AGREEMENT AND ARTICLES OF MERGER
THIS AGREEMENT AND ARTICLES OF MERGER, is made and entered into this 25th
day of November, 1985, by and between FPA PARAMOUNT FUND, INC., a Delaware
corporation ("Paramount-Delaware"), and FPA PARAMOUNT FUND, INC., a Maryland
corporation ("Paramount-Maryland".
Paramount-Delaware and Paramount-Maryland hereby agree as follows:
1. CONSTITUENT, SURVIVING CORPORATIONS. Paramount-Delaware and
Paramount-Maryland shall be the constituent corporations to the merger
("Merger"). In accordance with the General Corporation Law of the State of
Delaware and the General Corporation Law of the State of Maryland,
Paramount-Delaware shall be merged into Paramount-Maryland and
Paramount-Maryland shall be the surviving corporation of the Merger (hereinafter
Paramount-Maryland may sometimes be referred to as the "Surviving Corporation"),
effective at the time stated in the Articles of Merger and the Certificate of
Merger to be filed with the Department of Assessments and Taxation of the State
of Maryland and the Secretary of State of the State of Delaware, respectively
("Effective Time"). At the Effective Time, the name, identity and separate
existence of Paramount-Delaware shall cease, all liabilities of
Paramount-Delaware will be assumed by Paramount-Maryland, and all of the rights,
privileges, powers, franchises, properties and assets of Paramount-Delaware
shall be vested in Paramount-Maryland. The name, identity, existence, rights,
privileges, powers, franchises, properties and assets of Paramount-Maryland
shall continue unaffected and unimpaired by the Merger.
2. ARTICLES OF INCORPORATION; BY-LAWS. The Articles of Incorporation and
By-Laws of Paramount-Maryland in effect immediately prior to the Effective Time
shall thereafter continue in full force and effect as the Articles of
Incorporation and By-Laws of the Surviving Corporation until further amended as
provided therein or by law.
3. DIRECTORS AND OFFICERS. The directors and officers of Paramount-Maryland
immediately prior to the Effective Time shall continue as the directors and
officers of the Surviving Corporation, to hold office subject to the Articles of
Incorporation and By-Laws of the Surviving Corporation and the General
Corporation Law of the State of Maryland.
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4. CONVERSION OF STOCK OF CONSTITUENT CORPORATIONS. At the Effective Time,
by virtue of the Merger and without any action on the part of the holders
thereof, each share or fraction thereof of the Common Stock, par value $0.25 per
share ("Common Stock"), of Paramount-Delaware, issued and outstanding prior to
the Effective Time, excluding any treasury shares of Paramount-Delaware which
shall cease to exist, shall be converted into one share or fraction thereof of
Common Stock, par value $0.25 per share ("Common Stock"), of Paramount-Maryland.
At the Effective Time, any outstanding certificates representing shares of
Common Stock of Paramount-Delaware shall represent an equal number of full and
fractional shares of Common Stock of Paramount-Maryland. At any time thereafter
each holder of a stock certificate issued by Paramount-Delaware shall have the
right to surrender such certificate to Paramount-Maryland and to receive in
exchange a certificate representing an equal number of shares of Common Sock
issued by Paramount-Maryland.
5. SERVICE OF PROCESS.
(a) Paramount-Maryland as the Surviving Corporation may be served
with process in the State of Delaware in any proceeding for the enforcement of
any obligation of Paramount-Delaware as well as for the enforcement of any
obligation of the Surviving Corporation arising from the Merger.
(b) The Secretary of State of the State of Delaware is irrevocably
appointed as the agent of the Surviving Corporation to accept service of process
in any such suit or other proceeding. The address to which a copy of said
process shall be mailed by the Secretary of State is
Corporate Secretary
FPA Paramount Fund, Inc.
00000 Xxxx Xxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
6. CONDITIONS PRECEDENT. The obligations of Paramount-Delaware and
Paramount-Maryland to effect the Merger shall be subject to the satisfaction of
each of the following conditions:
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(a) Each party shall have received an opinion of O'Melveny &
Xxxxx to the effect that: (1) the merger of Paramount-Delaware into
Paramount-Maryland will qualify as a reorganization within the meaning of
Section 368(a)(1) of the Internal Revenue Code of 1954. Each of the Constituent
Corporations will be a party to the reorganization within the meaning of Section
368(b); (2) no gain or loss will be recognized to Paramount-Delaware upon the
transfer of its assets to, and the assumption of its liabilities by
Paramount-Maryland; (3) the basis of the assets of Paramount-Delaware received
by Paramount-Maryland will be the same as the basis of such assets in the hands
of Paramount-Delaware immediately prior to the merger; (4) the holding period of
the assets of Paramount-Delaware received by Paramount-Maryland will include the
period during which such assets were held by Paramount-Delaware; (5) no gain or
loss will be recognized to Paramount-Maryland upon the receipt of assets of
Paramount-Delaware; (6) no gain or loss will be recognized to the shareholder of
Paramount-Delaware upon receipt of capital stock of Paramount-Maryland as a
consequence of the merger; (7) the basis of the shares of Paramount-Maryland
received by shareholders of Paramount-Delaware will be the same as the basis of
the shares of Paramount-Delaware surrendered by such shareholders; (8) the
holding period of the shares of Paramount-Maryland received by shareholders of
Paramount-Delaware will include the holding period of such shares of capital
stock of Paramount-Delaware as are surrendered by such shareholders, provided
that such shares of Paramount-Delaware were held as a capital asset on the
effective date of the merger; and (9) the accumulated earnings and profits of
Paramount-Delaware will become earnings and profits of Paramount-Maryland
available for the subsequent distribution of dividends within the meaning of
Section 316.
(b) This Agreement and Articles of Merger and the Merger
contemplated hereby shall have been adopted and approved by the affirmative vote
of the holders of at least a majority of the outstanding shares of Common Stock
of Paramount-Delaware entitled to vote thereon;
(c) The Investment Advisory and Management Agreement currently in
effect between Paramount-Delaware and First Pacific Advisors, Inc. ("FPA") shall
have been approved by the Board of Directors of Paramount-Maryland as the
Investment Advisory and Management Agreement between Paramount-Maryland and
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FPA and to the extent required by law, by the members of the Board of Directors
of Paramount-Maryland who are not interested persons of Paramount-Maryland or of
FPA as defined in the Investment Company Act of 1940 ("Act");
(d) Those persons who are serving as directors of Paramount-Delaware
immediately prior to the Effective Time shall have been elected, subject to
their availability, as members of the Board of Directors of Paramount-Maryland;
and
(e) The members of the Board of Directors of Paramount-Maryland who
are not interested persons of Paramount-Maryland or of FPA as defined in the Act
shall have selected as independent accountants for Paramount-Maryland such
independent accountants as shall have been selected and ratified by the
shareholders of Paramount-Delaware.
At any time prior to the Effective Time, any of the foregoing conditions
except 6(b) may be waived by the Board of Directors of Paramount-Delaware or the
Board of Directors of Paramount-Maryland if, in their judgment, such waiver will
not have a material adverse effect on the interests of the shareholders of
Paramount-Delaware.
7. AMENDMENT; TERMINATION. The Board of Directors of Paramount-Delaware and
of Paramount-Maryland may amend this Agreement prior to the Effective Time if
such amendment does not alter or change Section 4 hereof, alter or change any
term of the Articles of Incorporation of Paramount-Maryland, or have a material
adverse effect on the interests of the shareholders of Paramount-Delaware. The
Board of Directors of Paramount-Delaware and of Paramount-Maryland may terminate
this Agreement and abandon the Merger contemplated hereby, notwithstanding
approval thereof by the shareholders of Paramount-Delaware and
Paramount-Maryland, at any time prior to the Effective Time, if circumstances
should develop that, in their judgment, make such amendment or termination
advisable.
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8. INFORMATION REGARDING CONSTITUENT CORPORATIONS.
(a) Paramount-Delaware was incorporated under the General
Corporation Law of the State of Delaware on September 8, 1958 under the name
Paramount Mutual Fund, Inc. The total number of shares of stock of all classes
which Paramount-Delaware has authority to issue is 25,000,000 all of which are
common stock of the par value of $.25 per share. There are 9,510,516 outstanding
shares of such common stock entitled to vote on the merger. Paramount-Delaware
has no principal office in the State of Maryland. Paramount-Delaware owns no
interest in land in the State of Maryland and owns no property in the State of
Maryland, title to which could be affected by the recording of an instrument
among the Land Records.
(b) Paramount-Maryland was incorporated under the Corporations and
Associations Article of the Maryland Annotated Code on November 22, 1985. The
total number of shares of stock of all classes which Paramount-Maryland has
authority to issue is 25,000,000, all of which are common stock of the par value
of $.25 per share; the merger is not to effect any amendment changing such
capitalization. Paramount-Maryland has no stock outstanding or subscribed for
and entitled to be voted on the merger. The principal office of
Paramount-Maryland in the State of Maryland is located in the city of Baltimore,
State of Maryland.
9. REQUIRED RE-EXECUTION. When the constituent corporations have duly
approved this Agreement in the manner required by law pursuant to Section 3-105
of the Corporations and Associations Article of the Maryland Annotated Code and
Section 252 of the Delaware General Corporation Law, then an Article 10, in the
form following the signatures below shall be added to this agreement, and this
Agreement shall be re-executed and the matters of fact set forth in this
Agreement, including Article 10 hereof, shall be verified as required by the
said provisions.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized officers as of the day and year
first above written.
FPA PARAMOUNT FUND, INC.,
a Delaware corporation
(Corporate Seal)
By /s/ Xxxxxxxxxxx Xxxxxx
----------------------------------
Xxxxxxxxxxx Xxxxxx
Senior Vice President
Attest:
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx
Assistant Secretary
FPA PARAMOUNT FUND, INC.,
a Maryland corporation
(Corporate Seal)
By /s/ Xxxxxxxxxxx Xxxxxx
----------------------------------
Xxxxxxxxxxx Xxxxxx
Senior Vice President
Attest:
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx
Assistant Secretary
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10. RE-EXECUTION. This Agreement and Articles of Merger has been duly
advised, authorized, and approved by both Paramount-Maryland and
Paramount-Delaware in the manner and by the vote required by its charter and the
laws of the state where it is organized. In the case of Paramount-Delaware, this
Agreement and Articles of Merger has been approved by resolutions adopted by the
Board of Directors, by majority vote of the entire Board of Directors, and has
been duly approved by the affirmative vote of the holders of a majority of the
outstanding shares authorized to vote in the manner and by the vote required by
the Charter of said corporation and the General Corporation Law of the State of
Delaware. In the case of Paramount-Maryland, this Agreement and Articles of
Merger has been duly approved by a majority of the entire Board of Directors of
said corporation, there being no stock outstanding or subscribed for and
entitled to be voted on the merger, in accordance with the Charter of said
corporation and Section 3-105 of the Corporations and Associations Article of
the Maryland Annotated Code.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly re-executed and delivered by their duly authorized officers on this 24th
day of January 1986.
(Corporate Seal)
FPA PARAMOUNT FUND, INC.,
a Delaware corporation
Attest:
By: /s/ Xxxxxx Xxxxxx By /s/ Xxxxxxxxxxx Xxxxxx
---------------------------------- ----------------------------------
Xxxxxx Xxxxxx Xxxxxxxxxxx Xxxxxx
Assistant Secretary Senior Vice President
(Corporate Seal)
FPA PARAMOUNT FUND, INC.,
a Maryland corporation
Attest:
By: /s/ Xxxxxx Xxxxxx By /s/ Xxxxxxxxxxx Xxxxxx
---------------------------------- ----------------------------------
Xxxxxx Xxxxxx Xxxxxxxxxxx Xxxxxx
Assistant Secretary Senior Vice President
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I, Xxxxxxxxxxx Xxxxxx, Senior Vice President of FPA Paramount Fund, Inc., a
Maryland corporation, who executed on behalf of said corporation, the foregoing
Agreement and Articles of Merger, of which this Certificate is made a part,
hereby acknowledge, in the name of and on behalf of said corporation, the
foregoing Agreement and Articles of Merger to be the corporate act of said
corporation and further certify that, to the best of my knowledge, information,
and belief, the matters and facts set forth therein with respect to the
authorization and approval thereof are true in all material respects, under the
penalties for perjury.
Executed this 24th day of January, 1986.
/s/ Xxxxxxxxxxx Xxxxxx
----------------------------------
Xxxxxxxxxxx Xxxxxx
Senior Vice President
I, Xxxxxxxxxxx Xxxxxx, Senior Vice President of FPA Paramount Fund, Inc., a
Delaware corporation, who executed on behalf of said corporation the foregoing
Agreement and Articles of Merger, of which this Certificate is made a part,
hereby acknowledge, in the name of and on behalf of said corporation, the
foregoing Agreement and Articles of Merger to be the corporate act of said
corporation and further certify that, to the best of my knowledge, information,
and belief, the matters and facts set forth therein with respect to the
authorization and approval thereof are true in all material respects, under the
penalties for perjury.
Executed this 24th day of January, 1986.
/s/ Xxxxxxxxxxx Xxxxxx
----------------------------------
Xxxxxxxxxxx Xxxxxx
Senior Vice President
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FPA PARAMOUNT FUND, INC.
a Delaware Corporation
Secretary's Certificate
I, Xxxxxx Xxxxxx, Assistant Secretary of FPA Paramount Fund, Inc., a
Delaware corporation ("FPA-Del,"), do hereby certify, in accordance with the
provisions of the General Corporation Law of the State of Delaware and the
Corporations and Associations Article of the Annotated Code of Maryland, that
the foregoing Agreement and Articles of Merger, having been duly authorized and
adopted by the Board of Directors of FPA-Del. and signed under its corporate
seal by officers of FPA-Del. thereunto duly authorized, was duly approved and
adopted by shareholders of FPA-Del. on the 8th day of January, 1986.
WITNESS my hand and the seal of FPA Paramount Fund, Inc., a Delaware
corporation, this 24th day of January, 1986.
/s/ Xxxxxx Xxxxxx
----------------------------------
Xxxxxx Xxxxxx
Assistant Secretary
(Corporate Seal)
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