Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
THE XXXXX GROUP, INC.
AND
SWEETHEART CUP COMPANY INC.
DATED AS OF MARCH 25, 2002
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of March 25, 2002 (this
"Agreement"), by and between The Xxxxx Group, Inc., a Delaware corporation
("Xxxxx"), and Sweetheart Cup Company Inc. ("Sweetheart").
WHEREAS, the respective boards of directors of Xxxxx and Sweetheart,
deeming it advisable and for the respective benefit of Xxxxx and Sweetheart and
their stockholders, have approved this Agreement pursuant to which, among other
things, Xxxxx will be merged with and into Sweetheart ("Merger") on the terms
and conditions contained herein and in accordance with the General Corporation
Law of the State of Delaware (the "DGCL");
NOW, THEREFORE, in consideration of the promises and agreements
herein contained, and intending to be legally bound hereby, the parties hereby
agree as follows:
ARTICLE 1
THE MERGER
SECTION 1.1 The Merger. Upon the terms and subject to the conditions of this
Agreement, at the Effective Time and in accordance with the DGCL, Xxxxx shall be
merged with and into Sweetheart. Following the Merger, the separate corporate
existence of Xxxxx shall cease and Sweetheart shall continue as the surviving
corporation ("Surviving Corporation") under the name "Sweetheart Cup Company
Inc."
SECTION 1.2 Closing. The closing of the transaction contemplated hereby shall
take place at the offices of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx (the "Closing") as soon as practicable after all of
the conditions to the Closing set forth in Article 3 have been satisfied or
waived, unless another date, time or place is agreed to in writing by the
parties hereto. The date on which the Closing actually occurs is hereinafter
referred to as the "Closing Date."
SECTION 1.3 Effective Time. Simultaneously with the Closing, the parties hereto
shall cause the Merger to be consummated by (i) filing a certificate of merger
(the "Certificate of Merger") in such form as is required by and executed in
accordance with the relevant provisions of the DGCL, and (ii) making all other
filings or recordings required under the DGCL. The Merger shall become effective
at such time as the Certificate of Merger is duly filed with the Secretary of
State of the State of Delaware or at such subsequent time as the parties shall
agree and shall be specified in the Certificate of Merger (the date and time the
Merger becomes effective being the "Effective Time").
SECTION 1.4 Certificate of Incorporation. At the Effective Time, the certificate
of incorporation of Sweetheart, as in effect immediately prior to the Effective
Time, shall be the certificate of incorporation of the Surviving Corporation,
unless and until thereafter changed or amended as provided therein or in
accordance with applicable law, except that Article ELEVENTH of the certificate
of incorporation shall be deleted in its entirety.
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SECTION 1.5 By-laws. At the Effective Time, the by-laws of Xxxxx, as in effect
immediately prior to the Effective Time, shall be the by-laws of the Surviving
Corporation, unless and until thereafter changed or amended as provided therein
or in the certificate of incorporation of the Surviving Corporation or by
applicable law.
SECTION 1.6 Directors and Officers. At the Effective Time, the directors of
Sweetheart immediately preceding the Effective Time shall become the directors
of the Surviving Corporation to serve until the earlier of their death,
resignation or removal or until their respective successors are duly elected and
qualified. At the Effective Time, the officers of Sweetheart immediately
preceding the Effective Time shall become the officers of Surviving Corporation
until the earlier of their death, resignation or removal or until their
respective successors are duly elected or qualified.
ARTICLE 2
CONVERSION OF CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
SECTION 2.1 At the Effective Time, by virtue of the Merger and without any
action on the part of Sweetheart, Xxxxx or their respective stockholders:
(a) Conversion of Capital Stock of Xxxxx. Each share of common stock,
par value $.01 per share, of Xxxxx (the "Xxxxx Common Stock"), issued and
outstanding immediately prior to the Effective Time shall be cancelled.
(b) Treasury Shares. Each share of Xxxxx Common Stock held in treasury
by Xxxxx immediately prior to the Effective Time shall be cancelled and retired
and cease to exist, without any conversion thereof.
(c) Stock Certificates. On or after the Effective Time, all of the
outstanding stock certificates which prior to that time represented shares of
Xxxxx Common Stock shall be deemed cancelled.
ARTICLE 3
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 3.1 Conditions to Each Party's Obligations to Effect the Merger. The
respective obligations of each party hereto to effect the Merger and the other
transactions contemplated by this Agreement are subject to the satisfaction at
or prior to the Effective Time of the following conditions:
(a) this Agreement (including the Merger) shall have been approved and
adopted by the applicable requisite vote of the stockholders of Sweetheart and
Xxxxx;
(b) no statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or enforced by any
governmental entity which prohibits, restrains, enjoins or restricts the
consummation of the transaction contemplated by this Agreement (including the
Merger) or which subjects any party to substantial damages as a result
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of the consummation of the transaction contemplated by this Agreement (including
the Merger); and
(c) all required consents, approvals, waivers and authorizations of any
governmental entity or regulatory agency which are necessary to effect the
transactions contemplated by this Agreement (including the Merger) shall have
been obtained.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1 Termination. This Agreement may be terminated and the Merger may be
abandoned at any time prior to the Effective Time, notwithstanding approval
thereof by the stockholders of Sweetheart and Xxxxx, if, in the opinion of the
Boards of Directors of Sweetheart or Xxxxx, such action would be in the best
interests of such corporations. In the event that this Agreement is terminated
and the Merger abandoned pursuant to this Section 4.1, no party hereto and none
of their respective subsidiaries or any of the officers or directors of any of
them shall have any liability of any nature whatsoever hereunder, or in
connection with the transaction contemplated hereby.
SECTION 4.2 Amendment. This Agreement may be amended by action taken by
Sweetheart and Xxxxx at any time before or after approval of the Merger by the
stockholders of Sweetheart and Xxxxx but, after any such approval, no amendment
shall be made which requires the approval of such stockholders under applicable
law without such approval. This Agreement may not be amended except by an
instrument in writing signed on behalf of the parties hereto.
SECTION 4.3 Entire Agreement; Assignment. This Agreement (a) constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof
and (b) shall not be assigned by operation of law or otherwise.
SECTION 4.4 Severability. If any term or other provision of this Agreement is
invalid, illegal or unenforceable, all other provisions of this Agreement shall
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to any party.
SECTION 4.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
SECTION 4.6 Interpretation. The headings herein are for convenience of reference
only, do not constitute part of this Agreement and shall not be deemed to limit
or otherwise affect any of the provisions hereof. Where a reference in this
Agreement is made to a Section or Article, such reference shall be to a Section
or Article of this Agreement unless otherwise indicated. Where the reference
"hereby" or "herein" appears in this Agreement, such reference shall be deemed
to be a reference to this Agreement as a whole. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words
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"without limitation." Words denoting the singular include the plural, and vice
versa, and references to "it" or "its" or words denoting any gender shall
include all genders.
SECTION 4.7 Governing Law and Venue. THIS AGREEMENT SHALL BE DEEMED TO BE MADE
IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT
OF LAW PRINCIPLES THEREOF.
[Signature Page follows]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed on its behalf as of the day and year first above written.
SWEETHEART CUP COMPANY INC.
By /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
THE XXXXX GROUP, INC.
By /s/ Xxxx X. Xxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
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