EXHIBIT 6.9
AGREEMENT AND PLAN OF MERGER
OF MPI THREE, INC.
INTO XXXXXXX PRESERVATION, INC.
AGREEMENT AND PLAN OF MERGER dated as of July 1, 1998, between MPI Three,
Inc., a Delaware corporation ("MPI Three"), and Xxxxxxx Preservation, Inc., a
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Florida corporation ("MPI").
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WHEREAS, MPI Three is a corporation duly organized and existing under the
laws of the State of Delaware, having been incorporated on June 24, 1998;
WHEREAS, MPI is a corporation duly organized and existing under the laws of
the State of Florida, having been incorporated on June 25, 1998;
WHEREAS, the respective Boards of Directors of MPI Three and MPI and the
voting stockholders of MPI Three and MPI have approved the merger of MPI Three
into MPI (the "Merger"), upon the terms and subject to the conditions set forth
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in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of the mutual benefits hereby provided, it is
agreed by and between the parties hereto as follows:
1. THE MERGER. At the Effective Time of the Merger (as defined in Section
3 hereof), upon the terms and subject to the conditions set forth in this
Agreement, and in accordance with the General Corporation Law of the State of
Delaware (the "Delaware Act") and the Florida Business Corporation Act (the
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"Florida Act"), MPI Three shall be merged with and into MPI. MPI shall be the
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surviving corporation in accordance with this Agreement. The corporate and
separate existence of MPI Three shall thereupon cease. The corporate existence
of MPI with all of its purposes, powers and objects shall continue unaffected
and unimpaired by the merger.
2. CLOSING. Upon the terms and subject to the conditions of this
Agreement, the closing of the Merger (the "Closing") shall take place at 7 p.m.
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p.m. on Wednesday, May 27, 1998 (the "Closing Date") at Pennington, Moore,
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Xxxxxxxxx, Xxxx & Xxxxxx, P.A., unless another time, date or place is agreed to
in writing by the parties hereto.
3. EFFECTIVE TIME OF THE MERGER. Upon the Closing, the parties shall file
a certificate of merger, substantially in the form attached hereto as Exhibit A
(the "Certificate of Merger"), with the Secretary of State of the State of
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Delaware and articles of merger, substantially in the form attached hereto as
Exhibit B (the "Articles of Merger"), with the Department of State of the State
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of Florida, each executed in accordance with the relevant provisions of the
Delaware Act and the Florida Act and shall make all other filings, recordings or
publications required under the Delaware Act or the Florida Act in connection
with the Merger. The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Secretary of State of the State of
Delaware and the Articles of Merger are duly filed with the
Department of State of the State of Florida, or at such other time as the
parties may agree and specify in the Certificate of Merger and the Articles of
Merger (the time at which the Merger becomes effective, the "Effective Time of
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the Merger").
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4. EFFECTS OF THE MERGER. The Merger shall have the effects set forth in
Section 259 of the Delaware Act and Sections 607.1106 and 607.1107(4) of the
Florida Act.
5. SURVIVING CORPORATION. Following the Merger, the separate corporate
existence of MPI Three shall cease and MPI shall continue as the surviving
corporation (the "Surviving Corporation") and shall succeed to and possess
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without further act or deed, all of the estate, rights, privileges and powers,
both public and private, and all of the property, real, personal and mixed, of
each of the parties hereto; all debts due to MPI Three shall be vested in the
Surviving Corporation; all claims, demands, property, rights, privileges, powers
and franchises and every other interest of either of the parties hereto shall be
as effectively the property of the Surviving Corporation as they were of the
respective parties hereto; the title to any real estate vested by deed or
otherwise in MPI Three shall not revert or be in any way impaired by reason of
the merger, but shall be vested in the Surviving Corporation; all rights of
creditors and all liens upon any property of either of the parties hereto shall
be reserved unimpaired, limited in lien to the property affected by such lien at
the effective time of the merger; all debts, liabilities, and duties of each of
the parties hereto shall thenceforth attach to the Surviving Corporation as if
such debts, liabilities, and duties had been incurred or contracted by it; and
the Surviving Corporation shall indemnify and hold harmless the officers and
directors of each of the parties hereto against all such debts, liabilities and
duties and against all claims and demands arising out of the merger, all in
accordance with the Delaware Act and the Florida Act. The Surviving Corporation
shall continue to be governed by the laws of the State of Florida.
6. ARTICLES OF INCORPORATION. The Articles of Incorporation of MPI as in
effect immediately prior to the Effective Time of the Merger shall be the
Articles of Incorporation of the Surviving Corporation until thereafter changed
or amended as provided therein or by applicable law.
7. BYLAWS. The Bylaws of MPI as in effect immediately prior to the
Effective Time of the Merger shall be the Bylaws of the Surviving Corporation
until thereafter changed or amended as provided therein or by applicable law.
8. DIRECTORS. The individuals who are the directors of MPI immediately
prior to the Effective Time of the Merger shall be the directors of the
Surviving Corporation until thereafter they cease to be directors in accordance
with the Florida Act and the Certificate of Incorporation and Bylaws of the
Surviving Corporation.
9. OFFICERS. The individuals who are the officers of MPI immediately prior
to the Effective Time of the Merger shall be the officers of the Surviving
Corporation until thereafter they cease to be officers in accordance with the
Florida Act and the Articles of Incorporation and Bylaws of the Surviving
Corporation.
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10. MERGER CONSIDERATION.
(a) Class A Common Stock
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(i) At the Effective Time of the Merger, each share of
Class A common stock of MPI Three ("Class A Common Stock") outstanding
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immediately prior to the Effective Time of the Merger, shall automatically be
converted into, and shall become, one (1) share of MPI's common stock, par value
$.01 per share (the "Class A Merger Consideration").
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(ii) Upon surrender of the certificates representing shares
of Class A Common Stock (collectively, the "MPI Three A Stock Certificates") for
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cancellation to MPI, the holder of such certificates shall be entitled to
receive in exchange therefor certificates representing shares of MPI's common
stock issued pursuant to the provisions of this Section 10(a), and the MPI Three
A Stock Certificates so surrendered shall forthwith be cancelled.
(iii) The Class A Merger Consideration shall be deemed to
have been paid or provided in full satisfaction of all rights pertaining to the
shares of Class A Common Stock theretofore represented by such MPI Three A Stock
Certificates.
(b) Class B Common Stock
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(i) At the Effective Time of the Merger, each share of
Class B common stock of MPI Three ("Class B Common Stock") outstanding
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immediately prior to the Effective Time of the Merger, shall automatically be
converted into, and shall become, one (1) share of MPI's preferred stock, no par
value (the "Class B Merger Consideration").
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(ii) Upon surrender of the certificates representing shares
of Class B Common Stock (collectively, the "MPI Three B Stock Certificates") for
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cancellation to MPI, the holder of such certificates shall be entitled to
receive in exchange therefor certificates representing shares of MPI's preferred
stock pursuant to the provisions of this Section 10(b), and the MPI Three B
Stock Certificates so surrendered shall forthwith be cancelled.
(iii) The Class B Merger Consideration shall be deemed to
have been paid or provided in full satisfaction of all rights pertaining to the
shares of Class B Common Stock theretofore represented by such MPI Three B Stock
Certificates.
11. TERMINATION. This Agreement may be terminated and abandoned by action
of the Board of Directors of MPI Three at any time prior to the Effective Time
of the Merger, whether before or after approval by the voting stockholders of
MPI Three.
12. PLAN OF REORGANIZATION. This Agreement constitutes a Plan of
Reorganization to be carried out in the manner, on the terms and subject to the
conditions herein set forth.
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13. FURTHER ASSURANCES OF TITLE. If at any time the Surviving
Corporation shall consider or be advised that any acknowledgements or assurances
in law or other similar actions are necessary or desirable in order to
acknowledge or confirm in and to the Surviving Corporation any right, title or
interest of MPI Three held immediately prior to the Effective Time of the
Merger, MPI Three shall and will execute and deliver all such acknowledgements
or assurances in law and do all things necessary or proper to acknowledge or
confirm such right, title, or interest in the Surviving Corporation as shall be
necessary to carry out the purposes of this Agreement, and the Surviving
Corporation and the proper officers and directors thereof are fully authorized
to take any and all such action in the name of MPI Three or otherwise.
14. ASSETS, LIABILITIES, RESERVES, ACCOUNTS, ETC. At the Effective
Time of the Merger, the assets, liabilities, reserves and accounts of each
corporation shall be taken on the books of the Surviving Corporation at the
amounts at which they respectively, shall then be carried on the books of said
corporations subject to such adjustments, if any, as may be appropriate in
giving effect to the Merger.
16. GENERAL PROVISIONS
(a) No Rights or Remedies in Third Parties. Except as
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otherwise expressly provided in this Agreement, nothing herein expressed or
implied is intended, or shall be construed, to confer on or to give any person,
firm or corporation other than MPI and MPI Three any rights or remedies under or
by reason of this Agreement.
(b) Execution of Counterparts. This Agreement may be
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executed in any number of counterparts. Each such counterpart hereof shall be
deemed to be an original instrument but all such counterparts together shall
constitute but one Agreement.
(c) Entire Agreement. This Agreement, including the
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documents and instruments referred to herein (a) constitutes the entire
agreement and supercedes all other prior agreements and understandings, both
written and oral, between the parties, with respect to the subject matter
hereof; (b) is not intended to confer on any other person any rights or remedies
hereunder; and (c) shall not be assigned by operation or law or otherwise.
(d) Severability. In the event that, for any reason, any
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provision of this Agreement is construed to be invalid, the invalidity of such
provision is not to be considered or held to impair or invalidate any other
provision of this Agreement.
(e) Filing of Required Documents. The parties each hereby
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agree to file in a timely manner such documents as are required, in the opinion
of their counsel, to be filed with any applicable governmental authority.
(f) Headings. The headings contained in this Agreement are
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for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first above written.
MPI THREE, INC.
By: /s/ Xxxxxxx XxXxxx
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Name: Xxxxxxx XxXxxx
Title: President
XXXXXXX PRESERVATION, INC.
By: /s/ Xxxxxxx XxXxxx
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Name: Xxxxxxx XxXxxx
Title: President
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