EXHIBIT B
AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger (the "Plan") dated as of
______________, 1997 by and between The Xxxxx Company, an Oklahoma
corporation ("Xxxxx"), and The NBC Company, an Oklahoma corporation
("NBC"), herein sometimes referred to as the "Surviving Corporation", Xxxxx
and NBC being sometimes hereinafter collectively referred to as the
"Constituent Corporations".
W I T N E S S E T H :
WHEREAS, NBC is a corporation organized and existing under and by
virtue of the laws of the State of Oklahoma and having an authorized
capitalization of (i) 10 million shares of common stock, par value $.001
(the "NBC Common Stock"), 100 shares of which are currently issued and
outstanding, and (ii) 5 million shares of preferred stock, par value $1.00
(the "NBC Preferred Stock"), of which no shares are currently issued and
outstanding. All outstanding shares of NBC Common Stock have been duly
authorized and validly issued, and are fully paid and non-assessable. All
outstanding shares are held of record and beneficially by Xxxxx; and
WHEREAS, Xxxxx is a corporation organized and existing under and
by virtue of the laws of the State of Oklahoma and having an authorized
capitalization of (i) 10 million shares of common stock, par value $.001
(the "Xxxxx Common Stock"), 2,799,074 shares of which are currently issued
and outstanding, and (ii) 5 million shares of preferred stock, par value
$1.00 (the "Xxxxx Preferred Stock") of which 90,155.86 shares are currently
issued and outstanding. All outstanding shares of Xxxxx Common Stock have
been duly authorized and validly issued, and are fully paid and non-
assessable; and
WHEREAS, the respective boards of directors of each of the
Constituent Corporations deem it advisable and in the best interest of each
such corporation and their respective shareholders that Xxxxx be merged
with and into NBC in the manner contemplated herein and have adopted
resolutions approving this Plan and have recommended that the merger of
Xxxxx with and into NBC (the "Merger") be approved and that this Plan be
approved and adopted by the shareholders of the Constituent Corporations;
and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained and subject to the conditions
herein set forth and for the purpose of stating the terms and conditions of
the Merger, the mode of carrying the same into effect, the manner and basis
of converting the shares of Xxxxx Common Stock and Xxxxx Preferred Stock
and other such details and provisions as are deemed desirable, the parties
hereto have agreed and do hereby agree, subject to the terms and conditions
hereinafter set forth, as follows:
ARTICLE I
The Constituent Corporations shall be merged into a single
corporation by Xxxxx merging into and with NBC, the Surviving Corporation,
which shall survive the Merger, pursuant to the provisions of the Oklahoma
General Corporation Act (the "Merger"). Upon such Merger, the separate
existence of Xxxxx shall cease, and the Surviving Corporation shall become
the owner, without transfer, of all rights and property of the Constituent
Corporations, and shall be subject to all the liabilities of the
Constituent Corporations in the same manner as if the Surviving Corporation
had itself incurred them, all as provided by the Oklahoma General
Corporation Act.
ARTICLE II
A. On the Effective Date of the Merger, which shall be 5:00
p.m., CST, on the date Certificate of Merger is filed with the Oklahoma
Secretary of State (the "Effective Date of the Merger"), the Certificate of
Incorporation of NBC, as currently in effect, shall be the Certificate of
Incorporation of the Surviving Corporation, except that the name of the
Surviving Corporation shall be changed to The Xxxxx Company.
B. On the Effective Date of the Merger, the bylaws of NBC, as
in effect on the Effective Date of the Merger, shall become the bylaws of
the Surviving Corporation. Subsequent to the Effective Date of the Merger,
such bylaws shall be the bylaws of the Surviving Corporation until they
shall thereafter be duly amended.
C. On the Effective Date of the Merger, the directors and
officers of Xxxxx shall become the directors and officers of the Surviving
Corporation until their successors are duly elected and qualified.
ARTICLE III
On the Effective Date of the Merger:
(a) Each share of Xxxxx Common Stock issued and outstanding
immediately prior to the Effective Date of the Merger, by virtue of the
Merger and without any action on the part of the holder thereof, shall be
converted into one share of NBC Common Stock.
(b) Each outstanding share of NBC held by Xxxxx shall be
cancelled and no payment shall be made in respect thereof.
(c) Each share and fraction thereof of Xxxxx Preferred
Stock issued and outstanding immediately prior to the Effective Date of the
Merger, by virtue of the Merger and without any action on the part of the
holder thereof, shall be converted into one share of NBC Preferred Stock.
ARTICLE IV
This Plan shall be submitted to the shareholders of the
Constituent Corporations for approval in the manner provided by applicable
Oklahoma law. After approval by the vote of the holders representing not
less than a majority of the issued and outstanding shares of the respective
Constituent Corporations entitled to vote on the Merger, a Certificate of
Merger containing this Plan shall be filed in the Office of the Secretary
of State of Oklahoma.
ARTICLE V
For the convenience of the parties hereto and to facilitate the
filing and recording of this Plan, any number of counterparts hereof may be
executed, and each such counterpart shall be deemed to be an original
instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Plan to be executed by its respective duly authorized officers as of the
day and year first written above.
THE XXXXX COMPANY, an Oklahoma corporation
By: Xxxx Xxx, Xx., President
ATTEST:
Xxxxxxx X. Xxxxxxx, Secretary
THE NBC COMPANY, an Oklahoma corporation
By: Xxxx Xxx, Xx., President
ATTEST:
Xxxxxxx X. Xxxxxxx, Secretary
