Exhibit 2.1
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER dated as of June ___, 1998 (the
"Agreement"), by and between Aurora Foods Inc., a Maryland corporation
("Aurora") and A Foods Inc., a Delaware corporation ("A Foods").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of Aurora and A Foods
deem it advisable that Aurora merge with and into A Foods (the "Merger"), upon
the terms and conditions herein and in accordance with the laws of the States of
Delaware and Maryland.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
SECTION 1. TERMS
1.1. At the Effective Time (as hereinafter defined) of the Merger,
Aurora shall be merged with and into A Foods, with A Foods as the surviving
corporation (hereinafter also referred to as the "Surviving Corporation").
1.2. The Surviving Corporation is A Foods Inc.
1.3. At the Effective Time, each share of Common Stock of Aurora
issued and outstanding immediately prior to the Effective Time shall, by
virtue of the Merger, be converted into and thereafter represent solely the
right to receive from the Surviving Corporation the sum of $1.00 and all such
issued and outstanding shares shall be cancelled and retired. No shares of
Common Stock of Aurora shall be issuable as a result of the Merger.
1.4. Upon and after the Effective Time, the Surviving Corporation
shall possess all the rights, privileges, powers and franchises, and be subject
to all the restrictions, disabilities and duties, of the Constituent
Corporations (as hereinafter defined); and all rights, privileges, powers and
franchises of the Constituent Corporations shall be vested in and be the
property of the Surviving Corporation; and all debts, liabilities and duties of
the Constituent Corporations shall thenceforth attach to the Surviving
Corporation and may be enforced against it to the same extent as if said debts,
liabilities and duties have been incurred or contracted by it.
SECTION 2. EFFECTIVE TIME
2.1. Subsequent to the execution of this Agreement, Aurora and A
Foods (collectively, the "Constituent Corporations") shall each submit this
Agreement to their respective stockholders for their approval pursuant to the
applicable provisions of the General Corporation Law of the State of Delaware
and the General Corporation Law of the State of Maryland.
2.2. Following approval of this Agreement in accordance with Section
2.1 above, and provided that:
(a) each of the Constituent Corporations shall have received the
approval of its stockholders as required under law; and
(b) this Agreement has not been terminated and abandoned pursuant to
Section 4.2 hereof; the Surviving Corporation will cause a Certificate of Merger
to be executed, acknowledged and filed with the Secretary of States of the
States of Delaware and Maryland, as provided by law.
2.3. The Merger shall become effective immediately upon the filing
of the Certificate of Merger with the Secretary of State of the State of
Delaware (the date and time of such filing being herein referred to as the
"Effective Time").
SECTION 3. CERTIFICATE OF INCORPORATION AND BY-LAWS; BOARD OF DIRECTORS
3.1. The Certificate of Incorporation of A Foods constituted at the
Effective Time shall be amended by changing its name in Article FIRST to "Aurora
Foods Inc." and as so amended shall thereafter be the Certificate of
Incorporation of the Surviving Corporation until such time as it shall be
further amended as provided by law.
3.2. The By-Laws of A Foods shall be the By-Laws of the Surviving
Corporation, subject to alteration, amendment or repeal from time to time by the
Board of Directors or the stockholders of the Surviving Corporation.
3.3. From and after the Effective Time, the members of the Board of
Directors of the Surviving Corporation shall consist of the members of the Board
of Directors of A Foods immediately prior to the Effective Time, to hold office
until the expiration of their then current terms and until their respective
successors shall be elected.
3.4. From and after the Effective Time, the officers of A Foods
shall consist of the officers of A Foods immediately prior to the Effective
Time, to hold office until the next annual meeting of the Stockholders of A
Foods and until their respective successors are elected and appointed.
SECTION 4. AMENDMENT AND TERMINATION
4.1. To the fullest extent permitted by applicable law, the
Constituent Corporations, by mutual consent of their respective Boards of
Directors, may amend, modify or supplement this Agreement in such a manner as
may be agreed upon by them in writing at any time prior to the Effective Time,
even though the Agreement shall have been approved by the stockholders of the
Constituent Corporations or of either thereof.
4.2. This Agreement may be terminated and the Merger abandoned for
any reason by resolution adopted by either of the respective Boards of Directors
of the Constituent Corporations at any time prior to the Effective Time, even
though this Agreement shall have been approved by the stockholders of the
Constituent Corporations or of either thereof.
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized representatives to execute this Agreement as of the date first
written above.
AURORA FOODS INC.,
a Maryland corporation
By:
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Name:
Title:
A FOODS INC.,
a Delaware corporation
By:
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Name:
Title:
