AGREEMENT OF MERGER
Agreement of Merger, dated July 25, 1997, among SM Sub, Inc., an Ohio
corporation ("Sonics Sub"), Sonics & Materials, Inc., a Delaware corporation
("Sonics"), and Tooltex, Inc., an Ohio corporation ("Tooltex"); Sonics Sub and
Tooltex are sometimes referred to herein as "Constituent Corporations."
Tooltex is a corporation duly organized and existing under the laws of the
State of Ohio with an authorized capital consisting of 750 shares of common
stock, no par value ("Tooltex Common Stock"), of which, as of the date hereof,
181 shares are issued and outstanding and six shares are treasury shares.
Sonics Sub is a corporation duly organized and existing under the laws of
the State of Ohio with an authorized capital consisting of 850 shares of common
stock, without par value ("Sonics Sub Common Stock"), of which 100 shares are
issued and outstanding and owned by Sonics.
Sonics and the respective Boards of Directors of the Constituent
Corporations deem it advisable that Tooltex be merged with and into Sonics Sub
(the "Merger") as provided herein and in the Agreement and Plan of Merger dated
as of July 25, 1997 (the "Agreement and Plan") which sets forth certain
representations, warranties and agreements in connection with the Merger and
related transactions.
In consideration of the mutual benefits to be derived from this Agreement
and the Agreement and Plan and of the premises and of the mutual agreements
hereinafter contained, Tooltex, Sonics Sub and Sonics on the basis, terms and
conditions contained therein, and in connection herewith, agree as follows:
ARTICLE I
Surviving Corporation
In accordance with the applicable provisions of the Ohio General
Corporation Law, Tooltex shall be merged with and into Sonics Sub. Sonics Sub
shall be and is herein sometimes referred to as the "Surviving Corporation".
ARTICLE II
Effectiveness of the Merger
Section 2.1. Effective Date. Subject to the provisions of this Agreement
and the Agreement and Plan, a certificate of merger (the "Certificate of
Merger") shall be executed by Sonics
Sub and Tooltex and delivered to the
Secretary of State of the State of Ohio for filing as provided in the Ohio
General Corporation Law. The Merger shall become effective at the time the
Certificate of Merger is accepted for filing by the Secretary of State of the
State of Ohio (the "Effective Date").
Section 2.2. Effects of the Merger. At the Effective Date, (i) the
separate existence of Tooltex shall cease and Tooltex shall be merged with and
into Sonics Sub, (ii) the Articles of Incorporation of Sonics Sub shall be the
Articles of Incorporation of the Surviving Corporation, (iii) Article I of the
Articles of Incorporation of the Surviving Corporation, SM Sub, Inc., shall be
amended to read as follows:
ARTICLE I
Name
The name of said corporation shall be Tooltex, Inc.
and (iv) the Merger shall, from and after the Effective Date, have all the
effects provided by applicable Ohio law.
Section 2.3. Additional Action. If, at any time after the Effective Date,
the Surviving Corporation shall consider that any further assignments or
assurances in law or any other acts are necessary or desirable (i) to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation, title
to and possession of any property or right of Tooltex acquired or to be acquired
by reason of, or as a result of, the Merger, or (ii) otherwise to carry out the
purposes of this Agreement, Tooltex and Sonics Sub and their respective officers
and directors shall be deemed to have granted to the Surviving Corporation an
irrevocable power of attorney to execute and deliver all such proper deeds,
assignments and assurances in law and to do all acts necessary or proper to
vest, perfect or confirm title to and possession of such property or rights in
the Surviving Corporation and otherwise to carry out the purposes of this
Agreement; and the officers and directors of the Surviving Corporation are fully
authorized in the name of Sonics Sub and Tooltex or otherwise to take any and
all such action.
ARTICLE III
Effect of Merger on Capital Stock
of the Constituent Corporations
Section 3.1. Conversion of Stock of Tooltex and Sonics Sub.
At the Effective Date:
(i) All shares of Tooltex Common Stock then issued and outstanding
shall, by virtue of the Merger and without any action on the part of the holder
thereof, be converted into the right to receive (w) shares of the common stock,
par value $.03 per share, of Sonics ("Sonics
2.
Common Stock"), determined pursuant
to Section 3.1(ii) hereof (x) cash determined pursuant to Section 3.1(ii)
hereof, (y) options to purchase Sonics Common Stock determined pursuant to
Section 3.1(iii) hereof, and (z) the right to receive cash for a fraction of a
share, if any, pursuant to Section 3.3 hereof.
(ii) Each outstanding share of Tooltex Common Stock shall be
exchanged for (x) 000.00000 shares of Sonics Common Stock and (y) $386.74.
(iii) Each shareholder of Tooltex shall be granted an option to
purchase 5,000 shares of Sonics Common Stock in the manner and subject to the
conditions provided in Sonics' Incentive Stock Option Plan.
(iv) Each share of Tooltex Common Stock then held in the treasury of
Tooltex shall, by virtue of the Merger, and without any action on the part of
the holder thereof, be cancelled and retired and cease to exist, and no shares
of Sonics Common Stock shall be issued with respect thereto.
Section 3.2. Exchange of Certificates. On the Effective Date, each holder
of the certificates theretofore evidencing outstanding shares of Tooltex Common
Stock ("Certificate") shall surrender the same to Sonics or such other agent or
agents as shall be appointed by Sonics and shall receive in exchange therefor
(i) a certificate or certificates representing the number of full shares of
Sonics Common Stock which the holder of shares of Tooltex Common Stock
theretofore represented by the Certificate or Certificates so surrendered shall
have the right to receive as provided in this Article III, (ii) a certified
check in an amount equal to the number of shares of Tooltex Common Stock
surrendered to Sonics multiplied by $386.74 and (iii) a stock option agreement
to purchase 5,000 shares of Sonics Common Stock . Until so surrendered, each
outstanding Certificate will be deemed for all corporate purposes of Sonics to
evidence the right to receive ownership of the number of full shares of Sonics
Common Stock, cash and options; provided, however, until such outstanding
Certificates are so surrendered, no dividend payable to holders of record of
Sonics Common Stock as of any record date subsequent to the Effective Date or
cash payable in lieu of fractional shares pursuant to Section 3.3 hereof shall
be paid to the holder of such outstanding Certificate in respect thereof. All
shares of Sonics Common Stock and rights to receive cash and options for which
shares of Tooltex Common Stock shall be exchangeable pursuant to this Section
3.2 shall be deemed to have been issued and granted in full satisfaction of all
rights pertaining to such converted and exchanged shares of Tooltex Common
Stock.
Section 3.3. No Fractional Shares. No certificates or scrip for fractional
shares of Sonics Common Stock will be issued, no Sonics stock split or dividend
shall relate to any fractional share interest, and no such fractional share
interest shall entitle the owner thereof to vote or to any rights of or as a
shareholder of Sonics. In lieu of such fractional shares, the holder of Tooltex
Common Stock who would otherwise be entitled to a fraction of a share of Sonics
Common Stock (or any other person who is the record holder of certificates for
shares of Sonics Common Stock for which such shares of Tooltex Common Stock may
be exchanged) will upon surrender of said Certificate
3.
or Certificates, be paid
the cash value of such fraction, which shall be equal to the fraction multiplied
by the closing price of a full share of Sonics Common Stock on the Nasdaq
National Market System on the last trading day immediately preceding the
Effective Date.
Section 3.4. Certificates in Other Names. If any certificate evidencing
shares of Sonics Common Stock is to be issued in a name other than that in which
the Certificate surrendered is issued, the Certificate so surrendered shall be
properly endorsed and otherwise in proper form for transfer and the person
requesting such exchange shall pay to Sonics acting solely in its corporate
capacity any transfer or other taxes required by reason of the issuance of a
certificate for shares of Sonics Common Stock in any name other than that of the
registered holder of the Certificate surrendered or establish to the
satisfaction of Sonics acting solely in its corporate capacity that such tax has
been paid or is not payable.
Section 3.5. Adjustments. If, between the date hereof and the Effective
Date, the outstanding shares of Sonics Common Stock shall be changed into a
different number of shares or a different class by reason of any
reclassification, recapitalization, split-up, combination, exchange of shares or
readjustment, or a stock dividend thereon shall be declared with a record date
within such period, the number of shares of Sonics Common Stock to be issued and
delivered in the Merger for each outstanding share of Tooltex Common Stock as
provided in this Agreement shall be correspondingly adjusted and any new
exchange ratio resulting from any such adjustment shall be rounded to three
decimal places.
ARTICLE IV
Miscellaneous
Section 4.1. Termination. This Agreement shall terminate in
the event of and upon the termination of the Agreement and Plan.
Section 4.2. Headings. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
Section 4.3. Notices. Any notices or other communications
required or permitted hereunder shall be sufficiently given if
sent by certified or registered mail, postage prepaid, addressed
as follows:
(a) If to Sonics Sub or Sonics, to:
Sonics & Materials, Inc.
Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx
4.
Copy to:
Xxxxx Xxxxxx & Xxxxxx, LLP
000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxx Xxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx, Esquire
(b) If to Tooltex, to:
Tooltex, Inc.
0000 Xxxxx Xxxx
Xxxxx Xxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxxxx
Copy to:
Xxxxxxxxx, Xxxxxxxx & Xxxxxxx
0000 Xx. Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
or such other address as shall be furnished in writing by either party, and any
such notice or communication shall be deemed to have been given as of the date
so mailed.
Section 4.4. Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by either of
the parties hereto without the prior written consent of the other party, except
that Sonics Sub may assign all of rights, interests and obligations hereunder to
a first tier subsidiary of Sonics, provided that such subsidiary agrees in
writing to be bound by all of the terms, conditions and provisions contained
herein.
Section 4.5. Modifications, Amendments and Waivers. At any time prior to
the Effective Date, if authorized by their respective Boards of Directors and to
the extent permitted by law, the parties hereto may, by written agreement,
modify, amend or supplement any term or provision of this Agreement. Any written
instrument or agreement referred to in this paragraph shall be validly and
sufficiently authorized for the purposes of this Agreement if signed on behalf
of Tooltex, Sonics Sub and Sonics by a person authorized to sign this Agreement.
5.
Section 4.6. Counterparts. This Agreement may be executed
in two or more counterparts, all of which shall be considered one
and the same agreement and each of which shall be deemed an
original.
Section 4.7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS
OF THE STATE OF OHIO (REGARDLESS OF THE LAWS THAT MIGHT BE APPLICABLE UNDER
PRINCIPLES OF CONFLICTS OF LAW) AS TO ALL MATTERS, INCLUDING BUT NOT LIMITED TO
MATTERS OF VALIDITY, CONSTRUCTION, EFFECT AND PERFORMANCE.
IN WITNESS WHEREOF, Tooltex, Sonics Sub and Sonics have caused this
Agreement to be executed by their duly authorized officers, respectively, as of
the day and year first above written.
SM SUB, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman and President
Attest:
________________________ By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx Xxxxxx
Title: Secretary
SONICS & MATERIALS, INC.
Attest:
By: /s/ Xxxxxx X. Xxxxxx
_____________________ ------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman and President
TOOLTEX, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxx
Title: President
Attest:
______________________ By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Secretary
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