EXHIBIT 2.4
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into
as of this 23rd day of January, 2001, by and among Red Xxxxx International,
Inc., a Nevada corporation ("Red Xxxxx"), Red Xxxxx Gourmet Burgers, Inc., a
Delaware corporation and a wholly-owned subsidiary of Red Xxxxx ("RRGB"), and
Red Xxxxx Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary
of RRGB ("RRMS").
WHEREAS, Red Xxxxx desires to create a new holding company structure
by effecting a merger whereby RRMS will merge with and into Red Xxxxx, with (a)
Red Xxxxx continuing as the surviving corporation of such merger and (b) each
outstanding share (or any fraction thereof) of the common stock of Red Xxxxx,
par value $.001 per share ("Red Xxxxx Common Stock") being converted in such
merger into a like number of shares of the common stock of RRGB, par value $.001
per share, ("RRGB Common Stock"), all in accordance with the terms of this
Agreement (the "Merger") and the provisions of the Delaware General Corporation
Law and the Nevada General Corporation Law;
WHEREAS, the Boards of Directors of Red Xxxxx, RRGB and RRMS have
approved this Agreement and the Merger upon the terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
MERGER
1.01. The Merger. In accordance with the provisions of this Agreement,
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the General Corporation Law of the State of Delaware and the General Corporation
Law of the State of Nevada, at the Effective Time (as defined in Article IV
hereof), RRMS shall be merged with and into Red Xxxxx, the separate existence of
RRMS shall cease, and Red Xxxxx shall continue as the surviving corporation (the
"Surviving Corporation") under the name Red Xxxxx Operating Company, Inc.
1.02. Surviving Corporation. Upon the consummation of the Merger, the
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Surviving Corporation shall succeed to and retain, without other transfer, all
of the rights and property of RRMS, including any and all contracts or
agreements under which RRMS is a party or beneficiary, and shall be subject to
all of the debts, obligations and liabilities of RRMS in the same manner as if
the Surviving Corporation had itself incurred them; all rights of creditors and
all liens upon the property of each of Red Xxxxx and RRMS shall be preserved
unimpaired; provided, that such rights and liens shall be limited, if at all, in
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the same manner as in effect immediately prior to the Effective Time; any action
or proceeding pending by or against RRMS may be prosecuted to judgment, which
shall bind the Surviving Corporation, or the Surviving Corporation may be
proceeded against or substituted in its place.
ARTICLE II
ARTICLES OF INCORPORATION; BYLAWS
2.01. Articles of Incorporation. Except as provided herein, the
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Articles of Incorporation of Red Xxxxx, as in effect at the Effective Time,
shall be the Articles of Incorporation of the Surviving Corporation, until
thereafter amended in accordance with applicable law.
2.02. Bylaws. The Bylaws of Red Xxxxx, as in effect at the Effective
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Time, shall be the Bylaws of the Surviving Corporation, until thereafter amended
in accordance with applicable law.
ARTICLE III
DIRECTORS AND OFFICERS
3.01. Directors. At the Effective Time, the Board of Directors of the
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Surviving Corporation shall be Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxx and Xxxxxxx X.
Xxxxxx until their respective successors are elected and qualified.
3.02. Officers. At the Effective Time, the officers of Red Xxxxx
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immediately prior to the Effective Time shall be deemed to be the officers of
Surviving Corporation until their respective successors shall be appointed and
qualified.
ARTICLE IV
EFFECTIVE TIME OF THE MERGER
As used in this Agreement, the "Effective Time" of the Merger shall
mean the date on which a Certificate of Merger has been duly filed with the
Secretary of State of the State of Delaware and Articles of Merger have been
duly filed with the Secretary of State of the State of Nevada.
ARTICLE V
CONVERSION
5.01. Conversion of Shares. At the Effective Time, by virtue of the
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Merger and without any action on the part of Red Xxxxx, RRGB, RRMS or the holder
of any securities of Red Xxxxx, RRGB or RRMS:
(a) Conversion of Red Xxxxx Common Stock. Each share of Red Xxxxx
Common Stock issued and outstanding immediately prior to the Effective Time
shall be converted into and thereafter represent one duly issued, fully paid and
nonassessable share of RRGB Common Stock.
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(b) Conversion of Common Stock of RRMS. Each share of the common stock
of RRMS issued and outstanding immediately prior to the Effective Time shall be
converted into and thereafter represent one duly issued, fully paid and
nonassessable share of common stock, par value $0.001 per share, of the
Surviving Corporation.
(c) Cancellation of Common Stock of RRGB. Each share of RRGB Common
Stock that is owned by Red Xxxxx immediately prior to the Merger shall
automatically be cancelled and retired and shall cease to exist.
(d) Rights of Certificate Holders. From and after the Effective Time,
holders of certificates formerly evidencing Red Xxxxx Common Stock shall cease
to have any rights as stockholders of Red Xxxxx, except as provided by law;
except, however, that such holders shall have the rights set forth in Section
5.02 herein.
5.02. No Surrender of Certificates. Until thereafter surrendered for
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transfer or exchange, each outstanding stock certificate that, immediately prior
to the Effective Time, evidenced Red Xxxxx Common Stock shall be deemed and
treated for all corporate purposes to evidence the ownership of the number of
shares of RRGB Common Stock into which such shares of Red Xxxxx Common Stock
were converted pursuant to the provisions of Section 5.01(a) herein.
5.03. Assumption of Stock Option Plans. As a condition to the Merger,
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Red Xxxxx and RRGB shall, as of the Effective Time, execute, acknowledge and
deliver an assignment and assumption agreement pursuant to which RRGB will, from
and after the Effective Time, assume and agree to perform all obligations of Red
Xxxxx pursuant to Red Robin's (i) 1990 Incentive Stock Option and Nonqualified
Stock Option Plan, (ii) 1996 Stock Option Plan, and (iii) 2000 Management
Performance Common Stock Option Plan (collectively, the "Stock Option Plans").
As of the Effective Time, all options to purchase shares of Red Xxxxx Common
Stock which have been granted and are then outstanding and unexercised under the
Stock Option Plans ("Existing Stock Option") shall be converted into options to
purchase an equivalent number of shares of RRGB Common Stock at the same
exercise price, for the same period and subject to substantially the same terms
and conditions including any stockholder approval which may be required with
respect to the Stock Option Plans applicable to the relevant Existing Stock
Option ("Substitute Option"); provided, however, that after the Effective Time
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no exercise shall occur unless and until the holder of the Existing Stock Option
shall have executed and delivered to RRGB an instrument in such form as RRGB may
prescribe to evidence his or her acceptance of the terms and conditions of the
Substitute Option.
5.04. Reservation of Shares. On or prior to the Effective Time, RRGB
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shall reserve sufficient authorized but unissued shares of RRGB Common Stock to
provide for the issuance of RRGB Common Stock upon the exercise of options
payable and outstanding under the Stock Option Plans, as assumed by RRGB.
ARTICLE VI
CONDITIONS TO THE MERGER
The obligations of the parties hereto to consummate the transactions
contemplated
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by this Agreement shall be subject to the satisfaction, on or prior to the
Effective Time, of each of the following conditions:
6.01. Assumption of Stock Option Plans. Pursuant to Section 5.03
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above, Red Xxxxx and RRGB shall, as of the Effective Time, execute, acknowledge
and deliver an assignment and assumption agreement pursuant to which RRGB will,
from and after the Effective Time, assume and agree to perform all obligations
of Red Xxxxx pursuant to the Stock Option Plans.
6.02. Consents and Approvals. All registrations, filings,
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applications, notices, consents, orders or approvals ("Approvals") necessary to
effect the transactions contemplated hereby shall have been filed, made or
obtained, including, but not limited to, any Approvals required by applicable
state liquor license boards.
6.03 Stockholder Approval. A majority of the stockholders of each of
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Red Xxxxx, RRMS and RRGB shall have voted to approve this Agreement and the
Merger.
ARTICLE VII
MISCELLANEOUS
7.01. Termination. Notwithstanding the approval of this Agreement by
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the stockholders of RRGB, RRMS and Red Xxxxx, this Agreement may be terminated
at any time prior to the Effective Time by mutual written consent of the Boards
of Directors of RRMS, RRGB and Red Xxxxx.
7.02. Waiver; Amendment. Any of the terms or conditions of this
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Agreement may be waived at any time by whichever of the parties is, or the
stockholders of which are, entitled to the benefit thereof by a writing executed
on behalf of such party; and this Agreement may be amended, modified or
supplemented in any manner at any time by an agreement in writing executed on
behalf of each of the parties hereto; provided, however, that no such waiver,
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amendment, modification or supplement shall be made which shall change any of
the principal terms of this Agreement without the further approval of the
stockholders of RRGB, RRMS and Red Xxxxx.
7.03. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by a duly authorized officer as of the date first above written.
RED XXXXX INTERNATIONAL, INC.,
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President
RED XXXXX MERGER SUB, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President
RED XXXXX GOURMET BURGERS, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President
