AGREEMENT AND PLAN OF MERGER
of
XXXXXX XXXXXXX INTERNATIONAL INC.
and XXXXXX XXXXXXX MISSISSIPPI, INC.
THIS IS AN AGREEMENT AND PLAN OF MERGER (this
"Agreement") by and between Xxxxxx Xxxxxxx International Inc., a
Delaware corporation ("Xxxxxx Xxxxxxx"), and Xxxxxx Xxxxxxx
Mississippi, Inc., a Mississippi corporation ("FGM"). Xxxxxx
Xxxxxxx and FGM are hereinafter collectively referred to as the
"Constituent Corporations."
RECITALS
WHEREAS, Xxxxxx Xxxxxxx is a corporation organized
and existing under the laws of the State of Delaware, having been
incorporated on May 21, 1997, and having authorized capital stock
consisting of (i) 125,000,000 shares of common stock, par value
$.01 per share ("Xxxxxx Xxxxxxx Common Stock") and (ii) 5,000,000
shares of preferred stock, par value $.01 per share ("Xxxxxx
Xxxxxxx Preferred Stock"), 24,492,797 of which shares of Xxxxxx
Xxxxxxx Common Stock are issued and outstanding and none of which
shares of Xxxxxx Xxxxxxx Preferred Stock are issued and
outstanding; and the outstanding shares of Xxxxxx Xxxxxxx Common
Stock are entitled to vote on the Merger (as described below);
and
WHEREAS, the Board of Directors of Xxxxxx Xxxxxxx has
determined that it is the best interests of Xxxxxx Xxxxxxx and
its stockholders to change the corporation's domicile from
Delaware to Mississippi; and Xxxxxx Xxxxxxx has formed FGM as a
wholly-owned subsidiary for the express purpose of effecting the
reincorporation of Xxxxxx Xxxxxxx in the State of Mississippi;
and
WHEREAS, FGM is a corporation organized and existing
under the laws of the State of Mississippi, having been
incorporated on September 22, 1998, and having authorized capital
stock consisting of (i) 125,000,000 shares of common stock, par
value $.01 per share (the "FGM Common Stock") and (ii) 5,000,000
shares of preferred stock, par value $.01 per share (the "FGM
Preferred Stock"), 1,000 of which shares of FGM Common Stock are
issued and outstanding, all of which outstanding shares of FGM
Common Stock are owned by Xxxxxx Xxxxxxx, and none of which
shares of FGM Preferred Stock are outstanding; and
WHEREAS, the respective Boards of Directors of the
Constituent Corporations have determined that it is in the best
interests of such corporations and the stockholders of Xxxxxx
Xxxxxxx and the sole shareholder of FGM, respectively, to merge
Xxxxxx Xxxxxxx with and into FGM, with FGM to be the surviving
corporation (such merger being hereinafter referred to as the
"Merger"), and each of such Boards of Directors have authorized,
approved and adopted this Agreement and has directed that it be
submitted to the stockholders of Xxxxxx Xxxxxxx and the sole
shareholder of FGM, respectively, for approval.
NOW, THEREFORE, in consideration of the premises, the
mutual covenants herein contained and other good and valuable
consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I: THE MERGER
Section 1.1. The Merger and Surviving Corporation.
At the Effective Time of the Merger (as hereinafter
defined), Xxxxxx Xxxxxxx shall be merged with and into FGM,
the separate existence of Xxxxxx Xxxxxxx shall cease and FGM
(hereinafter sometimes referred to as the "Surviving
Corporation") shall be the surviving corporation of the
Merger and shall continue to exist by virtue of, and shall
be governed by, the laws of the State of Mississippi. The
name of the Surviving Corporation shall be "Xxxxxx Xxxxxxx
International Inc." as provided in the Amendment to the
Articles of Incorporation of the Surviving Corporation set
forth in Section 3.1 below.
Section 1.2. Effective Time of the Merger. The
Merger shall be effective upon the later of the filing of a
Certificate of Merger with the Secretary of State of the
State of Delaware and Articles of Merger with the Secretary
of State of the State of Mississippi (the "Effective Time").
Section 1.3. Effect of Merger. At the Effective
Time, Xxxxxx Xxxxxxx shall merge with and into FGM, and the
separate existence of Xxxxxx Xxxxxxx shall cease. Without
limiting any provisions of applicable law of the State of
Delaware or the State of Mississippi, at the Effective Time:
(i) the Surviving Corporation shall succeed, without other
transfer, to all the assets, rights, powers and property of
the Constituent Corporations, and title to all real estate
and other property owned by each of the Constituent
Corporations shall be vested in the Surviving Corporation
without reversion or impairment; (ii) the Surviving
Corporation shall succeed, without other transfer, to all of
the debts, liabilities and obligations of the Constituent
Corporations as if it had incurred them itself; (iii) any
proceeding pending against either of the Constituent
Corporations may be continued as if the Merger did not occur
or the Surviving Corporation may be substituted in the
proceeding for Xxxxxx Xxxxxxx; (iv) the Surviving
Corporation shall be subject to all actions previously
taken by the Boards of Directors of the Constituent
Corporations, and shall assume all obligations of Xxxxxx
Xxxxxxx relating to the indemnification of its officers and
directors; (v) the Surviving Corporation shall assume,
without any further action, all employee benefit plans of
Xxxxxx Xxxxxxx, including, but not limited to, all stock
option, stock purchase, stock repurchase, deferred
compensation, welfare and savings plans, as well all
employment and severance agreements, subject, in each case,
to the terms and conditions of such plans and agreements.
and (vi) the shares of Xxxxxx Xxxxxxx Common Stock that are
to be converted into shares of common stock, par value $.01
per share, of the Surviving Corporation ("Surviving
Corporation Common Stock") shall be so converted.
SECTION II: CONVERSION OF STOCK
Section 2.1 Conversion Shares of Xxxxxx Xxxxxxx Common
Stock. At the Effective Time, by virtue of the Merger and
without any action by the parties hereto or any other
person, (i) each share of Xxxxxx Xxxxxxx Common Stock
issued and outstanding immediately prior thereto shall be
converted into and exchanged for one fully paid and
nonassessable share of Surviving Corporation Common Stock
and (ii) each option or right to purchase a share of Xxxxxx
Xxxxxxx Common Stock issued and outstanding immediately
prior thereto shall be converted into and exchanged for one
option or right, as the case may be, to purchase a share of
Surviving Corporation Common Stock, upon the same terms and
subject to the same conditions.
Section 2.2. Cancellation of FGM Common Stock. At
the Effective Time of the Merger, each share of FGM Common
Stock issued and outstanding immediately prior thereto
shall, by virtue of the Merger and without any action by
FGM, the holder of such shares or any other person, be
canceled and returned to the status of authorized but
unissued shares.
Section 2.3. Exchange of Share Certificates. (a) After
the Effective Time, the holder of an outstanding certificate
representing shares of Xxxxxx Xxxxxxx Common Stock may, at
such stockholder's option, surrender the same for
cancellation to the Surviving Corporation and such holder
shall be entitled to receive in exchange therefor a
certificate or certificates representing the number of
shares of Surviving Corporation Common Stock into which the
surrendered shares were converted as herein provided. Until
so surrendered, each outstanding certificate theretofore
representing shares of Xxxxxx Xxxxxxx Common Stock shall be
deemed for all purposes to represent the number of shares of
Surviving Corporation Common Stock into which such shares of
Xxxxxx Xxxxxxx Common Stock were converted in the Merger.
(b) The registered owner on the books and records of
the Surviving Corporation of any such outstanding
certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise
accounted for to the Surviving Corporation, have and be
entitled to exercise any voting and other rights with
respect to and to receive dividends and other distributions
upon the shares of Common Stock of the Surviving Corporation
represented by such outstanding certificate as provided
above.
ARTICLE III: CHARTER DOCUMENTS; DIRECTORS AND OFFICERS
Section 3.1. Articles of Incorporation. The Articles
of Incorporation of FGM shall be the Articles of
Incorporation of the Surviving Corporation, except that
Article First thereof shall be amended to read in its
entirety as follows:
FIRST: The name of the Corporation is:
Xxxxxx Xxxxxxx International Inc.
Section 3.2. Bylaws. The Bylaws of FGM as in effect
at the Effective Time shall continue to be the Bylaws of the
Surviving Corporation until amended as provided in said
Bylaws, except that the name of the Surviving Corporation
shall be "Xxxxxx Xxxxxxx International Inc."
Section 3.3. Directors. The persons who are serving
as the directors of Xxxxxx Xxxxxxx as of the Effective Time
shall be the directors of the Surviving Corporation until
changed in accordance with the Bylaws of the Surviving
Corporation and applicable law. Directors of the Surviving
Corporation shall serve on the committees on which they
served as directors of Xxxxxx Xxxxxxx. The persons who are
serving as the directors of FGM as of the Effective Time
shall hold no such position with the Surviving Corporation,
except insofar as such directors hold such position with
Xxxxxx Xxxxxxx.
Section 3.4. Officers. The persons who are serving as
the directors of FGM as of the Effective Time shall be the
directors of the Surviving Corporation until changed in
accordance with the Bylaws of the Surviving Corporation and
applicable law. The persons who are serving as the officers
of Xxxxxx Xxxxxxx as of the Effective Time shall hold no
such office with the Surviving Corporation, except insofar
as such officers hold such office with FGM.
ARTICLE IV: CONDITIONS TO CLOSING
Section 4.1 Conditions to Closing. The respective
obligations of the Constituent Corporation to consummate the
Merger are subject to the satisfaction at or prior to the
Effective Time of the following conditions:
(a) This Agreement and the Merger shall have been
authorized and approved by a majority of the
stockholders of Xxxxxx Xxxxxxx entitled to vote and
present, in person or by proxy, at the Special Meeting
of Stockholders of Xxxxxx Xxxxxxx to be held expressly
for such purpose, and by Xxxxxx Xxxxxxx, the sole
stockholder of FGM, in accordance with the relevant
provisions of the Delaware General Corporation Law (the
"DGCL"), the Certificate of Incorporation of Xxxxxx
Xxxxxxx, the Bylaws of Xxxxxx Xxxxxxx, the Mississippi
Business Corporation Act, the Articles of Incorporation
of FGM and the Bylaws of FGM, as applicable. After the
such approval and adoption of this Agreement, and the
satisfaction of the other conditions set forth herein,
all required documents shall be executed, verified,
filed, and recorded and all required acts shall be done
under the provisions of the
applicable statutes of the States of Delaware and
Mississippi in order to accomplish the Merger;
(b) As of the Effective Time, no action, suit or
proceeding shall have been instituted or, to the
knowledge of the Constituent Corporations, be pending
or threatened before any court or other governmental
body by any public agency or governmental authority
seeking to restrain, enjoin or prohibit the
consummation of the transactions contemplated hereby or
to seek damages or other relief in connection therewith
against any officer or director of either of the
Constituent Corporations.
ARTICLE V: AMENDMENT AND TERMINATION
Section 5.1. Amendment. This Agreement may be
supplemented or amended in any manner at any time and from
time to time prior to the Effective Time by the mutual
consent of Xxxxxx Xxxxxxx and FGM without any action by the
stockholders of Xxxxxx Xxxxxxx or the sole shareholder of
FGM; provided, that any amendment, modification or
supplement to this Agreement after its approval by the
stockholders of Xxxxxx Xxxxxxx but prior to the Effective
Time shall require the approval of the stockholders of
Xxxxxx Xxxxxxx unless the amendment, modification or
supplement to this Agreement (i) does not alter (a) the
amount or kind of shares to be received thereunder in
exchange for shares of Xxxxxx Xxxxxxx Common Stock, or (b)
any term of the Articles of Incorporation of the Surviving
Corporation as provided for in this Agreement, and (ii) does
not alter any of the terms and conditions of this Agreement
in a manner that would adversely affect the holders of
Xxxxxx Xxxxxxx Common Stock.
Section 5.2. Termination. This Agreement may be
terminated and the Merger abandoned at any time prior to the
Effective Time by action taken by the Board of Directors of
either Constituent Corporation for any reason whatsoever,
notwithstanding the approval of this Agreement and the
Merger by the stockholders of Xxxxxx Xxxxxxx or the sole
shareholder of FGM, or by both.
ARTICLE VI: FURTHER ASSURANCES
Section 6.1. Further Assurances. If at any time the
Surviving Corporation shall consider or be advised that any
further assignments or assurances or any other things are
necessary or desirable to vest in the Surviving Corporation,
in accordance with the terms of this Agreement, the title of
any property or rights of Xxxxxx Xxxxxxx, or otherwise to
carry out this Agreement or the Merger, the last acting
officers and directors of Xxxxxx Xxxxxxx or the
corresponding officers and directors of the Surviving
Corporation shall and will execute and make all such proper
assignments and assurances and do all things necessary or
proper to vest title in such property or rights in the
Surviving Corporation, or otherwise to carry out this
Agreement or the Merger.
ARTICLE VII: GENERAL
Section 7.1. Registered Office. The address of the
registered office of the Surviving Corporation of the Merger
in the State of Mississippi shall be 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxxxxx 00000, and Xxxxx X.
Xxxx, III shall be the registered agent of the Surviving
Corporation at such address.
Section 7.2. Governing Law. This Agreement shall in
all respects be construed, interpreted and enforced in
accordance with and governed by the laws of the [State of
Mississippi] and, so far as applicable, the merger
provisions of the DGCL.
Section 7.3. Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be
deemed an original, and it shall not be necessary in making
proof of this Agreement or its terms to produce or account
for more than one of such counterparts.
* * * * *
IN WITNESS WHEREOF, the Constituent Corporations have caused
this Agreement to be executed by their respective officers whose
signatures are set forth below, all as of the 28th day of
September 1998.
ATTEST: XXXXXX XXXXXXX INTERNATIONAL INC.
a Delaware corporation
By: /s/ XXXXX X. XXXX, III By: /s/ X. X. XXXXXXXX
Xxxxx X. Xxxx, III X. X. Xxxxxxxx
Secretary Chairman of the Board,
President and Chief Executive
Officer
ATTEST: XXXXXX XXXXXXX MISSISSIPPI, INC.
a Mississippi corporation
By: /s/ XXXXX X. XXXX, III By: /s/ X. X. XXXXXXXX
Xxxxx X. Xxxx, III X. X. Xxxxxxxx
Secretary Chairman of the Board,
President and Chief Executive
Officer
