AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Merger Agreement"),
dated as of June 3, 2003, made and entered into by and between Xxxxx Lemmerz
International, Inc., a Delaware corporation ("Xxxxx"), and HLI Operating
Company, Inc., a Delaware corporation ("HLI OpCo"). Capitalized terms used
herein and not defined shall have the respective meanings ascribed to such
terms in the Modified First Amended Joint Plan of Reorganization of Xxxxx
Lemmerz International, Inc., and its Affiliated Debtors and Debtors in
Possession, as Further Modified, dated as of April 9, 2003 (the "Plan").
WHEREAS, the Merger (as defined below) is contemplated by
the Plan and is being consummated pursuant to and in accordance with the Plan;
and
WHEREAS, the Board of Directors of Xxxxx has approved the
Plan and the transactions contemplated thereby and the Plan has been confirmed
by the order of a court of competent jurisdiction, pursuant to Section 303 of
the General Corporation Law of the State of Delaware (the "DGCL"), Xxxxx is
authorized to enter into this Merger Agreement and consummate the transactions
contemplated hereby without any further action of the Board of Directors or
stockholders of Xxxxx; and
WHEREAS, the Board of Directors of HLI OpCo has approved
this Merger Agreement and the transactions contemplated hereby; and
WHEREAS, pursuant to the Plan on the Effective Date and
after the Effective Time (as defined below) of the Merger, HLI OpCo will issue
to certain holders of Allowed Claims (the "Holders") an aggregate of one
hundred thousand (100,000) shares of Series A Cumulative Redeemable
Exchangeable Preferred Stock (the "OpCo Preferred Shares") having the rights,
designations and preferences set forth in the Certificate of Incorporation of
HLI OpCo, as amended; and
WHEREAS, pursuant to the Plan, on the Effective Date and
immediately prior to the Effective Time of the Merger, HLI Holding Company,
Inc. (to be renamed Xxxxx Lemmerz International, Inc.), a Delaware corporation
("HLI HoldCo"), will issue and contribute to HLI Parent Company, Inc., a
Delaware corporation and the sole stockholder of HLI OpCo ("HLI Parent"),
certain shares of New Common Stock, Series A Warrants and Series B Warrants of
HLI HoldCo (collectively, the " HoldCo Securities"), and pursuant to the Plan,
on the Effective Date, immediately after receiving the contribution of the
HoldCo Securities from HLI HoldCo and immediately prior to the Effective Time
of the Merger, HLI Parent will contribute the HoldCo Securities to HLI OpCo
for distribution to the Holders after the Effective Time of the Merger, all
upon the terms and subject to the conditions set forth in the Plan; and
WHEREAS, on the Effective Date and after the Effective Time
of the Merger, pursuant to this Merger Agreement and the Plan, HLI OpCo, as
the Surviving Corporation (as defined below) in the Merger, shall distribute
the HoldCo Securities and issue the OpCo Preferred Shares (collectively, the
"Securities") to the Holders, all upon the terms and subject to the conditions
set forth in the Plan.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for the purpose of merging Xxxxx with and into
HLI OpCo (the "Merger") and setting forth certain terms and conditions of the
Merger and the mode of carrying the same into effect, and for purposes of
giving effect to the other transactions contemplated hereby, Xxxxx and HLI
OpCo hereby agree as follows:
1. Merger. Subject to the terms and conditions set forth
herein, and in accordance with Section 251 of the DGCL, Xxxxx shall be merged
with and into HLI OpCo. HLI OpCo shall be, and is herein referred to as, the
"Surviving Corporation." The Merger shall become effective at the time and on
the date of filing of a Certificate of Merger relating to the Merger with the
Office of the Secretary of State of the State of Delaware or at such other
time, if any, as shall be specified in such Certificate of Merger (the
"Effective Time").
2. Effects of Merger. At the Effective Time, Xxxxx shall be
merged with and into HLI OpCo and the separate existence of Xxxxx shall cease.
The Merger shall have the effects set forth in Section 259 of the DGCL.
Without limiting the generality of the foregoing, from and after the Effective
Time, the Surviving Corporation shall possess all the property, rights,
privileges, immunities, powers and franchises and be subject to all of the
debts, liabilities, obligations, restrictions, disabilities and duties of
Xxxxx, all as provided under applicable law and as set forth in the Plan.
3. Certificate of Incorporation and By-Laws. The Amended and
Restated Certificate of Incorporation and the By-Laws of HLI OpCo, each as in
effect immediately prior to the Effective Time, shall continue to be the
Amended and Restated Certificate of Incorporation and the By-Laws of the
Surviving Corporation until amended in accordance with the terms thereof and
applicable law.
4. Directors and Officers. The directors of HLI OpCo and the
officers of Xxxxx immediately prior to the Effective Time shall be the
directors and officers of the Surviving Corporation and shall hold office from
the Effective Time until their respective successors are duly elected or
appointed and qualified in the manner provided in the Amended and Restated
Certificate of Incorporation and the By-Laws of the Surviving Corporation, or
as otherwise provided by law.
5. Conversion of Shares.
(a) At the Effective Time, by virtue of the Merger and
without any action on the part of the holders thereof, each share of
any class of capital stock of Xxxxx issued and outstanding
immediately prior to the Effective Time shall be cancelled and
retired and shall cease to exist, and no consideration shall be
delivered in exchange therefor.
(b) At the Effective Time, the capital stock of HLI OpCo
shall remain issued and outstanding, shall be unaffected by the
Merger and shall represent the capital stock of the Surviving
Corporation.
6. Cancellation of Other Xxxxx Securities. In addition to
the cancellation of all of the issued and outstanding shares of capital stock
of Xxxxx in the Merger, as provided in Section 5(a) hereof, at the Effective
Time, pursuant to the Plan and except as otherwise specifically provided for
therein, the Unsecured Notes, Old Common Stock Options, any other note, bond,
indenture or other instrument or document evidencing or creating any
indebtedness or obligation of the Reorganizing Debtors or ownership interest
in Xxxxx, and all options, warrants and rights (whether fixed or contingent,
matured or unmatured, disputed or undisputed), contractual, legal, equitable
or otherwise, to acquire any of the foregoing, except such notes or other
instruments evidencing indebtedness or obligations of the Reorganizing Debtors
that are specifically Reinstated under the Plan, shall be cancelled and
retired and shall cease to exist, and the only consideration that shall be
delivered in exchange therefor shall be such consideration, if any, that is
specifically provided for in the Plan.
7. Distribution of Securities. As promptly as practicable
after the Effective Time, the Surviving Corporation shall distribute the
Securities, or cause the Securities to be distributed, to the Holders pursuant
to and in accordance with the Plan. The Surviving Corporation shall take all
steps and do all things reasonably necessary to effect the distribution of the
Securities to the Holders pursuant to and in accordance with the Plan and to
otherwise consummate such distribution as promptly as practicable after the
Effective Time.
8. Further Assurances. From time to time, as and when
required by the Surviving Corporation or by its successors and assigns, there
shall be executed and delivered on behalf of Xxxxx such deeds and other
instruments, and there shall be taken or caused to be taken by it all such
further and other action as shall be appropriate or necessary in order to
vest, perfect or confirm, of record or otherwise, in the Surviving Corporation
the title to and possession of all property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of Xxxxx and
otherwise to carry out the purposes of this Merger Agreement, and the officers
of the Surviving Corporation are fully authorized in the name and on behalf of
Xxxxx or otherwise to take any and all such action to execute and deliver any
and all such deeds and other instruments.
9. Combined Information Reporting. The Surviving Corporation
shall assume the entire federal tax information reporting obligations of Xxxxx
for all Internal Revenue Service Forms 1042-S and all Internal Revenue Service
forms in the series 1098, 1099 and 5498 pursuant to the "alternative
procedure" described in Rev. Proc. 99-50, 1999-2 C.B. 757 (and any successor
thereto) and shall comply with all of the requirements for electing the
"alternative procedure" set forth in section 5 of Rev. Proc. 99-50, 1999-2
C.B. 757 (and any successor thereto).
10. Amendment and Modification. This Merger Agreement may be
amended or modified at any time by the parties hereto, but only pursuant to an
instrument in writing signed by the parties and only in accordance with
applicable provisions of Delaware law.
11. Entire Agreement; Assignment. This Merger Agreement,
together with the Plan (and exhibits thereto) constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the parties hereto with respect to the subject matter hereof.
12. Validity. The invalidity or unenforceability of any term
or provision of this Merger Agreement in any situation or jurisdiction shall
not affect the validity or enforceability of the other terms or provisions in
any other situation or in any other jurisdiction.
13. Governing Law. This Merger Agreement shall be governed
by, enforced under and construed in accordance with the laws of the State of
Delaware, without giving effect to any choice or conflict of law provision or
rule thereof.
14. Descriptive Headings. The descriptive headings herein
are inserted for convenience of reference only and shall in no way be
construed to define, limit, describe, explain, modify, amplify or add to the
interpretation, construction or meaning of any provision of, or scope or
intent of, this Merger Agreement or in any way affect this Merger Agreement.
15. Counterparts. This Merger Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Xxxxx and HLI OpCo have caused this
Merger Agreement to be signed by their respective duly authorized officers as
of the date first above written.
XXXXX LEMMERZ INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxx
--------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President, Finance
and Chief Financial Officer
HLI OPERATING COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
