AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "Merger Agreement"), dated
as of September , 1999, between MidAmerican Realty Services Company, an Iowa
corporation ("MidAmerican Realty"), and XxxxXxxxxxxx.Xxx Inc., a Delaware
corporation (the "Company"). MidAmerican Realty and the Company are hereinafter
sometimes collectively referred to as the "Constituent Entities."
WHEREAS, MidAmerican Energy Holdings Company, an Iowa
corporation ("Parent"), owns 95% of the issued and outstanding shares of common
stock, par value $.01 per share, of MidAmerican Realty (the "MidAmerican Realty
Common Stock");
WHEREAS, Parent has caused the incorporation of the Company
under the Delaware General Corporation Law (the "DGCL") and owns 100% of the
issued and outstanding shares of common stock, par value $.01 per share, of the
Company (the "Company Common Stock");
WHEREAS, MidAmerican Realty desires to merge with and into the
Company pursuant to the DGCL and the Iowa Corporation Law (the "ICL") and
pursuant to the terms and conditions set forth in this Merger Agreement;
WHEREAS, the Board of Directors of each of MidAmerican Realty
and the Company has, by resolutions duly adopted, approved and advised this
Merger Agreement; and
WHEREAS, all of the stockholders of MidAmerican Realty,
including Parent, in its capacity as the 95% stockholder of MidAmerican Realty,
and Parent as the sole stockholder of the Company, has approved and adopted this
Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for the purpose of merging MidAmerican Realty
with and into the Company (the "Merger"), and setting forth certain terms and
conditions of the Merger and the mode of carrying the same into effect,
MidAmerican Realty and the Company hereby agree as follows:
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1. Merger. Subject to the terms and conditions hereof and in accordance
with the applicable provisions of the DGCL and the ICL, MidAmerican Realty shall
be merged with and into the Company, and the Company shall be, and is herein
referred to as, the "Surviving Corporation." The name of the Surviving
Corporation shall be "XxxxXxxxxxxx.Xxx Inc." The Merger shall become effective
at the time and on the date that (i) a Certificate of Merger, substantially in
the form attached hereto as Exhibit A, shall have been filed in accordance with
the DGCL and (ii) a [Certificate][Articles] of Merger shall have been filed in
accordance with the ICL (the "Effective Time").
2. Effects of the Merger. At the Effective Time, MidAmerican Realty
shall be merged with and into the Company, and the separate corporate existence
of MidAmerican Realty shall cease. From and after the Effective Time, the
certificate of incorporation of the Company as amended and restated in its
entirety as set forth in Exhibit B hereto (the "Certificate of Incorporation")
shall be the certificate of incorporation of the Surviving Corporation until
thereafter amended as provided by the DGCL and the Certificate of Incorporation.
The Bylaws of the Company as amended and restated in its entirety as set forth
in Exhibit C hereto (the "Bylaws") shall be the Bylaws of the Surviving
Corporation until thereafter amended as provided by the DGCL and the Certificate
of Incorporation and the Bylaws of the Surviving Corporation. The officers and
the directors of the Company immediately prior to the Effective Time shall be
the officers and directors of the Surviving Corporation from and after the
Effective Time, to serve in accordance with the DGCL and the terms of the
Certificate of Incorporation and Bylaws of the Surviving Corporation, until
their successors are duly elected or appointed or qualified or until their
earlier death, resignation or removal, in each case, in accordance with the DGCL
and the Certificate of Incorporation and Bylaws of the Surviving Corporation.
The consummation of the Merger will have the effects provided in the DGCL and
the ICL.
3. Effect on Capital Stock. At the Effective Time, by virtue of the
Merger and without any action on the part of the holder thereof (i) each of the
issued and outstanding shares of MidAmerican Realty Common Stock shall be
converted into [ ___________ ] fully paid and nonassessable shares of common
stock, par value $0.01 per share, of the Surviving Corporation (the "Surviving
Corporation Common Stock"); and (ii) each of the issued and outstanding shares
of Company Common Stock shall be cancelled and retired and shall cease to exist
and no Surviving Corporation Common Stock or cash consideration shall be
delivered in exchange therefor.
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4. Further Assurances. From time to time, as and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed
and delivered on behalf of MidAmerican Realty 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 the Surviving Corporation the title to and
possession of all property, interests, assets, rights, privileges, immunities,
powers, franchises and authority of MidAmerican Realty and otherwise to carry
out the purposes of this Merger Agreement, and the directors and officers of
the Surviving Corporation are fully authorized in the name and on behalf of
MidAmerican Realty or otherwise to take any and all such action to execute and
deliver any and all such deeds and other instruments.
5. Amendment and Modification. Subject to the DGCL and the ICL, this
Merger Agreement may be amended or modified at any time by the parties hereto,
but only pursuant to an instrument in writing signed by the parties.
6. Termination. This Merger Agreement may be terminated and the Merger
contemplated herein may be abandoned at any time prior to the Effective Time,
whether before or after stockholder approval thereof, by the mutual consent in
writing of MidAmerican Realty and the Company.
7. Entire Agreement; Assignment. This Merger Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties hereto with respect to the subject matter
hereof.
8. Validity. The invalidity or unenforceability of any term or
provision of this Merger Agreement in any situation or jurisdiction shall not
affect the validity or enforceability of the other terms or provisions in any
other situation or in any other jurisdiction.
9. Governing Law. This Merger Agreement shall be governed by, enforced
under and construed in accordance with the laws of the State of New York,
without giving effect to any choice or conflict of law provision or rule
thereof, except that the Merger shall be governed by the DGCL and the ICL.
10. Descriptive Headings. The descriptive headings herein are inserted
for convenience of reference only and shall in no way be construed to define,
limit, describe, explain, modify, amplify or add to the interpretation,
construction or
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meaning of any provision of, or scope or intent of, this Merger Agreement nor in
any way affect this Merger Agreement.
11. Counterparts. This Merger Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, MidAmerican Realty and the Company have caused this
Merger Agreement to be signed by their respective duly authorized officers as of
the date first above written.
MIDAMERICAN REALTY SERVICES COMPANY
By:_______________________________________
Name:
Title:
XXXXXXXXXXXX.XXX INC.
By:_______________________________________
Name:
Title:
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EXHIBIT A
---------
CERTIFICATE OF MERGER
OF
MIDAMERICAN REALTY SERVICES COMPANY
INTO
XXXXXXXXXXXX.XXX INC.
________________________________________
Pursuant to Section 252 of the General
Corporation Law of the State of Delaware
________________________________________
XxxxXxxxxxxx.Xxx Inc., a Delaware corporation, does hereby certify:
FIRST: The names and states of incorporation of the constituent
corporations to this merger are as follows:
State of
Name Incorporation
---- -------------
MidAmerican Realty
Services Company Iowa
XxxxXxxxxxxx.Xxx Inc. Delaware
SECOND: An Agreement and Plan of Merger has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations in
accordance with Section 252(c) of the General Corporation Law of the State of
Delaware.
THIRD: The name of the corporation surviving the merger is
XxxxXxxxxxxx.Xxx Inc.
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FOURTH: The Certificate of Incorporation of XxxxXxxxxxxx.Xxx
Inc. shall be amended to read in its entirety as set forth in Exhibit A attached
hereto.
FIFTH: The executed agreement of merger is on file at the
following office address of the surviving corporation:
XxxxXxxxxxxx.Xxx Inc.
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxxxx 00000
A copy will be provided, upon request and without cost, to any stockholder of
either constituent corporation.
SIXTH: The authorized capital stock of MidAmerican Realty
Services Company consists of 1,000,000 shares of common stock each having no par
value.
SEVENTH: The Merger shall become effective at [ ____________ ]
a.m., Eastern Daylight Time, on the date on which this Certificate of Merger is
filed with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, XxxxXxxxxxxx.Xxx Inc. has caused this
Certificate of Merger to be executed in its corporate name this day of
, 1999.
XXXXXXXXXXXX.XXX INC.
By:_____________________________
Name:
Title:
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EXHIBIT B
---------
[FORM OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION]
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EXHIBIT C
---------
[FORM OF AMENDED AND RESTATED
XXXXXX]
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