AGREEMENT
AND PLAN OF MERGER OF
PASTERY PRODUCT PRODUCERS, LLC,
a New York Limited Liability Company
INTO
BAKERY ACQUISITION CORPORATION,
A Delaware Corporation
THIS AGREEMENT AND PLAN OF MERGER, dated August 28, 2000, made by and
among BAKERY ACQUISITION CORPORATION, a Delaware Corporation ("Sub-Sub-
Parent"), and PASTERY PRODUCT PRODUCERS, LLC, a New York Limited
Liability Company ("Subsidiary") (collectively the "Constituent
Corporations").
WITNESSETH:
WHEREAS, Subsidiary desires to merge with and into Sub-Parent,
with Sub-Parent being the surviving corporation (the "Merger"), on the
terms, and subject to the conditions, set forth in this Plan of Merger
(the "Plan"); and
WHEREAS, Sub-Parent owns 100% of Subsidiary's outstanding Common
Stock; and
WHEREAS, the Board of Directors of Sub-Parent has determined that
it is advisable that Subsidiary be merged into Sub-Parent, on the terms
and conditions set forth, in accordance with Title 8, Section 264(c) of
the Delaware General Corporation Law (the "DGCL").
NOW, THEREFORE, in consideration of the promises and of the mutual
agreements, covenants, and provisions contained herein, the parties
agree as follows:
ARTICLE I
THE MERGER
1. The term "Effective Date" shall mean the date on which the
Articles of Merger are filed with the Secretary of State of Delaware.
2. On the Effective Date, Subsidiary shall be merged with and
into Sub-Parent. The separate existence of Subsidiary shall cease at the
Effective Date and the existence of Sub-Parent shall continue unaffected
and unimpaired by the Merger with all the rights, privileges,
immunities, and franchises, of a public as well as of a private nature,
and subject to all the duties and liabilities of corporations organized
under the laws of the state of Delaware.
3. The Plan of Merger has been approved by the Board of
Directors of Sub-Parent in accordance with the DGCL. Sub-Parent shall
deliver notice of the Merger to the remaining shareholders of
Exhibit 6(a)(ii) - Pg. 1
Subsidiary. Sub-Parent agrees not to file Articles of Merger with the
Delaware Secretary of State in accordance with the Act until at least 30
days after the notice is mailed (unless the remaining shareholders of
Subsidiary waive such notice in writing).
ARTICLE II
EFFECTS OF THE MERGER
At the Effective Date, Sub-Parent shall possess all the rights,
privileges, immunities, and franchises, of both a public and private
nature, of Subsidiary, and shall be responsible and liable for all
liabilities and obligations of Subsidiary, all as more particularly set
forth in the DGCL.
ARTICLE III
TERMS OF THE TRANSACTION;
CONVERSION OF AND PAYMENT FOR SHARES
The manner and basis of converting shares of Subsidiary's Common
Stock into shares of Sub-Parent Stock shall be as follows:
1. Each share of Subsidiary's common stock (the "Subsidiary
Common Stock") issued and outstanding on the Effective Date and all
rights in respect thereof shall, by virtue of the Merger and without any
action on the part of the holders, be converted into one share of the
presently authorized and unissued shares of the common stock of Sub-
Parent (the "Sub-Parent Common Stock"); provided that no fractional
share of Sub-Parent Common Stock shall be issued or exchanged for shares
of Subsidiary Common Stock. Notwithstanding the foregoing, each share of
Subsidiary Common Stock held by Sub-Parent shall, by virtue of the
Merger and without any action on the part of Sub-Parent, be canceled
simultaneously with the effectiveness of the Merger.
2. There are no holders of fractional shares of the Subsidiary.
3. As soon as practicable after the Effective Date, a letter of
transmittal providing instructions for surrendering certificates for
cancellation and to be used for transmitting certificates for
cancellation shall be delivered to all of the shareholders of
Subsidiary.
ARTICLE IV
DISSENTERS' RIGHTS
Any shareholder of Subsidiary may, if applicable, may exercise
Dissenters' Rights, as provided for in the DGCL.
Exhibit 6(a)(ii) - Pg. 2
ARTICLE V
ASSIGNMENT
If at any time Sub-Parent shall consider or be advised that any
further assignment or assurances in law are necessary or desirable to
vest, perfect, or confirm or record in Sub-Parent the title to any
property or rights of Subsidiary, or to otherwise carry out the
provisions of this Plan, the proper officers and directors of Subsidiary
as of the Effective Date shall execute and deliver any and all proper
deeds, assignments, and assurances in law, and do all things necessary
or proper to vest, perfect, confirm, or record the title to such
property or rights in Sub-Parent.
ARTICLE VI
EXPENSES
Sub-Parent shall pay all expenses of accomplishing the Merger.
ARTICLE VII
AMENDMENT
At any time before the filing with the Delaware Secretary of State
of the Articles of Merger to be filed in connection with this Plan, the
Directors of Sub-Parent may amend this Plan. If the Articles of Merger
already have been filed with the Secretary of State, amended Articles of
Merger shall be filed with the Secretary of State, but only if such
amended Articles of Merger can be filed before the Effective Date.
ARTICLE VIII
TERMINATION
If for any reason consummation of the Merger is inadvisable in the
opinion of the Board of Directors of Sub-Parent, this Plan may be
terminated at any time before the Effective Date by resolution of the
Board of Directors of Sub-Parent. On termination as provided in this
Plan, this Plan shall be void and of no further effect, and there shall
be no liability by reason of this Plan or the termination of this Plan
on the part of Sub-Parent or Subsidiary, or their Directors, officers,
employees, agents, or shareholders.
IN WITNESS WHEREOF, the parties have set their hands on August 28,
2000.
Exhibit 6(a)(ii) - Pg. 3
SUB-PARENT:
BAKERY ACQUISITION CORPORATION
a Delaware corporation
By: /s/
SUBSIDIARY:
PASTERY PRODUCT PRODUCERS, LLC
a New York LLC
By: /s/
Exhibit 6(a)(ii) - Pg. 4
