FORM OF AGREEMENT OF MERGER
AGREEMENT OF MERGER (this "Agreement"), dated as of
November ___, 1997, by and between MT Investors Inc., a Delaware corporation
(the "Company"), and Xxxxxxx-Xxxxxx Holding Inc., a Delaware corporation
("Holding"). The Company and Holding are hereinafter sometimes collectively
called the "Constituent Corporations."
RECITALS
WHEREAS, the Board of Directors of each of the Constituent
Corporations deems it advisable and to the welfare and advantage of such
Constituent Corporation and its respective stockholders that the Constituent
Corporations merge under and pursuant to Section 251 of the General Corporation
Law of the State of Delaware into a single corporation, to wit, the Company
shall be the surviving corporation, and have approved this Agreement and the
merger contemplated hereby (the "Merger");
WHEREAS, the registered office of the Company in the State of
Delaware is located at Corporation Trust Center, 0000 Xxxxxx Xxxxxx in the City
of Wilmington, County of New Castle, and the name of its registered agent at
such address is The Corporation Trust Company; and the registered office of
Holding in the State of Delaware is located at Corporation Trust Center, 0000
Xxxxxx Xxxxxx in the City of Wilmington, County of New Castle, and the name of
its registered agent at such address is The Corporation Trust Company.
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:
ARTICLE 1.
THE MERGER
1.1. Surviving Corporation. In accordance with the provisions
of this Agreement and the applicable laws of the State of Delaware, at the
Effective Time (as defined in Section 1.2 hereof), Holding shall be merged with
and into the Company, and the Company shall be the surviving corporation (such
corporation in its capacity as such surviving corporation being hereinafter
sometimes called the "Surviving Corporation") and shall continue its corporate
existence and organization under the laws of the State of Delaware, and the
separate existence of Holding shall thereupon cease.
1.2. Effective Time. A certificate of merger in substantially
the form annexed hereto as Annex A (the "Certificate of Merger") shall be filed
with the Secretary
of State of the State of Delaware by the Company to effect the Merger. The term
"Effective Time" shall mean the time at which the Certificate of Merger is filed
with the Secretary of State of the State of Delaware.
1.3. Certificate of Incorporation. At the Effective Time, the
form of Amended and Restated Certificate of Incorporation attached hereto as
Exhibit A shall become and constitute the Amended and Restated Certificate of
Incorporation of the Surviving Corporation until further amended or changed as
provided therein or by law.
1.4. Bylaws. At the Effective Time, the form of amended
Bylaws attached hereto as Exhibit B shall become and constitute the Bylaws of
the Surviving Corporation until amended or changed as provided therein or by
law.
1.5. Directors. The directors of the Company at the
Effective Time shall be and remain the directors of the Surviving Corporation
and each shall hold office until their respective successors are duly elected
and qualified.
1.6. Officers. The officers of the Company at the
Effective Time shall be and remain the officers of the Surviving Corporation
and shall hold office until their respective successors are duly elected or
appointed and qualified.
1.7. Effect of the Merger. The Surviving Corporation shall
succeed, without other transfer, to all the rights and property of Holding and
shall be subject to all the debts and liabilities thereof in the same manner as
if the Surviving Corporation had itself incurred them. All rights of creditors
and all liens put on the property of each of the Constituent Corporations shall
be preserved unimpaired.
1.8. Confirmatory Instruments. If any time after the Effective
Time the Surviving Corporation shall consider or be advised that any instruments
of further assurance are desirable in order to evidence the vesting in it of the
title of either of the Constituent Corporations to any of the property rights of
the Constituent Corporations, the appropriate officers or directors of either of
the Constituent Corporations, are hereby authorized to execute, acknowledge and
deliver all such instruments of further assurance and to do all other acts or
things, either in the name of the Company or in the name of Holding, as may be
requisite or desirable to carry out the provisions of this Agreement.
ARTICLE 2.
MANNER AND BASIS OF CONVERTING SECURITIES
2.1. Conversion of Securities. At the Effective Time,
by virtue of the Merger and without any action on the part of the Company,
Holding or the holders thereof:
(i) all of the issued and outstanding shares of
capital stock of Holding shall be canceled;
(ii) each share of Class A Common Stock, par value
$.01, of Holding which are issued and outstanding immediately
prior to the Effective Time shall be converted into and
represent the right to receive 12.58392 shares of Common
Stock, $.01 par value, of the Surviving Corporation;
(iii) each share of Class B Common Stock, par value
$.01, of the Company which are issued and outstanding
immediately prior to the Effective Time shall be converted
into and represent the right to receive 12.58392 shares of
Common Stock, $.01 par value, of the Surviving Corporation;
and
(iv) each share of Class C Common Stock, par value
$.01, of the Company which are issued and outstanding
immediately prior to the Effective Time shall be converted
into and represent the right to receive 12.58392 shares of
Common Stock $.01 par value, of the Surviving Corporation.
At and after the Effective Time, all of the outstanding certificates which
immediately prior to the Effective Time represented shares of Class A Common
Stock, Class B Common Stock or Class C Common Stock of the Company shall be
deemed for all purposes to evidence ownership of, and to represent, shares of
Common Stock of the Surviving Corporation into which the shares of Class A
Common Stock, Class B Common Stock or Class C Common Stock of the Company
formerly represented by such certificates have been converted as herein
provided. The registered owner on the books and records of the Company of any
such outstanding stock certificate without taking any action shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to the Surviving Corporation or its transfer agent, have and be able to exercise
any voting and all other rights with respect to and receive any dividend or
other distributions upon the Common Stock of the Surviving Corporation evidenced
by such outstanding certificate as provided.
2.2. Fractional Securities. No fractional shares shall be
issued by the Surviving Corporation as part of the merger consideration. Each
shareholder of the Company who otherwise would be entitled to a fractional
interest in a share of Common Stock of the Surviving Corporation shall receive
an amount of cash (without interest) equal to the market value of any fractional
share of Common Stock to which any person becomes entitled as a result of the
conversion ratio set forth herein. For such purpose, the market value of a share
of Common Stock shall be $___, or such other price as shall be set by the Board
of Directors of the Surviving Corporation.
ARTICLE 3.
MISCELLANEOUS
3.1. Conditions. The consummation of the Merger is
subject to the following condition: approval of the Merger by the
stockholders of the Constituent Corporations as required by Delaware law.
3.2. Termination of Merger. Anything herein or elsewhere to
the contrary notwithstanding, this Agreement may be terminated and abandoned by
the board of directors of any Constituent Corporation at any time prior to the
date of filing the Certificate of Merger with the Secretary of State of the
State of Delaware. This Agreement may be amended by the boards of directors of
the Constituent Corporations at any time prior to the date of filing the
Certificate of Merger with the Secretary of State, provided that an amendment
made subsequent to the adoption of the Agreement by the stockholders of any
Constituent Corporation shall not (1) alter or change the amount or kind of
shares, securities, cash, property and/or rights to be received in exchange for
or on conversion of all or any of the shares of any class or series thereof of
such Constituent Corporation, (2) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation to be effected by the merger, or (3)
alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class or series
thereof of such Constituent Corporation.
3.3. Execution in Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties to this Agreement have caused
these presents to be executed by an authorized officer and attested by the
Secretary of each party hereto as the respective act, deed and agreement of each
of said corporations, on this day of November, 1997.
MT INVESTORS INC.
By___________________________
Name:
Title:
ATTEST:
By___________________________
Xxxxxxxxx X. Xxxxx
Secretary
XXXXXXX-XXXXXX HOLDING INC.
By___________________________
Name:
Title:
ATTEST:
By___________________________
Xxxxxxxxx X. Xxxxx
Secretary
