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Exhibit 2.4
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, is dated this ____ day of _____, 2001,
by and between PII VENTURES, L.L.C., a Michigan limited liability company,
having its registered office at 00000 Xxxxxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
(hereinafter sometimes referred to as the "SURVIVING ENTITY"), and ADVANCED
ANIMATIONS, INC., a Georgia corporation, having its registered office at 000
Xxxxxxxx Xxxxx, X.X., Xxxxxxx, Xxxxxxx 00000 (hereinafter sometimes referred to
as the "MERGED CORPORATION"), with the Surviving Entity and the Merged
Corporation hereinafter sometimes referred to collectively as "CONSTITUENT
ENTITIES."
W I T N E S S E T H :
WHEREAS, the Surviving Entity is a limited liability company duly organized
and existing under the laws of the State of Michigan, whose Articles of
Organization were filed in the State of Michigan on March 19, 2001, (Michigan
LLC I.D. #B86318), with 100% of its Membership Interests issued to the persons
listed in Paragraph E below, all of whom are entitled to vote on this Merger;
and
WHEREAS, the Merged Corporation is a corporation duly organized and
existing under the laws of the State of Georgia, incorporated on January 10,
1997 (Georgia Control #K703407), with authorized capital stock of 10,000 common
shares, its only authorized class of securities, of which one (1) share is
issued and outstanding, and is owned entirely by SPX Corporation, a Delaware
corporation ("SELLER"), which outstanding share is entitled to vote on this
Merger; and
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WHEREAS, the Members of the Surviving Entity, and the Board of Directors
and sole shareholder of the Merged Corporation, have by consent resolutions
without meetings approved this Agreement and Plan of Merger, and have declared
it advisable for the best interests of the Constituent Entities that the Merged
Corporation merge with and into the Surviving Entity in the manner and upon the
terms and conditions hereinafter set forth and with the effect provided by and
pursuant to the Michigan Limited Liability Company Act (MCLA Section 450.4705a
[the "MICHIGAN ACT"]), and the OCGA Section 14-2-1109 (being Section 22-1109 of
the Georgia Business Corporation Code [the "GEORGIA ACT"]), which respective
state statutes permit the Merger herein contemplated;
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
covenants and provisions hereinafter contained, it is agreed that the Merged
Corporation shall be merged with and into the Surviving Entity and that the
terms and conditions of such Merger and the mode of carrying the same into
effect and the manner of surrendering the shares of the Merged Corporation to
the Surviving Entity shall be as follows:
A. MERGER. The Constituent Entities shall, on the Effective Date, be merged
into a single entity by the Merged Corporation merging into Surviving Entity.
The separate existence of the Merged Corporation shall cease on the Effective
Date and the existence of the Surviving Entity shall continue unaffected and
unimpaired by the merger with all of the rights, privileges, immunities and
powers and subject to all the duties and liabilities of a limited liability
company organized under the laws of the State of Michigan.
B. NAME OF SURVIVING ENTITY. The name of the Surviving Entity is PII
Ventures, L.L.C., a Michigan limited liability company.
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C. ARTICLES OF ORGANIZATION. The Articles of Organization of the Surviving
Entity shall continue to be its Articles of Organization following the Effective
Date of the Merger until the same shall be altered or amended as therein
provided or as provided by law. Such Articles of Organization are not restated
herein, and shall remain as in existence prior to this Merger. The Articles of
Organization of the Surviving Entity are set forth in its entirety and attached
hereto as Exhibit "A", and all the terms and provisions thereof are hereby
incorporated in this Agreement and made a part hereof with the same force and
effect as if herein set forth in full; and, from and after the Effective Date of
the Merger and until further amended as provided by law, said Exhibit "A",
separate and apart from this Agreement and Plan of Merger, shall be, and may be
separately certified as, the Articles of Organization of the Surviving Entity.
D. OPERATING AGREEMENT. The Operating Agreement of the Surviving Entity
shall be and remain the Operating Agreement of the Surviving Entity, until
altered or amended as therein provided or as provided by law.
E. MEMBERS AND OFFICERS. The Members of the Surviving Entity, prior to, and
from and after the Effective Date of the Merger, shall be the following:
CLT & ASSOCIATES, L.P., a
Michigan limited partnership MEMBER
XXXXX XXXX, XX. (or his
revocable living trust) MEMBER
Such Members of the Surviving Entity shall continue in office until their
respective successors shall be elected or appointed and qualified.
F. METHOD OF MERGER. The mode of carrying the Merger into effect and the
manner of surrendering the outstanding share of the Merged Corporation to the
Surviving Entity shall be as follows:
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1. SURRENDER OF MERGED CORPORATION SHARE. The outstanding share of
common stock of the Merged Corporation, and all rights in respect thereof, shall
be converted into the right to receive $16,750,000 (the "Cash Consideration"),
and such share shall forthwith be surrendered and delivered to the Surviving
Entity by the sole shareholder -- parent corporation of the Merged Corporation,
and shall not be converted into membership interests into the Surviving Entity;
it being understood that (i) the Merger described herein of a corporation into a
limited liability company is authorized under the Georgia Act and the Michigan
Act, however, (ii) it is not a tax free reorganization pursuant to Section 368
of the Internal Revenue Code of 1986, as amended ("CODE"), and (iii) is, in
fact, for federal income tax purposes, a deemed sale of the assets of the Merged
Corporation to the Surviving Entity followed by a constructive liquidation of
the Cash Consideration into the Merged Corporation's sole stockholder -- parent
corporation under Section 332 of the Code, and that (iv) Seller will only
receive the Cash Consideration and shall not receive, in exchange, any
membership interests in the Surviving Entity, nor any uncertificated equity
interests in the Surviving Entity, nor anything else.
2. EFFECTIVE DATE; PAYMENT OF CASH CONSIDERATION. This Merger shall be
effective, for all purposes including, but not limited to, accounting purposes
and as between the parties hereto, as of the close of business on _____ ___,
2001 ( "EFFECTIVE DATE" ). On the Effective Date, Surviving Entity shall pay
Seller the Cash Consideration by wire transfer of immediately available funds to
such bank account as Seller designates in writing on or before the Effective
Date.
G. PROPERTY RIGHTS, ETC., VESTED IN SURVIVING ENTITY. Upon the Merger
becoming effective, all the property, rights, privileges, franchises, patents,
trademarks, licenses,
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registrations, and other assets of every kind and description of the Merged
Corporation, including the Services Agreement, dated September 21, 1998, by and
between Advanced Animations and The Oz Entertainment Company, shall be
transferred to, vested in and devolve upon the Surviving Entity without further
act or deed, and all property, rights, and every other interest of the Merged
Corporation in its assets shall be, without exception, the property of the
Surviving Entity as previously held by the Merged Corporation. The Merged
Corporation hereby agrees from time to time, as and when requested by the
Surviving Entity or by its successors or assigns, to execute and deliver or
cause to be executed and delivered all such deeds and instruments and to take or
cause to be taken such further or other action as the Surviving Entity may deem
necessary or desirable in order to vest in and confirm to the Surviving Entity
title to and possession of any property of the Merged Corporation acquired or to
be acquired by reason of or as a result of the Merger herein provided for and
otherwise to carry out the intent and purposes hereof and the proper officers
and directors of the Merged Corporation and the proper officers and members of
the Surviving Entity are fully authorized in the name of the Merged Corporation
and the Surviving Entity to take any and all such action.
H. SERVICE OF PROCESS. The Surviving Entity may be served with process in
the State of Michigan in any proceeding for enforcement of any obligation of the
Merged Corporation as well as for enforcement of any obligation of the Surviving
Entity arising from the Merger. The address to which a copy of such process
shall be mailed is 00000 Xxxxxxxx, Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000.
I. FURTHER ACTIONS. Each of the Constituent Entities shall take or cause to
be taken all action, or do or cause to be done all things necessary including
all necessary filings in
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Georgia, for purposes of the Merged Corporation, and in Michigan, for purposes
of the Surviving Entity and the Constituent Entities, that are proper and
advisable under the laws of the States of Michigan and Georgia in order to make
effective the Merger.
THE ABOVE AGREEMENT AND PLAN OF MERGER, having been executed on behalf of
the Surviving Entity, and having been adopted by its Members, and having been
executed on behalf of the Merged Corporation, and having been adopted by its
sole shareholder and Board of Directors, in accordance with the provisions of
the above named Georgia Act, and the Michigan Act, the duly authorized Officers
of the Constituent Entities do hereby execute the said Agreement and Plan of
Merger as the respective act, deed and agreement of said Constituent Entities on
the day and year first above written.
WITNESSES: PII VENTURES, L.L.C., a Michigan
limited liability company
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By: XXXXX XXXX, XX.
Its: MANAGING MEMBER
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"SURVIVING ENTITY"
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ADVANCED ANIMATIONS, INC., a
Georgia corporation
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By:
Its:
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"MERGED CORPORATION"
