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EXHIBIT 10.2
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER is made and entered into as of the
day of July, 1996, by and between Magnetec Corporation, a Connecticut
corporation (hereinafter called "Magnetec"), and Ithaca Peripherals
Incorporated, a Delaware corporation (hereinafter called "Ithaca"), pursuant to
Section 33-371 of the Connecticut General Statutes and Section 252 of the
General Corporation Law of Delaware.
WHEREAS, the authorized capital stock of Ithaca consists of 4,000,000
shares of common stock, par value $.10 per share, of which 100 shares were
issued and outstanding as of July 8, 1996 and owned of record by Tridex
Corporation, a Connecticut corporation ("Tridex") on such date, and 2,000,000
shares of preferred stock, par value $1.50 per share, of which none were issued
and outstanding as of July 8, 1996;
WHEREAS, the authorized capital stock of Magnetec consists of 5,000
shares of common stock, no par value per share, of which 1,000 shares were
issued and outstanding as of July 8, 1996 and owned of record by Tridex;
WHEREAS, the respective Boards of Directors and shareholders of
Magnetec and Ithaca have deemed it advisable and to the advantage of the two
corporations that Ithaca merge into Magnetec upon the terms and conditions
herein provided;
WHEREAS, Magnetec and Ithaca intend that the merger contemplated hereby
qualify as a tax-free reorganization within the meaning of Section 368(a)(1) of
the Internal Revenue Code of 1986, as amended; and
WHEREAS, the Boards of Directors and shareholders of Magnetec and
Ithaca approved this Agreement and Plan of Merger on July __, 1996.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Magnetec and Ithaca hereby agree to merge in accordance with
the following plan:
1. Merger. Ithaca shall be merged with and into Magnetec and Magnetec
shall survive the merger. As required under Section 33-371 of the Connecticut
General Statutes and Section 252 of the Delaware General Corporation Law (a) an
appropriate Certificate of Merger shall be signed, verified and delivered for
filing with the Secretary of the State of Connecticut, and (b) an appropriate
Certificate of Merger and Secretary's Certificate shall be signed, verified and
delivered for filing with the Secretary of the State of Delaware.
2. Effective Time. The Agreement and Plan of Merger shall become
effective for purposes of Delaware and Connecticut law, respectively, at the
date and time of the completion of the filing of the Certificate of Merger in
such states (hereinafter referred to as the "Effective Time").
3. Directors and Officers and Governing Documents.
(a) The directors and officers of Magnetec shall be the same upon the
Effective Time as they are for Magnetec immediately prior thereto.
(b) The by-laws of Magnetec, as in effect at the Effective Time, are
the same as those of the surviving corporation.
(c) The Agreement and Plan of Merger effects no change in the
Certificate of Incorporation of the surviving corporation, Magnetec, and said
Certificate of Incorporation shall continue in full force and effect as the
Certificate of Incorporation of the corporation surviving the merger.
(d) The Certificate of Incorporation of Magnetec was filed with the
Secretary of the State of Connecticut on September 7, 1973.
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3. Rights and Liabilities of Magnetec. At and after the Effective Time,
Magnetec shall possess all the rights, privileges, immunities and franchises, as
well as of a public and private nature of each of the merging corporations; and
property, real, personal and mixed, and all debts due Ithaca on whatever
account, and all other choses in action, and all and every other interest of, or
belonging to or due to each of the corporations so merged, shall be taken and
transferred to and vested in Magnetec without further act or deed; and the title
to any real estate, or any interest therein, vested in either of such
corporations shall not prevent or be in any way impaired by reason of the
merger.
4. Further Assurances. From time to time, as and when required by
Magnetec, there shall be executed and delivered on behalf of Ithaca 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 Magnetec the title to and
possession of all property, interest, assets, rights, privileges, immunities,
powers, franchises and authority and Plan of Merger, and the officers and
directors of Magnetec are fully authorized in the name and on behalf of Ithaca
or otherwise to take any and all such action and to execute and deliver any and
all such deeds and other instruments.
5. Stock of Magnetec and Ithaca. No shares of Magnetec shall be issued
as a result of the merger. The 100 shares of common stock of Ithaca issued and
outstanding immediately prior to the Effective Time owned by Magnetec shall
automatically be canceled without any conversion thereof into any other security
or right to receive any form of compensation and no payment shall be made with
respect thereto.
6. Appointment of Agent. Magnetec hereby consents to service of process
in the State of Delaware in any action or special proceeding for the enforcement
of any liability or obligation of Ithaca and for the enforcement of the right of
holders of Common Stock of Ithaca to receive payment for the shares owned by
such holders, and hereby irrevocably appoints the Secretary of State of Delaware
as its agent to accept service of process in any action or special proceeding
for the enforcement, of any such liability or obligation. The address to which a
copy of such process shall be mailed by the Secretary of State to Ithaca is: c/o
Magnetec Corporation, 7 Laser Lane, Wallingford, CT 06492 Attention: Corporate
Secretary.
7. Amendment. At any time prior to the Effective Time this Agreement
and Plan of Merger may be amended in any manner as may be determined in the
judgment of the respective Boards of Directors of Magnetec and Ithaca, to be
necessary, desirable or expedient.
8. Abandonment. At any time before the Effective Time, this Agreement
and Plan of Merger may be terminated and the merger may be abandoned by the
Board of Directors and shareholders of either Magnetec or Ithaca or both.
9. Counterparts. In order to facilitate the filing and recording of
this Agreement and Plan of Merger, the same may be executed in two or more
counterparts, each of which shall be deemed to be an original and the same
agreement.
IN WITNESS WHEREOF, each of the corporate parties hereto, pursuant to
authority granted by the Boards of Directors of Magnetec and Ithaca, has caused
this Agreement and Plan of Merger to be executed by its President and attested
to by its Secretary and its corporate seal to be affixed hereto, as of the date
first above written.
ATTEST: MAGNETEC CORPORATION
By:
Secretary Bart C. Shuldman, President
ATTEST: ITHACA PERIPHERALS INCORPORATED
By:
Secretary Richard L. Cote, Vice President
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