Exhibit A
PLAN AND AGREEMENT OF MERGER
BETWEEN
XXXXXXXX FINANCIAL CORPORATION
AND
XXXXXXXX MERGER CORPORATION
This Plan and Agreement of Merger (this "Agreement") is entered into this
____ day of June, 2001 by and between Xxxxxxxx Merger Corporation, a Washington
corporation (the "Surviving Corporation"), and Xxxxxxxx Financial Corporation.,
a Delaware corporation ("Xxxxxxxx"). The Surviving Corporation and Xxxxxxxx are
sometimes referred to jointly as the "Constituent Corporations."
RECITALS
A. Each of the Constituent Corporations are corporations organized and
existing under the laws of the respective states as indicated in the first
paragraph of this Agreement.
B. The shareholders and directors of each of the Constituent Corporations
have deemed it advisable for the mutual benefit of the Constituent Corporations
and their respective shareholders that Xxxxxxxx be merged into the Surviving
Corporation pursuant to the provisions of the Washington Business Corporation
Act, Title 23B of the Revised Code of Washington and the Delaware General
Corporation Law (the "Merger").
NOW, THEREFORE, in accordance with the laws of the states of Washington and
Delaware, the Constituent Corporations agree that, subject to the following
terms and conditions, (i) Xxxxxxxx shall be merged into the Surviving
Corporation, (ii) the Surviving Corporation shall continue to be governed by the
laws of the state of Washington, and (iii) the terms of the Merger, and the mode
of carrying them into effect, shall be as follows:
Article I
ARTICLES OF SURVIVING CORPORATION
The Articles of Incorporation of the Surviving Corporation as in effect
immediately prior to the Effective Time of the Merger shall constitute the
"Articles" of the Surviving Corporation within the meaning of Section
23B.01.400(l) of the Washington Business Corporation Act and Section 104 of the
Delaware General Corporation Law, except that Article I of the Articles of
Incorporation is hereby amended in its entirety to read as follows:
ARTICLE I. NAME
The name of this Corporation is Xxxxxxxx Financial Corporation.
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Article II
APPOINTMENT OF AGENT FOR SERVICE OF PROCESS
Pursuant to Section 252(d) of the Delaware General Corporation Law, the
Surviving Corporation irrevocably appoints the Secretary of State of Delaware to
accept service of process in any proceeding to enforce against the Surviving
Corporation any obligation of Xxxxxxxx'x as well as for enforcement of any
obligation of the Surviving Corporation arising from the merger. The Delaware
Secretary of State shall mail a copy of such process to HEWM Corporate Services,
Inc., Suite 6100, 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000.
Article III
CONVERSION OF SHARES
3.1 Xxxxxxxx Shares. At the Effective Time of the Merger each outstanding
share of the common stock of Xxxxxxxx shall automatically convert to one share
of common stock of the Surviving Corporation. At the Effective Time of the
Merger each outstanding share of theSeries 1 Preferred Stock of Xxxxxxxx shall
automatically convert to one share of Series A Preferred Stock of the Surviving
Xxxxxxxxxxx.Xx will not be necessary for shareholders of Xxxxxxxx to exchange
their existing stock certificates for stock certificates of the Surviving
Corporation.
3.2 Surviving Corporation Shares. At the Effective Time of the Merger each
outstanding share of the common stock of the Surviving Corporation shall be
automatically cancelled and returned to the status of authorized but unissued
shares.
Article IV
BYLAWS
The Bylaws of the Surviving Corporation shall be the governing Bylaws.
Article V
DIRECTORS AND OFFICERS
The directors and officers of Xxxxxxxx shall be the directors and officers
of the Surviving Corporation.
Article VI
EFFECT OF THE MERGER
The effect of the Merger shall be as provided by the applicable provisions
of the laws of Washington and Delaware. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time of the Merger: the
separate existence of Xxxxxxxx shall cease; the Surviving Corporation shall
possess all assets and property of every description, and every interest
therein, wherever located, and the rights, privileges, immunities, powers,
franchises, and authority, of a public as well as a private nature, of all of
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the Constituent Corporations, all obligations belonging to or due any of the
Constituent Corporations shall be vested in and become the obligations of, the
Surviving Corporation without further act or deed; title to any real estate or
any interest therein vested in any of the Constituent Corporations shall be
vested in and become the obligations of the Surviving Corporation without
further act or deed; title to any real estate or any interest therein shall not
revert or in any way be impaired by reason of the Merger; all rights of
creditors and all liens upon any property of any of the Constituent Corporations
shall be preserved unimpaired; and the Surviving Corporation shall be liable for
all the obligations of the Constituent Corporations and any claim existing, or
action or proceeding pending, by or against any of the Constituent Corporations
may be prosecuted to judgment with right of appeal, as if the Merger had not
taken place.
If at any time after the Effective Time of the Merger the Surviving
Corporation shall consider it to be advisable that any further conveyances,
agreements, documents, instruments, and assurances of law or any other things
are necessary or desirable to vest, perfect, confirm, or record in the Surviving
Corporation the title to any property, rights, privileges, powers, and
franchises of the Constituent Corporations or otherwise to carry out the
provisions of this Agreement, the proper directors and officers of the
Constituent Corporations last in office shall execute and deliver, upon the
Surviving Corporations request, any and all proper conveyances, agreements,
documents, instruments, and assurances of law, and do all things necessary or
proper to vest, perfect, or confirm title to such property, rights, privileges,
powers, and title to such property, rights, privileges, powers, and franchises
in the Surviving Corporation, and otherwise to carry out the provisions of this
Agreement.
Article VII
EFFECTIVE TIME OF THE MERGER
As used in this Agreement, the "Effective Time of the Merger" shall mean
the time at which executed counterparts of this Agreement or conformed copies
thereof, together with duly executed Certificates or Articles A-2 of Merger have
been duly filed by the Constituent Corporations in the office of the Washington
Secretary of State pursuant to Section 23B.11.050 of the Washington Business
Corporation Act and the Office of the Delaware Secretary of State pursuant to
Section 252 of the Delaware General Corporation Law, or at such time thereafter
as is provided in such Certificate or Articles of Merger.
Article VIII
CONDITIONS
In the event that shareholders of Xxxxxxxx owning in excess of five percent
(5%) of the voting shares of Xxxxxxxx effectively exercise their appraisal
rights under Section 262 of the Delaware General Corporation Law, the Surviving
Corporation may terminate this Agreement by written notice to Xxxxxxxx. In such
event, this Agreement shall be of no further force and effect.
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Article IX
TERMINATION
This Agreement may be terminated and the Merger abandoned as provided in
Article VIII hereor or by mutual consent of the directors of the Constituent
Corporations at any time prior to the Effective Time of the Merger.
Article X
NO THIRD PARTY BENEFICIARIES
Except as otherwise specifically provided herein, nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon or
give any person, firm, or corporation, other than the Constituent Corporations
and their respective shareholders, any rights or remedies under or by reason of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Plan and
Agreement of Merger to be executed as of the date first above written.
XXXXXXXX MERGER CORPORATION, a Washington corporation
By:
President
XXXXXXXX FINANCIAL CORPORATION, a Delaware corporation
By:
President
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