Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
OF
Culbro Corporation
(a New York Corporation)
INTO
General Cigar Holdings, Inc.
(a Delaware corporation)
AGREEMENT AND PLAN OF MERGER (this "Agreement"), entered into as of
this ____ day of _______________, 19__, made by and between Culbro Corporation,
a New York corporation ("Culbro"), and General Cigar Holdings, Inc., a
Delaware corporation ("Holdings").
WHEREAS, Holdings is in the process of consummating an initial
public offering of Class A Common Stock (the "Offering"). Immediately
following the Offering, Holdings will have ____________ outstanding shares of
Class A Common Stock, par value $______ per share, and _______________
outstanding shares of Class B Common Stock, par value $______per share.
WHEREAS, Culbro has ______________________ shares of common stock
outstanding and _______________________ shares of common stock issuable upon
the exercise of outstanding options as of the date of this Agreement.
WHEREAS, the Board of Directors of Culbro and Holdings,
respectively, deem it advisable and generally to the advantage and welfare of
the two corporate parties and their respective shareholders that Culbro merge
with Holdings under and pursuant to the provisions of the Business
Corporation Law of the State of New York and of the General Corporation Law
of the State of Delaware (the "Merger").
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of the mutual benefits hereby provided, it is
agreed by and between the parties hereto as follows:
1. MERGER. Culbro shall be merged into Holdings effective as of
the Effective Time (as defined below).
2. EFFECTIVE TIME. The Effective Time shall be a date mutually
agreed to by the parties (the "Effective Time"), which date shall be as soon
as practicable following the satisfaction of the following conditions: (i)
the completion of the Distribution (as defined in the Distribution Agreement
between Culbro and Culbro Land Resources, Inc. ("CLR")); and (ii) the
approval of the Merger by the shareholders of Culbro, provided that in no
event shall the Effective Time occur earlier than 180 days after the
consummation of the Offering without the consent of Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation ("DLJ"). At the Effective Time, the parties
shall cause the Merger to be consummated by filing a Certificate of Merger
with the Secretaries of State of the State of New York and the State of
Delaware, the forms of which are attached hereto as Exhibits A and B.
3. SURVIVING CORPORATION. Holdings shall survive the Merger
herein contemplated and shall continue to be governed by the laws of the
State of Delaware, but the separate corporate existence of Culbro shall cease
forthwith upon the occurrence of the Effective Time.
4. AUTHORIZED CAPITAL. The authorized capital stock of Holdings
following the Effective Time shall be shares of Class A
Common Stock, par value $ per share, and shares of
Class B Common Stock, par value $ per share, unless and until the same
shall be changed in accordance with the laws of the State of Delaware.
5. CERTIFICATE OF INCORPORATION. The Certificate of Incorporation
of Holdings as it exists at the Effective Time shall be the Certificate of
Incorporation of Holdings following the Effective Time unless and until the
same shall be amended or repealed in accordance with the provisions thereof,
which power to amend or repeal is hereby expressly reserved and all rights or
powers of whatsoever nature conferred in such Certificate of Incorporation or
herein upon any stockholder or director or officer of Holdings or upon any
other persons whomsoever are subject to the reserved power.
6. BYLAWS. The Bylaws of Holdings as they exist at the Effective
Time shall be the Bylaws of Holdings following the Effective Time unless and
until the same shall be amended or repealed in accordance with the provisions
thereof.
7. BOARD OF DIRECTORS AND OFFICERS. The members of the Board of
Directors and the officers of Holdings immediately after the Effective Time
shall be those persons who were the members of the Board of Directors and the
officers, respectively, of Holdings immediately prior to the Effective Time,
and such persons shall serve in such offices, respectively, for the terms
provided by law or in the Bylaws, or until their respective successors are
elected and qualified.
8. FURTHER ASSURANCE OF TITLE. If at any time Holdings shall
consider or be advised that any acknowledgements or assurances in law or
other similar actions are necessary or desirable in order to acknowledge or
confirm in and to Holdings any right, title, or interest of Culbro held
immediately prior to the Effective Time, Culbro and its proper officers and
directors shall and will execute and deliver all such acknowledgements or
assurances in law and do all things necessary or proper to acknowledge or
confirm such right, title, or interest in Holdings as shall be necessary to
carry out the purposes of this Agreement, and Holdings and the proper
officers and directors thereof are fully authorized to take any and all such
action in the name of Culbro or otherwise.
9. CONVERSION OF HOLDINGS COMMON STOCK. Each share of Class A
Common Stock, par value $ per share, of Holdings issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, remain an issued and
outstanding share of Class A Common Stock, par value $ per share, of
Holdings immediately following the Merger.
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10. CONVERSION OF OUTSTANDING STOCK OF CULBRO. Forthwith upon the
occurrence of the Effective Time, each issued and outstanding share of
common stock, par value $ per share, of Culbro and all rights in respect
thereof shall be converted into ____ fully paid and nonassessable shares of
Class B Common Stock of Holdings, and each certificate nominally representing
shares of common stock of Culbro shall for all purposes be deemed to evidence
the ownership of ____ shares of Class B Common Stock of Holdings. The
holders of such certificates shall not be required immediately to surrender
the same in exchange for certificates of Class B Common Stock of Holdings,
but, as certificates nominally representing shares of common stock of Culbro
are surrendered for transfer, Holdings will cause to be issued certificates
representing shares of Class B Common Stock of Holdings, and, at any time
upon surrender by any holder of certificates nominally representing shares of
common stock of Culbro, Holdings will cause to be issued therefor
certificates for a proportionate number of shares of Class B Common Stock of
Holdings.
11. CONVERSION OF OUTSTANDING STOCK OPTIONS OF CULBRO. Forthwith
upon the occurrence of the Effective Time, each outstanding option for Culbro
common stock, and all rights in respect thereof shall be converted into ____
options for Class B Common Stock of Holdings, as set forth in the Benefits
and Employment Matters Allocation Agreement between Culbro and CLR.
12. ADJUSTMENT OF SHARES OF HOLDINGS ISSUED TO CULBRO. Any
outstanding Culbro stock option exercised after the date of this Agreement,
but prior to the Effective Time, will adjust the number of shares of Class B
Common Stock issued by Holdings to Culbro pursuant to the Benefits and
Employment Matters Allocation Agreement between Culbro and CLR.
13. RIGHTS AND LIABILITIES OF HOLDINGS. At and after the Effective
Time, Holdings shall succeed to and possess, without further act or deed, all
of the estate, rights, privileges, powers, and franchises, both public and
private, and all of the property, real, personal, and mixed, of each of the
parties hereto; all debts due to Culbro or whatever account shall be vested
in Holdings; all claims, demands, property, rights, privileges, powers and
franchises and every other interest of either of the parties hereto shall be
as effectively the property of Holdings as they were of the respective
parties hereto; the title to any real estate vested by deed or otherwise in
Culbro shall not revert or be in any way impaired by reason of the merger,
but shall be vested in Holdings; all rights of creditors and all liens upon
any property of either of the parties hereto shall be preserved unimpaired,
limited in lien to the property affected by such lien at the Effective Time;
all debts, liabilities, and duties of the respective parties hereto shall
thenceforth attach to Holdings and may be enforced against it to the same
extent as if such debts, liabilities, and duties had been incurred or
contracted by it; and Holdings shall indemnify and hold harmless the officers
and directors of each of the parties hereto against all such debts,
liabilities and duties and against all claims and demands arising out of the
merger.
14. SERVICE OF PROCESS ON HOLDINGS. Holdings agrees that it may be
served with process in the State of New York in any proceeding for
enforcement of any
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obligations of Culbro as well as for the enforcement of any obligation of
Holdings arising from the merger, including any suit or other proceeding to
enforce the right of any shareholder as determined in appraisal proceedings
pursuant to the provisions of Section 907(e)(2)(E) of the New York Business
Corporation Law. Holdings hereby irrevocably appoints the Secretary of State
of the State of New York as its agent to accept service of process in any
proceeding referred to in the preceding sentence.
15. EXPENSES AND RIGHTS OF DISSENTING SHAREHOLDERS. Notwithstanding
anything to the contrary in this Agreement, shares of Culbro common stock
(the "Dissenting Shares") issued and outstanding immediately prior to the
Effective Time that are held by holders (if any) that have not voted in favor
of the Merger or consented thereto in writing and that have demanded
appraisal rights with respect to their shares of Culbro common stock in
accordance with the applicable provisions of New York law and, as of the
Effective Time, shall not have failed to perfect (or shall not have
effectively withdrawn or lost) their rights to appraisal and payment under
applicable provisions of New York law shall not be converted into the right
to receive Class B Common Stock of Holdings, but holders of Dissenting Shares
shall be entitled to receive a cash payment in the amount of the appraised
value of such shares (the "Appraised Share Value") in accordance with the
provisions of applicable New York law, except that any Dissenting Shares held
by a holder that has failed to perfect or shall have effectively withdrawn or
lost its right to appraisal and payment under applicable provisions of New
York law shall be converted into the right to receive Class B Common Stock of
Holdings. Culbro shall give Holdings (i) prompt notice of any written
demands for appraisal of any shares, attempted withdrawals of such demands,
and any other instruments served pursuant to the applicable New York law
received by Culbro relating to stockholders' rights of appraisal, and (ii)
the opportunity to direct all negotiations and proceedings with respect to
demands for appraisal under the applicable New York law. Culbro shall not,
except with the prior written consent of Holdings, voluntarily make any
payment with respect to any demands for appraisals of capital stock of
Culbro, offer to settle or settle any such demands or approve any withdrawal
of any such demands. None of the shares of common stock that would have been
issued pursuant to Paragraph 10 of this Agreement in exchange for Dissenting
Shares if such Dissenting Shares had been converted into Class B Common Stock
of Holdings will be issued to any holder of Culbro common stock or any other
person or entity. Holdings shall pay all expenses of carrying this Agreement
into effect and of accomplishing the Merger, including amounts, if any, to
which dissenting shareholders of Culbro may be entitled by reason of this
Merger.
16. TERMINATION. This Agreement may be terminated by Culbro or
Holdings if the conditions set forth in Paragraph 2 of this Agreement,
determining the Effective Time of the Merger, are not satisfied prior to
January 1, 1988.
IN WITNESS WHEREOF each of the corporate parties hereto, pursuant to
authority duly granted by the Board of Directors, has caused this Agreement
to be executed by its President and attested by its Secretary and its
corporate seal to be hereunto affixed.
ATTEST: CULBRO CORPORATION
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_________________________ BY:____________________________
Secretary
Corporate Seal
ATTEST: GENERAL CIGAR HOLDINGS, INC.
_________________________ BY:_____________________________
Secretary
Corporate Seal
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