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EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Merger Agreement"), made as of
November 11, 1996, by and between Xxxxx X. Short Company, a North Carolina
corporation ("Short"), and CA Short Company, a Delaware corporation and a
wholly-owned subsidiary of Short ("CASI") (Short and CASI together referred to
as the Constituent Corporations").
WITNESSETH:
WHEREAS, Short is a corporation duly organized and existing under the
laws of the State of North Carolina;
WHEREAS, CASI is a corporation duly organized and existing under the
laws of the State of Delaware and is a wholly-owned subsidiary of Short:
WHEREAS, the Boards of Directors of the Constituent Corporations deem
it advisable and in the best interests of their respective corporations and
their shareholders that Short be merged with and into CASI, with CASI being the
surviving corporation (the "Merger");
WHEREAS, the Boards of Directors of the Constituent Corporations have
approved this Merger Agreement by resolutions duly adopted by their respective
Boards of Directors in accordance with the laws of their respective
jurisdictions of incorporation; and
WHEREAS, the Constituent Corporations desire to adopt this Merger
Agreement as a plan of reorganization pursuant to the provisions of Section 368
of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements, and in accordance with applicable laws, the parties hereto agree as
follows:
1. SURVIVING CORPORATION. At the Effective Time (as hereinafter
defined), Short shall be merged with and into CASI, with CASI being the
surviving corporation (the "Surviving Corporation") of the Merger. At the
Effective Time, the corporate existence of Short shall cease, and the
Surviving Corporation, to the extent permitted by applicable law, shall
succeed to all the business, properties, assets and liabilities of the
Constituent Corporations.
2. AUTHORIZED SHARES. The authorized capital stock of the Surviving
Corporation consists of 5,000,000 shares of Common Stock, $.01 par value
("Surviving Corporation Common Stock"), and 300,000 shares of Preferred Stock,
$.01 par value ("Surviving Corporation Preferred Stock").
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3. CERTIFICATE OF INCORPORATION AND BYLAWS.
(a) The certificate of incorporation of CASI as in effect at
the Effective Time shall be the certificate of incorporation of the Surviving
Corporation from and after the Effective Time.
(b) The bylaws of CASI as in effect at the Effective Time
shall be the bylaws of the Surviving Corporation from and after the Effective
Time.
4. DIRECTORS AND OFFICERS.
(a) The directors of Short immediately prior to the Effective
Time shall be the directors of the Surviving Corporation, to hold office in
accordance with the bylaws of the Surviving Corporation until their successors
are duly appointed or elected and qualified.
(b) The officers of Short immediately prior to the Effective
Time shall be the officers of the Surviving Corporation to hold office in
accordance with the bylaws of the Surviving Corporation until their successors
are duly appointed or elected and qualified.
5. PRINCIPAL OFFICE. The principal office of the Surviving
Corporation in the State of Delaware shall be at Corporation Trust Center, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
6. CONSENT TO SERVICE OF PROCESS. The Surviving Corporation
hereby consents to be sued and served with process in the State of North
Carolina in any proceeding in the State of North Carolina, and the Surviving
Corporation hereby irrevocably appoints CT Corporation System, 000 Xxxxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000, as its agent to accept service of process
in any such proceeding in the State of North Carolina to enforce against the
Constituent Corporations any obligation of Short and the rights of dissenting
shareholders of Short.
7. APPOINTMENT OF STATUTORY AGENT. It is desired that the
Surviving Corporation transact business in the State of North Carolina as a
foreign corporation from and after the Effective Date. The Surviving Corporation
hereby constitutes and appoints, as the statutory and designated agent of the
Surviving Corporation upon whom process, notice or demand against the Surviving
Corporation may be served within the State of North Carolina, CT Corporation
System, 000 Xxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000.
8. CORPORATE PURPOSES. The purposes for which the Surviving
Corporation is formed are to engage in any lawful act or activity for which
corporations may be formed under the general corporation law of
Delaware.
9. TERMS OF MERGER.
(a) At the Effective Time, each issued and outstanding share
of common stock, $100 par value ("Common Stock"), of Short shall, automatically
and without further act of either of the Constituent Corporations or of any
holder thereof, be extinguished and converted into one issued
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outstanding, fully paid and nonassessable share of Surviving Corporation Common
Stock. At the Effective Time, each issued share of Common Stock held in the
treasury of Short prior to the Effective Time shall, automatically and without
further act of either of the Constituent Corporations, be extinguished and
converted into one issued, outstanding, fully paid, nonassessable share of
Surviving Corporation Common Stock, held in the treasury of the Surviving
Corporation. The holder of each share so extinguished and converted (of record
on the shareholder records of Short at the Effective Time) shall be recorded on
the books of the Surviving Corporation as the holder of the number of shares of
Surviving Corporation Common Stock which such holder is entitled to receive; and
each certificate theretofore representing one or more shares of Common Stock
shall be deemed, for all corporate purposes, to evidence ownership of the same
number of shares of Surviving Corporation Common Stock which the holder of such
certificate is entitled to receive.
(b) Each person who, as a result of the Merger, holds one or
more certificates which theretofore represented one or more shares of Common
Stock may surrender any such certificate to the Surviving Corporation (or to any
agent designated for such purpose by the Surviving Corporation), and upon such
surrender, the Surviving Corporation shall, within a reasonable time, deliver to
such person in substitution and exchange therefor one or more certificates
evidencing the number of shares of Surviving Corporation Common Stock which such
person is entitled to receive in accordance with the terms of this Merger
Agreement in substitution for the number of shares of Common Stock, theretofore
represented by each certificate so surrendered; provided, however, that such
holders shall not be required to surrender any such certificates until such
certificates would normally be surrendered for transfer on the books of the
issuing corporation in the ordinary course of business.
(c) At and after the Effective Time, all of the issued and
outstanding shares of Common Stock of CASI held immediately prior to the
Effective Time shall be canceled and cease to exist, without any consideration
being payable therefor.
(d) At the Effective Time, each option to purchase shares of
Common Stock, outstanding immediately prior to the Effective Time shall
automatically and without further act of either of the Constituent Corporations,
become an option to purchase shares of Common Stock of the Surviving
Corporation, subject to the same terms and conditions and at the same option
price applicable to each such option immediately prior to the Effective Time.
10. TERMINATION AND ABANDONMENT. At any time prior to the
Effective Time and for any reason, this Merger Agreement may be terminated and
abandoned by the Board of Directors of either of the Constituent Corporations,
without notice of such action to the other Constituent Corporation,
notwithstanding approval of this Merger Agreement by the shareholders of one or
both of the Constituent Corporations.
11. AMENDMENT. At any time prior to the Effective Time, this
Merger Agreement may be amended, either before or after shareholder approval, by
an agreement in writing executed in the same manner as this Merger Agreement,
after due authorization of such action by the Boards of Directors of the
Constituent Corporations; provided, however, that this Merger
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Agreement may not be amended after shareholder approval if such amendment would
(A) alter or change the amount or kind of shares to be received by the
shareholders of either of the Constituent Corporations in the Merger, (B) alter
or change any term of the Certificate of Incorporation of the corporation which
will be the Surviving Corporation, (C) alter or change any of the terms and
conditions of this Merger Agreement if such alteration or change would adversely
affect the shareholders of either of the Constituent Corporations, or (D)
violate applicable law.
12. EFFECTIVE TIME OF MERGER. The Effective Time of the
Merger shall be 10:00 AM Eastern Time, November 12, 1996 (the "Effective Time").
XXXXX X. SHORT COMPANY
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Secretary
CA SHORT COMPANY
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
By: /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx, Secretary
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CERTIFICATE OF ASSISTANT SECRETARY
OF
XXXXX X. SHORT COMPANY
I, Xxxxxxx X. Xxxx, the Secretary of Xxxxx X. Short Company, hereby
certify that the Agreement and Plan of Merger to which this certificate is
attached, after having been first duly signed on behalf of the corporation by
the President and Secretary under the corporate seal of said corporation, was
duly approved and adopted at a meeting of the shareholders of Xxxxx X. Short
Company held on November 8, 1996 by the holder of all of the outstanding shares
entitled to vote thereon.
WITNESS my hand and seal of said Xxxxxxx X. Xxxx this 8th day of
November, 1996.
/s/ Xxxxxxx X. Xxxx
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Secretary
CERTIFICATE OF SECRETARY
OF
CA SHORT COMPANY
I, Xxxxxxx X. Xxxx, the Secretary of CA Short Company, hereby certify
that the Agreement and Plan of Merger to which this certificate is attached,
after having been first duly signed on behalf of the corporation by the
President and Secretary under the corporate seal of said corporation, was duly
approved and adopted by the sole director of said corporation pursuant to
Subsection (f) of Section 251 of the Delaware General Corporation Law prior to
the issuance of any shares of stock of said corporation.
WITNESS my hand and seal of said Xxxxxxx X. Xxxx this 8th day of
November, 1996.
/s/ Xxxxxxx X. Xxxx
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Secretary
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