Document DDK81m70Br1L0v3LeEa8ZpGO

Agreement and Pica of Merger (hereinafter called "Agreement or Merger") , dated as of May 31, 1972, pursuant to Section 252 of the General Corporation Law of the State of Delaxrare and Section 52 of the General Corporation Act of the State of Michigan, between The Celotex Corporation, a Delaware corporation (hereinafter called "Celotex") and -% Panacon Corporation, a Michigan corporation, (hereinafter called "Panacon"), and a majority of the directors thereof (Celotex and Panacon being hereinafter collectively called the "Constituent Corporations"), WITNESSETH THAT: WEZEZAS, Celotex is a corporation organized" and existing under the Lavs of the State of Delaware, having been incorporated on August 6", 1954; and WHEREAS, Panacon is a corporation organized and existing under the Lavs of the State of Michigan, having been incorporated on November 29, 1909 under the name of Briggs Manufacturing Company (which nzne was thereafter changed to Panacon by amendment filed April 9, 1970); and WHEREAS, the authorized capital stock of Celotex consists of ICO shares of preferred stock, no par value and 100 shares of common stock, no par value, all of which on the date hereof have been validly issued and are out standing, fully paid and r.on-assessable and owned by Jin Walter Corporation, a Florida corporation (hereinafter called "Walter"); and VHERF`^>, the authorised capit . shares of Panacon consists of 25,000,000 shares of Common Stock, $1.00 par value ("Coarsen Stock"), of which 15,632,153 shares were, as of Kay 31, 1972, issued and outstanding and of 7,356,000 shares of Class A-Common Stock, $1.00 par value ("Class A Cession Stock"), all of which have been- issued and converted into Common Stock; and __ % WHEREAS, the Boards of Directors of Celotex and Panacon have each adopted resolutions approving this Agreement of Merger; and WHEREAS, the registered office of Celotefc in the State of Delaware is located at 100 West Tenth Street in the City of Wilmington, the County of New Castle, and the name of its registered agent at such address is The Corporation Trust Company; and. WHEREAS, the registered office of Panacon in the State of Michigan is located at 615 Griswold Street in the City of Detroit, the County of Wayne, and the name _ of its registered agent at such address is The Corporation Company; and WHEREAS, the parties hereto deem it desirable that Panacon be merged into Calotex under and pursuant to the General Corporation Law of the State of Delaware and the Michigan General Corporation Act'. _ NCW, THEREFORE, Celotex and Panacon, in considera tion of the mutual covenants, agreements and previsions hereinafter contained, c!o hereby proscribe the terms and conditions of such merger and the mode of carrying the same into c: Section 1 - Herr.er. Subject to the approval and adoption of this Agreement of Merger and the merger provided fop herein -by the voce or the written consent of the holders of the required percentages of the issued and outstanding shares of capital stock or shares of each of the corporations,, and subject to the conditions hereinafter sec forth, Panacon shall he and hereby is merged into Celotex, which corporation shall continue in existence as the surviving corporation; . and thereupon the separate existence of Panacon shall cease, except insofar as its existence shall be continued by operatio: of Section 12 hereof -or by operation of Michigan law. Section 2 - Certificate of Incorporation. The certificate of .incorporation of Celotex as in effect at the Effective Data of the merger shall continue in full force and effect as the certificate of incorporation of the corporation surviving this merger, until it shall have been amended as provided therein or by law. Section 3 - Bv-laws. The By-laws of Celotex as in effect at the Effective Date of the merger shall continue in full force and effect as the By-laws of the corporation surviving the merger until they shall have been amended or repealed as provided therein or by law. Section 4 - Directors. The directors of Celotex in office at the Effective Date of the merger shall continue as the directors of the surviving corporation. Such director: shall hold office until the next annual meeting of stock holders of Celotex and unsil their respective successors are cicc ;cd and qualified unless sooner removes or otherwise replaced in accordance with :ho ccrti-icstc of incorporation Cclotev. . " "`Section 5 -Orriccrr.. Thc_offleers of"Celotex - in office upon the Effective Date of Che merger shall continue as chc officers of the surviving corporation. Section 6 - Celotex .Representations nnd Warranties. Celotex represents and warrants: (a) Organization and Standing. That it is a corporation duly organized', validly existing and in good standing under the laws of Delaware, that it has the cor porate power to carry on its business as now being con- m ducted, chat it is duly qualified to do business and in good standing in each jurisdiction in which the character of the properties owned by it or the nature of the business conducted by it makes such qualification necessary. (b) ` Authority Relative to the Agreement. " That the execution, delivery and performance of the Agreement by Celotex, including without limitation, the conveyances, 'transfers and deliveries contemplated hereby, have been duly and effectively authorized and consented'to by Celotex* Board of Directors. * - Section 7 - Par.acon r.corcsar.cations and Warranties. Panaccn represents and warrants: (a) Organization arc Standing. That it is a corporation duly organized, validly existing and in good standing under the laws of Michigan, .that it has the cor porate power to carry on its business as now being con ducted, chat it is duly qualified to do business and in good standing in each jurisdiction in which the character 0 c;_,c prcpcrtics owned by it or the nature of the business \b) Authority P.clnvivr rn the Arrrmcnt. -- That the execution, delivery and performance of the Agreement by Panacon, including without limitation, the conveyances, transfers and deliveries contemplated hereby, have been duly and effectively authorised and consented to by Panacea's Board of Directors. Section 8 - Manner of Converting Stock. % the Effective Date of the merger: Upon (a) Panacon Common Stock. Each outstanding * share of Common Stock of Panacea (other than each such share of Common Stock held by Cclotex) shall be converted into the right to receive, without interest, $6.00 (payable by bank check or by certified or cashier's check) from Celotex upon surrender of the certificate representing such share. (b) Panacon gcttr.cn Stock Held bv Celotex. Each outstanding share of Common Stock of Panacon held by Celotex shall be cancelled and no security, cash or other consideration shall be issued or exchanged therefor at the Effective Date or thereafter. (c) Panacon Class A~ Csrnon Stock. Each outstanding share of Class A Common Stock of Panacon shall be cancelled and no security, cash, or other consideration shall be issued or exchanged therefor at the Effective Date or thereafter. (c) .Treasury Stork. Each outstanding share of Connor Steel;, and of Class A Conner. Stock, of Panacon. held by ? r.accn shall be cancelled and no security, cash cr c a her c:r. id era tier, shall be issued cr exchanged therefor ~___ Cclot-f'v SrncU. Each ourstarding share of preferred seech, no per value, end of common scock, no par value, of Cclotex shall remain unaffected by the merger. On and after the-Effective Date of the mercer, no transfer of the shares of Common Stock or Class A Common Stock of Fanacon shall be made on the stock transfer books of the surviving corporation. - * Section 9 - Warrants. Upon the Effective Date of the mercer, each outstanding Common Stock'Purchase Warrant (''Warrant") heretofore issued by Panacon under its former name, Briggs Manufacturing Company, shall be cancelled and shall have no further force and effect, and the lawful holder thereof, upon surrender of such Warrant, shall have the right to receive, without interest, $.50 (payable by bank check or by certified or cashier's check) from Celoteo: for each share of Common Scock included within such Warrant. Section 10' - Scock On tiers. Upon the Effective Date of the merger, each, outstanding and unenercised option to purchase Panacon Common Scock theretofore granted pursuant to Panacon*s 1957 Qualified Stock Option Plan and chon held by an employee of Panacon shall be converted into an option to purchase shares of Walter Common Stock, 16-2/3 cents par value per share, pursuant to Walter's 196S Employees' Qualified Scock Option Plan. The number of shares of the sci Walter Common Stock covered by such an option, the purchase price for the shares of- Walter Ccm.m.cn Stock, and the ocher -Li - "terms and'conditions of "the said option shall be "determined -in accordance with Section 425(a) of the Internal Revenue . Code of 1954, as amended and the applicable regulations thereunder. If at any time after the Effective Dace, it appears chat one or sore of the conditions which are pro hibited by Section 425(a) of the Internal P.evcnue Code of -^ 1954 exist, then Che Walter^Common Stock options to be issued hereunder may be adjusted by Walter in order to insux compliance with the applicable previsionsof the said Interna Revenue Code. Section 11 - Certain Effects of Merser. At the .Effective Date cf the merger, the separate existence of Panacon shall cease.and Celotex shall o ossess all of the rights, privileges, powers and franchises both of a public and of a private nacura of Faracen, subject to all their restrictions, disabilities and duties, and ail and singular, the rights, .privileges, powers and franchises of Panacon, and all property, real, personal and mixed, tangible and intangible, and all debts due to Panacon on whatever account, and all other things in action of or belonging to Panacon, shall be vested in Celotex'without further act or deed; and all property, rights, privileges, powers ar.d franchises and.all and every other interest shall be thereafter as - effectively the property of Celotex as they were of Panacon, and the title to any real estate vested by deed or otherwise in Panacon shall net revert or be in ?.-/ way impaired by reason cf the merger herein prevised ftr, provided thot all rights of creditors and all 1-cn.s upon property of A- ' panaccn shall be preserved unimpaired, and all debts, liabilities and duties of i'aaaccn shall upon the Effective Date of the merger attach to Celotex.and may be enforced against it to the. same extent as if such debts, liabilities and duties had been incurred or contracted by Celotex. Any surplus which Panacon may have upon the Effective Date of the merger may be carried as surplus by Celotex* Section 12 - Suooler.cntal Action. If at any time after the Effective Date of the merger Celotex shall consider or be advised that any further conveyances, agreements, documents, instruments and assurances of law or in any other .things are necessary or desirable to vest, perfect, confirm or record in Celotex the. title to any property, rights, privileges, powers and franchises of Panacoa, or otherwise to carry out the provisions of this Agreement of Merger, tha proper directors and officers of Panaccm last in office shall execute and deliver, upon Celotex' request, any and all proper conveyances, agreements, documents, instruments and assurances in law, and do all things necessary or proper to vest, perfect, or confirm title to such property, rights, privileges, powers and franchises in Celotex, and otherwise to carry out the previsions cf this Agreement of Merger. Section 13 - Effective Pate of Mercer. Celotex and Panaccn shall cause a counterpart of this Agreement of Merger to be filed in the office cf the Secretary of State cf the State of Delaware and to be recorded as required by rr to be filed in the Office of the Administrator of the Stare of Michigan as required by the Michigan General Corporation Act. The merger provided for in this Agreement of Merger shall become effective at 9:00 AM, New York City Time, on the day (herein called the "Effective Date" of the merger) following the day that the later of such filing with the - Xi Secretary of State of the State of Delaware or such filing in the Office of the Administrator of Michigan shall have been completed. m Section 14 - Covenants. From and-after the date hereof and until the Effective Dace of the merger, Panacea .shall not issue or sell, or issue rights, warrants or option: to subscribe to, any- shares of any capital stock. Section 15 - Approval and Filing. After adoption of a resolution of the 3oard~of Directors of each of the Constituent Corporations approving`this Agreement of Merger," this Agreement of Merger shall be submitted to Walter, as sole stockholder of Celotar, for its consent,'approval and adoption, pursuant to the .General Corporation Law of the State of Delaware, and to a vote of the holders of the out standing capital stock of Fanacon for their approval and adoption at a meeting thereof held upon notice in accordance with law. If che merger shall be so consented to, approved' and adopted by Walter, as sole stockholder of Celote::, and so approved and adopted by the affirmative vote of net less than two-thirds of the voces cast at such meeting by the object to the provision of Scr-j.cn 1C hereof, shall_t; e a.ijsteps necessary in order to stake effective the merger of Panacon into Celotex provided for in this Agreement*of Merger. -- - - Section 16 - Termination. By mutual written agree ment, the parties'hereto, or in the event of the discovery of a material breach of a representation or warranty hereinabove made by 'a party, the other party hereto, cay terminate or abandon this Agreement of Merger at any tine pr'ior to the Effective Date. This Agreement of Merger' shall terminate,, unless extended, in the event that the merger is not eon- stmrted on or before September 30, 1572. Section 17 - Amendment. Celotex and Panacon may, by mutual written agreement, approved by their respective Board of Directors, amend this Agreement of Merger from time . to time prior to the Effective Dace of the merger to the extent permitted by law, provided however that no such amend ment-may reduce the amount of.the payment for the Panacon steel provided for in Paragraph 8(a) above or the amount of payment for the Panacon Warrants provided for in Section 9 above. Section IS - Counterparts. This Agreement of Merger shall be executed simultaneously in .any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one anc-the same instrument. Section 19 - Limitation of. Actions. No representati on warranty herein contained snail survive the Effective Date. Section 20 - Expenses. If the merger is consummated Celotex will bear all the expenses. If the merger is not ccr.- c,. ] Pnr.aecn will beer only its internal expenses end Celotex -ill beer all other expenses in connection \:ish the r J' V _ ! ^*.*1.153 WV;Sr*EOr, chc parties to this Asrccsicnc _c Mercer, pursuant to the approve.! ana authority duly given by resolutions adopted by their respective Board of Directors, have caused these presents to be cnesutcd by the Vice Preside and attested by the Secretary of Celcten and by the President and attested by the Secretary of Panaccn, and chc corporate seal affined, as of the dace first above writt>en. THE CELOTZX CORPORATION (Corporate Seal) ATTEST: (kJU^ Secretary B' Vice President A Majority of the Directors of Par.acon Corporation: Jr I# RICHARD UIOMrsc::, Assistant Secretary of The Celotex corporation, a Delaware corporation, hereby certify as such Assistant Secretary and under the seal of said corporatio that'the foregoing Agreement and Plan of Merger, after having been first approved by resolution duly adopted by the Board of Directors of said corporation and executed by its officers thereunto duly authorized and by resolution cuJLy adopted by the Board of Directors and signed by a majority of the Directors and executed by the officers off.Panacon Corporation thereunto duly authorized, was duly adopted pursuant to Section 228 of Title 8 of the Delaware Corporation Law, by the written consent of the sole stockholder of The Celotex Corporation, which Agreement and Plan of Merger was thereby adopted as the act of the said sole stockholder of the said The Celotex Corporation, and the duly adopted agreement and act of the said corporation. WIT1I2SS my hand and the seal of The Celotex Corporation this 2Sth day of June, 1972. (Corporate Seal) Assistant Secretary -T-`- r ................ Wc, k. J. ? 1221tola President;, and~L. A. rrc::: Secretary, of Penacon Corporation, a Michigan corporation, hereby certify as such President and Secretary and under the seal of said corporation that the foregoing Agreement and PI. of Merger, after having been first approved by resolution du! adopted by the Board of Directors of said corporation and si; by a majority of said Directors and executed>by its officers thereunto duly authorized and by resolution duly adopted by the Board of Directors of The Celotex Corporation, a Delauar corporation, and executed by the officers of The Celotex Corporation thereunto duly authorized, vas duly submitted to the shareholders of Panacsn Corporation at a special meeting of said shareholders in accordance with the requirements of Section 52 of the Michigan General Corporation Act for. the purpose of considering and voting for or against the approve of said Agreement and Plan of Merger and held,- after due net on June 2S, 1972; and chat at said meeting said Agreement am Plan of Merger vas considered and vote by ballot in person cby proxy vas taken fer the adoption or rejection of the same, and that the votes of shareholders of Paaaccn Corporation representing more than tvo-thirds <2/3) of the total number of shares of each class cf its outstanding capital stock vet for the adoption of said Agreement and Plan of Merger. WITNESS cur hands and the' seal of Panacon Corpcrat this 2Sth cov of June, 1972. \v (Corpora:a Seal) csicf\cnc o .0 Setrcarry ('J -- *Tno a-csoing ACKLSMLi.-T AXD .-Vl'wf auni having been duly approved by resolutions adopted by the Boards of Directors of The Celotex Corporation and Panacon Corporation, respectively, and said Agreement and Plan of Merger having been duly signed, by a majority of the Directors of Panacon Corporation and having been duly executed by the officers of The Celotex Corporation and Panacon Corporation, respectiv thereunto duly authorized', and said Agreement'1 and Plan of Merger having been duly adopted by the shareholders of each of said corporations in the manner provided by Section 52 of the Michigan General Corporation Act as to Panacon Corporation and by Section 252 of the General Corporation Lav of the State of Delavare as to The Celotex Corporation, the ** Vice President and the Assistant Secretary of The Celotex Corporation and the President and the Secretary of Panacon Corporation do now fixsctiwS Agreement and Plan of Merger under the respective seals of said corporations by the authority of the Scard of Directors and shareholders of each, as the act, deed arc agreement of each of said corporations, this 23th cay of June, 1972. THS CZLOTZM CORPCPATIOU (Corporate Seal) Attest: 2.<M Vise Presicer." (Ctrctrate Seal) J Jt - STATS OF * " *' cot*:"; of ss: ) r ____ BE IT REMEMBERED that on this 22th day of June, 19: personally cane before tnc, a Notary Public in and for the Co* and State`aforesaid, J. n. CORDELLf Vice President THE CELOTEX CORPORATION, a corporation of che State of Delaw* and he duly executed said Agreement and Plan of Merger before ne and acknowledged the said Agreement and Plan of Merger to his act and deed and che act and deed of said corporation anc facts stated therein are true; and that che seal affixed to s Agreement and Plan of Merger and attested by che Secretary o: corporation is the common or corporate seal of said corporat: IN WITNESS WHEREOF, -I have hereunto set ay hand anc seal of office the day and year aforesaid. (Notarial Seal) Notary Public STATE 0? o"'o COUNTY QPfcWrv/ ) ss) MCUtt r. ftirsnrtX *asmrr tt Lsw HUQf TGAeJmIT mPmUi*eUffCMat of OHIO OUtSMiai W.S4 ILG. On this 28th day of June, 1972, before aa appeared ?. J. PIZZITQLA and L. A. FZCHSTZIi:, JR. to ae personally known, who being by ce duly sworn, did say t they are, respectively, the President -and Secretary of Par.acc Corporation, a Michigan corporation, chat che seal affixed to the foregoing ir.strur.ent is the corporate seal of said aorpot that said instrument was signed ar.d sealed in behalf of said corporation by authority of its Beard of Directors and its shareholders, ar.d che said F. J. PIZZ.TOIA l. a. pzcnstz:::. JR. acknowledged the cxceu of said inscr-- as the act, acco arc aarccrv.cra or sa-_a c era era tier.. **- , Amcr.onenc Co Agreement end Pirn of Merger (hcrciuaftc called "Agreement of Merger"), dated as of May 31, 1972, purer: Co Section 252 of the General Corporation Law of the State of Delaware and Section 52 of the General Corporation Ace of the State of Michigan, between The Celote:-: Corporation, a Delaware corporation (heremarter 'called "Celotex") and Panacon Corpora: a Michigan corporation, (hereinafter called "Panacea"), and a majority of the directors thereof, WITNESSETH THAT: WHEREAS, Celotes and Panacea did heretofore enter into; subject to shareholder approval,the Agreement of Merger; and WHEREAS, said Agreement of Merger did provide in Section* 17 thereof chat, subject to certain specified limitation: the parties thereto could, after-execution of th.e said Agreement of Merger and prior to the Effective Date thereof, amend the said Agreement of Merger by mutual written agreement approved by their respective 3oard of Directors; and WHEREAS,- the parties thereto desire by this mutual written agreemant to amend Section 13 of said Agreement of Merger to more precisely fix the Effective Date thereof- NOW, THE7.E7CRE, Celote:-: arc ranscen, in consideration of the mutual covenants, agreements and'provisions contained here and in the Agreement of Merger do hereby agree that the Agreement of Merger shall be amended as follows: Scctie: o s:- -- Suction - - i.. rtiyA r nf '^r _. v .i'lotc:% and Panacea shall cause a counterpart cf this Agreement of Merger to ^c filed in the ofiice of the Secretary of State of the State of Delaware and to be recorded as required by the General Corporation Law of the State of Delaware and shall cause a certificate of merger with respect thereto to be filed in the Office of the Administrator of the State of Michigan as required by the Michigan General Corporation Act. The merger provided for in this Agreement of Merger shall become effective at 9:00 AM, Mew York City Time, on June 30, 1972 (herein called the "Effective Date" of the merger) . IN WITNESS WKZP.ZOF, the parties to this Amendment to the Agreement of Merger, pursuant to the approval and authority duly given by resolutions adopted by their respective Board of Directors have caused these presents to be executed by the Vice`President and attested by the Assistant Secretary of Celotex and by the President and attested by the Secretary of Par.aoon, anc the corporate seal affixed. TZ CZLCTEM COAPOPATICN (Corporate Seal) Bh Vice President Corporation, a Delaware corporation, hereby certify as"such Assist; Secretary anu under the seal of said corporation that the fcrcgoir.c Amendment to the Agreement and Plan of Merger, was first approved resolution duly adopted by the Board of Directors of said ccrporat: and executed by its officers thereunto duly authorized. WI2X2SS ray hand .and the seal of The Celotex Corporation this 28th day of June, 1972. ~ I, L. A. PSCSSTSIi?', JR., Secretary of Panacon Ccrporaticr a Michigan corporation, hereby certify as such Secretary and under the seal of said corporation that-the foregoing Amendment to the Agreement and Plan of Merger, was first approved by resolution duly adopted by the 3oard of Directors of said corporation and executed by its officers thereunto duly authorized. WIC!*SS my hand and the seel of Par.accn Corporation this 28th day of June, 1972. (Corporate Seal) i /. Secrc tary '0 e- -- t or - ''' o COUNTY OOS'* ~777T ) r 3E IT ETMMUL?.uD that cn chic 2Sth day of June, 1972, personally cane before me, a Notary Public* in and for the County and State aforesaid, J* B* COKDgLLf vice President of THE CEL07EX CORPORATION, a corporation of the State of Delaware, and he duly executed said Amendment to the Agrcement and Plan of Merger before me and acknowledged the said Amendment to the Agree % and Plan of Merger to be his act and deed and the act and deed of said corporation and the facts stated therein axe true; and that the seal affixed to said Amendment to the Agreement and Plan of Merger and attested by the Secretary cf said corporation is the common or corporate seal of said corporation. IN WITNESS WHEREOF , I have hereunto set my hand and sea of office the day and year aforesaid. (Notarial Seal) STATE OF ow>'> COUNTY OFkam,^ ) ) ss.: Notary Public IKHMO |. flEBCHCR Atlnrn,, lt in Mor*av avau-. STATt a, 0lw faTtfc Smda x. tia nm iQtfiuaw I On this 28ch day of June, 1972, before me appeared F. J. PIZ2IT0LA and L. A. PECT-ISTSIN, JR. to me personally known, who being by me duly sworn, cid say that they are, respectively, the President and Secretary of Par.acon Corporation,' a Michigan corporation, that the seal affixed to the foregoing instrument is the corp trace setl of said corporate that said instrument was signed and sealed in behalf o f said corporation by authority of its Scar d of Directors , and the said r. j. ?icz:tc and l. a. ?rc:-!ST_:::, J?.. acknowledged the cutcuricr. of soil : trumcno :: tr.c act, cccdA _ -/ *