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EXHIBIT 3.5
MERGER AGREEMENT
AND
PLAN OF REORGANIZATION
THIS MERGER AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is
made and entered into as of this 22nd day of November, 1996, by and between HAWK
HOLDING CORP., a Delaware corporation ("Hawk Holding"), and HAWK CORPORATION, a
Delaware corporation ("Hawk Corp.") and partially-owned subsidiary of Hawk
Holding.
WHEREAS, the principal initial purchaser involved in the anticipated
offering by Hawk Corp. of Senior Notes due 2003 (the "Proposed Offering") has
indicated that a merger of Hawk Holding into Hawk Corp. would simplify the
ownership structure of Hawk Corp., which will have the desired effect of
reducing the deterrence of such structure on prospective investors;
WHEREAS, Hawk Holding was established as an acquisition vehicle for
industrial manufacturing corporations and Hawk Corp. currently acts as such
acquisition vehicle;
WHEREAS, the Merger (as defined below) would reduce state taxes and
other administrative costs; and
WHEREAS, the Merger will be consummated only upon the closing of the
Proposed Offering;
NOW, THEREFORE, the parties hereto agree as follows:
1. THE MERGER.
(a) Merger and Reorganization. On the Effective Date (as
defined below), Hawk Holding will be merged with and into Hawk Corp. (the
"Merger"), in accordance with the terms of this Agreement and the provisions of
section 251 of the Delaware General Corporation Law, as amended, in a
transaction qualifying as a reorganization within the meaning of section
368(a)(1)(A) of the Internal Revenue Code, as amended. Subject to Section 1(b)
below, the Merger will be completed by filing a copy of this Agreement with the
Secretary of State of Delaware.
(b) Effective Date. The effective date of the Merger will be
November 27, 1996 (the "Effective Date").
(c) Surviving Corporation. On the Effective Date, the separate
corporate existence of Hawk Holding will cease and Hawk Corp. will be the
survivor (the "Surviving Corporation").
(d) Certificate of Incorporation of Surviving Corporation. On
the Effective Date, the certificate of incorporation of Hawk Corp., as amended
and/or restated through the Effective Date and as further amended as set forth
in EXHIBIT A attached hereto, will become the certificate of incorporation of
the Surviving Corporation.
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(e) By-laws of Surviving Corporation. On the Effective Date,
the by-laws of Hawk Corp. will become the by-laws of the Surviving Corporation.
(f) Directors of Surviving Corporation. On the Effective Date,
the directors of Hawk Corp. will become the directors of the Surviving
Corporation.
(g) Officers of Surviving Corporation. On the Effective Date,
the officers of Hawk Corp. will become the officers of the Surviving
Corporation.
(h) Registered Office. On the Effective Date, the registered
office of the Surviving Corporation in the State of Delaware will be located at
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx.
(i) Abandonment of Merger. The Merger may be abandoned at any
time prior to the filing of this Agreement with the Secretary of State of
Delaware or the Effective Date, whichever occurs later, at the direction of the
Board of Directors of either Hawk Holding or Hawk Corp., notwithstanding prior
approval of this Agreement and the Merger by the stockholders of Hawk Holding or
Hawk Corp.
2. CONVERSION OF SHARES AND OFFSET OF CERTAIN DEBTS.
(a) Conversion of Common Shares of Hawk Holding. On the
Effective Date, the shares of Common Stock, par value $0.01 per share, of Hawk
Holding ("Parent Common"), issued and outstanding at that time will, by virtue
of the Merger and without any action on the part of any holder thereof, be
converted into the number of fully paid shares of Class A Common Stock, par
value $0.01 per share, of Hawk Corp. ("Subsidiary Common") set forth below, and
outstanding certificates representing shares of Parent Common will thereafter
represent shares of Subsidiary Common. By virtue of the Merger, the stockholders
of Hawk Holding will receive the number of shares of Subsidiary Common set forth
opposite their respective names below:
SHARES OF
SHARES OF SUBSIDIARY
STOCKHOLDER PARENT COMMON COMMON
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Xxxxxxx Family Limited Partnership 308.25 194,894
Xxxxxx X. Xxxxxxx 34.25 21,655
Xxxxxxxx Family Limited Partnership 293.85 185,789
Xxxxxx X. Xxxxxxxx 32.65 20,643
Xxxxxx Family Limited Partnership 68.00 42,678
Xxxxx X. Xxxxxx 7.00 4,742
Xxxxxx X. Xxxxxxxx 15.00 9,484
Xxxxxx X. Xxxxxx 1.00 632
Xxx X. Xxxxx, III 5.00 3,161
Clanco Partners I 5.00 3,161
Xxxxxxx X. Xxxxxx 5.00 3,161
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775.00 490,000
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Upon surrender by each holder of certificates representing Parent Common, the
appropriate number, determined in accordance with the preceding table, of shares
of Subsidiary Common shall be issued to each such holder.
(b) Cancellation of Subsidiary Common Shares Held by Hawk
Holding. On the Effective Date, all issued and outstanding shares of Subsidiary
Common held by Hawk Holding will, by virtue of the Merger, cease to exist and
any certificates representing such shares that have not been surrendered in
accordance with Section 2(a) above will be cancelled.
(c) Cancellation of Preferred Shares Held by Hawk Holding. On
the Effective Date, the 1,250 shares of Preferred Stock, par value $0.01 per
share, Series A, of Hawk Corp. ("Subsidiary Series A Preferred") held by Hawk
Holding will be cancelled and will cease to exist, and any certificates
representing such shares will be cancelled. All dividends accrued on said shares
of Subsidiary Series A Preferred through November 30, 1996 have been paid in
full.
(d) Issuance of New Preferred Shares to Stockholders of Hawk
Holding. On the Effective Date, Hawk Corp. will issue fully paid shares of
Preferred Stock, par value $0.01 per share, Series C, of Hawk Corp. ("Subsidiary
Series C Preferred") having a value (at the rate of $1,000 per share) equal to
the difference between (i) $1.25 million (representing the liquidation value of
the Subsidiary Series A Preferred that is cancelled pursuant to Section 2(c)
above), and (ii) $61,100 (representing the cancellation, as a result of the
Merger, of a note issued by Hawk Holding to Hawk Corp.). By virtue of the
Merger, the stockholders of Hawk Holding will receive the number of shares of
Subsidiary Series C Preferred set forth opposite their respective names below:
SHARES OF SUBSIDIARY
STOCKHOLDER SERIES C PREFERRED
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Xxxxxxx Family Limited Partnership 150.970
Xxxxxx X. Xxxxxxx 380.975
Xxxxxxxx Family Limited Partnership 143.916
Xxxxxx X. Xxxxxxxx 362.935
Xxxxxx Family Limited Partnership 33.058
Xxxxx X. Xxxxxx 84.607
Xxxxxx X. Xxxxxxxx 23.535
Xxxxxx X. Xxxxxx 1.560
Xxx X. Xxxxx, III 2.448
Clanco Partners I 2.448
Xxxxxxx X. Xxxxxx 2.448
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1,188.900
3. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Delaware.
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(b) Amendment. This Agreement may be amended in accordance
with the provisions of Section 251 of the Delaware General Corporation Law at
any time prior to the filing hereof with the Secretary of State of Delaware or
the Effective Date, whichever occurs later, by means of a written instrument
signed by all parties hereto.
(c) Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
HAWK HOLDING CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Chairman
and
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Secretary
HAWK CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Vice-Chairman
and
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Secretary
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EXHIBIT A TO MERGER AGREEMENT
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The certificate of incorporation of Hawk Corp. (the Surviving
Corporation), amended and/or restated through the Effective Date (the
"Certificate of Incorporation"), is further amended as follows in accordance
with Sections 251(b)(3) and 251(e) of the Delaware General Corporation Law:
Section 4.1 of the Certificate of Incorporation is hereby amended and
restated in its entirety as follows:
4.1 Authorized Capital Stock. The aggregate number of shares
of all classes of stock which the Corporation is authorized to issue is
3,075,000 shares, consisting of:
(a) 2,200,000 shares of Class A Common Stock, par
value $0.01 per share (the "Class A Common Stock");
(b) 375,000 shares of Class B Non-Voting Common
Stock, par value $0.01 per share (the "Class B Common Stock"); and
(c) 500,000 shares of Serial Preferred Stock, par
value $0.01 per share (the "Preferred Stock").
