AGREEMENT AND PLAN OF MERGER
dated as of December 15, 2000
by and between
WINCHESTER PASTA, L.L.C.
and
NEW WORLD PASTA COMPANY
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 15, 2000 (this
"Agreement"), by and between Winchester Pasta, L.L.C., a Delaware limited
liability company, and New World Pasta Company, a Delaware corporation ("New
World Pasta").
WITNESSETH:
WHEREAS, New World Pasta, as the sole owner of Winchester Pasta, L.L.C.,
desires to reorganize the business of Winchester Pasta, L.L.C. by means of a
merger (the "Merger") of Winchester Pasta, L.L.C. with and into New World Pasta;
WHEREAS, Section 18-209 of the Delaware Limited Liability Company Act of
1992, Del. Code Xxx. Tit. 6, (S)(S)18-101 et. seq., as amended from time to time
(the "LLC Act"), and Section 264 of the General Corporation Law, Del. Code Xxx.
Tit. 8, (S)(S)101 et. seq., as amended from time to time (the "GCL"), authorize
the merger of a Delaware limited liability company with and into a Delaware
corporation;
WHEREAS, the members of Winchester Pasta, L.L.C. and the board of
directors of New World Pasta have each approved this Agreement and the
consummation of the Merger;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE 1
THE MERGER
1.1 Merger of Winchester Pasta, L.L.C. into New World Pasta. In
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accordance with the provisions of this Agreement, Section 18-209 of the LLC Act
and Section 264 of the GCL, Winchester Pasta, L.L.C. shall merge with the
surviving entity, New World Pasta, and New World Pasta shall file a certificate
of merger substantially in the form of Exhibit 1 attached hereto (the
"Certificate of Merger") with the Department of State of Delaware; and shall
make all other filings and recordings required by applicable law in connection
with the Merger. As is specified in the Certificate of Merger, the Merger shall
become effective at 12:01 a.m. on January 1, 2001 (the "Effective Time"). At the
Effective Time, Winchester Pasta, L.L.C. shall be merged with and into New World
Pasta, whereupon the separate existence of Winchester Pasta, L.L.C. shall cease,
and New World Pasta shall continue its existence as a Delaware Corporation.
1.2 Effect of the Merger. At the Effective Time, the effect of the
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Merger shall be as provided in the applicable provisions of the GCL and the LLC
Act, and without limiting the generality of the foregoing, New World Pasta
shall, without further transfer, succeed to and possess all of the rights,
privileges, powers of Winchester Pasta, L.L.C., and all of the assets and
property of whatever kind and character of Winchester Pasta, L.L.C. shall vest
in New World Pasta without further act or deed; thereafter, New World Pasta, as
the surviving entity, shall be liable for all of the liabilities and obligations
of Winchester Pasta, L.L.C., and any claim,
judgment or arbitration award against Winchester Pasta, L.L.C. may be enforced
against New World Pasta, as the surviving entity.
ARTICLE 2.
SURVIVING CORPORATION
2.1 Name. The name of the surviving corporation shall be New World Pasta
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Company.
2.2 Certificate of Incorporation. The certificate of incorporation of
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New World Pasta in effect at the Effective Time shall be and remain the
certificate of incorporation of the surviving corporation.
ARTICLE 3.
MEMBERSHIP AND STOCK
3.1 Membership Interests; Capital Stock. At the Effective Time, by
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virtue of the Merger and without any action on the part of Winchester Pasta,
L.L.C. or New World Pasta:
(a) all of the outstanding membership interest of Winchester
Pasta, L.L.C. shall be converted into one share of the capital stock of
New World Pasta, which shall then be immediately retired and cancelled;
and
(b) except as set forth in Section 3.1(a), the capital stock of
New World Pasta shall remain unchanged.
ARTICLE 4.
MISCELLANEOUS
4.1 Amendment. Any provision of this Agreement may, subject to
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applicable law, be amended or waived prior to the effective time if, and only
if, such amendment or waiver is in writing and signed by both Winchester Pasta,
L.L.C. and New World Pasta.
4.2 Further Assurances. If at any time New World Pasta shall consider or
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be advised that any further assignment, conveyance or assurance is necessary or
advisable to vest, perfect or confirm of record in New World Pasta the title to
any property or right of Winchester Pasta, L.L.C., or otherwise to carry out the
provisions hereof, the proper representatives of Winchester Pasta, L.L.C. as of
the Effective Time shall execute and deliver all proper deeds, assignments, and
assurances and do all things necessary or proper to vest, perfect or convey
title to such property or right in New World Pasta, and otherwise to carry out
the provisions hereof.
4.3 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
4.4 Governing Law. This Agreement shall be construed in accordance with
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and governed by the laws of the State of Delaware, without giving effect to
principles of conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement and
Plan of Merger to be duly executed as of the date first above written.
Winchester Pasta, L.L.C.
By: /s/ Xxxx X. Xxxxxx
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Vice President
New World Pasta Company
By: /s/ Xxxxx Xxxxxxxx
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Vice President
CERTIFICATE OF MERGER
of
WINCHESTER PASTA, L.L.C.
with and into
NEW WORLD PASTA COMPANY
In compliance with the requirements of Del. Code Xxx. Tit. 8ss.264 and
Del. Code Xxx. Tit. 6, ss.18-209 (relating to a certificate of merger or
consolidation), the undersigned corporation formed and existing under the laws
of the State of Delaware, desiring to effect a merger, hereby certifies that:
1. The name and state of formation or organization of each of the
constituent entities which is to merge is as follows:
Name State of Formation or Organization
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Winchester Pasta, L.L.C. Delaware
New World Pasta Company Delaware
2. An agreement of merger has been approved and executed by each of
Winchester Pasta, L.L.C. and New World Pasta Company.
3. The name of the surviving business entity is New World Pasta Company.
4. The merger shall be effective at 12:01 a.m. on January 1, 2001.
5. The certificate of incorporation of New World Pasta in effect at
12:01 a.m. on January 1, 2001 shall be and remain the certificate of
incorporation of the surviving corporation.
6. The executed agreement of merger is on file at a place of business of
the surviving business entity. The address of such place of business is 00
Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
7. A copy of the agreement of merger will be furnished by the surviving
business entity, on request and without cost, to any member of Winchester Pasta
L.L.C., and to any stockholder of New World Pasta Company.
IN WITNESS WHEREOF, New World Pasta Company has caused this Certificate
of Merger to be duly executed.
NEW WORLD PASTA COMPANY
By: /s/ Xxxx X. Xxxxxx
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Vice President
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