EXHIBIT 3.3
AGREEMENT AND PLAN OF MERGER
OF
PAMECO CORPORATION
(A DELAWARE CORPORATION)
AND
PAMECO HOLDINGS, INC.
(A DELAWARE CORPORATION)
WITH AND INTO
PAMECO CORPORATION
(A GEORGIA CORPORATION)
THIS AGREEMENT AND PLAN OF MERGER is made and entered into this _________
day of April, 1997, by and among PAMECO HOLDINGS, INC., a Delaware corporation
("HOLDINGS"), PAMECO CORPORATION, a Delaware corporation ("OLD PAMECO"), and NEW
PAMECO GEORGIA CORPORATION, a Georgia corporation ("NEW PAMECO"). Holdings, Old
Pameco and New Pameco are hereinafter sometimes referred to collectively as the
"CONSTITUENT CORPORATIONS"; Holdings and Old Pameco are sometimes referred to
collectively as the "TERMINATING CORPORATIONS"; and New Pameco is sometimes
referred to as the "SURVIVING CORPORATION."
WHEREAS, Holdings is a business corporation of the State of Delaware with
its registered office therein located at 0000 Xxxxxx Xxxx, Xxxx xx Xxxxxxxxxx,
Xxxxxx of New Castle; and
WHEREAS, Old Pameco is a business corporation of the State of Delaware
with its registered office therein located at 0000 Xxxxxx Xxxxxx, Xxxx xx
Xxxxxxxxxx, Xxxxxx of New Castle; and
WHEREAS, New Pameco is a business corporation of the State of Georgia
with its registered office therein located at 0000 Xxxxxx Xxxxx, Xxxx xx
Xxxxxxxx, Xxxxxx of Gwinnett; and
WHEREAS, the Board of Directors of each of the Terminating Corporations
has adopted resolutions approving the merger of Holdings and Old Pameco with and
into New Pameco in accordance with the terms and conditions of this Agreement
and Plan of Merger and directed the respective officers to submit the matter to
a vote of Holdings' and Old Pameco's shareholders, all of whom were provided
with a copy of this Agreement and Plan of Merger; and
WHEREAS, Old Pameco has authorized capital stock consisting of 100 shares
of Common Stock, par value $0.01 per share ("OLD PAMECO COMMON STOCK"), and 900
shares of Preferred Stock, par value $0.01 per share ("OLD PAMECO PREFERRED
STOCK"). At the close of business on April 1, 1997, 100 shares of Old Pameco
Common Stock were issued and outstanding and held by Holdings, all of which were
entitled to vote on and have approved this Agreement and Plan of Merger. The
voting rights and designations of all such shares are more specifically set
forth in Old Pameco's Certificate of Incorporation; and
WHEREAS, Holdings has authorized capital stock consisting of 11,000,000
shares of Common Stock, par value $0.01 per share, of which 5,500,000 shares
have been designated as Class A Common Stock ("HOLDINGS CLASS A COMMON STOCK"),
and 5,500,000 shares have been designated as Class B Common Stock ("HOLDINGS
CLASS B COMMON STOCK", and together with Holdings Class A Common Stock,
"HOLDINGS COMMON STOCK"), and 25,000 shares of Preferred Stock, par value $1.00
per share ("HOLDINGS PREFERRED STOCK"). At the close of business on April 1,
1997, 4,197,685 shares of Holdings Common Stock were issued and outstanding,
including 2,710,885 shares of Holdings Class A Common Stock. All of the
outstanding shares of Holdings Class A Common Stock were entitled to vote on and
have approved this Agreement and Plan of Merger and 2,650,119 of such shares
were voted in favor of this Agreement and Plan of Merger. The voting rights and
designations of all such shares are more specifically set forth in Holdings'
Certificate of Incorporation; and
WHEREAS, New Pameco has authorized capital stock consisting of 60,000,000
shares of Common Stock, par value $0.01 per share, of which 40,000,000 shares
have been designated as Class A Common Stock ("NEW PAMECO CLASS A COMMON
STOCK"), and 20,000,000 shares have been designated as Class B Common Stock (
"NEW PAMECO CLASS B COMMON STOCK", and together with the New Pameco Class A
Common Stock, "NEW PAMECO COMMON STOCK"), and 5,000,000 shares of Preferred
Stock, par value $1.00 per share ("NEW PAMECO PREFERRED STOCK"). At the close
of business on April 1, 1997, 100 shares of New Pameco Class A Common Stock were
issued and outstanding and held by Holdings. All such shares of outstanding New
Pameco Common Stock were entitled to vote on and approved this Agreement and
Plan of Merger. The voting rights and designations of all such shares are more
specifically set forth in New Pameco's Articles of Incorporation; and
WHEREAS, Section 252 of the Delaware General Corporation Law (the "DGCL")
and Section 14-2-1107 of the Georgia Business Corporation Code (the "GBCC")
permit a merger of business corporations of the State of Delaware with and into
a business corporation of the State of Georgia; and
WHEREAS, the Constituent Corporations deem it advisable and to the
advantage, welfare, and best interests of the Constituent Corporations and their
respective shareholders to merge Old Pameco and Holdings with and into New
Pameco; and
WHEREAS, the parties hereto desire that Old Pameco merge with and into
New Pameco in a reincorporation merger pursuant to Section 368(a)(1)(F) of the
Internal Revenue Code of 1986, as amended (the "IRC"), and that New Pameco shall
continue as the Surviving Corporation in such merger, upon the terms and subject
to the conditions set forth herein and in accordance with the laws of the State
of Georgia and the laws of the State of Delaware, and that the holder of shares
of Old Pameco Common Stock receive shares of New Pameco Common Stock; and
WHEREAS, the parties hereto desire that immediately following the
reincorporation merger described above, that Holdings merge with and into New
Pameco pursuant to
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Section 368(a)(1)(A) of the IRC and that New Pameco shall continue as the
Surviving Corporation in such merger, upon the terms and subject to the
conditions set forth herein in accordance with the laws of the State of Georgia
and the laws of State of Delaware, and that the holders of shares of Holdings
Common Stock receive shares of New Pameco Common Stock;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
MERGER
1.1 MERGER. Subject to the terms and conditions of this Agreement and
Plan of Merger, Old Pameco and Holdings shall be merged (individually a "MERGER"
and collectively the "MERGERS") with and into New Pameco in accordance with the
DGCL and the GBCC, the separate existence of Old Pameco and Holdings shall cease
and New Pameco shall be the Surviving Corporation and continue its corporate
existence under the laws of the State of Georgia. The Surviving Corporation
shall possess all of the rights, privileges, immunities, powers and franchises
of a public as well as of a private nature, and shall be subject to all of the
restrictions, disabilities and duties, of each of the Constituent Corporations;
and all and singular rights, privileges, immunities, powers and franchises of
each of the Constituent Corporations, and all property, real, personal and
mixed, and all debts due to each of the Constituent Corporations, on whatever
account, including subscriptions to shares, and all other things in action or
belonging to each of the Constituent Corporations shall be vested in the
Surviving Corporation resulting from the Merger; and all property, rights,
privileges, immunities, powers and franchises, and each and every interest,
shall thereafter be the property of the Surviving Corporation as it was of the
Constituent Corporations and the title to any real estate, vested by deed or
otherwise, in each of the Constituent Corporations, shall not revert or in any
way be impaired by reason of the Merger. All rights of creditors and all liens
upon any property of each of the Constituent Corporations shall be preserved
unimpaired and all debts, liabilities and duties of the respective Constituent
Corporations shall thereafter attach to the Surviving Corporation and may be
enforced against the Surviving Corporation to the same extent as if said debts,
liabilities and duties had been incurred or contracted by it. Any action or
proceeding, whether civil, criminal or administrative, pending by or against
each Constituent Corporation shall be prosecuted as if the Merger had not taken
place, or the Surviving Corporation may be substituted as a party in such action
or proceeding in place of each of the Constituent Corporations.
1.2 EFFECTIVE TIME OF THE MERGERS. The Merger of Holdings into New
Pameco shall become effective (the "EFFECTIVE TIME OF THE HOLDINGS MERGER")
immediately prior to the execution and delivery of that certain Underwriting
Agreement among New Pameco, the underwriters named therein and certain selling
shareholders relating to New Pameco's sale of shares of Class A Common Stock as
described in that certain Form S-1 Registration Statement filed with the
Securities and Exchange Commission by New Pameco on March 27, 1997 (No.
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333-24043), as it may be amended from time to time (the "REGISTRATION
STATEMENT"), and the Merger of Old Pameco into New Pameco shall become effective
immediately prior to the Effective Time of the Holdings Merger (the "EFFECTIVE
TIME OF THE OLD PAMECO MERGER"); provided, however, that if the Mergers have not
occurred by the close of business on July 31, 1997, then this Agreement and Plan
of Merger shall terminate and be of no further force nor effect.
1.3 CORPORATE ACTIONS. The Board of Directors and the proper officers
of the Constituent Corporations are hereby authorized, empowered, and directed
to do any and all acts and things, and to make, execute, deliver, file, and
record any and all instruments, papers, and documents which shall be or become
necessary, proper, or convenient to carry out or put into effect any of the
provisions of this Agreement and Plan of Merger.
ARTICLE II
NAME, ARTICLES OF INCORPORATION, BYLAWS,
DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION
2.1 NAME OF SURVIVING CORPORATION. The name of the Surviving
Corporation shall be "Pameco Corporation."
2.2 ARTICLES OF INCORPORATION. The Articles of Incorporation of New
Pameco shall be the Articles of Incorporation of the Surviving Corporation after
the Effective Time of the Old Pameco Merger and after the Effective Time of the
Holdings Merger until amended thereafter as provided therein or by law.
2.3 BYLAWS. The Bylaws of New Pameco shall be the Bylaws of the
Surviving Corporation after the Effective Time of the Old Pameco Merger and
after the Effective Time of the Holdings Merger until amended thereafter as
provided therein or by law.
2.4 DIRECTORS AND OFFICERS. The directors and officers of New Pameco at
the Effective Time of the Old Pameco Merger shall be the directors and officers,
respectively, of the Surviving Corporation after the Effective Time of the Old
Pameco Merger and after the Effective Time of the Holdings Merger until
expiration of their current terms as such, or prior resignation, removal or
death, subject to the Articles of Incorporation and Bylaws of the Surviving
Corporation.
ARTICLE III
CONVERSION AND EXCHANGE OF STOCK
3.1 CONVERSION. (a) At the Effective Time of the Old Pameco Merger,
each share of Old Pameco Common Stock issued and outstanding immediately prior
to the Effective Time of the Old Pameco Merger shall, by virtue of the Merger
and without any action on the part of the
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holder thereof, be converted into the right to receive 1.25 validly issued,
fully paid and non-assessable shares of New Pameco Class A Common Stock.
(b) At the Effective Time of the Holdings Merger, each of the
following shall be deemed to occur simultaneously:
(i) Each holder of shares of Holdings Class A Common Stock and Class
B Common Stock issued and outstanding immediately prior to the Effective
Time of the Holdings Merger shall, by virtue of the Merger and without
any action on the part of the holder thereof, be converted into the right
to receive the number of validly issued, fully paid and non-assessable
shares of New Pameco Common Stock (by class) indicated on SCHEDULE 1 to
this Agreement and Plan of Merger.
(ii) New Pameco shall assume all the rights and obligations of
Holdings under the Holdings stock option plans and grants (the "PLANS").
The outstanding options and grants assumed by New Pameco shall be
exercisable upon the same terms and conditions as under the Plans and the
option agreements relating thereto immediately prior to the Effective
Time of the Holdings Merger; provided, however, that except as set forth
below, upon the exercise of such options, shares of New Pameco Class A
Common Stock shall be issuable in lieu of shares of Holdings Common
Stock; provided, further, that upon the exercise of that certain option
granted to Terfin International, Ltd., to purchase 50,000 shares of
Holdings Common Stock, shares of New Pameco Class B Common Stock shall be
issuable in lieu thereof. The number of shares of New Pameco Class A or
Class B Common Stock issuable upon the exercise of each such outstanding
option shall be at the rate of 1.25 shares of such New Pameco Class A or
Class B Common Stock for one (1) share of Holdings Class A or Class B
Common Stock, respectively, issuable upon the exercise of an option
immediately prior to the Effective Time of the Holdings Merger, and the
option price for each share of New Pameco Common Stock shall be equal to
eighty percent (80%) of the option price in effect immediately prior to
the Effective Time of the Holdings Merger. All options issued pursuant
to the Plans after the Effective Time of the Holdings Merger shall
entitle the holders thereof to purchase shares of New Pameco Class A
Common Stock.
(iii) Each share of New Pameco Class A Common Stock issued and
outstanding immediately prior to the Effective Time of the Holdings
Merger and held by Holdings shall be canceled without any consideration
being issued or paid therefor.
(c) No script or fractional share certificates of New Pameco Common
Stock shall be issued in connection with the Mergers. In lieu of any fractional
interest, there shall be paid in cash an amount equal to the number of shares of
New Pameco Common Stock represented by such fraction multiplied by the price to
the public of shares of New Pameco Class A Common Stock sold pursuant to the
offering described in the Registration Statement, which amount shall be
delivered to the holder of such fractional interest upon delivery of the share
certificates to be received in connection with the Mergers.
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3.2 EXCHANGE.
(a) After the Effective Time of the Old Pameco Merger, each
certificate theretofore representing issued and outstanding shares of Old
Pameco Common Stock shall represent the right to the number of whole
shares of New Pameco Class A Common Stock issuable in the Merger.
(b) After the Effective Time of the Holdings Merger, each
certificate theretofore representing issued and outstanding shares of
Holdings Class A or Class B Common Stock, as the case may be, shall
represent the right to receive the number of whole shares of New Pameco
Class A or Class B Common Stock, respectively, issuable in the Merger as
set forth on SCHEDULE 1 hereto.
(c) At any time on or after the Effective Time of the Holdings
Merger, any holder of certificates theretofore evidencing ownership of
shares of Holdings Class A or Class B Common Stock shall be entitled,
upon surrender of such certificates to the transfer agent of the
Surviving Corporation, to receive in exchange therefor one or more new
stock certificates evidencing ownership of the number of shares of New
Pameco Class A or Class B Common Stock, into which such Holdings Common
Stock shall have been converted in the Mergers. New Pameco shall make
available to such transfer agent certificates evidencing ownership of
such number of shares of New Pameco Class A and Class B Common Stock as
are required to effect such exchange.
ARTICLE IV
EMPLOYEE BENEFIT AND COMPENSATION PLANS
AND EMPLOYMENT AGREEMENTS
4.1 ASSUMPTION. At the Effective Time of the Old Pameco Merger and the
Effective Time of the Holdings Merger, respectively, each employee benefit plan,
incentive compensation plan and employment agreement to which each Terminating
Corporation is then a party shall be assumed by, and continue to be the plan or
agreement of, the Surviving Corporation.
4.2 CONVERSION. To the extent any employee benefit plan, incentive
compensation plan or employment agreement of the Terminating Corporations
provides for the issuance or purchase of, or otherwise relates to, Old Pameco
Common Stock or Holdings Common Stock, after the Effective Time of the Old
Pameco Merger and the Effective Time of the Holdings Merger, respectively, such
plan or agreement shall be deemed to provide for the issuance or purchase of, or
otherwise relate to, New Pameco Class A Common Stock at the rate of: (i) 1.25
shares of New Pameco Class A Common Stock for one (1) share of Old Pameco Common
Stock and (ii) 1.25 shares of New Pameco Class A Common Stock for one (1) share
of Holdings Common Stock; and the price payable thereunder or therefor (if any)
with respect to each share shall be equal to eighty percent (80%) of the price
in effect immediately prior thereto.
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ARTICLE V
SERVICE OF PROCESS
The Surviving Corporation does hereby agree that it may be served with
process in the State of Delaware in any proceeding for enforcement of any
obligation of the Terminating Corporations, as well as for enforcement of any
obligation of the Surviving Corporation arising from the Mergers, including any
suit or other proceeding to enforce the right of any stockholder of the
Terminating Corporations as and when determined in appraisal proceedings
pursuant to the provisions of Section 262 of the DGCL; and does hereby
irrevocably appoint the Secretary of State of the State of Delaware as its agent
to accept service of process in any such suit or other proceedings; and does
hereby specify the following address without the State of Delaware to which a
copy of such process shall be mailed by the Secretary of State of the State of
Delaware:
Pameco Corporation
0000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
ARTICLE VI
GENERAL
6.1 FURTHER ACTIONS. If, at any time after the Effective Time of the
Holdings Merger, the Surviving Corporation shall consider or be advised that any
acts are necessary or desirable (i) to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation, title to and possession of any property
or right of the Terminating Corporations or the Surviving Corporation, as the
case may be, acquired or to be acquired by reason of, or as a result of the
Mergers, or (ii) otherwise to carry out the purposes of this Agreement and Plan
of Merger, each of the Terminating Corporations and their respective officers
and directors shall be deemed to have hereby granted to the Surviving
Corporation an irrevocable power of attorney to make, execute, deliver, file and
record any and all instruments, papers and documents necessary to vest, perfect,
or confirm title to, and the possession of, such property or rights in the
Surviving Corporation and otherwise to carry out the purposes of this Agreement
and Plan of Merger, and the proper officers and directors of the Surviving
Corporation are hereby fully authorized in the name of the Terminating
Corporations or the Surviving Corporation or otherwise to take any and all such
actions.
6.2 TERMINATION AND ABANDONMENT. At any time prior to the consummation
of the Mergers, this Agreement and Plan of Merger may be terminated and the
Mergers abandoned by the Board of Directors of each of the Terminating
Corporations; provided, however, that after the Effective Time of the Old Pameco
Merger, Holdings may not terminate this Agreement and Plan of Merger.
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6.3 AMENDMENT. This Agreement and Plan of Merger may be amended at any
time prior to the Effective Time of the Old Pameco Merger with the consent of
the Boards of Directors of the Constituent Corporations; provided, however, that
this Agreement and Plan of Merger, after it has been adopted by the stockholders
of the Terminating Corporations, may not be amended in any manner which, in the
judgment of the Boards of Directors of the Terminating Corporations, would have
a material adverse effect on the rights of such stockholders or in any manner
not permitted under applicable law; provided, further, that the Boards of
Directors of the Constituent Corporations shall have the power, without
stockholder approval, to adjust the ratio of shares of New Pameco Common Stock
to be received by the holders of Holdings Common Stock in the Mergers.
6.4 HEADINGS. The headings set forth herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement and Plan of Merger.
6.5 COUNTERPARTS. This Agreement and Plan of Merger may be executed in
two or more counterparts, each of which shall constitute an original, and all of
which, when taken together, shall constitute one and the same instrument.
6.6 GOVERNING LAW. This Agreement and Plan of Merger shall be governed
and construed in accordance with the laws of the State of Georgia, except to the
extent the laws of the State of Delaware shall mandatorily apply to the Mergers.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed on its behalf by its duly authorized officers, all as of the day
and year first above written.
Pameco Holdings, Inc.,
a Delaware corporation
By:_________________________________
Name:____________________________
Title: _________________________
Pameco Corporation,
a Delaware corporation
By:_________________________________
Name:____________________________
Title: _________________________
New Pameco Georgia Corporation,
a Georgia corporation
By:_________________________________
Name:____________________________
Title:___________________________
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SCHEDULE 1
----------
TO
AGREEMENT AND PLAN OF MERGER
NUMBER OF SHARES OF
NUMBER OF SHARES OF NEW PAMECO COMMON STOCK
NAME OF SHAREHOLDER HOLDINGS COMMON STOCK OWNED TO BE RECEIVED/1/
-----------------------------------------------------------------------------------------------
CLASS A CLASS B CLASS A CLASS B
-----------------------------------------------------------------------------------------------
TCR International Partners, L.P. 687,538 - - 859,422.5
-----------------------------------------------------------------------------------------------
Terbem Limited 482,304 951,379 - 1,792,103.75
-----------------------------------------------------------------------------------------------
Tinvest Limited 431,609 387,731 - 1,024,175.00
-----------------------------------------------------------------------------------------------
Mitvest Limited 191,759 - - 239,698.75
-----------------------------------------------------------------------------------------------
Bobst Investment Group 244,060 - - 305,075.00
-----------------------------------------------------------------------------------------------
K Investment Partners, L.P. 48,671 - - 60,838.75
-----------------------------------------------------------------------------------------------
Xxxxxxxxxxxx Charitable Partners 29,704 - - 37,130.00
-----------------------------------------------------------------------------------------------
TG Partners 18,967 - - 23,708.75
-----------------------------------------------------------------------------------------------
Xxxxx Xxxxxxx, Xx. 50,000 38,095 110,118.75 -
-----------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxxx - 28,571 35,713.75 -
-----------------------------------------------------------------------------------------------
Xxxxx Xxxxxxx Green - 4,762 5,952.50 -
-----------------------------------------------------------------------------------------------
Xxxx Xxxxxxx Xxxxxxx - 4,762 5,952.50 -
-----------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx & Xxxxxxxx X. Xxxxxx - 10,000 12,500.00 -
-----------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx - 61,500 76,875.00 -
-----------------------------------------------------------------------------------------------
Xxxxx X. Xxxxxx XX 7,666 - 9,582.50 -
-----------------------------------------------------------------------------------------------
B. Xxxxxx Xxxxxx 17,500 - 21,875.00 -
-----------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxx 5,000 - 6,250.00 -
-----------------------------------------------------------------------------------------------
Xxxx X. Xxxxx 1,833 - 2,291.25 -
-----------------------------------------------------------------------------------------------
Ben X.X. Xxxxx 2,500 - 3,125.00 -
-----------------------------------------------------------------------------------------------
Xxxxxxxx X. Xxxxxx 433 - 541.25 -
-----------------------------------------------------------------------------------------------
Xxxxxxx X. Xxxxxxxxx 333 - 416.25 -
-----------------------------------------------------------------------------------------------
Xxxxx X. Xxxxx 284,455 - 355,568.75 -
-----------------------------------------------------------------------------------------------
Xxxxx X. Xxxxx Children's Trust 119,500 - 149,375.00 -
-----------------------------------------------------------------------------------------------
The Bank of Nova Scotia 60,433 - 75,541.25 -
-----------------------------------------------------------------------------------------------
Xxxxx Xxxxxx 4,000 - 5,000.00 -
-----------------------------------------------------------------------------------------------
Xxxx Xxxx 11,500 - 14,375.00 -
-----------------------------------------------------------------------------------------------
Xxxxxxx Xxxx 2,820 - 3,525.00 -
-----------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx 6,100 - 7,625.00 -
-----------------------------------------------------------------------------------------------
Xxxx XxXxxxxx 2,200 - 2,750.00 -
-----------------------------------------------------------------------------------------------
Total 2,710,885 1,486,800 904,953.75 4,342,152.50
-----------------------------------------------------------------------------------------------
/1/ The number of shares to be received is based on a ratio of 1.25 shares of
New Pameco Common Stock per share of Holdings Common Stock. Pursuant to
Section 6.3 of the Agreement and Plan of Merger, this ratio may be adjusted
by the Boards of Directors of the Constituent Corporations. No script or
fractional share certificates will be issued in connection with the
Mergers. Cash shall be paid in lieu of fractional interests as described in
the Agreement and Plan of Merger.
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