Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated this 25th day of October,
2000, is made by and between D and W Holdings, Inc., a Delaware corporation
("Holdings" or the "Surviving Corporation") and Atrium Corporation, a Delaware
corporation ("Atrium Corp." or the "Non-Surviving Corporation").
RECITALS
WHEREAS, the parties desire to streamline their operations, minimize
tax obligations, and reduce the overall costs of doing business by consolidating
operations into one corporate entity;
WHEREAS, to effect these objectives, Atrium Corp. proposes to merge
with and into Holdings, with Holdings being the surviving entity;
WHEREAS, the parties intend for federal income tax purposes the merger
of Atrium Corp. with and into Holdings shall qualify for treatment under Section
332(a) of the Internal Revenue Code of 1986, as amended, (the "Code"), Section
337(a) of the Code and Section 368(a) of the Code; and
WHEREAS, the Boards of Directors of Atrium Corp. and Holdings have
adopted resolutions approving this Agreement and Plan of Merger.
NOW, THEREFORE, to effect the mergers and in consideration of the
premises and the mutual covenants and agreements contained herein, the parties
hereby provide for the following terms and conditions of the merger:
1. MERGER OF ATRIUM CORP. INTO HOLDINGS
On the Effective Date (as defined in Section 10), Atrium Corp. shall be
merged with and into Holdings, which latter corporation shall be the surviving
corporation. The corporate existence of Holdings with all of its purposes,
powers and objects, shall continue unaffected and unimpaired by the merger.
On the Effective Date, the separate corporate existence of Atrium Corp.
shall cease and thereupon Atrium Corp. and Holdings shall be a single
corporation, to wit, Holdings, and such Surviving Corporation shall be governed
by the laws of the State of Delaware.
2. VESTING OF ASSETS AND LIABILITIES OF THE NON-SURVIVING CORPORATION IN
HOLDINGS
On the Effective Date, all rights, immunities, privileges, powers and
franchises of each of Atrium Corp. and Holdings, all property, real, personal
and mixed, tangible and intangible, all debts due on accounts, and all causes of
action and rights to bring an action belonging to the Non-Surviving Corporation
shall vest in the Surviving Corporation without further act or deed as they were
vested in the Non-Surviving Corporation, and the title to any real estate,
whether vested by deed or otherwise, or a leasehold interest in real estate,
shall not revert or be in any way impaired by reason of the merger; and the
Surviving Corporation shall thenceforth assume
and be responsible for all such debts, liabilities, obligations and duties of
the Non-Surviving Corporation and all such debts, liabilities, obligations and
duties shall thenceforth attach to the Surviving Corporation and may be enforced
against it to the same extent as if such debts, liabilities, obligations and
duties had been incurred or contracted by the Surviving Corporation.
The liabilities existing on the Effective Date of Atrium Corp. or of
its directors or officers shall not be affected, nor shall the rights of
creditors thereof or of any person dealing with Atrium Corp., or any liens upon
the property of Atrium Corp., be impaired by the merger, and all rights of
creditors and all liens upon the property of Atrium Corp. shall be preserved
unimpaired, and any action or proceeding pending by or against Atrium Corp. may
be prosecuted to judgment the same as if the merger had not taken place, which
judgment shall bind the Surviving Corporation, or the Surviving Corporation may
be proceeded against or substituted in its place.
If at any time after the Effective Date, the Surviving Corporation
shall consider or be advised that any further assignments or instruments are
necessary or desirable to vest, perfect or confirm in it the title to any assets
or rights of the Non-Surviving Corporation acquired or to be acquired by reason
of, or as a result of, the merger, the Non-Surviving Corporation and its
officers and directors shall and will execute and deliver all such deeds,
assignments and instruments and do all things necessary or proper to vest,
perfect or confirm title to such assets or rights in the Surviving Corporation
and otherwise to carry out the purpose of this Agreement, and the officers and
directors of the Non-Surviving Corporation and the officers and directors of the
Surviving Corporation are fully authorized in the name of the Non-Surviving
Corporation and the Surviving Corporation to take any and all such action.
3. NAME
The name of the Surviving Corporation shall be D and W Holdings, Inc.
4. ARTICLES OF INCORPORATION
The Articles of Incorporation of Holdings shall be the Articles of
Incorporation of the Surviving Corporation.
5. BY-LAWS
The By-Laws of Holdings shall be the By-Laws of the Surviving
Corporation.
6. DIRECTORS OF THE SURVIVING CORPORATION
Those persons serving as members of the Board of Directors of Holdings
on the Effective Date shall remain on such date members of the Board of
Directors of the Surviving Corporation. Those persons serving as members of the
Board of Directors of the Non-Surviving Corporation prior to the Effective Date
shall cease serving as such members as of the Effective Date.
7. OFFICERS
All persons holding office in Holdings on the Effective Date shall
remain on such date officers of the Surviving Corporation, in the same
capacities and with the same titles, powers and
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responsibilities, and shall hold office subject to the By-Laws of the Surviving
Corporation from the Effective Date and for the same term and subject to the
same conditions as such offices in Holdings were held immediately prior to such
date. All persons serving as officers of the Non-Surviving Corporation prior to
the Effective Date shall cease holding their respective offices as of the
Effective Date.
8. CANCELLATION OF SHARES
On the Effective Date, by virtue of the merger and without any further
action on the part of either Atrium Corp. or Holdings or their respective
shareholders, each share of stock of Atrium Corp. shall be canceled and the
certificates surrendered to the Secretary of Holdings.
9. D AND W SHARES
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Each share of stock of D and W Holdings, Inc. shall remain in full
force and effect and shall not be canceled or surrendered.
10. PROCEDURAL PROVISIONS
(a) Effective Date of the Merger
This Agreement and Plan of Merger and/or all appropriate certificates
and instruments in respect thereof shall be filed and/or recorded in accordance
with applicable law, and the merger of the Non-Surviving Corporation with and
into the Surviving Corporation shall become effective upon the filing of this
Agreement and Plan of Merger or an appropriate certificate thereof with the
Secretary of State of the State of Delaware (the "Effective Date").
(b) Filing
This Agreement and Plan of Merger, or an appropriate certificate
thereof, shall be filed with the Secretary of State of the State of Delaware.
11. ASSETS, LIABILITIES, RESERVES, AND ACCOUNTS
Upon the Effective Date, the assets, liabilities, reserves, and
accounts of the Non-Surviving Corporation shall be taken upon the books of the
Surviving Corporation at the amounts at which they, respectively, shall then be
carried on the books of the Non-Surviving Corporation, subject to such
adjustments, or eliminations of intercompany items, if any, as may be
appropriate in giving effect to the merger.
12. CORPORATE ACTS AND EMPLOYEES OF NON-SURVIVING CORPORATION
All corporate acts, plans, policies, approvals and authorizations of
the Non-Surviving Corporation, its shareholders, Board of Directors, committees
(whether elected or appointed by the Board of Directors), officers and agents,
which were valid and effective immediately prior to the Effective Date shall be
taken for all purposes as the acts, plans, policies, approvals, and
authorizations of the Surviving Corporation, and shall be as effective and
binding thereon as the same were with respect to the Non-Surviving Corporation.
The employees and agents of the
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Non-Surviving Corporation shall become the
employees and agents of the Surviving Corporation, and continue to be entitled
to the same rights and benefits, and subject to the same obligations and
responsibilities, which they had as employees and agents of the Non-Surviving
Corporation.
13. TERMINATION
This Agreement and Plan of Merger may be terminated and abandoned by
resolutions of the Board of Directors of Atrium Corp. or Holdings at any time
prior to the Effective Date if circumstances develop which in the opinion of
such Board of Directors make proceeding with the merger inadvisable. In the
event of the termination and abandonment of this Agreement and the merger
pursuant to the foregoing provisions of this Section 12, this Agreement shall
become void and have no effect, without any liability on the part of Atrium
Corp. or Holdings, their shareholders, directors or officers in respect thereof.
14. REPRESENTATIONS AND WARRANTIES
(c) Holdings represents and warrants to Atrium Corp. as follows:
(i) Holdings is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware.
(ii) Holdings has power and authority to enter into and
perform its obligations under this Agreement and the transactions
contemplated hereby, and Holding's execution, delivery and performance
of this Agreement have been duly and validly authorized by all
necessary action on its part. This Agreement has been duly executed and
delivered by Holdings and constitutes its valid and binding obligation,
enforceable against it in accordance with its terms, except as limited
by laws affecting creditors' rights or equitable principles generally.
(d) Atrium Corp. represents and warrants to Holdings as follows:
(i) Atrium Corp. is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware.
(ii) Atrium Corp. has power and authority to enter into and
perform its obligations under this Agreement and the transactions
contemplated hereby, and Atrium Corp.'s execution, delivery and
performance of this Agreement have been duly and validly authorized by
all necessary action on its part. This Agreement has been duly executed
and delivered by Atrium Corp. and constitutes its valid and binding
obligation, enforceable against it in accordance with its terms, except
as limited by laws affecting creditors' rights or equitable principles
generally.
15. GOVERNING LAW
This Agreement and Plan of Merger shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
choice of law principles thereof.
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16. NO RIGHTS OR REMEDIES IN THIRD PARTIES
Except as otherwise expressly provided in this Agreement and Plan of
Merger, nothing herein is intended, or shall be construed, to confer upon or to
give any person, firm or corporation other than Atrium Corp. and Holdings and
their respective shareholders any rights or remedies under or by reason of this
Agreement and Plan of Merger.
17. COUNTERPARTS
This Agreement and Plan of Merger may be executed in any number of
counterparts, each of which shall be deemed to be an original instrument, but
all of which together shall constitute one and the same instrument.
18. ENTIRE AGREEMENT
This Agreement and Plan of Merger constitutes the entire agreement
between the parties, and supersedes all prior agreements, written or oral,
between Atrium Corp. and Holdings as of the date of execution hereof.
19. SEVERABILITY
In case any one or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision hereof and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein and, in lieu
of each such illegal, invalid or unenforceable provision, there shall be added
as a part of this Agreement, a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and be legal, valid and
enforceable.
20. FILING OF REQUIRED DOCUMENTS
The parties each hereby agree to execute, deliver and file such other
documents and instruments and take such other actions as may reasonably be
requested by the other parties in order to more effectively consummate the
transactions contemplated hereby.
IN WITNESS WHEREOF, this Agreement and Plan of Merger has been executed
on the day and year first above written.
ATRIUM CORPORATION, a Delaware Corporation
By:
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Name:
Title:
D AND W HOLDINGS, INC., a Delaware Corporation
By:
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Name:
Title:
SECRETARY'S CERTIFICATE
State of Delaware
The undersigned hereby certifies that he is the duly elected Secretary
of Atrium Corporation, a Delaware corporation, and that the foregoing is a true
and correct copy of the Agreement and Plan of Merger executed on the --- day of
October, 2000, by the duly authorized officers of Atrium Corporation.
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Name:
Secretary
SECRETARY'S CERTIFICATE
State of Delaware
The undersigned hereby certifies that he is the duly elected Secretary
of D and W Holdings, Inc., a Delaware corporation, and that the foregoing is a
true and correct copy of the Agreement and Plan of Merger executed on the ___
day of October, 2000, by the duly authorized officers of D and W Holdings, Inc.
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Name:
Secretary
