AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of December 11, 2007 (this “Agreement”), is made
by and between Federal-Mogul Corporation, a Michigan corporation (“Michigan Federal-Mogul”), and
New Federal-Mogul Corporation, a Delaware corporation (“Delaware Federal-Mogul”).
WHEREAS, Delaware Federal-Mogul is a corporation duly organized and existing under the laws of
the State of Delaware, having been incorporated on January 31, 2007, by a Certificate of
Incorporation filed with the Secretary of State of Delaware on such date;
WHEREAS, Michigan Federal-Mogul is the sole stockholder of Delaware Federal-Mogul;
WHEREAS, the Fourth Amended Joint Plan of Reorganization for Michigan Federal-Mogul and
certain of its subsidiaries (the “Plan of Reorganization”) approved by order of the United States
Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) in In re: Federal-Mogul
Global Inc., T&N Limited, et al., Chapter 11 Case No. 01-10578 (JKF), under Chapter 11 of the
United States Bankruptcy Code (11 U.S.C. § 101 et seq.) entered on November 8, 2007
and affirmed by the United States District Court for the District of Delaware on November 14, 2007
(the “Order”), provides for the merger of Michigan Federal-Mogul with and into Delaware
Federal-Mogul; and
WHEREAS, it is intended that the Merger (as defined below) qualify as a “reorganization”
within the meaning of section 368(a) of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the foregoing, and of the agreements and covenants
contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
THE MERGER; EFFECTIVE TIME
THE MERGER; EFFECTIVE TIME
Section 1.1 Approval by Bankruptcy Court. This Agreement and Plan of Merger has been
adopted pursuant to the Plan of Reorganization as approved by the Bankruptcy Court in the Order.
Section 1.2 The Merger. Subject to the terms of this Agreement and the Plan of
Reorganization, at the Effective Time (as defined in Section 1.3 hereof), Michigan Federal-Mogul
shall be merged with and into Delaware Federal-Mogul and the separate existence of Michigan
Federal-Mogul shall thereupon cease (the “Merger”). Delaware Federal-Mogul shall be the surviving
corporation in the Merger (sometimes hereinafter referred to as the “Surviving Corporation”), and
shall continue to be governed by the laws of the State of Delaware, and the separate existence of
Delaware Federal-Mogul with all its rights, privileges, immunities, powers
and franchises, shall continue unaffected by the Merger, except as set forth in Article II hereof
and in the Plan of Reorganization. The Merger shall have the effects specified in the General
Corporation Law of the State of Delaware (the “DGCL”), the Michigan Business Corporation Act (the
“MBCA”) and the Plan of Reorganization.
Section 1.3 Effective Time. At such time as is provided for in the Plan of
Reorganization, the Surviving Corporation shall cause certificates of merger with respect to the
Merger (the “Certificates of Merger”) to be executed and filed (i) with the Secretary of State of
the State of Delaware as provided in Section 252 of the DGCL and (ii) with the Michigan Department
of Labor & Economic Growth, Bureau of Commercial Services, under Section 863 of the MBCA. The
Merger shall become effective at the time that both Certificates of Merger have been duly filed as
aforesaid, or at such subsequent time as may be specified in the Certificates of Merger in
accordance with applicable law. Such time is herein referred to as the “Effective Time.”
Section 1.4 Defined Terms. Capitalized terms used but not defined herein shall have
the meanings set forth in the Plan of Reorganization.
ARTICLE II
CERTIFICATE OF INCORPORATION AND BYLAWS,
AND DIRECTORS AND OFFICERS, OF SURVIVING CORPORATION
CERTIFICATE OF INCORPORATION AND BYLAWS,
AND DIRECTORS AND OFFICERS, OF SURVIVING CORPORATION
Section 2.1 Certificate of Incorporation. The Certificate of Incorporation of
Delaware Federal-Mogul shall be amended and restated in the form attached hereto as Exhibit
A and shall be the Certificate of Incorporation of the Surviving Corporation, until duly
amended in accordance with the terms thereof and the DGCL.
Section 2.2 Bylaws. The Bylaws of Delaware Federal-Mogul attached hereto as
Exhibit B shall be the Bylaws of the Surviving Corporation, until duly amended in
accordance with the terms thereof and the DGCL.
Section 2.3 Directors and Officers. Immediately following the Effective Time, the
directors of the Surviving Corporation shall, in accordance with Section 8.3.13 of the Plan of
Reorganization, be the nine individuals identified in Exhibit 8.3.13 to the Plan of Reorganization
and the officers of Delaware Federal-Mogul immediately prior to the Effective Time shall be the
initial officers of the Surviving Corporation, in each case until their respective successors are
duly elected or appointed and qualified or until the earlier of their death, resignation or
removal.
Section 2.4 Name Change. As a result of the Merger, the name of the Surviving
Corporation shall be changed to Federal-Mogul Corporation.
ARTICLE III
CANCELLATION OF SHARES
CANCELLATION OF SHARES
Section 3.1 Existing Shares. Prior to the Effective Time, Michigan Federal-Mogul has
issued and outstanding (i) 87,141,007 shares of Common Stock, no par value, and (ii)439,937 shares of
Series C ESOP Convertible Preferred Stock, and Delaware Federal-Mogul has
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issued and outstanding 100 shares of common stock, $0.01 par value per share, all of which are owned by
Michigan Federal-Mogul.
Section 3.2 Cancellation of Michigan Federal —Mogul’s Shares. At the Effective
Time, by virtue of the merger and without any actions on the part of the holders of the shares of
Michigan Federal-Mogul or Delaware Federal-Mogul, all of the then issued and outstanding shares of
capital stock of Michigan Federal-Mogul shall be cancelled, and no additional merger consideration
shall be issued to the holders thereof as part of the Merger.
Section 3.3 Cancellation of Delaware Federal-Mogul’s Shares. At the Effective Time
and upon the issuance of the new common stock as described in Section 3.4 below, by virtue of the
merger and without any actions on the part of the holders of the shares of Michigan Federal-Mogul
or Delaware Federal-Mogul, all of the then issued and outstanding shares of capital stock of the
Surviving Corporation shall be cancelled, and no additional merger consideration shall be issued to
the holder thereof as part of the Merger.
Section 3.4 New Common Stock of Delaware Federal-Mogul. On the Effective Date:
(i) 49,900,000 shares of Class A Common Stock, par value $0.01 per share, of the Surviving
Corporation will be issued and distributed to the Disbursing Agent for further distribution Pro
Rata to the holders of Allowed Noteholder Claims, Allowed Convertible Subordinated Debenture
Claims, and Allowed Class H Unsecured Claims that make the Stock Election described in Section
8.15.2 of the Plan of Reorganization; and
(ii) 50,100,000 shares of Class B Common Stock, par value $0.01 per share, of the Surviving
Corporation (less the shares of Class B Common Stock issued pursuant to Section 4.5.5 of the Plan
of Reorganization) shall be issued and distributed to the Trustees of the Trust as part of the
consideration to be paid for the Trust’s assumption of all Asbestos Personal Injury Claims (which
shares shall then be allocated to the sub-Trusts created under the Trust Documents), and the shares
of Class B Common Stock issued under Section 4.5.5 of the Plan of Reorganization shall be issued
and distributed to the Trustees of the Trust.
ARTICLE IV
AMENDMENT AND TERMINATION
AMENDMENT AND TERMINATION
Section 4.1. Amendment. At any time prior to the filing of the Certificates of
Merger with the Delaware Secretary of State and the Michigan Department of Labor & Economic Growth,
Bureau of Commercial Services, this Agreement may be amended by the parties hereto, by an agreement
in writing, to the extent permitted by the Bankruptcy Court and the Plan of Reorganization.
Section 4.2. Termination. At any time prior to the filing of the Certificates of
Merger with the Delaware Secretary of State and the Michigan Department of Labor & Economic Growth,
Bureau of Commercial Services, this Agreement may be terminated and
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abandoned by the parties hereto, to the extent permitted by the Bankruptcy Court and the Plan of
Reorganization.
ARTICLE V
MISCELLANEOUS
MISCELLANEOUS
Section 5.1. Counterparts; Facsimile Signatures. For the convenience of the parties
hereto, this Agreement may be executed in any number of counterparts, each such counterpart being
deemed to be an original instrument, and all such counterparts shall together constitute the same
agreement. This Agreement may be executed by the parties by facsimile signatures and in separate
counterparts and when or if so executed, this document shall be deemed in full force and effect.
Section 5.2. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of law.
Section 5.3. Entire Agreement. This Agreement (a) constitutes the entire agreement,
and supersedes all other prior agreements and understandings, both written and oral, between the
parties with respect to the subject matter hereof, and (b) shall not be assignable by operation of
law or otherwise and is not intended to create any obligations to, or rights in respect of, any
persons other than the parties hereto.
Section 5.4. Parties in Interest. This Agreement shall be binding upon and inure
solely to the benefit of the parties hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other person any rights or remedies of any nature whatsoever
under or by reason of this Agreement.
Section 5.5. Captions. The Article and Section captions herein are for convenience
of reference only, do not constitute part of this Agreement and shall not be deemed to limit or
otherwise affect any of the provisions hereof.
[signature page follows]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized
officers of the parties hereto on the date first hereinabove written.
| FEDERAL-MOGUL CORPORATION, a Michigan corporation |
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| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Senior Vice President and General Counsel | |||
| NEW FEDERAL-MOGUL CORPORATION, a Delaware corporation |
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| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx | |||
| Title: | Vice President | |||
