AGREEMENT AND PLAN OF MERGER Among FORTRESS AMERICA ACQUISITION CORPORATION And FAAC MERGER CORPORATION June 29, 2005
Among
And
FAAC
MERGER CORPORATION
June
29, 2005
AGREEMENT
AND PLAN OF MERGER (this “Agreement”), dated as of June 29, 2005, among Fortress
America Acquisition Corporation, a Delaware corporation (“Company”), and FAAC
Merger Corporation, a Delaware corporation and a wholly owned subsidiary of
Fortress (“Subsidiary”).
RECITALS
WHEREAS,
the respective boards of directors of each of the Company and the Subsidiary
have approved the merger of Subsidiary with and into the Company with the
Company as the surviving entity (the “Merger”) and approved the Merger upon the
terms and conditions set forth in this Agreement; and
WHEREAS,
the respective stockholders of each of the Company and the Subsidiary have
approved the Merger;
NOW,
THEREFORE, in consideration of the premises and agreements contained herein,
the
parties hereto agree as follows:
ARTICLE
I
1.1 The
Merger.
Upon
the terms and subject to the conditions set forth in this Agreement, at the
Effective Time (as hereinafter defined), Subsidiary shall merge with and into
Company and the separate corporate existence of Subsidiary shall thereupon
cease. The Company shall be the surviving corporation in the Merger (sometimes
hereinafter referred to as the “Surviving Corporation”), and the separate
corporate existence of the Company with all its rights, privileges, immunities,
powers and franchises shall continue unaffected by the Merger, except as set
forth in Article II. The Merger shall have the effects specified in the Delaware
General Corporation Law, as amended (the “DGCL”).
1.2 Effective
Time.
The
Company will cause a Certificate of Merger to be executed and delivered to
the
Secretary of State of the State of Delaware as provided in Section 251 of the
DGCL. The Merger shall become effective at the time when the Certificate of
Merger has been duly filed with the Secretary of State of the State of Delaware
or at such later time as may be agreed upon by the parties and specified in
the
Certificate of Merger (the “Effective Time”).
ARTICLE
II
2.1 The
Certificate of Incorporation.
At the
Effective Time, the certificate of incorporation of the Company as in effect
immediately prior to the Effective Time shall be amended and restated in its
entirety to be identical to the certificate of incorporation of the Subsidiary
(the “Charter”), until thereafter amended as provided therein or by applicable
law; provided,
however,
that
Article First of the certificate of incorporation of the Surviving Corporation
shall read as follows: “Name.
The
name of this corporation is Fortress America Acquisition Corporation (the
“Corporation”).”
2.2 The
Bylaws.
At the
Effective Time, the bylaws of the Company as in effect at the Effective Time
shall be the bylaws of the Surviving Corporation.
ARTICLE
III
3.1
Directors.
The
directors of the Company at the Effective time shall, from and after the
Effective Time, be the directors of the Surviving Corporation until their
successors have been duly elected and appointed and qualified or until their
earlier death, resignation or removal in accordance with the Charter and the
bylaws and the Board of Directors of the Company shall take all such actions
as
may be necessary or appropriate to give effect to the foregoing.
3.2 Officers.
The
officers of the Company at the Effective time shall, from and after the
Effective Time, be the officers of the Surviving Corporation until their
successors have been duly elected and appointed and qualified or until their
earlier death, resignation or removal in accordance with the Charter and the
bylaws.
ARTICLE
IV
4.1 Common
Stock.
As of
the Effective Time, by virtue of the Merger and without any action on the part
of the Company, the Subsidiary or any holder of shares of common stock of the
Company or the Subsidiary:
(a) Each
share of common stock of the Company issued and outstanding immediately prior
to
the Effective Time shall, from and after the Effective Time, remain issued
and
outstanding.
(b) All
shares of common stock of the Subsidiary issued and outstanding immediately
prior to the Effective Time shall be cancelled and shall cease to exist and
no
payment shall be made with respect thereto.
ARTICLE
V
5.1 Modification.
Subject
to the provisions of applicable law, at any time prior to the Effective Time,
this Agreement may be amended, modified or supplemented in writing only by
the
mutual consent of the parties hereto, by action of the board of directors of
the
respective parties.
5.2 Counterparts.
This
Agreement may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
5.3 Governing
Law.
This
Agreement shall be deemed to be made in and in all respects shall be
interpreted, construed and governed by and in accordance with the law of the
State of Delaware without regard to the conflict of law principles
thereof.
5.4 Entire
Agreement.
This
Agreement constitutes the entire agreement and supersedes all other prior
agreements, understandings, representations and warranties both written and
oral, among the parties, with respect to the subject matter hereof.
5.5 Severability.
The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity and
enforceability or the other provisions hereof. If any provision of this
Agreement, or the application thereof to any person or circumstance, is invalid
or unenforceable, (a) a suitable and equitable provision shall be substituted
therefore in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid and unenforceable provision and (b) the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in
any
other jurisdiction.
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
authorized officers of the parties hereto as of the date first written
above.
By: /s/
Xxxxxx X. Xxxxx
Xxxxxx
X.
Xxxxx
President
and Chief Executive Officer
FAAC
MERGER CORPORATION
By: /s/
Xxxxxx X. Xxxxx
Xxxxxx
X.
Xxxxx
President
and Chief Executive Officer
