AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and
entered into as of May 7, 2002, by and between Trinity Companies, Inc., an
Oklahoma corporation ("Trinity-Oklahoma"), and Trinity Companies, Inc., a
Utah corporation and wholly-owned subsidiary of Trinity-Oklahoma ("Trinity-
Utah"). Certain other capitalized terms used in this Agreement are as
defined herein.
RECITALS
A. The Boards of Directors of Trinity-Utah and Trinity-Oklahoma
believe it is in the best interests of their respective companies and the
stockholders of their respective companies that Trinity-Oklahoma and
Trinity-Utah combine into a single company for the purpose of changing the
domicile of Trinity-Oklahoma from an Oklahoma corporation to a Utah
corporation through the statutory merger of Trinity-Oklahoma with and into
Trinity-Utah (the "Merger") and, in furtherance thereof, have approved the
Merger.
B. Pursuant to the Merger, among other things, the outstanding
shares of voting common stock of Trinity-Oklahoma ("Trinity-Oklahoma
Capital Stock"), shall be exchanged for shares of voting common stock of
Trinity-Utah ("Trinity-Utah Capital Stock") then cancelled and retired and
cease to exist.
C. Trinity-Oklahoma and Trinity-Utah desire to make certain
representations and warranties and other agreements in connection with the
Merger.
D. The parties intend, by executing this Agreement, to adopt a plan
of reorganization within the meaning of Section 368 of the Internal Revenue
Code of 1986, as amended (the "Code"), and to cause the Merger to qualify
as a reorganization under the provisions of Sections 368(a)(1)(A) of the
Code.
NOW, THEREFORE, in consideration of the covenants and representations
set forth herein, and for other good and valuable consideration, the
parties agree as follows:
ARTICLE I.
THE MERGER
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A. The Merger. At the Effective Time (as defined in Section I.B)
and subject to and upon the terms and conditions of this Agreement and the
Articles of Merger to be attached hereto (the "Articles of Merger"), the
applicable provisions of the Utah Revised Business Corporation Act ("Utah
Law"), and the applicable provisions of Oklahoma General Corporation Code
("Oklahoma Law"), Trinity-Oklahoma shall be merged with and into Trinity-
Utah, the separate corporate existence of Trinity-Oklahoma shall cease and
Trinity-Utah shall continue as the surviving corporation. Trinity-Utah as
the surviving corporation after the Merger is hereinafter sometimes
referred to as the "Surviving Corporation."
B. Closing; Effective Time. The closing of the transactions
contemplated hereby (the "Closing") shall take place on the later of (i)
June 3, 2002, or (ii) on the date the filing of the Articles of Merger and
the Certificate of Merger, together with the required officers'
certificates, with the Utah Department of Commerce, Division of
Corporations and Commercial Code, in accordance with the relevant
provisions of Utah Law and the Oklahoma Secretary of State in accordance
with the relevant provisions of Oklahoma Law (the "Effective Date"). The
Closing shall take place at the offices of Trinity-Utah or at such other
location as the parties hereto agree. The"Effective Time" shall mean the
close of business on the Effective Date.
C. Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in this Agreement, the Articles of Merger, the
Certificate of Merger and the applicable provisions of Utah Law and
Oklahoma Law. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the property, rights,
privileges, powers and franchises of Trinity-Oklahoma and Trinity-Utah
shall vest in the Surviving Corporation, and all debts, liabilities and
duties of Trinity-Oklahoma and Trinity-Utah shall become the debts,
liabilities and duties of the Surviving Corporation.
D. Articles of Incorporation; Bylaws.
1. At the Effective Time, the Articles of Incorporation of
Trinity-Utah, as in effect immediately prior to the Effective Time, shall
be the Articles of Incorporation of the Surviving Corporation until
thereafter amended as provided by Utah Law and such Articles of
Incorporation.
2. The Bylaws of Trinity-Utah, as in effect immediately prior
to the Effective Time, shall be the Bylaws of the Surviving Corporation
until thereafter amended.
E. Directors and Officers. At the Effective Time, the directors of
Trinity-Utah immediately prior to the Effective Time shall be the directors
of the Surviving Corporation, to hold office until such time as such
directors resign, are removed or their respective successors are duly
elected or appointed and qualified. The officers of Trinity-Utah
immediately prior to the Effective Time shall be the officers of the
Surviving Corporation, to hold office until such time as such officers
resign, are removed or their respective successors are duly elected or
appointed and qualified.
F. Basis of the Merger. Pursuant to the provisions of this
Agreement, by virtue of the Merger and without any action on the part of
Trinity-Oklahoma or Trinity-Utah, all of the Trinity-Oklahoma Capital Stock
shall be converted in the manner set forth below.
1. Cancellation of Trinity-Oklahoma Capital Stock. Each share
of the Trinity-Oklahoma Capital Stock outstanding as of the Effective Time
an without any action on the part of any of the parties or any holder of
any shares of Trinity-Utah or Trinity-Oklahoma, shall be converted into and
become on validly issued, fully-paid, and non-assessable share of common
stock of the Surviving Corporation. After the Effective Time, the shares
of Trinity-Utah currently held by Trinity-Oklahoma shall be cancelled and
extinguished.
2. Cancellation of Trinity-Oklahoma Capital Stock Owned by
Trinity-Oklahoma. At the Effective Time, any shares of Trinity-Oklahoma
Capital Stock that are owned by Trinity-Oklahoma as treasury stock
immediately prior to the Effective Time shall be canceled and extinguished
without any conversion thereof.
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G. Tax Consequences. It is intended by the parties hereto that the
Merger shall constitute a reorganization within the meaning of Section 368
of the Code. No party shall take any action that would, to such party's
knowledge, cause the Merger to fail to qualify as such.
H. Oklahoma Service of Process. Trinity-Utah hereby agrees that it
may be served with process in the State of Oklahoma in any proceeding for
the enforcement of any obligation of Trinity-Oklahoma or Trinity-Utah
arising from the merger, including the rights of any dissenting
stockholders thereof, and hereby irrevocably appoints the Secretary of
State of Oklahoma as its agent to accept service of process in any such
suit or other proceedings and agrees that service of any such process may
be made by personally delivering to and leaving with such Secretary of
State of the State of Oklahoma duplicate copies of such process; and hereby
authorizes the Secretary of State of the State of Oklahoma to send
forthwith by registered mail one of such duplicate copies of such process
addressed to it at 0000 Xxxxx Xxxxxxxx Xxxx #000, Xxxx Xxxx Xxxx, Xxxx
00000, unless Trinity-Utah shall hereafter designate in writing to such
Secretary of State of the State of Oklahoma a different address for such
process, in which case the duplicate copy of such process shall be mailed
to the last address so designated.
I. Utah Registered Agent. The Surviving Corporation is deemed to
have appointed Xxxxx Xxxxxxxxxxx located at Xxxxxxx, Xxxxx & Xxxxxxx, 000
Xxxxx 000 Xxxx, Xxxxx 000, Xxxxxx, Xxxx 00000, as its agent for service of
process upon which process, tax notices and demands against Trinity-
Oklahoma or the Surviving Corporation may be served.
J. Taking of Necessary Action; Further Action. If, at any time
after the Effective Time, any further action is necessary or desirable to
carry out the purposes of this Agreement and to vest the Surviving
Corporation with full right, title and possession to all assets, property,
rights, privileges, powers and franchises of Trinity-Oklahoma, the officers
and directors of Trinity-Oklahoma are fully authorized in the name of
Trinity-Oklahoma or otherwise to take, and shall take, all such lawful and
necessary action, so long as such action is not inconsistent with this
Agreement.
ARTICLE II.
GENERAL PROVISIONS
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A. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when one or more counterparts have been signed
by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
B. Entire Agreement; No Third Party Beneficiaries. This Agreement,
and the documents and instruments and other agreements specifically
referred to herein or delivered pursuant hereto, (a) constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof; (b) are not
intended to confer upon any other person any rights or remedies hereunder,
except for the rights of the Trinity-Oklahoma Stockholders to receive the
consideration set forth in Article I of this Agreement.
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C. Severability. In the event that any provision of this Agreement,
or the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement
with a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of such void or
unenforceable provision.
D. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Utah.
E. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and permitted assigns.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Trinity-Oklahoma and Trinity-Utah have caused this
Agreement to be executed and delivered by their respective officers
thereunto duly authorized.
"Trinity-Oklahoma":
TRINITY COMPANIES, INC.
_____________________________________
By:
Name:
Its:
"TRINITY-UTAH":
TRINITY COMPANIES, INC.
_____________________________________
By:
Name:
Its:
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