EXHIBIT 2
PLAN AND AGREEMENT OF MERGER
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THIS PLAN AND AGREEMENT OF MERGER dated as of April 22, 1999 (this
"Agreement") is between Xxxxxx Funding Corporation, a Delaware corporation
("HFC"), and Xxxxxx Funding Corporation II, a Delaware corporation ("HFC II",
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and together with HFC, the "Constituent Corporations"). All of the issued and
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outstanding shares of capital stock of HFC and HFC II are owned by Xxxxxx
Financial, Inc., a Delaware corporation.
ARTICLE I
I.1 On the Merger Date (as defined in Section 1.6), HFC II shall be
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merged with and into HFC (the "Merger") in accordance with the General
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Corporation Law of the State of Delaware (the "DGCL") and the separate corporate
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existence of HFC II shall cease. HFC shall be the surviving corporation in the
Merger (hereinafter sometimes referred to as the "Surviving Corporation") and
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its separate corporate existence, with all its purposes, objects, rights,
privileges, powers and franchises, shall continue unaffected and unimpaired by
the Merger.
I.2 HFC shall succeed to all of the rights, privileges, powers and
franchises, of a public as well as of a private nature, of HFC II, all of the
properties and assets of HFC and all of the debts, chooses in action and other
interests due or belonging to HFC II shall be subject to, and responsible for,
all of the debts, liabilities and duties of HFC II with the effect set forth in
the DGCL.
I.3 If, at any time after the Merger Date, HFC shall consider or be
advised that any deeds, bills of sale, assignments, assurances or any other
actions or things are necessary or desirable to vest, perfect or confirm of
record or otherwise in HFC its right, title or interest in, to or under any of
the rights, properties or assets of HFC II acquired or to be acquired by HFC as
a result of, or in connection with, the Merger or to otherwise carry out this
Agreement, the officers and directors of HFC shall and will be authorized to
executed and deliver, in the name and on behalf of the Constituent Corporations
or otherwise, all such deeds, bills of sale, assignments and assurances and to
take and do, in the name and on behalf of the Constituent Corporation or
otherwise, all such other actions and things as may be necessary or desirable to
vest, perfect or confirm any and all right, title and interest in, to and under
such rights, properties or assets in HFC II or to otherwise carry out this
Agreement.
I.4 The Certificate of Incorporation of HFC shall be the Certificate
of Incorporation of the Surviving Corporation. The Bylaws of HFC, as amended up
to and including the Merger Date, shall be the Bylaws of the Surviving
Corporation and each such document shall thereafter continue to be the
Certificate of Incorporation and Bylaws of the Surviving Corporation until
changed as provided therein and by law.
I.5 The directors and officers of HFC immediately prior to the Merger
Date shall be the directors and officers of the Surviving Corporation and shall
thereafter continue in office in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation.
I.6 If this Agreement is not terminated under Section 3.1, a
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Certificate of Ownership and Merger with respect to the Merger shall be promptly
filed and recorded with the Secretary of State of the State of Delaware in
accordance with the DGCL. The Merger shall become effective at the time and
date of such filings or at such date and time otherwise specified in the
Certificate of Ownership and Merger (such time and date are herein collectively
referred to as the "Merger Date").
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ARTICLE II
II.1 On the Merger Date, by virtue of the Merger and without further
action by the holder thereof, each share of HFC II stock held by Xxxxxx
Financial, Inc. shall be canceled and cease to exist immediately upon the Merger
Date.
ARTICLE III
III.1 This Agreement may be amended to the extent permitted by
applicable law.
III.2 This Agreement may be executed in one or more counterparts, all
of which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to each of the other parties.
III.3 This Agreement shall be governed by and construe in accordance
with the laws of the State of Delaware without regard to conflicts of laws
thereof.
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IN WITNESS WHEREOF, this Agreement has been executed by each of the
parties hereto by their duly authorized officers, and of the date first above
written.
XXXXXX FUNDING CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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XXXXXX FUNDING CORPORATION II
By: /s/ Xxxxx X.Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Vice President
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