Exhibit 3.7
[ FEB 11 1987
MICROFILMED]
STATE OF INDIANA
----------------
OFFICE OF THE SECRETARY OF STATE
--------------------------------
To Whom These Presents Come, Greeting:
Whereas, there has been presented to me at this office, Restated
Articles of Incorporation for
NEWNAM MANUFACTURING, INC.
--------------------------
and said Restated Articles have been prepared and signed in accordance with the
provisions of the Indiana Business Corporation Law;
WHEREAS, upon due examination, I find that it satisfies the requirements of I.C.
23-1-18-1;
NOW, THEREFORE, I, Evan Bayh, Secretary of State of Indiana, hereby
certify that I have this day filed said Articles in this office.
Effective date the provisions will apply is January 16, 1987.
[SEAL] In Witness Whereof, I have hereunto set my
hand and affixed the seal of the State of
Indiana, at the City of Indianapolis, this 16th
day of ___January , 1987.
Evan Bayh
------------------------------------
Secretary of State
By
----------------------------------
, Deputy
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AGREEMENT AND PLAN OF MERGER
Between
DFS, INC.
and
NEWNAM MANUFACTURING, INC.
joined in by
THE DALTON FOUNDRIES, INC.
- --------------------------------------------------------------------------------
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made as of March 31,1992 (the
"Agreement.) by DFS, Inc. ("DFS" or the "Merging Corporation") and Newnam
Manufacturing, Inc. ("Newnam or the "Surviving Corporation"). The Dalton
Foundries, Inc. ("Dalton") joins in this Agreement although it is neither the
Surviving Corporation nor a Merging Corporation.
DFS is an Indiana corporation having 1,000 authorized common shares
without par value of which 100 shares are issued and outstanding. DFS is a
wholly-owned subsidiary of Dalton.
Newnam is an Indiana corporation having 10,000 authorized common shares
without par value of which 6,952 shares are issued and outstanding.
The respective Boards of Directors of the parties have determined that
it is advisable for DFS to be merged with and into Newnam as described in this
Agreement (the "Merger"), as a result of which all of Newnam's outstanding
common shares will be converted into only the right to receive a cash payment of
Fifty Dollars ($50.00) per share, all on the terms and subject to the conditions
of this Agreement and of the Indiana Business Corporation Law ("IBCL ").
NOW, THEREFORE, in consideration of the mutual agreements, covenants
and warranties contained herein relating to the Merger, and intending to be
legally bound hereby, the parties hereby adopt the following plan of merger and
agree, in accordance with the provisions of the IBCL, as follows:
Article 1 Terms of the Merger
Section 1.1 The Merger. Upon the Effective Date (as defined in
Section 1.6), in accordance with this Agreement and the IBCL, DFS will be merged
with and into Newnam, and Newnam shall be the surviving corporation (the
"Surviving Corporation") in the Merger.
Section 1.2 Effect of the Merger. The Surviving Corporation
continues to exist as a corporation under the IBCL, and the separate existence
of DFS ceases. The title to all property (whether real or personal, tangible or
intangible) owned by DFS or by Newnam is vested in the Surviving Corporation
without reversion or impairment. The Surviving Corporation has all liabilities
of DFS and Newnam. A proceeding pending against either DFS or Newnam may be
continued as if the Merger did not occur or the Surviving Corporation may be
substituted in the proceeding for the Merging Corporation. The Articles of
Incorporation and the Bylaws of the Surviving Corporation are as provided in
Section 1.3 and Section 1.4, respectively. The shares of Newnam that are to be
converted into cash are converted, and the former holders of the shares are
entitled only to the rights provided in this Agreement or to their rights under
IC 23-1-44. At. any time, or from time to time, after the Effective Date, the
officers .of the Surviving Corporation may, in the name of Newnam and/or DFS,
and the former officers of Newnam shall, execute and deliver all such proper
deeds, assignments, and other instruments and take or cause to be taken all such
actions as the Surviving Corporation may deem necessary or desirable to vest,
perfect or confirm in the Surviving Corporation title to and possession of, all
of Newnam's property, rights, privileges, immunities, powers, purposes and
franchises, and otherwise to carry out the purposes of this Agreement.
Section 1.3 Articles of Incorporation. The Articles of
Incorporation of DFS (the "Articles of Incorporation"), in effect immediately
prior to the Effective Date shall from and after the Effective Date be the
Articles of Incorporation of the Surviving Corporation, except that Article I
(Name) shall be amended as follows:
The name of the Corporation is Newnam Manufacturing, Inc.
Section 1.4 Bylaws. The Code of Bylaws of DFS, as in effect
immediately prior to the Effective Date, shall from and after the Effective Date
be the Bylaws of the Surviving Corporation, except that Article 1 (Definitions
and Construction), Section 1.1 shall be amended in pan as follows:
"Corporation" means Newnam Manufacturing, Inc. and Article 2
(Identification), Section 2.1 shall be amended as follows:
2.1. Name. The name of the Corporation is Newnam Manufacturing, Inc.
Section 1.5 Officers and Directors. The directors and officers of
DFS at the Effective Date shall be the directors and officers of the Surviving
Corporation, who shall hold office subject to the Bylaws of the Surviving
Corporation.
Section 1.6 Effective Date. The Merger (unless this Agreement is
earlier terminated) shall become effective on the date and time, not later than
April 30, 1992, when Articles of Merger are filed with the Secretary of State of
the State of Indiana.
Section 1.7 Closing. Unless this Agreement shall have been
terminated pursuant to its provisions, the closing (the "Closing") of the
transaction contemplated by this Agreement shall take place at a mutually
agreeable location immediately following the Newnam Shareholders Meeting (as
defined in Section 3.2) or, if later, as soon as practicable after the last of
the conditions set forth herein is fulfilled or waived, or at such other time
and place and on such date as Newnam, DFS and Dalton may agree.
Article 2 Status of Shares
Upon the Effective Date, by virtue of the Merger and without any action
on the part of the holders of the Common Shares:
Section 2.1 Outstanding Shares of Newnam. Each Newnam Common Share
outstanding prior to the Effective Date (other than Newnam Common Shares subject
to rights of appraisal as set forth in Section 2.7) shall be converted into only
the right to receive Fifty Dollars ($50.00) in cash, subject to applicable
withholding taxes, upon surrender of the certificate(s) representing Newnam
Common Shares.
Section 2.2 Common Shares or DFS. All DFS shares issued and
outstanding as of the Effective Date of the Merger shall be deemed converted to
common shares of the Surviving Corporation and shall continue to be issued and
outstanding shares of the Surviving Corporation with identical designations,
preferences, limitations, and relative rights as immediately prior to the
Effective Date of the Merger.
Section 2.3 Cancellation of Unissued Shares of Newnam. Each
authorized but unissued Newnam Common Share shall, by virtue of the Merger and
without further action, be cancelled and shall cease to exist.
Section 2.4 No Further Rights or Transfers. Upon and after the
Effective Date, the holder of a Certificate shall cease to have any rights as a
shareholder of Newnam, except for the right to surrender his Certificate in
exchange for payment of the Merger Payment in accordance with this Agreement,
and no transfer of Newnam Common Shares shall be made on the stock transfer
books of Newnam.
Section 2.5 Procedure For Payment.
(a) Payment to Agent. Dalton shall designate one or more banks or
trust companies to act as a payment agent ("Payment Agent")
hereunder pursuant to an agreement or agreements satisfactory to
Dalton.
(b) Surrender of Newnam Common Shares. DFS shall make appropriate
arrangements with the Payment Agent so as to provide, commencing
as soon as practical after the Effective Date, that each holder of
record as of the Effective Date of one or more Newnam Common
Shares, upon surrender to the Payment Agent of one or more
certificates for Newnam Common Shares (the "Certificates") for
cancellation, together with a duly executed transmittal letter and
such other documents, information or assurances as may be required
in accordance with this Section 25, shall be paid Fifty Dollars
($50.00) cash per share surrendered, subject to applicable
withholding taxes, (the "Merger Payment"). No interest shall be
paid or accrued on the Merger Payment payable upon surrender of
any Certificate.
(c) Aggregate Merger Payment. On or before the Effective Date and
prior to the filing of the Articles of Merger with the Secretary
of State of Indiana, Dalton or DFS shall deposit with the Payment
Agent, in trust for the benefit of Newnam shareholders, the
aggregate amount (in immediately available funds) to which holders
of Newnam Common Shares are collectively entitled pursuant to this
Article 2 ("Aggregate Merger Payment"). If so requested by the
Surviving Corporation, any funds remaining with the Payment
Agent(s) six months after the Effective Date shall be released and
repaid by the Payment Agent to the Surviving Corporation, after
which time persons entitled thereto may look, subject to
applicable escheat and other similar laws, only to the Surviving
Corporation for payment thereof.
(d) Cancellation of Shares. All holders of Certificates shall
cease on the Effective Date to have any rights as shareholders of
Newnam or any interest in Newnam, DFS, or any subsidiary or
affiliate of either, by reason of the Merger and in full
satisfaction of all rights pertaining to their shares of Newnam,
their exclusive right shall be to receive cash in accordance with
this Article 2, without regard to any delay in surrender of any
Certificate or appropriate accompanying documentation hereunder.
(e) Transmittal Letter. As soon as practical after the Effective
Date, but in any event not later than five (5) business days
thereafter, the Payment Agent shall mail to each holder of record
of a Certificate or Certificates: (1) a letter of transmittal
which, without limitation, shall include a representation to be
signed by the holder that the Newnam Common Shares represented by
the Certificate(s) are owned by such holder free and clear of any
liens, claims or other encumbrances and shall specify that the
delivery shall be effective, and risk of loss entitled to the
Certificate(s) shall pass, only upon delivery of the
Certificate(s) to the Payment Agent; and (2) instructions for use
in effecting the surrender of the Certificate(s) which shall
specify what, if any, other documents, information or assurance
may reasonably be required by the Surviving Corporation to effect
a surrender of any Certificate or to be presented in the absence
of a Certificate.
(f) Lost Certificates. The holders of Certificates representing
Newnam Common Shares shall not be entitled to receive the amount
of cash payable pursuant to this Section 2.5 until they have
surrendered such Certificates. If such Certificates are lost,
stolen or destroyed, the Surviving Corporation shall determine the
amount of bond, if any, and the type of additional documents,
information or assurances as may be reasonably required to protect
the Surviving Corporation from any other claimants with respect to
the Newnam Common Shares represented thereby in conformity with
applicable law. The Surviving Corporation shall have no obligation
to payor recognize the claim of any holder of Newnam Common Shares
who was not the holder of record thereof as of the Effective Date.
Section 2.6 Dissenting Shareholders. Notwithstanding anything in
this Agreement to the contrary, to the extent required by the IBCL, Newnam
Common Shares which are issued and outstanding immediately prior to the
Effective Date and which are held by any shareholder who validly asserts
appraisal rights pursuant to IC 23-1-44, shall not be converted into the right
to receive cash as provided in Section 2.1, unless and until such holder shall
have failed to perfect, or shall have effectively withdrawn or lost, its right
to appraisal and payment under the IBCL. If such holder shall have so failed to
perfect or shall have effectively withdrawn or lost such right, its shares shall
thereupon be deemed to have been converted as of the Effective Date into only
the right to receive at the Effective Date Fifty Dollars ($50.00) per share,
without interest. From and after the Effective Date, no shareholder who has
demanded its appraisal rights as provided in IC 23-1-44 shall be entitled to
vote its shares for any purpose or to receive payment of dividends or other
distributions with respect to such shares (except dividends or other
distributions payable to shareholders of record at a date which is prior to the
Effective Date). Newnam shall promptly notify DFS of each shareholder who
asserts appraisal rights, and DFS shall have the right to participate in all
negotiations and proceedings with respect thereto. Prior to the Effective Date,
Newnam shall not, except with the prior written consent of DFS, make any payment
with respect to, or settle or offer to settle, any appraisal rights asserted
under IC 23-1-44.
Article 3 Representations and Warranties of Newnam. Newnam represents and
warrants to DFS and Dalton as follows:
Section 3.1 Existence, Power and Authority. Newnam is a
corporation duly incorporated and validly existing under the laws of the State
of Indiana, is duly qualified and in good standing as a foreign corporation in
each of the jurisdictions where its business requires such qualification, and
has all requisite corporate power and authority to own, lease, sublease and
operate its properties and conduct its business as is presently conducted.
Section 3.2 Capitalization. As of March 31,1992, the authorized
shares of Newnam consist of 10,000 common shares, without par value, of which
___________ are issued and outstanding. All issued and outstanding Newnam Common
Shares are validly issued, fully paid and nonassessable.
Section 3.3 Authorization and Validity of Agreement. This
Agreement has been duly executed and delivered by Newnam, subject to obtaining
the approval of Newnam's shareholders at the Special Meeting of the Shareholders
("Newnam Shareholders Meeting") by the vote of not less than a majority of the
outstanding common shares entitled to vote (which together with the execution of
the Articles of Merger and their filing with the Secretary of State of the State
of Indiana are the only additional corporate actions on the part of Newnam
necessary for the execution, delivery and performance by Newnam of this
Agreement and the consummation by Newnam of the transactions contemplated
hereby) and is the legal, valid and binding obligation of Newnam, enforceable
against it in accordance with its terms.
Section 3.4 No Conflict; No Default. The execution, delivery and
performance by Newnam of this Agreement and the consummation of the transactions
contemplated hereby will not, except as disclosed prior to the Effective Date:
(i) violate any provision of any law, statute, rule or regulation or any order,
writ, judgment, injunction, decree, determination or award of any court,
government agency or arbitrator presently in effect having applicability to
Newnam or its properties or of the Articles of Incorporation or Bylaws of
Newnam; or (ii) result in a breach of, constitute a default under, otherwise
give any party the right to transactions contemplated hereby will not result in
the creation of any lien upon any property, assets or business of DFS or Dalton.
Section 3.5 No Government Approvals. The execution, delivery and
performance by DFS or Dalton of this Agreement and the consummation of the
transactions contemplated hereby will not require any consent or approval of any
governmental or regulatory authority under any provisions of law applicable to
DFS or Dalton except for the requirements of the IBCL with respect to the
consummation of the Merger.
Section 3.6 Litigation. There have been no actions, suits or
proceedings pending or, to the knowledge of DFS or Dalton, overtly threatened or
affecting DFS or Dalton or any of their respective properties before any court,
arbitrator, or any governmental agency, domestic or foreign.
Section 3.7 Proxy Materials. All of the information furnished in
writing to Newnam by DFS or Dalton for inclusion in the Proxy Statement with
respect to DFS or Dalton or its affiliates will not, at any time, contain any
statement which is false or misleading with respect to any material fact or
which omits to state any material fact necessary in order to make the statements
made therein not false or misleading.
Article 4 Representations and Warranties of DFS and Dalton. DFS and Dalton
represent and warrant to Newnam as follows:
Section 4.1 Existence, Power and Authority. DFS and Dalton,
respectively, are corporations duly incorporated and validly existing under the
laws of the State of Indiana and are not required to qualify as a foreign
corporation in any other jurisdiction.
Section 4.2 Capitalization. DFS has one thousand (1,000)
authorized common shares, without par value, of which 100 shares are issued and
outstanding. Dalton is the sole shareholder of DFS.
Section 4.3 Authorization and Validity of Agreement. This
Agreement has been duly executed and delivered by DFS and Dalton, has been duly
approved by Dalton, the sole shareholder of DFS (which, together with the
execution of the Articles of Merger and their filing with the Secretary of State
of the State of Indiana, are the only corporate actions on the part of DFS
necessary for the execution, delivery and performance by DFS of this Agreement
and the consummation by DFS of the transactions contemplated hereby) and is the
legal, valid and binding obligation of DFS, enforceable against it in accordance
with its terms.
Section 4.4 No Conflict; No Default. The execution, delivery and
performance by DFS or Dalton of this Agreement, does not and will not: (i)
violate any provisions of any law, statute, rule or regulation or any order,
writ, judgment, injunction, decree, determination or award of any court,
government agency, or arbitrator presently in effect, having applicability to
DFS or Dalton, or of the Articles of Incorporation or Bylaws of DFS or Dalton,
or (ii) result in a breach of or constitute a default under, any material
agreements, lease or instrument to which DFS or Dalton is a party or by which
DFS or Dalton may be bound or affected. The execution, delivery and performance
by DFS or Dalton of this Agreement and the consummation of the transactions
contemplated hereby will not result in the creation of any lien upon any
property, assets or business of DFS or Dalton.
Section 4.5 No Government Approvals. The execution, delivery and
performance by DFS or Dalton of this Agreement and the consummation of the
transactions contemplated hereby will not require any consent or approval of any
governmental or regulatory authority under any provisions of law applicable to
DFS or Dalton except for the requirements of the IBCL with respect to the
consummation of the Merger.
Section 4.6 Litigation. There have been no actions, suits or
proceedings pending or, to the knowledge of DFS or Dalton, overtly threatened or
affecting DFS or Dalton or any of their respective properties before any court,
arbitrator, or any governmental agency, domestic or foreign.
Section 4.7 Proxy Materials. All of the information furnished in
writing to Newnam by DFS or Dalton or inclusion in the Proxy Statement with
respect to DFS or Dalton or its affiliates will not, at any time, contain any
statement which is false or misleading with respect to any material fact or
which omits to state any material fact necessary in order to make the statements
made therein not false or misleading.
Article 5 Covenants.
Section 5.1 Access to Information and Confidentiality.
(a) Prior to the termination of this Agreement, Newnam shall, upon
reasonable request, afford to DFS and its agents, full access
during normal business hours to the plans, properties, books and
records of Newnam and shall cause its officers, employees,
accountants and other agents to furnish such additional
information as DFS and its agent shall from time to time
reasonably request.
(b) DFS shall, upon reasonable request, provide Newnam and its
agents with information concerning DFS and its affiliates and
associates as may be necessary for Newnam to prepare the Proxy
Statement and such applications or other documents as may be
required to obtain all necessary governmental consents and
approvals to the transactions contemplated by this Agreement.
(c) Newnam and DFS shall cause their affiliates, associates,
officers and other persons to hold in strict confidence all
information obtained in accordance with this Section 5.1 and will
not disclose such information to others without the prior written
consent of the party from whom the information was obtained. If
this Agreement is terminated: (i) DFS, Dalton and their
affiliates, associates, officers and other personnel will not use
such information acquired from Newnam and will promptly return to
Newnam all information which Newnam or its agents furnished to
each of them; and (ii) Newnam and its agents, affiliates, officers
and other personnel will not use any information acquired from DFS
or its associates and affiliates and will promptly return to DFS
all information which they may have obtained from DFS.
Section 5.2 Conduct of Business Prior to the Effective Date.
Except as specifically contemplated by this Agreement, or otherwise assented to
by DFS, during the period commencing on the date hereof and ending at the
Effective Date:
(a) Newnam shall conduct its business in the ordinary course,
consistent with prior practice, and shall not acquire or dispose
of any material amount of its assets;
(b) Newnam shall not (i) amend its Articles of Incorporation or
Bylaws; (ii) change the number of authorized shares of its common
shares; (iii) declare, set aside, or pay any dividends or other
distributions or payment in cash, stock, or property in respect of
its common shares; (iv) issue, grant, or sell any shares of, or
rights of any kind to acquire any Newnam Common Shares other than
exercise of pre-existing stock options, if any; (v) mortgage,
pledge, or subject to any material lien or other encumbrance
properties or assets of Newnam; (vi) increase the salary, wage,
bonus, or other compensation payable to any of Newnam's directors,
officers or employees; or (vii) agree to do any of the foregoing;
and
(c) Newnam shall use its best efforts to preserve intact its
business organization, to keep available the services of its
key employees and to preserve the good will of those having
business relationships with it.
Section 5.3 Proxy Material. Newnam shall prepare as promptly as
practical, a Proxy Statement. DFS shall furnish to Newnam such information
relating to itself, its affiliates and associates, and the plans of such persons
with respect to Newnam and DFS after the Effective Date, as may be necessary for
Newnam to prepare the documents referenced herein. Newnam shall notify DFS of
its intention to mail the Proxy Statement to Newnam's shareholders at least
forty-eight hours prior to the intended time of such mailing. Newnam shall not
be obligated to file or mail any proxy materials or any amendment or supplement
thereto, until DFS shall have consented in writing to the portions thereof
relating to it, any of its affiliates or associates and the pains of such
persons with respect to Newnam and DFS after the Effective Date.
Section 5.4 Submission to Shareholders. Newnam shall cause a
meeting of its shareholders to be duly called as soon as reasonably practical
for the purpose of voting on the Merger and all actions contemplated hereby
which require shareholder approval. If the Board of Directors of Newnam
recommends approval of the Merger, Newnam shall use its best efforts to solicit
from shareholders of Newnam proxies in favor of adoption and approval of the
Merger. Subject to the foregoing, Newnam shall take all other action necessary
and reasonable to attempt to secure the necessary vote of shareholders in favor
of the Merger. Newnam shall prepare and distribute such notices and consents in
accordance with applicable laws and regulations.
Section 5.5 Further Actions. Subject to the terms and conditions
hereof, Newnam, DFS and Dalton shall each use reasonable efforts to take all
actions to do such things as are reasonably advisable to enable them to
consummate the transactions contemplated by this Agreement, including using all
reasonable efforts:
(a) (a) to effect all necessary filings;
(b) (b) to defend any lawsuit or other legal proceedings
challenging this Agreement or the consummation of the transactions
contemplated hereby; and
(c) (c) to furnish each other such information and
assistance as reasonably may be requested in connection with the
foregoing.
Article 6 Conditions.
Section 6.1 Conditions to Obligations of All Parties. The
obligations of Newnam and DFS to effect the Merger and to consummate the
transactions contemplated by this Agreement are subject to the satisfaction, at
or prior to the Closing, of each of the following conditions:
(a) Approval of Shareholders. The Merger shall have been approved
by the shareholders of Newnam as provided in Section 3.2 and shall
have been approved by the sole shareholder of DFS as provided in
Section 4.3.
(b) No Injunctions, Etc. No preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or any
governmental body or any statute or rule promulgated or enacted by
any governmental authority which enjoins or otherwise prohibits
the transactions contemplated by shall be in effect.
Section 6.2 Conditions to Obligations or DFS and Dalton. The
obligations of DFS and Dalton to effect the Merger and to consummate the
transactions contemplated by this Agreement are subject to the satisfaction, at
or prior to the Closing, of each of the additional conditions:
(a) Accuracy or Representations and Warranties. The
representations and warranties of Newnam contained in Article 3
shall have been true and complete in all material respects when
made and at the Closing, except for changes contemplated by this
Agreement
(b) Performance of Agreements. Newnam shall have performed in all
material respects all obligations and agreements contained in this
Agreement to be performed or to be complied with by it prior to or
at the Closing.
(c) Opinion or Newnam Counsel. Newnam shall have furnished the
opinion of Baker & Daniels, counsel to Newnam, dated the Closing
Date, in form and substance satisfactory to DFS, to the effect
that:
(i) Newnam is a corporation duly organized and existing under
the laws of the State of Indiana;
(ii) Newnam has full corporate power to carry out the Merger
provided for in this Agreement and all corporate and other
proceedings required to be taken by or on behalf of Newnam to
authorize it to execute and deliver this Agreement and to
consummate the Merger contemplated hereby have been duly
taken;
(iii) This Agreement and instruments to be delivered pursuant
hereto have been duly executed and delivered by Newnam and
constitute legal, valid, and binding obligations of Newnam
enforceable in accordance with its, and their, respective
terms (subject as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium,
or other similar laws affecting the enforcement of creditors'
rights generally from time to time in effect and subject to
equitable principles limiting the right to obtain specific
performance);
(iv) Such other matters incident to the Merger contemplated by
this Agreement as DFS or its counsel may reasonably request.
(d) Collective Bargaining Agreement. The International Molders and
Allied Workers Union, Local 262, shall agree to extend the
Collective Bargaining Agreement to July 30, 1996, with the
following changes:
- Adjust standards to 480 minute days from 455 and establish
an incentive review system.
- Eliminate wage gain plan.
- On May 1, 1993, the medical co-payment will be improved:
- Company will absorb $250.00 monthly (family)
- Company will absorb $121.00 monthly (single)
- On May 1, 1994, the medical co-payment was improved:
- Company will absorb $300.00 monthly (family)
- Company will absorb $171.00 monthly (family)
- On May 1, 1995, add on 40 cents per hour.
- 1992 only - 20% of pre-tax profits will be distributed to
all employees on an equal basis.
- Extend current labor agreement for three years, three
months to July 30, 1996.
- Establish committee with full authority to review and
decide whether permissible to work to Dalton Foundries
(this work would be replaced with comparable work.)
- Establish committee to monitor and make recommendations
for possible changes to insurance program to control
costs.
- It is the intention of the company to continue existing
"shop rules".
- All other contract language will remain the same.
This proposal was ratified by members of Local #262, of the GMP-International
Union, March 28, 1992 by a vote of 87 to 64.
(e) Certain Resignations. David Bash ("Bash") and Russell Baker
("Baker") shall resign as the Chairman and President,
respectively, of Newnam effective as of the Effective Date.
Section 6.3 Conditions to Obligations of Newnam. The obligations
of Newnam to effect the Merger and consummate the transactions contemplated by
this Agreement are subject to the satisfaction at or prior to Closing, of each
of the following conditions:
(a) Accuracy of Representations and Warranties. The
representations and warranties of DFS contained in Article 4 shall
have been true and complete in all material respects when made and
at the Closing, except for changes permitted as contemplated by
this Agreement.
(b) Performance of Agreements. DFS shall have performed in all
material respects all obligations and agreements contained in this
Agreement to be performed or complied with by it prior to or at
the Closing, including, without limitation, deposit with the
Payment Agent the Aggregate Merger Payment in accordance with
Section 2.5 of this Agreement (c) Litigation. Immediately prior
the Closing, there shall not be any action, suit, or pending
proceeding against Newnam or any of its directors, offices, or
shareholders before any court or governmental agency, domestic or
foreign, which seeks to obtain substantial damages from the
officers, or directors of Newnam, or seeks injunctive relief; in
connection with the Merger or the other transactions contemplated
by this Agreement.
(c) Litigation. Immediately prior to the Closing, there shall not
be any action, suite, or pending proceeding against Newnam or any
of its directors, offices, or shareholders before any court or
governmental agency, domestic or foreign, which seeks to obtain
substantial damages from the officers or directors of Newnam, or
seeks injunctive relief, in connection with the Merger or the
other transactions contemplated by this Agreement.
(d) Opinion of DFS Counsel. DFS shall have furnished the opinion
of Dutton Overman Goldstein Pinkus, P.C., counsel to DFS, dated
the Closing Date, in form and substance satisfactory to Newnam, to
the effect that:
(i) DFS is a corporation duly organized and existing under
the laws of the State of Indiana;
(ii) DFS has full corporate power to carry out the Merger
provided for in this Agreement and all corporate and other
proceedings required to be taken by or on the part of DFS to
authorize it to execute and deliver this Agreement and to
consummate the Merger contemplated hereby have been duly
taken;
(iii) This Agreement and the instruments to be delivered
pursuant hereto have been duly executed and delivered by DFS
and constitute legal, valid and binding obligations of DFS
enforceable in accordance with its, and their, respective
terms (subject as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium, or other
similar law affecting the enforcement of creditors' rights
generally from time to time in effect and subject to
equitable principles limiting the right to obtain specific
performance); and
(iv) The execution, delivery and performance by DFS of this
Agreement, and the consummation of the merger contemplated
thereby, does not and will not, to the best of counsel's
knowledge: (i) violate any provision of law, statute, rule or
regulation or any order, writ, judgment, injunction, decree,
determination or award of any court, governmental agency or
arbitrator presently in effect, having applicability to DFS
or the
Articles of Incorporation or Bylaws of DFS, or (ii) result in
the breach of or constitute a default under, any material
agreement, lease or instrument to which DFS is a party or by
which it may be bound or affected. The execution, delivery
and performance by DFS of this Agreement and the consummation
of the transaction as contemplated hereby will not result in
the creation of any lien upon any property, assets or
business of DFS, except for such liens as may be created
pursuant to the terms of this Agreement or the financing
arrangements set forth herein.
(v) Such other matters incident to the Merger contemplated by
this Agreement as Newnam or its counsel may reasonably
request.
Article 7 Miscellaneous.
Section 7.1 Termination and Abandonment.
(a) General. This Agreement may be terminated and the
transaction contemplated hereby abandoned at any time,
notwithstanding approval thereof by the shareholders of
Newnam, but not later than Closing: (i) by mutual consent of
the respective Boards of Directors of Newnam and DFS; or (ii)
by the Board of Directors of Newnam if the Closing shall not
have occurred on or before April 3D, 1992, and the failure to
close shall not have been caused by the non-fulfillment of
any condition contained in Section 6.2; (iii) by the Board of
Directors of DFS if the Closing shall not have occurred on or
before April 30, 1992, and the failure to occur shall not
have been caused by the nonfulfillment of any condition
contained in Section 6.3; or (iv) by the Board of Directors
of either Newnam or DFS if any court of competent
jurisdiction or any governmental body having jurisdiction
shall have issued an order, decree or ruling or taken any
other action restraining or prohibiting the transactions
contemplated hereby.
(b) Procedure Upon Termination. In the event of termination
and abandonment of this Agreement, written notice thereof
shall be promptly given to the other parties hereto and this
Agreement shall terminate and the transactions contemplated
hereby shall be abandoned without further action by the
parties hereto.
(c) Liability Upon Termination. Upon termination as provided
in this Section 7.1, this Agreement shall be void and of no
further force or effect and there shall be no obligation on
the part of the parties or their respective officers,
directors, employees, agents or shareholders, other than as
specified in Section 5.1(c).
Section 7.2 Termination of Representations and Warranties. The
respective representations and warranties of Newnam and DFS shall not be deemed
waived or otherwise affected by any investigation made by any party. Each
representation and warranty shall expire with, and be terminated and
extinguished by, the Merger and thereafter Newnam and DFS shall have no
liability with respect to any such representation or warranty. Notwithstanding
the foregoing, Newnam shall have no liability for any misrepresentation or
breach of warranty, except for intentional misrepresentations or breaches of
warranty. This Section 8.3 shall have no effect upon any other obligation of the
parties, whether to be performed before or after the Effective Date.
Section 7.3 Governing Law. This Agreement shall be governed by and
construed in accordance with - the laws of the State of Indiana applicable to
agreements made and to be performed entirely within Indiana.
Section 7.4 Binding; Assignment. This Agreement shall inure to the
benefit of and be binding upon any successor to Newnam and DFS including Dalton.
This Agreement may not be assigned by any party without the prior written
consent of the other parties.
Section 7.5 Notification or Certain Matters. Newnam shall give
prompt notice to DFS, and DFS shall give prompt notice to Newnam of: (a) the
occurrence, or nonoccurrence, of any event the occurrence, or nonoccurrence, of
which would cause any of its representations or warranties in this Agreement to
be untrue or inaccurate in any material respect at or prior to the Effective
Date and (b) any material failure of, or any event that will result in the
material failure of, Newnam, on the one hand, or DFS, on the other hand, as the
case may be, to comply with or satisfy any covenant, condition or agreement to
be complied with or satisfied by it under this Agreement; however, the delivery
of any notice pursuant to this Section 7.5 shall not limit or otherwise affect
the remedies available to the party receiving such notice under this Agreement
Section 7.6 Notices. All notices and other communications under
this Agreement shall be in writing and shall be considered given when delivered
personally, delivered by telecopier, or sent by registered or certified letter,
postage prepaid, addressed to the parties at the following addresses (or at such
other address as a party may specify by written notice hereunder):
If to Newnam: Newnam Manufacturing, Inc.
200 West Ohio Street
P. O. Box 271
Kendallville, Indiana 46755
Attention:
Telecopier Number: (219) ___________
With a copy to: Baker & Daniels
2400 Fort Wayne National Bank Bldg.
Fort Wayne, Indiana 46802
Attention: Joseph W. Kimmell
Telecopier Number: (219) 422-5925
If to DFS: DFS, Inc.
1900 East Jefferson Street
Warsaw, Indiana 46580
Attention: Don I. Drown
Telecopier Number: (219) 372-1820
With a copy to: Dutton Overman Goldstein Pinkus, P.C.
710 Century Building
36 South Pennsylvania Street
Indianapolis, Indiana 46204
Attention: Carl D. Overman
Telecopier Number: (317) 633-1494
Section 7.7 Entire Agreement; Waiver. This Agreement and the other
agreements referred to herein or executed on the date hereof constitute a
complete statement of all arrangements among the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings
between them, and this Agreement cannot be changed or terminated except by an
instrument in writing signed by the parties hereto. No party has made nor shall
it be deemed to have made any representation or warranty except as expressly set
forth herein. No waiver of any provision of this Agreement given at any time
shall be deemed to constitute a waiver of any other provision of this Agreement
nor shall such waiver constitute a continuing waiver.
Section 7.8 Headings. The headings in this Agreement are intended
solely for the convenience of reference and shall not be given affect in the
construction or interpretation of this Agreement.
Section 7.9 Publicity. The parties shall consult with each other
in issuing any press releases or otherwise making any public statements with
respect to the transactions contemplated hereunder, and shall not issue any such
press release or make any such public statement prior to such consultation
except as may be required by law.
Section 7.10 Further Actions. Each of the parties hereto agree
that subject to its legal obligations, it will use its best efforts to fulfill
all conditions precedent specified herein, to the extent that such conditions
are within its control, and to do all things reasonably necessary to consummate
the transactions contemplated hereby.
Section 7.11 Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed to be an original, and all
of which together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
NEWNAM MANUFACTURING, INC. DFS, INC.
By: /s/ David M. Bash By /s/ Don I. Brown
------------------ -----------------------
Don I. Brown, President
THE DALTON FOUNDRIES, INC.
By /s/ Kenneth L. Davidson
-----------------------
K.L. Davidson, President and
Chief Executive Officer
ARTICLES OF INCORPORATION
OF
NEWNAM MANUFACTURING, INC.
The undersigned incorporator, desiring to form a corporation
("Corporation") pursuant to the provisions of the Indiana Business Corporation
law as amended from time to time (the "Law"), executes the following Articles of
Incorporation:
ARTICLE I
NAME
The name of the Corporation is NEWNAM MANUFACTURING, Inc.
ARTICLE II
AUTHORIZED SHARES
SECTION 2.1 NUMBER. The total number of shares which the Corporation is
authorized to issue is one thousand (1,000).
SECTION 2.2 CLASSES. There shall be one (1) class of shares, designated
common shares.
SECTION 2.3 RIGHTS. All common shares shall have the same preferences,
limitations and relative rights.
SECTION 2.3.1 VOTING RIGHTS. With respect to each matter upon which
shareholders are entitled to vote, each holder of common shares shall be
entitled to one (1) vote for each common share standing in the
shareholder's name on the Corporation's books on the record date.
SECTION 2.3.2 RIGHTS UPON DISSOLUTION. In the event of the
dissolution of the Corporation, upon the winding up and liquidation of its
business and affairs, each holder of common shares shall be entitled to
receive a ratable portion of the net assets of the Corporation remaining
after payment (or provision for payment) of the debts and other
liabilities of the Corporation.
SECTION 2.3.3 NO PREEMPTIVE RIGHTS. Shareholders shall have no
preemptive rights to subscribe to or purchase any common shares or other
securities of the Corporation.
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EXHIBIT B
SECTION 2.4 ISSUANCE AND CONSIDERATION. Common shares may be issued for
the consideration fixed from time to time by the Board of Directors.
SECTION 2.5 RESTRICTIONS ON TRANSFER OF SHARES. The By-Laws, an agreement
among shareholders, or an agreement between shareholders and the Corporation may
impose restrictions on the transfer (or registration of transfer) of shares of
the Corporation.
ARTICLE III
REGISTERED OFFICE AND REGISTERED AGENT
The street address of the Corporation's initial registered office in
Indiana and the name of its initial Registered Agent at that office is: Don I.
Brown, 1900 East Jefferson Street, Warsaw, Indiana 46580.
ARTICLE IV
INCORPORATOR
The name and address of the incorporator of the Corporation is:
Carl D. Overman, Dutton & Overman, P.C., 710 Century Building, 36 South
Pennsylvania Street, Indianapolis, Indiana 46204.
ARTICLE V
BOARD OF DIRECTORS
SECTION 5.1 NUMBER. The Board of Directors shall consist of a minimum of
one (1) individual and a maximum of nine (9) individuals. The number of
directors may be fixed or changed from time to time, within the minimum and
maximum, by the Board of Directors. In the absence of a resolution fixing the
number of directors, the number shall be three (3).
SECTION 5.2 QUALIFICATIONS. Directors need not be residents of the State
of Indiana nor shareholders of the Corporation.
2
ARTICLE VI
PURPOSES AND POWERS
SECTION 6.1 PURPOSE. The purpose for which the Corporation is formed is to
transact any and all lawful business for which corporations may be incorporated
under the Law.
SECTION 6.2 POWERS. The Corporation shall have the powers to do all things
necessary or convenient to carry out its business and affairs.
3
ARTICLE VII
PROVISIONS FOR MANAGING THE BUSINESS AND
REGULATING THE AFFAIRS OF THE CORPORATION
SECTION 7.1 AUTHORITY OF BOARD OF DIRECTORS. Subject to any specific
limitation or restriction imposed by the Law or by these Articles of
Incorporation, all corporate powers shall be exercised by or under the authority
of the Board of Directors, and the business and affairs of the Corporation shall
be managed under the direction of the Board of Directors, without previous
authorization or subsequent approval by the shareholders of the Corporation.
SECTION 7.2 CODE OF BY-LAWS. The Board of Directors shall have the power
to adopt, amend or repeal the Code of By-Laws of the Corporation, without
previous authorization or subsequent approval by the shareholders of the
Corporation.
SECTION 7.3 REMOVAL OF DIRECTORS. Any director (or all of the directors)
may be removed with or without cause by either the shareholders or the Board of
Directors. Any director (or all of the directors) may be removed by the
shareholders only at a meeting called for the purpose of removing the
director(s), and the meeting notice must state that a purpose of the meeting is
removal of the director(s). Any of the directors (or all of the directors) may
be removed by the Board of Directors at any meeting of the Board, and no notice
is required. In either case, a director may be removed only if the number of
votes cast to remove the directors exceeds the number of votes cast not to
remove the director.
SECTION 7.4 AMENDMENT OF ARTICLES OF INCORPORATION. The Corporation may
amend these Articles of Incorporation at any time to add or change a provision
that, as of the effective date of the amendment, is required to be in the
Articles of Incorporation or to delete a provision that, as of the effective
date of the amendment, is not required to be in the Articles of Incorporation.
Amendments to the Articles of Incorporation shall be adopted in any manner
prescribed or permitted by the provisions of the Law as of the effective date of
the amendment. All rights and powers conferred upon the shareholders or the
directors by the Articles of Incorporation or the Code of By-Laws are subject to
this reserved right to amend the Articles of Incorporation. An amendment is
adopted if the votes cast favoring the amendment exceed the votes cast opposing
the amendment.
SECTION 7.5 POTENTIALLY ABANDONED PROPERTY. After a period of six (6)
years from the date specified for payment or delivery, the following property
shall revert to and become the property of the Corporation:
(a) An unclaimed dividend, distribution or other sum payable to a
shareholder,
(b) An unclaimed sum payable to any claimant on any obligation of
the Corporation,
(c) Any unclaimed funds or other property, tangible or intangible,
held by the Corporation for the benefit of any person other than the
Corporation, and
4
(d) The interest, income, earnings or appreciation on any of the
funds or property described above.
Before the end of the seventh year after the date that particular funds or
property described above should have been paid, distributed or delivered, the
Secretary shall prepare the Corporation's written claim to the funds or property
including the interest, income, earnings or appreciation.
5
STATE OF INDIANA
OFFICE OF THE SECRETARY OF STATE
ARTICLES OF AMENDMENT
To Whom These Presents Come, Greeting:
WHEREAS, there has been presented to me at this office, Articles of Amendment
for:
NEWNAM MANUFACTURING INC
and said Articles of Amendment have been prepared and signed in accordance with
the provisions of the Indiana Business Corporation Law; as amended.
The name of the corporation is as follows:
DALTON CORPORATION, KENDALLVILLE MANUFACTURING FACILITY
NOW, THEREFORE, I, SUE ANNE GILROY, Secretary of State of Indiana, hereby
certify that I have this day filed said articles in this office.
The effective date of these Articles of Amendment is May 07, 1997.
In Witness Whereof, I have hereunto set my
hand and affixed the seal of the State of
Indiana, at the City of Indianapolis, this
Seventh day of May, 1997.
6
ARTICLES OF AMENDMENT OF THE Provided by: JOSEPH H. HOGSETT
ARTICLES OF INCORPORATION SECRETARY OF STATE OF INDIANA
State Form 38333 (R6 / 12-93) 302 W. WASHINGTON ST., ROOM E018
Approved by State Board of Accounts 1988 INDIANAPOLIS, IN 46204
TELEPHONE: (317) 232-6576
Indiana Code 23-1-38-1 et seg.
FILING FEE $30.00
INSTRUCTIONS: Use 8 -1/2 x 11 inch white paper for inserts. Filing
requirements - Present original and one copy to address in
upper right hand corner of this form.
[APPROVED AND FILED IND.
SECRETARY OF STATE]
ARTICLES OF AMENDMENT OF THE
ARTICLES OF INCORPORATION OF:
Newnam Manufacturing, Inc.
The undersigned officers of:
Newnam Manufacturing, Inc.
(hereinafter referred to as the "Corporation") existing pursuant to the
provisions of: (indicate appropriate act)
X Indiana Business Corporation Law
as amended (hereinafter referred to as the "Act"), desiring to give notice of
corporate action effectuating amendment of certain provisions of its Articles of
Incorporation, certify the following facts:
ARTICLE I AMENDMENT(S)
SECTION 1 The date of incorporation of the corporation is:
February 9, 1987
SECTION 2 The name of the corporation following this amendment to the Articles
of Incorporation is:
Dalton Corporation, Kendallville Manufacturing Facility
SECTION 3
The exact text of Article(s) I of
---------------------------------------
the Articles of Incorporation is now as follows:
ARTICLE I
NAME
The name of the Corporation is Dalton Corporation.
Section 4 Date of each amendment's adoption:
February 11, 1997