the Company (the "Merger");
WHEREAS, in furtherance of the Merger, each of the boards of directors of Merger
Sub and the Company has approved the Merger in accordance with the applicable
provisions of the Michigan Business Corporation Act (the "BCA") and upon the
terms and subject to the conditions set forth in this Agreement; and
WHEREAS, each of the boards of directors of Stockholder and Parent, as sole
stockholder of the Company and Merger Sub, respectively, has approved and
adopted the Merger in accordance with the applicable provisions of the BCA and
upon the terms and subject to the conditions set forth herein, as evidenced by
its execution of this Agreement.
NOW, THEREFORE, for the purpose of consummating the above transaction and in
consideration of the promises and mutual covenants herein contained, the parties
hereby agree as follows:
SECTION 1
DEFINITIONS
As used in this Agreement, capitalized terms shall have the meanings specified
in the text hereof or on Annex 1 hereto (which is incorporated herein by
reference), which meanings shall be applicable to both the singular and plural
forms of the term defined.
SECTION 2
THE MERGER
2.1
THE MERGER.
UPON THE TERMS AND SUBJECT TO THE CONDITIONS SET
FORTH IN THIS AGREEMENT AND THE CERTIFICATE OF MERGER, AND IN RELIANCE UPON THE
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS CONTAINED HEREIN AND IN
ACCORDANCE WITH THE BCA, AT THE EFFECTIVE TIME, MERGER SUB SHALL BE MERGED WITH
AND INTO THE COMPANY.
AS A RESULT OF THE MERGER, THE SEPARATE CORPORATE
EXISTENCE OF MERGER SUB SHALL CEASE AND THE COMPANY SHALL CONTINUE AS THE
SURVIVING CORPORATION OF THE MERGER (THE "SURVIVING CORPORATION") AND SHALL
SUCCEED TO AND ASSUME ALL THE RIGHTS AND OBLIGATIONS OF MERGER SUB IN ACCORDANCE
WITH THE BCA.
THE NAME OF THE SURVIVING CORPORATION SHALL CONTINUE TO BE
"DETROIT STOKER COMPANY."
2.2
FILING; EFFECTIVE TIME.
NOT LATER THAN THE CLOSE OF BUSINESS ON
THE CLOSING DATE, THE PARTIES SHALL CAUSE A PROPERLY EXECUTED CERTIFICATE OF
MERGER (THE "CERTIFICATE OF
2
MERGER"), IN THE FORM REQUIRED BY AND EXECUTED IN ACCORDANCE WITH THE BCA, AND
SPECIFYING AN EFFECTIVE TIME THEREFOR NOT LATER THAN THE CLOSE OF BUSINESS ON
THE CLOSING DATE, TO BE FILED WITH THE SECRETARY OF STATE OF THE STATE OF
MICHIGAN IN ACCORDANCE WITH THE PROVISIONS OF THE BCA.
THE MERGER SHALL BECOME
EFFECTIVE AT THE TIME OF FILING OF, OR AT SUCH LATER TIME SPECIFIED IN THE
CERTIFICATE OF MERGER.
WHEN USED IN THIS AGREEMENT, THE TERM "EFFECTIVE TIME"
SHALL MEAN THE DATE AND TIME AT WHICH THE MERGER SHALL BECOME EFFECTIVE.
2.3
EFFECT OF THE MERGER.
AT THE EFFECTIVE TIME, THE EFFECT OF THE
MERGER SHALL BE AS PROVIDED IN THIS AGREEMENT, THE CERTIFICATE OF MERGER AND THE
APPLICABLE PROVISIONS OF THE BCA.
WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, AND SUBJECT THERETO, AT THE EFFECTIVE TIME, ALL THE RIGHTS,
PRIVILEGES, POWERS, FRANCHISES AND PROPERTY OF MERGER SUB AND THE COMPANY SHALL
VEST IN THE SURVIVING CORPORATION, AND ALL RESTRICTIONS, DISABILITIES, DUTIES,