwithstanding the foregoing, if between the date of this Merger
Agreement and the Effective Time the outstanding Bermuda Class A Common
Shares, Bermuda Class B Common Shares, Class A Common Stock, Class B Common
Stock, Merger Sub Common Stock or New Dresser Common Stock shall have been
changed into a different number of shares or a different class, by reason
of any stock dividend, subdivision, reclassification, recapitalization,
split, combination or exchange of shares, the exchange ratio specified in
this subsection (a) shall be correspondingly adjusted to reflect such stock
dividend, subdivision, reclassification, recapitalization, split,
combination or exchange of shares.
Section 3.02 Exchange of Certificates.
(a) Promptly following the Effective Time, Dresser Bermuda shall
deliver to each Dresser stockholder a certificate or certificates
evidencing the number of Bermuda Class A Common Shares and Bermuda Class B
Common Shares that such stockholder is entitled to receive upon surrender
by such stockholder of Class A Common Stock or Class B Common Stock as
provided in subsection (a) of Section 3.01 herein.
(b) Promptly following the Effective Time, Dresser shall deliver to
the holder of Merger Sub Common Stock a certificate evidencing the number
of shares of New Dresser Common Stock that such stockholder is entitled to
receive upon surrender by such stockholder of Merger Sub Common Stock as
provided in subsection (b) of Section 3.01 herein.
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ARTICLE IV.
MISCELLANEOUS PROVISIONS
Section 4.01 Termination. This Merger Agreement may be terminated at any
time prior to the Effective Time:
(a) by mutual consent of Transitory Merger Sub, Dresser and Dresser
Bermuda; or
(b) by any of Transitory Merger Sub, Dresser or if the Merger shall
not have been consummated before August 1, 2002.
Section 4.02 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
upon receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses or sent by electronic transmission to the telecopier number specified
below:
(a) If to Dresser, to:
Dresser, Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopier No.: 000-000-0000
(b) If to Transitory Merger Sub, to:
Dresser, Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopier No.: 000-000-0000
(c) If to Dresser Bermuda, to:
Dresser, Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telecopier No.: 000-000-0000
or to such other address or telecopier number as any party may, from time to
time, designate in a written notice given in a like manner. Notice given by
telecopier shall be deemed delivered on the day the sender receives telecopier
confirmation that such notice was received at the telecopier
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number of the addressee. Notice given by mail as set out above shall be deemed
delivered three days after the date the same is postmarked.
Section 4.03 Headings. The headings contained in this Merger Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Merger Agreement.
Section 4.04 Severability. If any term or other provision of this Merger
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Merger Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Merger Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the extent possible.
Section 4.05 Entire Agreement. This Merger Agreement constitutes the entire
agreement of the parties, and supersedes all prior agreements and undertakings,
both written and oral, among the parties, with respect to the subject matter
hereof.
Section 4.06 Assignment. This Merger Agreement shall not be assigned by
operation of Law or otherwise.
Section 4.07 Governing Law; Jurisdiction. This Merger Agreement shall be
governed by, and construed in accordance with, the Laws of the State of
Delaware, and any matter involving the internal corporate affairs of any party
hereto (other than Dresser Bermuda) shall be governed by the provisions of the
DGCL. The parties hereby exclusively submit to the personal jurisdiction of, and
waive any objection against, the United States District Court for the State of
Delaware and the courts of the State of Delaware.
Section 4.08 Counterparts. This Merger Agreement may be executed in multiple
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
Section 4.09 No General Solicitation. None of Dresser, Dresser Bermuda,
Transitory Merger Sub, nor any of their respective affiliates, nor any person on
their behalf, has engaged in any form of general solicitation or general
advertising (within the meaning of Regulation D of the Securities Act of 1933,
as amended) in connection with the Merger, this Merger Agreement, or any
transaction contemplated hereby or thereby.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Merger
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
DRESSER, INC.
By: _______________________________
Name:
Title:
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DRESSER, LTD.
By: _______________________________
Name:
Title:
7
DRESSER MERGERCO, INC.
By: _______________________________
Name:
Title:
8
Exhibit A
RESTATED CERTIFICATE OF INCORPORATION
OF
DRESSER, INC.
FIRST: The name of the Corporation is Dresser, Inc.
SECOND: The address of the Corporation's registered office in the State of
Delaware is 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx,
00000, and the name of its registered agent at such address is The Corporation
Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the General Corporation Law of
Delaware as it now exists or may hereafter be amended and supplemented.
FOURTH: The total number of shares of stock which the Corporation shall have
authority to issue is 10,000 having a par value of $.01 per share. All such
shares are Common Stock.
FIFTH: The personal liability of the directors of the Corporation is hereby
eliminated to the fullest extent permitted by paragraph (7) of subsection (b) of
Section 102 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented. Any repeal or modification of this Article
Fifth shall not adversely affect any right or protection of a director of the
Corporation existing immediately prior to such repeal or modification.
SIXTH: From time to time any of the provisions of this certificate of
incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
certificate of incorporation are granted subject to the provisions of this
Article Sixth.
SEVENTH: In furtherance and not in limitation of the rights, powers, privileges
and discretionary authority granted or conferred by the General Corporation Law
of the State of Delaware or other statutes or laws of the State of Delaware, the
Board of Directors is expressly authorized to make, alter, amend or repeal the
By-Laws of the Corporation, without any action on the part of the Stockholders,
but the Stockholders may make additional By-Laws and may alter, amend or repeal
any By-Law whether adopted by them or otherwise. The Corporation may in its
By-Laws confer powers upon its Board of Directors in addition to the foregoing
and in addition to the powers and authorities expressly conferred upon the Board
of Directors by applicable law.
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