EXHIBIT 3.3
Execution Copy
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated November 20, 2003, by and between
M-Foods Holdings, Inc., a Delaware corporation and successor to THL Food
Products Co. ("Holdings"), and Xxxxxxx Foods, Inc., a Minnesota corporation
("MFI"). Each of Holdings and MFI are referred to herein as a "Constituent
Corporation."
WHEREAS, the respective Boards of Directors of Holdings and MFI deem it
desirable and for the benefit of the respective Constituent Corporations and
their respective stockholders that the Constituent Corporations be merged into a
single corporation with Holdings being the surviving corporation (the "Surviving
Corporation").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein, the parties hereto agree that, pursuant to Section 302A.651 of the
Minnesota Business Corporation Act and Section 252 of the Delaware General
Corporation Law, the Constituent Corporations shall be merged into a single
corporation (the "Merger"), and that the terms and conditions of the Merger are
as follows:
Article I
On the Effective Date of the Merger (as hereinafter defined), MFI shall be
merged with and into Holdings, with Holdings being the surviving corporation
(the "Surviving Corporation"), and the separate existence of MFI shall cease.
Article II
The name of the Surviving Corporation shall be "Xxxxxxx Foods, Inc."
Article III
The Surviving Corporation is authorized to issue 3,000 shares of capital
stock, all which shares are common stock, $0.01 par value per share (the "Common
Stock").
Article IV
The shares of common stock, no stated par value per share, of Holdings
issued and outstanding as of the Effective Date of the Merger shall be converted
on a one-to-one share basis into shares of Common Stock of the Surviving
Corporation such that ownership of one share of common stock of Holdings that is
issued and outstanding shall entitle the owner thereof to a total of one share
of Common Stock of the Surviving Corporation.
Article V
On the Effective Date of the Merger, the Certificate of Incorporation and
By-Laws of Holdings immediately prior to the Effective Date attached hereto as
Exhibit A and Exhibit B, respectively, shall be the Certificate of Incorporation
and By-Laws of the Surviving Corporation.
Article VI
The Directors and Officers of Holdings shall continue to serve as the
Directors and Officers of the Surviving Corporation, until their resignation or
removal or until their successors have been duly elected and qualified.
Article VII
This Agreement shall be submitted to the Stockholders of Holdings and MFI
at a meeting thereof called for the purpose of considering and acting upon this
Agreement or by consent of Stockholders in lieu of a meeting.
Article VIII
As used herein, the term "Effective Date of the Merger" shall mean the date
that a Certificate of Merger is filed with the Secretary of the State of
Minnesota and the Secretary of the State of Delaware, in accordance with the
laws of the respective jurisdictions.
Article IX
The Merger contemplated by this Agreement may be abandoned by mutual
consent and agreement of Holdings and MFI at any time prior to the filing of the
Certificates of Merger with the Secretary of the State of Minnesota and the
Secretary of the State of Delaware.
WITNESS the execution hereof under seal on the day and year first above
written.
M-FOODS HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer and
President
XXXXXXX FOODS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Chief Executive Officer and
President
Signature Page to Agreement and Plan of Merger between
M-Foods Holdings, Inc. and Xxxxxxx Foods, Inc.
