EXHIBIT 10.28
FORM OF AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, made on the ____ day of _________,
2002, by and among XXXXX HOLDINGS, INC., a Delaware corporation ("XXXXX"), THANE
INTERNATIONAL, INC., a Delaware corporation ("THANE"), KH ACQUISITION
CORPORATION, a Delaware corporation and a wholly-owned subsidiary of Thane
("ACQUISITION"), and each of the stockholders of Xxxxx listed on the signature
pages hereto.
WHEREAS, Acquisition desires to merge with and into Xxxxx and Xxxxx
desires that Acquisition be merged with and into Xxxxx, so that Xxxxx will be
the surviving corporation, all upon the terms and subject to the conditions set
forth herein and in accordance with the laws of the State of Delaware;
WHEREAS, the terms and conditions of such merger, the mode of carrying
the same into effect, the manner of converting the capital stock of Xxxxx into
the right to receive cash or shares of capital stock of Thane and such other
terms and conditions as may be required or permitted to be stated in this
Agreement are set forth below.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements, and subject to the conditions herein contained, Acquisition,
Thane and Xxxxx hereby agree as follows:
SECTION 1
THE MERGER
1.1 THE MERGER. Subject to the terms and conditions contained herein,
at the Effective Time, Acquisition shall be merged with and into Xxxxx in
accordance with the requirements of the laws of the State of Delaware (the
"MERGER"). Thereupon, (a) the corporate existence of Xxxxx, with all its rights,
privileges, immunities, powers and purposes, shall continue unaffected and
unimpaired by the Merger, and Xxxxx, as the corporation surviving the Merger,
shall be fully vested therewith, the separate existence of Acquisition shall
cease upon the Merger becoming effective as herein provided and thereupon Xxxxx
and Acquisition shall be a single corporation (sometimes referred to herein as
the "SURVIVING CORPORATION") and (b) all of the assets and properties of
Acquisition, whether real, personal, or mixed, and whether tangible or
intangible, and all of the liabilities and obligations of Acquisition whether
fixed or contingent, shall vest in the Surviving Corporation, without any
further action of either Acquisition or Xxxxx.
1.2 FILING. On the date hereof, Xxxxx and Acquisition will cause an
executed counterpart of a Certificate of Merger in substantially the form of
EXHIBIT A hereto (the "CERTIFICATE OF MERGER") to be filed with the office of
the Secretary of State of the State of Delaware in accordance with the
provisions of Sections 251 and 103 of the Delaware General Corporation Law (the
"DGCL").
1.3 EFFECTIVE TIME OF THE MERGER. The Merger shall be effective at the
time that the filing of the counterpart of the Certificate of Merger with the
Secretary of State of the State of Delaware referred to in Section 1.2 is
completed, which time is sometimes referred to herein as the "EFFECTIVE TIME."
1.4 EFFECT OF THE MERGER. The Merger shall have the effects set forth
in Section 259 of the DGCL.
SECTION 2
CONVERSION OF SHARES AND WARRANTS; ASSUMPTION OF OPTIONS
2.1 At the Effective Time, all of the issued and outstanding shares of
capital stock of Acquisition and Xxxxx shall, by virtue of the Merger and
without any action on the part of the respective holders thereof, become and be
converted into shares of capital stock of the Surviving Corporation or into the
right to receive cash, shares of capital stock of Thane or be canceled, as the
case may be, as follows:
(a) Each issued and outstanding share of common stock, par value $.001
per share, of Acquisition shall be converted into one share of common stock, par
value $.001 per share, of the Surviving Corporation.
(b) Each issued and outstanding share of common stock, par value $.001
per share, of Xxxxx ("XXXXX COMMON STOCK") (excluding any treasury shares of
Xxxxx), shall be converted into and become the right to receive 2.42432187628972
shares of Class A Common Stock, par value $.0001, of Thane ("THANE COMMON
STOCK"). Thane will promptly issue to the shareholders of Xxxxx a stock
certificate evidencing the ownership of shares of Thane upon surrender by each
shareholder of stock certificates evidencing ownership of shares of Xxxxx.
(c) Each share of Xxxxx Common Stock issuable to Prairie Capital
Mezzanine Fund, L.P. ("PRAIRIE"), upon the exercise of the warrants issued to
Prairie (the "PRAIRIE WARRANTS") pursuant to that certain Initial Stock Purchase
Warrant and Repurchase Agreement, dated as of May 17, 2000, by and between Xxxxx
and Prairie, shall be converted into and become the right to receive
2.42432187628972 shares of Thane Common Stock. Thane will promptly issue to
Prairie a stock certificate evidencing the ownership of shares of Thane upon
surrender by Prairie of the Prairie Warrants.
(d) Each treasury share of capital stock of Xxxxx, if any, shall be
canceled, and no payment shall be made in respect thereof.
2.2 At the Effective Time, each issued and outstanding option to
purchase or otherwise acquire shares of Xxxxx Common Stock (whether or not
vested) (the "ASSUMED OPTIONS") shall be assumed by Thane in connection with the
Merger. Each Assumed Option so assumed by Thane under this Agreement shall
continue to have, and be subject to, the same terms and conditions as in place
immediately prior to the Effective Time (including, without limitation, any
vesting schedule or repurchase rights, but not taking into account any
acceleration thereof provided for in the underlying option agreements that may
otherwise result from the Merger or other transactions contemplated by this
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Agreement), except that (i) each Assumed Option to purchase one share of Xxxxx
Common Stock will be exercisable for 2.42432187628972 shares of Thane Common
Stock and (ii) the per share exercise price for the shares of Thane Common Stock
issuable upon exercise of such Assumed Option will be equal to the quotient
determined by dividing: (A) the exercise price per share of Xxxxx Common Stock
at which such Assumed Option was exercisable immediately prior to the Effective
Time by (B) 2.42432187628972. No Assumed Option as so converted shall be
exercisable for a fractional share of Thane Common Stock and the number of
shares of Thane Common Stock for which all Assumed Options to be delivered to
the optionees thereof shall be rounded up to the nearest whole number of shares
of Thane Common Stock.
SECTION 3
CERTIFICATE OF INCORPORATION AND BYLAWS
3.1 At the Effective Time, the certificate of incorporation of Xxxxx
shall be the certificate of incorporation of the Surviving Corporation, which
may be amended from time to time after the Effective Time as provided by law.
3.2 At the Effective Time, the bylaws of Xxxxx shall be the bylaws of
the Surviving Corporation, which may be amended from time to time after the
Effective Time as provided by the certificate of incorporation or said bylaws.
SECTION 4
OFFICERS AND DIRECTORS
4.1 The officers and directors of Xxxxx at the Effective Time of the
Merger shall be the officers and directors of the surviving corporation for the
full unexpired terms of their offices and until their successors have been
elected or appointed.
SECTION 5
AMENDMENT AND TERMINATION
5.1 This Agreement may be terminated and the transactions herein
contemplated may be abandoned at any time by the mutual consent of Xxxxx, Xxxxx
and Acquisition.
SECTION 6
MISCELLANEOUS
6.1 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
both written and oral, between the parties hereto with respect to such subject
matter.
6.2 BENEFITS, BINDING EFFECT. This Agreement shall be for the benefit
of, and shall be binding upon, the parties hereto and their respective
successors and assigns.
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6.3 SEVERABILITY. The invalidity of any one of the words, phrases,
sentences, clauses, sections or subsections contained in this Agreement shall
not affect the enforceability of the remaining portions of this Agreement, all
of which are inserted conditionally on their being valid in law; if any one of
the words, phrases, sentences, clauses, sections or subsections contained in
this Agreement shall be declared invalid by a court of competent jurisdiction,
this Agreement shall be construed as if such invalid word or words, phrase or
phrases, sentence or sentences, clause or clauses, section or sections, or
subsection or subsections had not been inserted.
6.4 SECTION HEADINGS. This section and the other headings contained in
this Agreement are for reference purposes only and shall not affect the meaning
or interpretation of any of the provisions of this Agreement.
6.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the separate parties hereto in separate counterparts, each
of which shall be deemed to be an original and the one and the same instrument.
* * *
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IN WITNESS WHEREOF, the undersigned have executed this Agreement and
Plan of Merger as of the date first above written.
XXXXX HOLDINGS, INC.
By:
-----------------------------------------
Name:
Title:
THANE INTERNATIONAL, INC.
By:
-----------------------------------------
Name:
Title:
KH ACQUISITION CORPORATION
By:
-----------------------------------------
Name:
Title:
STOCKHOLDERS:
H.I.G. KPI, INC.
By:
-----------------------------------------
Name:
Title:
PRAIRIE CAPITAL MEZZANINE FUND, L.P.
By:
-----------------------------------------
Name:
Title:
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LEASE PLAN - XXXXX PRODUCTS INVESTORS, L.P.
By:
-----------------------------------------
Name:
Title:
[INDIVIDUAL STOCKHOLDERS]
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EXHIBIT A
CERTIFICATE OF MERGER
OF
KH ACQUISITION CORPORATION
INTO
XXXXX HOLDINGS, INC.
The undersigned corporation DOES HEREBY CERTIFY:
FIRST: That the names and states of incorporation of each of the
constituent corporations of the merger are as follows:
NAME STATE OF INCORPORATION
---- ----------------------
KH ACQUISITION CORPORATION DELAWARE
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XXXXX HOLDINGS, INC. DELAWARE
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SECOND: That an Agreement and Plan of Merger between the parties to the
merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of
subsection (c) of Section 251 of the General Corporation Law of the State of
Delaware.
THIRD: The name of the surviving corporation of the merger is Xxxxx
Holdings, Inc., a Delaware corporation.
FOURTH: That the certificate of incorporation of Xxxxx Holdings, Inc.,
a Delaware corporation, shall be the certificate of incorporation of the
surviving corporation.
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FIFTH: That the executed agreement of merger is on file at the
principal place of business of the surviving corporation. The address of said
principal place of business is 0000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000X, Xxxx
Xxxxx, Xxxxxxx 00000.
SIXTH: That a copy of the Agreement and Plan of Merger will be
furnished on request and without cost to any stockholder of any constituent
corporation.
_____________, 2002.
KH ACQUISITION CORPORATION
By:
------------------------------------
Name:
Title:
XXXXX HOLDINGS, INC.
By:
------------------------------------
Name:
Title:
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