Exhibit 2.01
MERGER AGREEMENT
OF
XXXXXXXX.XXX, LLC
WITH AND INTO
XXXXXXXX.XXX CORPORATION
This Merger Agreement (this "AGREEMENT") is dated as of _________,
1999 by and between xxxxxxxx.xxx LLC, a Delaware limited liability company
("LLC"), and xxxxxxxx.xxx Corporation, a Delaware corporation ("xxxxxxxx.xxx").
1. MERGER; EFFECTIVE TIME. Upon the terms and subject to the
conditions hereof, in accordance with the Delaware General Corporation Law (the
"DGCL") and the Delaware Limited Liability Company Act (the "DLLCA"), LLC will
be merged with and into xxxxxxxx.xxx (the "Merger"). xxxxxxxx.xxx will be the
surviving corporation (hereinafter referred to sometimes as the "Surviving
Corporation") of the Merger, and the separate existence of LLC shall cease. The
Merger will be effective as of the date and at such time as this Agreement and
any other documents necessary to effect the Merger in accordance with the DGCL
and DLLCA are duly filed with the Secretary of State of the State of Delaware
(the time the Merger becomes effective being referred to herein as the
"Effective Time").
2. EXCHANGE OF SECURITIES.
(a) CONVERSION OF LIMITED LIABILITY COMPANY INTERESTS. At the
Effective Time, each membership unit (a "Unit") or portion thereof representing
a membership interest in LLC of each member ("Member") thereof immediately prior
to the Effective Time will, by virtue of the Merger and without further action
on the part of any Member, be converted into [16,215.891] shares of fully paid
and nonassessable Common Stock, par value $0.01 per share, of xxxxxxxx.xxx
("xxxxxxxx.xxx Common Stock").
(b) SECURITIES OF XXXXXXXX.XXX OUTSTANDING. Each share of Common
Stock, par value $.01 per share, of xxxxxxxx.xxx issued and outstanding
immediately before the Effective Time shall thereafter represent one validly
issued, fully paid and nonassessable share of Common Stock, par value $.01 per
share, of the Surviving Corporation.
(c) ISSUANCE OF STOCK CERTIFICATES. Promptly following the
Effective Time, xxxxxxxx.xxx shall issue stock certificates representing the
xxxxxxxx.xxx Common Stock to the holders of the Units that were converted by
virtue of the Merger.
3. GOVERNING DOCUMENTS.
(a) At the Effective Time, the Certificate of Incorporation of
xxxxxxxx.xxx in effect immediately prior to the Effective Time shall become the
Certificate of Incorporation of the Surviving Corporation and the Bylaws of
xxxxxxxx.xxx in effect immediately prior to the Effective Time shall become the
Bylaws of the Surviving Corporation.
(b) At the Effective Time, the Second Amended and Restated
Limited Liability Company Agreement of LLC (the "LLC Agreement") shall have no
further force and effect, except for those provisions which, by their terms,
survive the termination of the LLC Agreement.
4. PRINCIPAL OFFICE. The location of the principal office of
xxxxxxxx.xxx is 00 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000. The location of
the principal office of xxxxxxxx.xxx in the State of Delaware is c/o The
Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The
name of its registered agent in Delaware is The Corporation Trust Company.
5. DIRECTORS AND OFFICERS. At the Effective Time, the directors and
officers of xxxxxxxx.xxx immediately prior to the Effective Time shall be and
become the directors and officers (holding the same titles and positions) of the
Surviving Corporation, and after the Effective Time shall serve in accordance
with the Certificate of Incorporation and Bylaws of the Surviving Corporation.
6. EMPLOYEE BENEFIT PLANS. At the Effective Time, the obligations of
LLC under or with respect to every plan, trust, program and benefit then in
effect or administered by LLC for the benefit of the directors, officers and
employees of LLC, shall become the lawful obligations of xxxxxxxx.xxx and shall
be implemented and administered in the same manner and without interruption
until the same are amended or otherwise lawfully altered or terminated.
Effective at the Effective Time, xxxxxxxx.xxx hereby expressly adopts and
assumes all obligations of LLC under such employee benefit plans.
7. FURTHER ASSURANCES. After the Effective Time, xxxxxxxx.xxx and
its officers and directors may execute and deliver such deeds, assignments,
assurances and other documents and do all other things necessary or desirable to
vest, perfect or confirm title to LLC's property or rights in xxxxxxxx.xxx and
otherwise to carry out the purposes of the Merger in the name of LLC or
otherwise.
8. APPROVAL OF MERGER. The Merger has been duly approved by the
holders of the outstanding Units in LLC in accordance with the DLLCA and the LLC
Agreement, and has been duly approved by the Board of Directors of xxxxxxxx.xxx
in accordance with the DGCL.
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9. ASSIGNMENT. Neither party hereto may assign any of its rights or
obligations hereunder without the prior written consent of the other party
hereto. This Agreement will be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
10. ABANDONMENT. At any time before the Effective Time, this
Agreement may be terminated and the Merger abandoned by the Managing Board of
LLC or the Board of Directors of xxxxxxxx.xxx, notwithstanding approval of this
Agreement by the holders of the outstanding Units in LLC and such Managing Board
and such Board of Directors.
11. AMENDMENT. At any time before the Effective Time, this Agreement
may be amended, modified or supplemented by the Managing Board of LLC and the
Board of Directors of xxxxxxxx.xxx, notwithstanding approval of this Agreement
by the holders of the outstanding Units in LLC; provided, however, that no such
amendment, modification or supplement not approved by the holders of the
outstanding Units in LLC may materially adversely affect the benefits intended
under this Agreement for the holders of the outstanding Units in LLC.
12. GOVERNING LAW. This Agreement will be governed by and construed
in accordance with the laws of the State of Delaware applicable to contracts
entered into and to be performed wholly within the State of Delaware without
regard to principles of conflict of laws.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date and year first above written.
XXXXXXXX.XXX CORPORATION XXXXXXXX.XXX LLC
By: By:
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Xxxx X. Xxxxxxx, Chairman Xxxx X. Xxxxxxx, Chairman
and Chief Executive Officer and Chief Executive Officer
Attest Attest
By: By:
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