EXHIBIT 2.3
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated this 27th day of December,
2001 (this "Agreement and Plan of Merger"), is made by and between Door
Holdings, Inc., a Delaware corporation ("Door Holdings" or the "Surviving
Corporation") and X.X. Xxxxx Company - South, a Delaware corporation
("Xxxxx-South" or the "Non-Surviving Corporation").
RECITALS
WHEREAS, the parties desire to streamline their operations, minimize
tax obligations, and reduce the overall costs of doing business by consolidating
operations into one corporate entity (the "Merger");
WHEREAS, to effect these objectives, and upon the terms and subject to
the conditions of this Agreement and Plan of Merger and in accordance with the
Delaware General Corporation Law (the "DGCL"), Xxxxx-South proposes to merge
with and into Door Holdings, with Door Holdings being the surviving entity;
WHEREAS, the parties intend for federal income tax purposes that the
Merger shall qualify for treatment under Section 332(a) of the Internal Revenue
Code of 1986, as amended, (the "Code"), Section 337(a) of the Code and Section
368(a) of the Code; and
WHEREAS, the Boards of Directors of Xxxxx-South and Door Holdings have
adopted resolutions approving this Agreement and Plan of Merger and the
transactions contemplated hereunder.
NOW, THEREFORE, to effect the Merger and in consideration of the
premises and the mutual covenants and agreements contained herein, the parties
hereby provide for the following terms and conditions of the Merger:
1. Merger
On the Effective Date (as defined in Section 10) and subject to the
terms and conditions of this Agreement and Plan of Merger, Xxxxx-South shall be
merged with and into Door Holdings, which latter corporation shall be the
surviving corporation in the Merger. The corporate existence of Door Holdings
with all of its purposes, powers and objects, shall continue unaffected and
unimpaired by the Merger.
As of the Effective Date, the separate corporate existence of
Xxxxx-South shall cease and thereupon Xxxxx-South and Door Holdings shall be a
single corporation, to wit, Door Holdings, as such Surviving Corporation, shall
be governed by the laws of the State of Delaware.
2. Vesting of Assets and Liabilities of the Non-Surviving Corporation in
Surviving Corporation
On the Effective Date, all rights, immunities, privileges, powers and
franchises of the Non-Surviving Corporation, all property, real, personal and
mixed, tangible and intangible, all debts due on accounts, and all causes of
action and rights to bring an action belonging to the
Non-Surviving Corporation shall vest in the Surviving Corporation without
further act or deed as they were vested in the Non-Surviving Corporation, and
the title to any real estate, whether vested by deed or otherwise, or a
leasehold interest in real estate, shall not revert or be in any way impaired by
reason of the Merger; and the Surviving Corporation shall thenceforth assume and
be responsible for all such debts, liabilities, obligations and duties of the
Non-Surviving Corporation and all such debts, liabilities, obligations and
duties shall thenceforth attach to the Surviving Corporation and may be enforced
against it to the same extent as if such debts, liabilities, obligations and
duties had been incurred or contracted by the Surviving Corporation.
The liabilities existing on the Effective Date of the Non-Surviving
Corporation or of its directors or officers shall not be affected, nor shall the
rights of creditors thereof or of any person dealing with the Non-Surviving
Corporation, or any liens upon the property of the Non-Surviving Corporation, be
impaired by the Merger, and all rights of creditors and all liens upon the
property of the Non-Surviving Corporation shall be preserved unimpaired, and any
action or proceeding pending by or against the Non-Surviving Corporation may be
prosecuted to judgment the same as if the Merger had not taken place, which
judgment shall bind the Surviving Corporation, or the Surviving Corporation may
be proceeded against or substituted in its place.
If at any time after the Effective Date, the Surviving Corporation
shall consider or be advised that any further assignments or instruments are
necessary or desirable to vest, perfect or confirm in it the title to any assets
or rights of the Non-Surviving Corporation acquired or to be acquired by reason
of, or as a result of, the Merger, the Non-Surviving Corporation and its
officers and directors shall and will execute and deliver all such deeds,
assignments and instruments and do all things necessary or proper to vest,
perfect or confirm title to such assets or rights in the Surviving Corporation
and otherwise to carry out the purpose of this Agreement and Plan of Merger, and
the officers and directors of the Non-Surviving Corporation and the officers and
directors of the Surviving Corporation are fully authorized in the name of the
Non-Surviving Corporation and the Surviving Corporation to take any and all such
action.
3. Name
The name of the surviving corporation in the Merger shall be Door
Holdings, Inc.
4. Certificate of Incorporation
The Certificate of Incorporation of Door Holdings, including any
amendments thereto, as in effect immediately prior to the Effective Date, shall
be the Certificate of Incorporation of the Surviving Corporation and thereafter
shall continue to be its Certificate of Incorporation (until amended as provided
therein and under the DGCL).
5. By-Laws
The By-Laws of Door Holdings, including any amendments thereto, as in
effect immediately prior to the Effective Date, shall be the By-Laws of the
Surviving Corporation and thereafter shall continue to be its By-Laws (until
amended as provided therein and under the DGCL).
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6. Directors of the Surviving Corporation
Those persons serving as members of the Board of Directors of Door
Holdings on the Effective Date shall be members of the Board of Directors of the
Surviving Corporation and shall hold office until their respective successors
are duly elected or appointed, or their earlier death, resignation or removal in
accordance with the Certificate of Incorporation and the By-laws of the
Surviving Corporation. Those persons serving as members of the Board of
Directors of the Non-Surviving Corporation immediately prior to the Effective
Date shall cease serving as such members as of the Effective Date.
7. Officers
All persons holding office in Door Holdings on the Effective Date shall
be officers of the Surviving Corporation, and shall hold office in the same
capacities and with the same titles, powers and responsibilities, subject to the
By-Laws of the Surviving Corporation, from the Effective Date and for the same
term and subject to the same conditions as such offices were held in Door
Holdings immediately prior to the Effective Date. Those persons serving as
officers of the Non-Surviving Corporation immediately prior to the Effective
Date shall cease holding their respective offices as of the Effective Date.
8. Cancellation of Shares
On the Effective Date, by virtue of the Merger and without any further
action on the part of either Xxxxx-South or Door Holdings or their respective
stockholders, each share of stock of Xxxxx-South shall be canceled and the
certificates representing such shares surrendered to the Secretary of the
Surviving Corporation.
9. Door Holdings Shares
Each share of stock of Door Holdings shall remain in full force and
effect and shall not be canceled or surrendered.
10. Effective Date of the Merger
Subject to the provisions of this Agreement and Plan of Merger, the
parties hereto shall cause the Merger to be completed by filing all appropriate
certificates and instruments, including, without limitation, a certificate of
merger (the "Certificate of Merger") in accordance with applicable law, and the
Merger shall become effective upon the filing of the Certificate of Merger with
the Secretary of State of the State of Delaware (the "Effective Date").
11. Assets, Liabilities, Reserves, and Accounts
Upon the Effective Date, the assets, liabilities, reserves, and
accounts of the Non-Surviving Corporation shall be taken upon the books of the
Surviving Corporation at the amounts at which they would have been carried on
the books of the Non-Surviving Corporation, subject to such adjustments or
eliminations of intercompany items, if any, as may be appropriate in giving
effect to the Merger.
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12. Corporate Acts and Employees of Non-Surviving Corporation
All corporate acts, plans, policies, approvals and authorizations of
the Non-Surviving Corporation, its stockholders, Board of Directors, committees
of the Board of Directors, officers and agents, which were valid and effective
immediately prior to the Effective Date shall be taken for all purposes as the
acts, plans, policies, approvals, and authorizations of the Surviving
Corporation, and shall be as effective and binding thereon as the same were with
respect to the Non-Surviving Corporation. The employees and agents of the
Non-Surviving Corporation shall become the employees and agents of the Surviving
Corporation, and continue to be entitled to the same rights and benefits, and
subject to the same obligations and responsibilities, which they had as
employees and agents of the Non-Surviving Corporation.
13. Termination
This Agreement and Plan of Merger may be terminated and abandoned by
resolutions of the Board of Directors of either Xxxxx-South or Door Holdings at
any time prior to the Effective Date if circumstances develop which in the
opinion of either such Board of Directors make proceeding with the Merger
inadvisable. In the event of the termination and abandonment of this Agreement
and Plan of Merger and the Merger pursuant to the foregoing sentence of this
Section 13, this Agreement shall become void and have no effect, without any
liability on the part of Xxxxx-South or Door Holdings, their stockholders,
directors or officers in respect thereof.
14. Representations and Warranties
(a) Door Holdings represents and warrants to Xxxxx-South as follows:
(i) Door Holdings is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) Door Holdings has all necessary corporate power and
authority to enter into and perform its obligations under this Agreement and
Plan of Merger and the transactions contemplated hereby, and Door Holdings'
execution, delivery and performance of this Agreement and Plan of Merger have
been duly and validly authorized by all necessary action on its part. This
Agreement and Plan of Merger has been duly executed and delivered by Door
Holdings and constitutes its valid and binding obligation, enforceable against
it in accordance with its terms, except as limited by laws affecting creditors'
rights or equitable principles generally.
(b) Xxxxx-South represents and warrants to Door Holdings as follows:
(i) Xxxxx-South is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) Xxxxx-South has all necessary corporate power and
authority to enter into and perform its obligations under this Agreement and
Plan of Merger and the transactions contemplated hereby, and Xxxxx-South's
execution, delivery and performance of this Agreement and Plan of Merger have
been duly and validly authorized by all necessary action on its part. This
Agreement and Plan of Merger has been duly executed and delivered by Xxxxx-South
and
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constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as limited by laws affecting creditors' rights
or equitable principles generally.
15. Governing Law
This Agreement and Plan of Merger shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
choice of law principles thereof.
16. No Rights or Remedies in Third Parties
Except as otherwise expressly provided in this Agreement and Plan of
Merger, nothing herein is intended, or shall be construed, to confer upon or to
give any person, firm or corporation other than Xxxxx-South and Door Holdings
and their respective stockholders any rights or remedies under or by reason of
this Agreement and Plan of Merger.
17. Counterparts
This Agreement and Plan of Merger may be executed in any number of
counterparts, each of which shall be deemed to be an original instrument, but
all of which together shall constitute one and the same instrument.
18. Entire Agreement
This Agreement and Plan of Merger constitutes the entire agreement
between the parties, and supersedes all prior agreements, written or oral,
between Xxxxx-South and Door Holdings as of the date of execution hereof.
19. Severability
In case any one or more of the provisions contained in this Agreement
and Plan of Merger shall for any reason be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision hereof and this Agreement and Plan of
Merger shall be construed as if such invalid, illegal or unenforceable provision
had never been contained herein and, in lieu of each such illegal, invalid or
unenforceable provision, there shall be added as a part of this Agreement and
Plan of Merger, a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
20. Filing of Required Documents
The parties each hereby agree to execute, deliver and file such other
documents and instruments and take such other actions as may reasonably be
requested by the other parties in order to more effectively consummate the
transactions contemplated hereby.
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IN WITNESS WHEREOF, this Agreement and Plan of Merger has been executed
on the day and year first above written.
DOOR HOLDINGS, INC., a Delaware
corporation
By:
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Name:
Title:
X.X. XXXXX COMPANY-SOUTH, a Delaware
corporation
By:
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Name:
Title:
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SECRETARY'S CERTIFICATE
State of Delaware
The undersigned hereby certifies that he is the duly elected Secretary
of X.X. Xxxxx Company-South, a Delaware corporation, and that the foregoing is a
true and correct copy of the Agreement and Plan of Merger executed on the ___
day of December, 2001, by the duly authorized officer of X.X. Xxxxx
Company-South.
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Name:
Secretary
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SECRETARY'S CERTIFICATE
State of Delaware
The undersigned hereby certifies that he is the duly elected Secretary
of Door Holdings, Inc., a Delaware corporation, and that the foregoing is a true
and correct copy of the Agreement and Plan of Merger executed on the ___ day of
December, 2001, by the duly authorized officer of Door Holdings, Inc.
---------------------------------
Name:
Secretary
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