EX-2.3
AGREEMENT OF MERGER
AGREEMENT OF MERGER, dated this 31st day of October, 1996, pursuant
to Section 251 of the General Corporation Law of the State of Delaware, between
CPG Investors Inc. ("CPG Investors"), a Delaware corporation and CPG Acquisition
Company ("Acquisition"), a Delaware corporation.
WITNESSETH that:
WHEREAS, all of the constituent corporations desire to merge into a
single corporation;
NOW, THEREFORE, the corporations, parties to this Agreement, in
consideration of the mutual covenants, agreements and provisions hereinafter
contained, do hereby prescribe the terms and conditions of said merger and mode
of carrying the same into effect as follows:
FIRST: CPG Investors hereby merges into itself Acquisition and said
Acquisition shall be and hereby is merged into CPG Investors, which shall be the
surviving corporation.
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SECOND: The Certificate of Incorporation of the surviving
corporation is hereby amended and restated as set forth in Exhibit A.
THIRD: At the effective time of the merger (the "Effective Time"),
by virtue of the merger and without any action on the part of CPG Investors and
Acquisition or their respective shareholders:
(a) Each share of common stock, par value $0.01 per share, of CPG
Investors (the "Common Stock") issued and outstanding immediately prior to
the Effective Time shall be converted into the right to receive, in cash,
a pro rata share of the aggregate merger consideration of $53,000,000 less
outstanding indebtedness of CPG Investors to Crestar Bank at closing and
certain amounts to be held in escrow as mutually agreed by CPG Investors
and Acquisition and plus or minus certain other post-closing adjustments
to be made after the Effective Time.
(b) As of the Effective Time, all Common Stock shall no longer be
outstanding and shall automatically be cancelled and retired and shall
cease to exist, and each holder of a certificate representing any shares
of Common Stock shall cease to have any rights with respect thereto,
except the right to receive such holder's appropriate portion of the
merger consideration upon surrender of its stock certificate.
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(c) Each share of Common Stock held in the treasury of the Company
immediately prior to the Effective Time shall be cancelled and
extinguished at the Effective Time without any conversion thereof and no
payment shall be made with respect thereto.
(d) At the Effective Time, each holder of an outstanding certificate
that prior thereto represented Common Stock shall be entitled, upon
surrender thereof to the Parent, to receive in exchange therefor such
holder's appropriate portion of the merger consideration.
(e) Each share of common stock, par value $.001 per share, of
Acquisition issued and outstanding immediately prior to the Effective Time
shall automatically without any action on the part of the holder thereof
be converted into one validly issued, fully paid and nonassessable share
of common stock of the surviving corporation.
FOURTH: The terms and conditions of the merger are as follows:
(a) The bylaws of Acquisition as they shall exist on the effective
date of this Agreement shall be the bylaws of the surviving corporation
until the same shall be altered, amended and repealed as therein provided.
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(b) The directors and committee members of the surviving corporation
shall be the directors and committee members of Acquisition on the
effective date, each holding the same directorship for the term elected
and until their successors are duly elected or appointed and qualified.
(c) This merger shall become effective on October 31, 1996.
(d) Upon the merger becoming effective, all the property, rights,
privileges, franchises, patents, trademarks, licenses, registrations and
other assets of every kind and description of the merged corporation shall
be transferred to, vested in and devolve upon the surviving corporation
without further act or deed and all property, rights, and every other
interest of the surviving corporation and the merged corporation shall be
as effectively the property of the surviving corporation as they were of
the surviving corporation and the merged corporation respectively. The
merged corporation hereby agrees from time to time, as and when requested
by the surviving corporation or by its successors or assigns, to execute
and deliver or cause to be executed and delivered all such deeds and
instruments and to take or cause to be taken such further or other action
as the surviving corporation may
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deem necessary or desirable in order to vest in and confirm to the
surviving corporation title to and possession of any property of the
merged corporation acquired or to be acquired by reason of or as a result
of the merger herein provided for and otherwise to carry out the intent
and purposes hereof and the proper officers and directors of the merged
corporation and the proper officers and directors of the surviving
corporation are fully authorized in the name of the merged corporation or
otherwise to take any and all such action.
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IN WITNESS WHEREOF, the parties to this Agreement, pursuant to the
approval and authority duly given by resolution adopted by their respective
Boards of Directors have caused these presents to be executed by the respective
officer of each party hereto as the respective act, deed and agreement of each
of said corporations on this 31st day of October, 1996.
CPG INVESTORS INC.
By:/s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman
CPG ACQUISITION COMPANY
By:/s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
Title: President
IN WITNESS WHEREOF, the parties to this Agreement, pursuant to the
approval and authority duly given by resolution adopted by their respective
Boards of Directors have caused these presents to be executed by the respective
officer of each party hereto as the respective act, deed and agreement of each
of said corporations on this 31st day of October, 1996.
CPG INVESTORS INC.
By:_____________________________
Name:
Title:
CPG ACQUISITION COMPANY
By:/s/ Xxxx Xxxxxx
--------------------------------
Name: Xxxx Xxxxxx
Title: President
I, Xxxxx, X. Xxxxxx, Chairman of CPG Investors Inc. ("CPG
Investors"), a corporation organized and existing under the laws of the State of
Delaware, hereby certify, as such Chairman, that the Agreement of Merger to
which this Certificate is attached, after having been first duly signed on
behalf of the said corporation and having been signed on behalf of CPG
Acquisition Company, a corporation of the State of Delaware, was duly adopted
pursuant to Section 228 of Title 8 of the Delaware Code by the written consent
of a majority of the voting stockholders of CPG Investors, which Agreement of
Merger was thereby adopted as the act of the stockholders of said CPG Investors,
and the duly adopted agreement and act of the said corporation.
WITNESS my hand on this 31st day of October, 1996.
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Chairman
I, Xxxxx Xxxxx, Vice President of CPG Acquisition Company
("Acquisition"), a corporation organized and existing under the laws of the
State of Delaware, hereby certify, as such Vice President, that the Agreement of
Merger to which this Certificate is attached, after having been first duly
signed on behalf of the said corporation and having been signed on behalf of CPG
Investors Inc., a corporation of the State of Delaware, was duly adopted
pursuant to Section 228 of Title 8 of the Delaware Code by the written consent
of a majority of the voting stockholders of Acquisition, which Agreement of
Merger was thereby adopted as the act of the stockholders of said Acquisition,
and the duly adopted agreement and act of the said corporation.
WITNESS my hand on this 31st day of October, 1996.
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx, Vice President
EXHIBIT A
RESTATED
CERTIFICATE OF INCORPORATION
OF
CPG INVESTORS INC.
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I, THE UNDERSIGNED, in order to form a corporation for the purposes
hereinafter stated, under and pursuant to the provisions of the General
Corporation Law of the State of Delaware, as from time to time amended, do
hereby certify as follows:
FIRST: The name of the Corporation is
CPG Investors Inc.
SECOND: The registered office of the Corporation in the State of
Delaware is located at 0000 Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx
Xxxxxx, Xxxxxxxx 00000. The name of its registered agent in the State of
Delaware at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage, directly or
indirectly, in any lawful act or activity for which corporations may be
organized under the General Corporation Law of the State of Delaware as from
time to time in effect.
FOURTH: The total authorized capital stock of the Corporation shall
be 1,000 shares of Common Stock, par value $0.01 per share.
FIFTH: The business of the Corporation shall be managed under the
direction of the Board of Directors except as otherwise provided by law. The
number of Directors of the Corporation shall be fixed from time to time by, or
in the manner provided in, the By-Laws. Election of Directors need not be by
written ballot unless the By-Laws of the Corporation shall so provide.
EXHIBIT A
Page 2
SIXTH: The Board of Directors may make, alter or repeal the By-Laws
of the Corporation except as otherwise provided in the By-Laws adopted by the
Corporation's stockholders.
SEVENTH: The Directors of the Corporation shall be protected from
personal liability, through indemnification or otherwise, to the fullest extent
permitted under the General Corporation Law of the State of Delaware as from
time to time in effect.
1. A Director of the Corporation shall under no circumstances have
any personal liability to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a Director except for those breaches and
acts or omissions with respect to which the General Corporation Law of the State
of Delaware, as from time to time amended, expressly provides that this
provision shall not eliminate or limit such personal liability of Directors.
Neither the modification or repeal of this paragraph 1 of Article SEVENTH nor
any amendment to said General Corporation Law that does not have retroactive
application shall limit the right of Directors hereunder to exculpation from
personal liability for any act or omission occurring prior to such amendment,
modification or repeal.
2. The Corporation shall indemnify each Director and Officer of the
Corporation to the fullest extent permitted by applicable law, except as may be
otherwise provided in the Corporation's By-Laws, and in furtherance hereof the
Board of Directors is expressly authorized to amend the Corporation's By-Laws
from time to time to give full effect hereto, notwithstanding possible self
interest of the Directors in the action being taken. Neither the modification or
repeal of this paragraph 2 of Article SEVENTH nor any amendment to the General
Corporation Law of the State of Delaware that does not have retroactive
application shall limit the right of Directors and Officers to indemnification
hereunder with respect to any act or omission occurring prior to such
modification, amendment or repeal.
EIGHTH: The Corporation reserves the right to amend, alter, change
or repeal any provision contained in this Certificate of Incorporation in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
