PLAN OF REORGANIZATION AND AGREEMENT OF MERGER
This Plan of Reorganization and Agreement of Merger (the "Merger
Agreement") is made as of September 22, 1997, by and among XXXXX Financial, a
Delaware Corporation ("Surviving Company"), and XXXXX Financial, a California
Corporation ("Merging Company"). Surviving Company and Merging Company together
are hereinafter sometimes referred to as "Constituent Corporations."
WHEREAS, Surviving Company has an authorized capital stock consisting of
15,000,000 shares of Common Stock, $.01 par value, of which 1,000 shares are
issued and outstanding, and 5,000,000 shares of Preferred Stock, $.01 par value,
none of which are issued and outstanding;
WHEREAS, Merging Company has an authorized capital stock consisting of
10,000,000 shares of Common Stock, without par value, of which 949,989 shares
are issued and outstanding and 5,000,000 shares of Preferred Stock, without par
value, of which 941,177 shares are designated as Series A Preferred Stock and
are outstanding;
WHEREAS, the respective Boards of Directors of Surviving Company and
Merging Company deem it advisable that Merging Company merge into Surviving
Company upon terms and conditions herein provided (the "Merger") and have each
approved this Merger Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties herein contained, the parties hereto agree that
in accordance with the California General Corporation Law, and the Delaware
General Corporation Law, Merging Company shall be merged with and into Surviving
Company in accordance with the following terms and conditions:
1. MERGER. Effective upon the filing of this Merger Agreement, or such
other certificates as may be properly filed in place thereof, under the
California General Corporation Law and the Delaware General Corporation
Law (the "Effective Date"), Merging Company and Surviving Company shall
be merged with and into a single corporation, which shall be Surviving
Company as the surviving corporation. The separate corporate existence
of Merging Company shall cease on the Effective Date.
2. ARTICLES/CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation of Surviving Company, as amended and in effect immediately
prior to the Merger, shall continue to be the Certificate of
Incorporation of Surviving Company after the Merger without change or
amendment until further amended in accordance with the provisions thereof
and applicable law.
The Bylaws of Surviving Company, as amended and in effect immediately
prior to the Merger, shall be the Bylaws of Surviving Company after the
Merger, without
change or amendment until further amended in accordance with the
provisions thereof and applicable law.
3. DIRECTORS AND OFFICERS. The directors and officers of Surviving Company
immediately prior to the Merger shall continue as the directors and
officers, respectively, of the Surviving Company after the Merger to hold
office until the expiration of their current terms, or their prior
resignation, removal or death.
4. SUCCESSION. On the Effective Date, Surviving Company shall succeed to
Merging Company in the manner of, and as more fully set forth in, Section
259 of the Delaware General Corporation Law.
5. FURTHER ASSURANCES. From time to time, as and when required by Surviving
Company or by its successors and assigns, there shall be executed and
delivered on behalf of Merging Company such deeds and other instruments,
and there shall be taken or caused to be taken by it such further and
other action, as shall be appropriate or necessary in order to vest or
perfect in or to confirm of record or otherwise in Surviving Company the
title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of Merging
Company, and otherwise to carry out the purposes of this Merger
Agreement, and the officers and directors of Surviving Company are fully
authorized in the name and on behalf of Merging Company or otherwise to
take any and all such action and to execute and deliver any and all such
deeds and other instruments.
6. CAPITAL STOCK OF SURVIVING COMPANY. On the Effective Date, by virtue of
the Merger and without any action on the part of any holder thereof, each
share of the Common Stock without par value, and of the Series A
Preferred Stock without par value, of the Merging Company outstanding
immediately prior thereto shall be changed and converted into one fully
paid and nonassessable share of the Common Stock, par value $.01 per
share, or the Series A Preferred Stock, par value $.01 per share,
respectively, of the Surviving Company.
7. COMMON STOCK OF SURVIVING COMPANY. On the Effective Date, by virtue of
the Merger and without any action on the part of the holder thereof, each
share of the Common Stock $.01 per share par value, of the Surviving
Company outstanding immediately prior thereto shall be canceled.
8. STOCK CERTIFICATES. On the Effective Date, all of the outstanding
certificates that prior to that time represented shares of the Common
Stock or Series A Preferred Stock of the Merging Company shall be
cancelled and shall represent the right to receive new certificates
representing the same number of shares of Common Stock or Series A
Preferred Stock, respectively, of the Surviving Company (each a "New
Certificate"). Each registered owner on the books and records of the
Merging Company or its transfer agents of any stock certificate of the
Merging Company shall receive, within 30 days after the Effective Date, a
New Certificate. Until any certificate of the Merging Company shall have
been surrendered for transfer or
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conversion or otherwise accounted for to the Surviving Company or its
transfer agents, or until the holder thereof shall have received a New
Certificate, the holder of the certificate of the Merging Company shall
have and be entitled to exercise any voting and other rights with respect
to, and to receive any dividend and other distributions upon, the shares
of the Surviving Company to which such person is entitled.
9. OPTIONS AND WARRANTS. Upon the Effective Date, all outstanding and
unexercised portions of all options and warrants to buy Common Stock of
the Merging Company shall become options or warrants, respectively, to
buy the same number of shares of Common Stock of the Surviving Company
and, effective upon the Effective Date, the Surviving Company hereby
expressly adopts and assumes all outstanding and unexercised portions of
such options or warrants, respectively, and all obligations of the
Merging Company with respect thereto.
10. ABANDONMENT. At any time before the Effective Date, this Merger
Agreement may be terminated and the Merger may be abandoned at the
election of either of the Boards of Directors of the Merging Company
or the Surviving Company, whether before or after approval of this
Merger Agreement by the shareholders of the Merging Company or the
Surviving Company, if either Board of Directors shall have determined
that the Merger is not in the best interest of the Merging Company or
the Surviving Company, respectively, or their respective shareholders.
11. COUNTERPARTS. This Merger Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and such
counterparts shall together constitute but one and the same
instrument.
12. CONDITION. The consummation of the Merger is conditioned upon the
prior receipt of all requisite approvals of the California Department
of Insurance.
IN WITNESS WHEREOF, this Merger Agreement, having first been duly
approved by the Boards of Directors and shareholders of Surviving Company and
Merging Company, is hereby executed on behalf of each of said corporations by
their respective officers hereunto duly authorized.
XXXXX FINANCIAL
a California corporation
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------
Senior Vice President
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Secretary
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XXXXX FINANCIAL
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------
Senior Vice President
ATTEST:
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Secretary
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