EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated December 19, 2003, by and between
THL Bedding Company, a Delaware corporation ("Bedding"), and Xxxxxxx Holdings,
Inc., a Delaware corporation ("Holdings"). Each of Bedding and Holdings are
referred to herein as a "Constituent Corporation."
WHEREAS, the respective Boards of Directors of Bedding and Holdings
deem it desirable and for the benefit of the respective Constituent Corporations
and their respective stockholders that the Constituent Corporations be merged
into a single corporation with Holdings being the surviving corporation (the
"Surviving Corporation").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein, the parties hereto agree that, pursuant to Section 253 of the Delaware
General Corporation Law, the Constituent Corporations shall be merged into a
single corporation (the "Merger"), and that the terms and conditions of the
Merger are as follows:
ARTICLE I
On the Effective Date of the Merger, Bedding shall be merged with and
into Holdings, with Holdings being the Surviving Corporation, and the separate
existence of Bedding shall cease.
ARTICLE II
The name of the Surviving Corporation shall be "Xxxxxxx Holdings, Inc."
ARTICLE III
The Surviving Corporation is authorized to issue 3,000 shares of
capital stock, all which shares are common stock, $0.01 par value per share (the
"Common Stock").
ARTICLE IV
The shares of common stock, $0.01 par value per share, of Holdings
issued and outstanding as of the Effective Date of the Merger shall be canceled
and no payments shall be made with respect thereto. At the Effective Date, each
share of common stock of Bedding outstanding immediately prior thereto shall be
converted into and become one share of common stock of the Surviving
Corporation.
ARTICLE V
On the Effective Date of the Merger, the Certificate of Incorporation
and By-Laws substantially in the forms attached hereto as Exhibit A and Exhibit
B, respectively, shall be the Certificate of Incorporation and By-Laws of the
Surviving Corporation.
ARTICLE VI
The Directors and Officers of Bedding shall continue to serve as the
Directors and Officers of the Surviving Corporation, until their resignation or
removal or until their successors have been duly elected and qualified.
ARTICLE VII
This Agreement shall be submitted to the sole stockholder of Bedding to
be acted upon by written consent in lieu of a meeting.
ARTICLE VIII
As used herein, the term "Effective Date of the Merger" shall mean the
date that the Certificate of Ownership and Merger, attached hereto as Exhibit C,
is filed with the Secretary of State of the State of Delaware, in accordance
with the laws of such jurisdiction.
ARTICLE IX
The Merger contemplated by this Agreement may be abandoned by mutual
consent and agreement of Holdings and Bedding at any time prior to the filing of
the Certificate of Ownership and Merger with the Secretary of State of the State
of Delaware.
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WITNESS the execution hereof under seal on the day and year first above
written.
XXXXXXX HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
THL BEDDING COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
Signature Page to Agreement and Plan of Merger between
Xxxxxxx Holdings, Inc. and THL Bedding Company
