AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER is made and entered into this 29th
day of October, 2001, by and between the following named corporations
(hereinafter collectively referred to as the "Constituent Corporations"):
I - SURVIVING CORPORATION
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XRG, INC., a Delaware corporation (the "Surviving Corporation")
II - NON-SURVIVING CORPORATION
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XRG INTERNATIONAL, INC., a New Jersey corporation (the "Non-Surviving
Corporation")
W I T N E S S E T H:
WHEREAS, the Non-Surviving Corporation is a corporation duly organized
and existing under the laws of the State of New Jersey and the Surviving
Corporation is a corporation duly organized and existing under the laws of the
State of Delaware; and
WHEREAS, the respective boards of directors and shareholders of the
Constituent Corporations deem it advisable and in the best interests of the
Constituent Corporations to merge the Non-Surviving Corporation into the
Surviving Corporation pursuant to Section 252 of the General Corporation Law of
the State of Delaware and Section 14A:10-1 of the New Jersey Statutes, and said
boards of directors and shareholders deem it advisable that the Surviving
Corporation shall not be a new corporation, and its corporate existence as a
continuing corporation under the laws of the State of Delaware shall not be
affected in any manner by reason of the merger except as set forth herein
(hereinafter called the "Merger"); and
WHEREAS, this Agreement and Plan of Merger was adopted, approved,
certified, executed and acknowledged by the Constituent Corporations in
accordance with the laws under which each is formed and, in the case of the
Surviving Corporation, in the same manner as is provided in Section 251 of the
General Corporation Law of the State of Delaware;
NOW THEREFORE, in consideration of the premises, covenants, agreements,
and provisions set forth herein, the parties hereto agree, in accordance with
the provisions of Section 252 of the General Corporation Law of the State of
Delaware and Section 14A:10-1 of the New Jersey Statutes, that the Constituent
Corporations shall be merged into a single corporation, the Surviving
Corporation, one of the parties hereto, and that the terms and conditions of the
Merger, the mode of carrying the same into effect, and the manner and basis of
converting or otherwise dealing with the shares of stock of the Constituent
Corporations shall be as hereinafter set forth.
ARTICLE I
CORPORATE EXISTENCE OF SURVIVING CORPORATION
A. Upon the Merger becoming effective, the separate existence of the
Non-Surviving Corporation shall cease, and the Surviving Corporation shall
continue in existence and be governed by the laws of the State of Delaware; all
property, real, personal, tangible, intangible and mixed, of every kind, make
and description, and all rights, privileges, powers and franchises, whether or
not by their terms assignable, and all immunities of a public and of a private
nature, and all debts due the Non-Surviving Corporation, on whatever account and
other choses in action belonging to it, shall be taken and be deemed to be
transferred to and vested in the Surviving Corporation, and shall be thereafter
as effectively the property of the Surviving Corporation as they were of the
Non-Surviving Corporation; and the title to any property, real, personal or
mixed, wherever situated, and the ownership of any right or privilege vested in
the Non-Surviving Corporation shall not revert or be lost or be adversely
affected or be in any way impaired by reason of the Merger, but shall vest in
the Surviving Corporation; all rights of creditors and all liens upon the
property of any of the Constituent Corporations shall be preserved unimpaired,
limited to the property affected by such liens at the time of the Merger
becoming effective; and all debts, contracts, liabilities, obligations and
duties of the Non-Surviving Corporation shall thenceforth attach to the
Surviving Corporation and may be enforced against it to the same extent as if
they had been incurred or contracted by it.
B. The identity, existence, purposes, powers, franchises, rights and
immunities, whether public or private, of the Surviving Corporation shall
continue unaffected and unimpaired by the Merger, except as modified in this
Agreement.
ARTICLE II
ARTICLES OF INCORPORATION OF THE SURVIVING CORPORATION
The Articles of Incorporation of XRG, Inc., the Delaware corporation,
in effect immediately prior to the Effective Time (as defined in Article VII)
shall, upon the Merger becoming effective, be and remain the Articles of
Incorporation of the Surviving Corporation until the same shall be altered,
amended or repealed.
ARTICLE III
BYLAWS OF SURVIVING CORPORATION
The Bylaws of XRG, Inc., the Delaware corporation, in effect
immediately prior to the Effective Time shall, upon the Merger becoming
effective, be and remain the Bylaws of the Surviving Corporation until the same
shall be altered, amended or repealed.
ARTICLE IV
BOARD OF DIRECTORS AND OFFICERS
OF SURVIVING CORPORATION
The board of directors and officers of the Surviving Corporation shall
be the following, and they shall hold the following offices until their
respective successors are elected and qualified:
DIRECTORS:
Xxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxx, Xx.
OFFICERS:
Name Office
Xxxxx X. Xxxxxxx Chief Executive Officer & President
Xxxxxx Xxxxxxx Chief Financial Officer & Treasurer
Xxxxxx X. Xxxxxxx, Xx. Executive Vice President & Secretary
ARTICLE V
MANNER OF CONVERTING SHARES
Each issued share of the Non-Surviving Corporation immediately prior to
the Effective Time shall, at the Effective Time, be converted into one (1) share
of the Surviving Corporation. The issued shares of the Surviving Corporation
shall not be converted or exchanged in any manner, but each said share which is
issued as of the Effective Time shall continue to represent one (1) issued share
of the Surviving Corporation.
ARTICLE VI
APPROVAL OF MERGER BY BOARD OF DIRECTORS AND SHAREHOLDERS
This Agreement and Plan of Merger has been adopted, approved,
certified, executed and acknowledged by the respective boards of directors and
the shareholders of the Surviving Corporation and the Non-Surviving Corporation
in accordance with the laws under which each is formed and, in the case of the
Surviving Corporation, in the same manner as is provided in Section 251 of the
General Corporation Law of the State of Delaware.
ARTICLE VII
EFFECTIVE TIME OF MERGER
The Merger shall become effective upon the filing of a Certificate of
Merger with the Secretary of State of the State of New Jersey ("Effective
Time").
IN WITNESS WHEREOF, the Constituent Corporations have signed this
Agreement as of the day and year first above written.
SURVIVING CORPORATION:
XRG, INC.,
a Delaware corporation
By:
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President
NON-SURVIVING CORPORATION:
XRG INTERNATIONAL, INC.,
a New Jersey corporation
By:
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President
