Exhibit 2.2
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER dated as of _____________ __, 1998 (the
"Agreement"), by and among Aurora Foods Holdings Inc., a Delaware corporation
("Aurora Holdings"), AurFoods Operating Co. Inc., a Delaware corporation (f/k/a
Aurora Foods Inc.) ("Old Aurora"), VDK Holdings, Inc., a Delaware corporation
("VDK Holdings"), Van xx Xxxx'x, Inc., a Delaware corporation, ("Van xx Xxxx'x")
and Aurora Foods Inc., a Delaware corporation ("New Aurora"). Aurora Holdings,
Old Aurora, VDK Holdings, and Van xx Xxxx'x, collectively referred to herein as
the "Merging Entities".
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of New Aurora and each
of the Merging Entities deem it advisable that the Merging Entities merge with
and into New Aurora (the "Merger"), upon the terms and conditions herein and in
accordance with the laws of the State of Delaware.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
SECTION 1. TERMS
1.1. At the Effective Time (as hereinafter defined) of the Merger,
the Merging Entities shall be merged with and into New Aurora with New Aurora as
the surviving corporation (hereinafter also referred to as the "Surviving
Corporation").
1.2. The Surviving Corporation is New Aurora.
1.3. At the Effective Time, each share of Common Stock of each of
the Merging Entities issued and outstanding immediately prior to the Effective
Time shall, by virtue of the Merger, be cancelled and retired and no shares of
Common Stock or other securities of New Aurora shall be issuable as a result
of the Merger.
1.4. Upon and after the Effective Time, the Surviving Corporation
shall possess all the rights, privileges, powers and franchises, and be subject
to all the restrictions, disabilities and duties, of the Constituent
Corporations (as hereinafter defined); and all rights, privileges, powers and
franchises of the Constituent Corporations shall be vested in and be the
property of the Surviving Corporation; and all debts, liabilities and duties of
the Constituent Corporations shall thenceforth attach to the Surviving
Corporation and may be enforced against it to the same extent as if said debts,
liabilities and duties have been incurred or contracted by it.
SECTION 2. EFFECTIVE TIME
2.1. Subsequent to the execution of this Agreement, New Aurora and
each of the Merging Entities (collectively, the "Constituent Corporations")
shall each submit this Agreement to their respective stockholders for their
approval pursuant to the applicable provisions of the General Corporation Law
of the State of Delaware.
2.2. Following approval of this Agreement in accordance with Section
2.1 above, and provided that:
(a) each of the Constituent Corporations shall have received the
approval of its stockholders as required under law; and
(b) this Agreement has not been terminated and abandoned pursuant to
Section 4.2 hereof; the Surviving Corporation will cause a Certificate of Merger
to be executed, acknowledged and filed with the Secretary of State of the State
of Delaware as provided by law.
2.3. The Merger shall become effective immediately upon the filing
of the Certificate of Merger with the Secretary of State of the State of
Delaware (the date and time of such filing being herein referred to as the
"Effective Time").
SECTION 3. CERTIFICATE OF INCORPORATION AND BY-LAWS; BOARD OF DIRECTORS
3.1. The Certificate of Incorporation of New Aurora constituted
at the Effective Time shall be amended by changing its name in Article FIRST
to "Aurora Foods Inc." and as so amended shall thereafter be the Certificate of
Incorporation of the Surviving Corporation until such time as it shall be
further amended as provided by law.
3.2. The By-Laws of New Aurora shall be the By-Laws of the
Surviving Corporation, subject to alteration, amendment or repeal from time
to time by the Board of Directors or the stockholders of the Surviving
Corporation.
3.3. From and after the Effective Time the members of the Board of
Directors of the Surviving Corporation shall consist of the members of the Board
of Directors of New Aurora immediately prior to the Effective Time, to hold
office until the expiration of their then current terms and until their
respective successors shall be elected.
3.4. From and after the Effective Time, the officers of New Aurora
shall consist of the officers of New Aurora immediately prior to the Effective
Time, to hold office until the next annual meeting of the stockholders of
New Aurora and until their respective successors are elected and appointed.
SECTION 4. AMENDMENT AND TERMINATION
4.1. To the fullest extent permitted by applicable law, the
Constituent Corporations, by mutual consent of their respective Boards of
Directors, may amend, modify or supplement this Agreement in such a manner as
may be agreed upon by them in writing at any time prior to the Effective Time,
even though the Agreement shall have been approved by the stockholders of one or
more of the Constituent Corporations.
4.2. This Agreement may be terminated and the Merger abandoned for
any reason by resolution adopted by any one of the respective Boards of
Directors of the Constituent Corporations at any time prior to the Effective
Time, even though this Agreement shall have been approved by the stockholders of
one or more of the Constituent Corporations.
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IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Agreement as of the date first
written above.
AURORA FOODS HOLDINGS INC.
By:
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Name:
Title:
AURORA FOODS INC.
By:
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Name:
Title:
VDK HOLDINGS, INC.
By:
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Name:
Title:
VAN XX XXXX'X, INC.
By:
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Name:
Title:
AURORA FOODS INC.
By:
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Name:
Title:
