CONFIDENTIAL
EXECUTION COPY
AGREEMENT OF MERGER dated as of March 31, 1992,
between ROLLER BEARING ACQUISITION COMPANY, INC., a
Delaware corporation (the "Acquisition Corporation"),
and ROLLER BEARING COMPANY OF AMERICA, INC., a Delaware
corporation (the "Company").
The respective Boards of Directors of each of the Acquisition Corporation
and the Company have, by resolutions duly adopted, approved and adopted this
Agreement, the Agreement and Plan of Reorganization dated the date hereof (the
"Reorganization Agreement"), among the Company, Roller Bearing Holding Company,
Inc., a Delaware corporation (the "Buyer"), the Acquisition Corporation, which
is a wholly-owned subsidiary of the Buyer, and the Stockholders (as defined in
the Reorganization Agreement), and the proposed merger of the Acquisition
Corporation with and into the Company in accordance with this Agreement, the
Reorganization Agreement and the Delaware General Corporation Law (the "Delaware
Statute"), whereby, among other things, the holders of issued and outstanding
shares of the Class A Common Stock, $.0l par value (the "Class A Common Stock"),
the Class B Common Stock, $.01 par value (the "Class B Common Stock"; and the
Class A Common Stock and the Class B Common Stock being collectively referred to
herein as the "Company Common Stock") and the Series A Preferred Stock, $.01 par
value (the "Company Preferred Stock"), of the Company will receive cash and
shares of the Buyer's Preferred Stock (as defined herein) therefor in the manner
set forth in this Agreement and the Reorganization Agreement, upon the terms and
subject to the conditions set forth in this Agreement and the Reorganization
Agreement. All capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Reorganization Agreement.
NOW, THEREFORE, in consideration of the mutual benefits to be derived from
this Agreement and the Reorganization Agreement, the parties hereto agree as
follows:
ARTICLE I
GENERAL
1.1. The Merger. In accordance with the provisions of this Agreement, the
Reorganization Agreement and the Delaware Statute, the Acquisition Corporation
shall be merged with and into the Company (the "Merger"), which, at and after
the Effective Time (as hereinafter defined), shall be and is sometimes referred
to herein as the "Surviving Corporation". The Acquisi-
tion Corporation and the Company are sometimes collectively referred to herein
as the "Constituent Corporations".
1.2. The Effective Time of the Merger. The Merger shall become effective
upon the filing of the Certificate of Merger (as defined in Article IV hereof)
with the Secretary of State of the State of Delaware, in accordance with Article
IV hereof. The date and time when the Merger shall become effective as aforesaid
is herein referred to as the "Effective Time".
1.3. Effect of Merger. (a) At the Effective Time, the separate existence
of the Acquisition Corporation shall cease and the Acquisition Corporation shall
be merged with and into the Surviving Corporation, possessing all of the rights,
privileges, powers and franchises, as well of a public as of a private nature,
and being subject to all of the restrictions, disabilities and duties of each of
the Constituent Corporations.
(b) At the Effective Time, all and singular, the rights, privileges,
powers and franchises of each of the Constituent Corporations, and all property,
real, personal and mixed, and all debts due to any of the Constituent
Corporations on whatever account, as well for stock subscriptions as all other
things in action or belonging to each of the Constituent Corporations shall be
vested in the Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as they were of the
several and respective Constituent Corporations, and the title to any real
estate vested by deed or otherwise, under the laws of the State of Delaware in
either of the Constituent Corporations, shall not revert or be in any way
impaired by reason of the Delaware Statute; but all rights of creditors and all
liens upon any property of either of the Constituent Corporations shall be
preserved unimpaired, and all debts, liabilities and duties of the respective
Constituent Corporations shall thenceforth attach to the Surviving Corporation,
and may be enforced against it to the same extent as if said debts, liabilities
and duties had been incurred or contracted by it.
1.4. Charter and By-Laws of Surviving Corporation. Immediately following
the Effective Time, (a) the Certificate of Incorporation of the Company shall be
the Certificate of Incorporation of the Surviving Corporation until altered,
amended or repealed as provided in the Delaware Statute, (b) the by-laws of the
Company shall become the by-laws of the Surviving Corporation until altered,
amended or repealed as provided in the Delaware Statute, the Certificate of
Incorporation or such by-laws, (c) the directors of the Acquisition Corporation
shall become the directors of the Surviving Corporation and (d) the officers of
the Acquisition Corporation shall become the officers of the Surviving
Corporation.
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1.5. Taking of Necessary Action; Further Assurances. Prior to the
Effective Time, and subject to the terms and conditions provided in the
Reorganization Agreement, the parties hereto shall take, or cause to be taken
(as the case may be), all such action as may be necessary or appropriate in
order to effectuate the Merger as provided in this Agreement as expeditiously as
reasonably practicable.
ARTICLE II
EFFECT OF MERGER ON CAPITAL STOCK AND OTHER SECURITIES
OF CONSTITUENT CORPORATIONS; ETC.
2.1. Effect of Merger on Securities. (a) The following terms shall have
the following respective meanings:
(i) "AC Common Stock" shall mean the Common Stock, $.01 par
value, of the Acquisition Corporation.
(ii) "Buyer's Common Stock" shall mean the Common Stock, $.01
par value, of the Buyer.
(iii) "Buyer's Preferred Stock" shall mean the Series A
Preferred Stock, $100 par value, of the Buyer.
(iv) "Cash Consideration" means the amount indicated as such
on Annex I hereto.
(v) "Per Common Share Preferred Stock Consideration" means the
number of shares of the Buyer's Preferred Stock indicated as the Per
Common Share Preferred Stock Consideration on Annex I hereto.
(vi) "Per Common Share Cash Consideration" means the amount
indicated as such on Annex I hereto.
(vii) "Per Preferred Share Cash Consideration" means the
amount indicated as such on Annex I hereto.
(b) The manner and basis of converting or exchanging the shares of
capital stock of each of the Constituent Corporations into or for cash or
securities of the Surviving Corporation or the Buyer shall be as follows:
(i) each share of AC Common Stock outstanding at the Effective
Time shall be converted into one share of Class A Common Stock of the
Surviving Corporation;
(ii) each share of Company Common Stock or Company Preferred
Stock outstanding at the Effective Time and owned directly or indirectly
by the Company or the Subsidiary or owned by the Buyer or the Acquisition
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Corporation or any other subsidiary of the Buyer shall, by virtue of the
Merger and without any action on the part of the holder thereof, be
cancelled and no consideration shall be delivered in exchange therefor;
(iii) each share of Company Common Stock listed on Annex I
hereto shall, by virtue of the Merger and without any action on the part
of the holder thereof, cease to be outstanding and be converted into the
right to receive the Per Common Share Cash Consideration and the Per
Common Share Preferred Stock Consideration;
(iv) each share of Company Preferred Stock outstanding at the
Effective Time shall, by virtue of the Merger and without any action on
the part of the holder thereof, cease to be outstanding and be converted
into the right to receive the Per Preferred Share Cash Consideration; and
(v) each authorized but unissued share of capital stock of the
Company at the Effective Time shall be cancelled.
2.2. Exchange of Certificates; Delivery of Funds. At the Effective Time,
the Surviving Corporation shall deliver:
(a) with respect to the Company Common Stock then held by each
Stockholder, (i) a wire transfer of immediately available funds in an amount
equal to the Net Cash Amount set forth opposite such Stockholder's name on Annex
I and (ii) duly executed certificates representing that number of shares of the
Buyer's Preferred Stock set forth opposite such Stockholder's name on Annex I
hereto, against receipt by the Surviving Corporation of certificates
representing all shares of Company Common Stock held by such Stockholder
immediately prior to the Effective Time; and
(b) with respect to the Company Preferred Stock then held by each
Stockholder, a wire transfer of immediately available funds in an amount equal
to the Preferred Share Cash Consideration set forth opposite such Stockholder's
name on Annex I, against receipt by the Surviving Corporation of certificates
representing all shares of Company Preferred Stock held by such Stockholder
immediately prior to the Effective Time.
OPI shall receive and distribute the dollar amounts and shares of the
Buyer's Preferred Stock set forth in this Section 2.2 on behalf of the
Stockholders (and shall be held harmless by the Stockholders in connection
therewith).
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2.3. Deposit into Escrow. (a) As soon as practicable following the
Closing, the Stockholders (or OPI on behalf of the Stockholders) shall deposit
(i) into the Escrow Account (as defined in the Escrow Agreement) an aggregate of
$100,000, to be held and distributed in accordance with the terms of the Escrow
Agreement, and (ii) into the Escrow Deposit Box (as defined in the Escrow
Agreement) certificates representing in the aggregate 20,000 shares of the
Buyer's Preferred Stock (issued to the Stockholders in the Merger and, with
respect to certain Stockholders, pursuant to the Exchange Agreements or
otherwise), to be held and distributed in accordance with the terms of Section
8.2 of the Reorganization Agreement and the terms of the Escrow Agreement.
(b) As soon as practicable following the Closing, the Buyer shall
deposit $100,000 into the Escrow Account, to be held and disbursed in accordance
with the terms of the Escrow Agreement.
2.4. Exercise of Warrants and Exchange of Options. (a) Immediately prior
to the Effective Time, each of Bitrix Associates C.V. and Overland Trust Bank
shall exercise all warrants to purchase Company Common Stock then held by them.
(b) Immediately prior to the Effective Time, options to purchase
41.237, 15 and 5 shares of Company Common Stock from the Company, Bitrix and
Columbus, respectively, held by Michael Hartnett shall be cancelled in exchange
for shares of the Buyer's Common Stock and/or the Buyer's Preferred Stock.
2.5. After the Effective Time. At and after the Effective Time, the stock
transfer books of the Surviving Corporation shall be closed with respect to the
Company Common Stock and the Company Preferred Stock and there shall be no
further registration of transfers of Company Common Stock or Company Preferred
Stock thereafter on the records of the Surviving Corporation. If, after the
Effective Time, certificates formerly representing shares of Company Common
Stock or Company Preferred Stock are presented to the Surviving Corporation,
they shall be cancelled and exchanged for the consideration set forth in
Sections 2.1(b)(iii) and 2.1(b)(iv), respectively, hereof, as provided in, and
subject to, this Article II.
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ARTICLE III
TERMINATION
This Agreement may be terminated, and the Merger abandoned, by resolutions
of the Boards of Directors of the Constituent Corporations prior to the Merger
becoming effective, notwithstanding prior approval thereof by their respective
stockholders. In the event of the termination and abandonment of this Agreement
and the Merger, this Agreement shall become void and of no further effect
without any liability on the part of either Constituent Corporation or the
stockholders or the directors or officers in respect thereof.
ARTICLE IV
APPROVAL OF AGREEMENT;
FILING OF CERTIFICATE OF MERGER
The respective Board of Directors of each of the Constituent Corporations
have, by resolutions duly adopted, unanimously approved and adopted the Merger,
this Agreement and the Reorganization Agreement. The respective stockholders of
each of the Constituent Corporations have, by resolutions duly adopted, approved
and adopted the Merger, this Agreement and the Reorganization Agreement in
accordance with Section 251 of the Delaware Statute. Upon satisfaction of all
conditions of the Merger contained in Article V of the Reorganization Agreement
(or appropriate waiver thereof by the party or parties entitled to satisfaction
of such conditions or any of them) and execution and delivery of this Agreement,
the parties hereto shall cause a certificate of merger (the "Certificate of
Merger") substantially in the form attached as Exhibit hereto, to be executed
and filed with the Secretary of State of the State of Delaware in accordance
with Section 103 of the Delaware Statute and the Merger shall thereupon become
effective.
ARTICLE V
MISCELLANEOUS
5.1. Entire Agreement; Amendments. This Agreement, the Certificate of
Merger and the Reorganization Agreement and the other writings and agreements
referred to herein and therein or delivered pursuant thereto contain the entire
understanding of the parties with respect to the subject matter hereof. This
Agreement, the Certificate of Merger and the Reorganization Agreement and such
other writings and agreements referred to herein and therein supersede all prior
agreements and understandings between the parties with respect to the subject
matter hereof. To the extent permitted by applicable law, this
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Agreement and the Certificate of Merger may be amended by action taken by or on
behalf of the Boards of Directors of the Constituent Corporations at any time
before or after adoption of this Agreement by the stockholders of the
Constituent Corporations. This Agreement may be amended only by a written
instrument duly executed by the parties, and any condition to a party's
obligations hereunder may only be waived in writing by such party.
5.2. Headings. The section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
5.3. Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by facsimile transmission, air courier or by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
If to the Acquisition Corporation, to:
Roller Bearing Acquisition Company, Inc.
1800 Century Park East, Suite 1000
Los Angeles, California 90067
Attention: Richard R. Crowell
Telecopy: (310) 277-5810
with a copy to:
Gibson, Dunn & Crutcher
333 South Grand Avenue
Los Angeles, California 90071
Telecopy: (213) 229-7520
Attention: Terrance L. Carlson, Esq.; and
If to the Company, to:
Roller Bearing Company of America, Inc.
140 Terry Drive
P.O. Box 1237
Newtown, Pennsylvania 18490
Telecopy: (215) 579-4318
Attention: President
with a copy to:
O'Sullivan Graev & Karabell
30 Rockefeller Plaza
New York, New York 10112
Telecopy: (212) 408-2420
Attention: Kenneth S. Siegel, Esq.;
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or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such notice
or communication shall be deemed to have been received (a) in the case of
personal delivery or facsimile transmission, on the date of such delivery, (b)
in the case of air courier, on the next business day after the date when sent
and (c) in the case of mailing, on the third business day following the date on
which the piece of mail containing such communication was posted.
5.4. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
5.5. Governing Law. This Agreement shall be governed by and construed in
accordance with (a) the laws of the State of New York applicable to agreements
made and to be wholly performed within such State and (b) with respect to
corporate law governing the Merger, solely by the General Corporation Law of the
State of Delaware.
5.6. Gender. Any reference to the masculine gender shall be deemed to
include the feminine and neuter genders unless the context otherwise requires.
5.7. Parties in Interest. This Agreement shall be binding upon, inure to
the benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns. Anything contained herein to the contrary
notwithstanding, this Agreement shall not be assigned by any party hereto
without the consent of the other party hereto.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed on its behalf as of the day and year first above written.
ROLLER BEARING COMPANY
OF AMERICA, INC.
By: /s/Gary W. Holmes
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Gary W. Holmes
President and CEO
ATTEST:
/s/Emanuele Costa
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Emanuele Costa
Secretary
ROLLER BEARING ACQUISITION
COMPANY, INC.
By: /s/Michael J. Hartnett
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Name: Michael J. Hartnett
Title: President
ATTEST:
/s/Kurt B. Larson
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Name: Kurt B. Larson
Secretary