AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, made and entered into as of
January 22, 1999, by and between AMERICAN AXLE & MANUFACTURING HOLDINGS, INC.,
a Delaware corporation ("Axle Delaware"), and AMERICAN AXLE & MANUFACTURING OF
MICHIGAN, INC., a Michigan corporation ("Axle Michigan"). Axle Delaware and
Axle Michigan are the "Constituent Corporations" to the Merger described below.
WHEREAS, the respective boards of directors of Axle Michigan
and Axle Delaware have approved the merger of Axle Michigan with and into Axle
Delaware (the "Merger") pursuant to the applicable provisions of the Michigan
Business Corporation Act (the "MBCA") and the Delaware General Corporation Law
(the "DGCL") on the terms hereinafter set forth and have approved this
Agreement and Plan of Merger and authorized the execution hereof and
recommended this Agreement and Plan of Merger to the shareholders of Axle
Michigan and Axle Delaware, respectively;
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the parties hereto agree as follows:
SECTION 1. The Merger; Outstanding Shares. (a) Upon the terms
and subject to the conditions set forth in this Agreement, in accordance with
the DGCL and the MBCA, the Merger will be effected and pursuant thereto Axle
Michigan will be merged with and into Axle Delaware. At the Effective Time (as
defined below), the separate corporate existence of Axle Michigan will cease
and Axle Delaware will continue as the surviving corporation. After giving
effect to the Merger and as the context requires, Axle Delaware is sometimes
hereinafter referred to as the "Surviving Corporation".
(b) The authorized capital stock of Axle Michigan consists of
100,000 common shares, par value $.01 per share ("Axle Michigan Common Stock"),
of which 8,227.15 shares are issued and outstanding on the date hereof, and
100,000 preferred shares, none of which are issued and outstanding. Each share
of Axle Michigan Common Stock is entitled to vote. The number of shares of Axle
Michigan Common Stock is subject to change before the Effective Time as a
result of the issuance of such shares upon the exercise of stock options
currently outstanding.
(c) The authorized capital stock of Axle Delaware consists of
100 shares of common stock, par value $.01 per share ("Axle Delaware Common
Stock"), of which one share is issued and outstanding on the date hereof. Such
share is entitled to vote. The number of outstanding shares of Axle Delaware
will not change before the Effective Time.
SECTION 2. Closing; Effective Time. Unless this Agreement
shall have been terminated and the transaction herein contemplated shall have
been abandoned pursuant to Section 8, and subject to the satisfaction of the
conditions set forth in Section 7, the parties hereto will cause the Merger to
be consummated by filing (i) this Agreement or a certificate of merger (the
"Delaware Certificate of Merger") with the Secretary of State of the State of
Delaware, as
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provided in the DGCL, and (ii) a certificate of merger (the "Michigan
Certificate of Merger") with the Administrator, as provided in the MBCA, as
early as possible after the satisfaction of the conditions set forth in Section
7. The Merger will become effective upon the later of the filing of the
Delaware Certificate of Merger or the Michigan Certificate of Merger or at such
later time as is provided in the Delaware Certificate of Merger and the
Michigan Certificate of Merger as the parties hereto shall agree.
SECTION 3. Effects of the Merger.
(a) The Merger will have the effects as set forth in the
applicable provisions of the DGCL and the MBCA.
(b) At the Effective Time, the certificate of incorporation
shall be in the form of Exhibit A attached hereto and the bylaws shall be in
the form attached to this Agreement.
(c) The officers and directors of Axle Michigan immediately
prior to the Effective Time will, from and after the Effective Time, be the
officers and directors of the Surviving Corporation. Each of such officers and
directors shall hold office in accordance with the Surviving Corporation's
certificate of incorporation and bylaws.
SECTION 4. Effect on Capital Stock. At the Effective Time, by
virtue of the Merger and without any action on the part of any holder of shares
of Axle Michigan Common Stock or Axle Delaware Common Stock:
(a) Each share of Axle Michigan Common Stock issued and
outstanding immediately prior to the Effective Time shall be converted
into and become the right to receive 3,945 shares of Common Stock, par
value $.01 per share ("Surviving Corporation Common Stock"), of the
Surviving Corporation. As of the Effective Time, all such shares of
Axle Michigan Common Stock shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and
each holder of a certificate representing any such shares of Axle
Michigan Common Stock shall cease to have any rights with respect
thereto, except the right to receive shares of Surviving Corporation
Common Stock to be issued in consideration therefor as herein
provided.
(b) Each share of Axle Delaware Common Stock issued and
outstanding immediately prior to the Effective Time shall be canceled
and retired without any consideration being payable in respect
thereof.
SECTION 5. Stock Options; Stock Option Plans and Agreements.
(a) Each stock option granted by Axle Michigan (under or
subject to any stock option plan or stock option agreement of Axle
Michigan) and outstanding immediately prior to the Effective Time
shall, by virtue of the Merger and without any action on the part of
the holder thereof, be converted into and become a stock option to
purchase, upon the same terms and conditions, the number of shares of
the Surviving Corporation's Common Stock (subject to further
adjustments as provided in the
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governing stock option plan) which is equal to the number of shares of
Axle Michigan Common Stock which the holder thereof would have
received had such holder exercised the option in full immediately
prior to the Effective Time (whether or not such option was then
exercisable), multiplied by 3,945. The price per share payable upon
exercise under each of said options shall (subject to future
adjustments as provided in the governing stock option plan) be
adjusted by dividing the exercise price of each option on the date
immediately prior to the Effective Time by 3,945.
(b) All of Axle Michigan's stock option plans and stock
option agreements, and all outstanding stock options thereunder, shall
immediately prior to the Effective Time of the Merger be automatically
amended to the extent necessary to permit continuance of such stock
option plans and agreements and continuance and conversion of said
stock options into those of the Surviving Corporation following the
Merger, notwithstanding any provisions heretofore contained in such
stock option plans or agreements providing for termination in the event
of a merger in which American Axle & Manufacturing of Michigan, Inc. is
not the Surviving Corporation. As of the Effective Time, Axle Delaware
adopts and assumes each such plan and agreement as its own.
SECTION 6. Benefit and Incentive Plans. At the Effective
Time, each employee benefit plan and incentive compensation plan to which Axle
Michigan is then a party and all liabilities and obligations thereunder shall
be assumed and adopted by, and continue to be the plan of, the Surviving
Corporation. To the extent any employee benefit plan or incentive compensation
plan of Axle Michigan or any of its subsidiaries provides for the issuance or
purchase of, or otherwise relates to, Axle Michigan Common Stock, after the
Effective Time such plan shall be deemed to provide for the issuance or
purchase of, or otherwise relate to, the Surviving Corporation's Common Stock
upon the same terms and conditions.
SECTION 7. Stockholder Approval Condition. This Agreement and
Plan of Merger shall be submitted to the stockholders of Axle Michigan and Axle
Delaware in accordance with the applicable provisions of the MBCA and DGCL,
respectively, and the consummation of this Agreement and Plan of Merger and the
Merger herein provided for are conditioned upon the approval and adoption
hereof by the affirmative vote of the stockholders of Axle Michigan and Axle
Delaware in accordance with applicable law.
SECTION 8. Abandonment; Termination. This Plan of Merger and
the Merger herein contemplated may be abandoned upon the mutual agreement of
the parties at any time prior to the Effective Time (before or after
shareholder approval). This Agreement may be amended, modified or supplemented
at any time (before or after shareholder approval) prior to the Effective Time
of the Merger with the mutual consent of the Boards of Directors of Axle
Michigan and Axle Delaware.
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IN WITNESS WHEREOF, the parties have caused this Agreement
and Plan of Merger to be executed by their duly authorized officers, all as of
the day and year first above written.
AMERICAN AXLE & MANUFACTURING
HOLDINGS, INC., a Delaware corporation
By: /s/ Richard E. Dauch
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Richard E. Dauch
Chairman of the Board, Chief Executive
Officer and President
AMERICAN AXLE & MANUFACTURING
OF MICHIGAN, INC., a Michigan corporation
By: /s/ Richard E. Dauch
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Richard E. Dauch
Chairman of the Board, Chief Executive
Officer and President