EXHIBIT 3.6
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AGREEMENT AND PLAN OF MERGER OF SUN WORLD, INC.
A DELAWARE CORPORATION,
AND
SUN WORLD INTERNATIONAL, INC., A DELAWARE CORPORATION
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made as of
September 13, 1996 by and between Sun World International, Inc., a Delaware
corporation ("SWI"), and Sun World, Inc., a Delaware corporation and a
wholly-owned subsidiary of SWI ("Sun World"). Sun World and SWI are
sometimes referred to herein as the "Constituent Corporations."
RECITALS
A. SWI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has an authorized
capital of Three Hundred Seventy Five Thousand (375,000) shares, consisting
of (i) Three Hundred Thousand (300,000) shares of common stock, $1.00 par
value ("SWI Common Stock"), and (ii) Seventy Five Thousand (75,000) shares
of preferred stock, $300.00 par value ("SWI Preferred Stock"). As of the
date hereof, Forty Two Thousand (42,000) shares of SWI Common Stock and
Thirty Eight Thousand Five Hundred One (38,501) shares of SWI Preferred
Stock are issued and outstanding.
B.. Sun World is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has an
authorized capital of One Thousand (1,000) shares of common stock, $1.00
par value ("Sun World Common Stock" or "Surviving Corporation Common
Stock"). As of the date hereof, One Thousand (1,000) shares of Sun World
Common Stock are issued and outstanding.
C. SWI and Sun World, among other entities, have filed a plan of
reorganization, Case No. SB94-23212 DN ("Plan") under title 11 of the
United States Code ("Bankruptcy Code");
D. To comply with the terms of the Plan (i) the Board of Directors of
SWI has determined that it is advisable and in the best interests of SWI
that SWI merge with and into Sun World upon the terms and conditions herein
provided, and (i) the Board of Directors of Sun World has determined that
it is advisable and in the best intereests of Sun World that SWI merge with
and into Sun World upon the terms and conditions herein provided. Terms
used herein and not otherwise defined shall have the meanings assigned to
them in the Plan.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, Sun World and SWI hereby agree, subject to the
terms and conditions set forth, as follows:
I.
EFFECTUATION OF MERGER
1.1 MERGER. In accordance with the provisions of this Agreement,
the Delaware General Corporation Law and applicable bankruptcy law, upon
the Effective Date of Merger, as defined below, SWI shall be merged with
and into Sun World (the "Merger"), the separate existence of SWI shall
cease, and Sun World shall be, and is herein sometimes referred to as, the
"Surviving Corporation", and the name of the Surviving Corporation shall
become Sun World International, Inc.
1.2 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF SUN WORLD.
Prior to or concurrent with the Effective Date of Merger, as hereinafter
defined, the Amended and Restated Certificate of Incorporation of Sun
World, a copy of which is attached hereto as Exhibit A ("Amended and
Restated Sun World Certificate"), shall be filed with the Delaware
Secretary of State. The Amended and Restated Sun World Certificate shall,
among other things, (i) increase the number of authorized shares of Sun
World Common Stock from One Thousand (1,000) to Three Hundred Thousand
(300,000) and establish a par value of $0.01 for each such share, (ii)
create a class of Sun World preferred stock, $300 par value ("Sun World
Preferred Stock"), and (iii) authorize the issuance of up to Seventy Five
Thousand (75,000) shares of such Sun World Preferred Stock. The parties
agree that the Amended and Restated Sun World Certificate shall, among
other things, prohibit the issuance of nonvoting securities to the extent
required by section 1123(a)(6) of the Bankruptcy Code.
1.3 FILING AND OTHER REQUIREMENTS FOR EFFECTIVENESS. The Merger
shall become effective when the following actions shall have been
completed:
(a) The occurrence of the Effective Date;
(b) All of the conditions precedent to the consummation of the
Merger specified in this Agreement shall have been satisfied or duly
waived by the party entitled to satisfaction thereof; and
(c) The executed certificate of merger, a copy of which is attached
hereto as Exhibit B ("Certificate of Merger") and the Amended and
Restated Sun World Certificate shall have been filed with the Secretary
of State of the State of Delaware.
The date and time when the Merger shall become effective, as aforesaid,
is herein called the "Effective Date of Merger."
1.4 SUCCESSION. Upon the Effective Date of Merger, the separate
existence of SWI shall cease and Sun World, as the Surviving Corporation,
(i) shall continue to possess all of its assets, rights, privileges, powers
and property as constituted immediately prior to the Effective Date of
Merger, (ii) shall be subject to all actions previously taken by SWI and
SWI's Board of Directors, (iii) shall succeed, without other transfer, to
all of the assets, rights, powers and property of SWI in the manner of and
as more fully set forth in Section 259 of the Delaware General Corporation
Law, (iv) shall continue to be subject to all of its debts, liabilities and
obligations as constituted immediately prior to the Effective Date of
Merger and (v) shall succeed, without other transfer, to all of the debts,
liabilities and obligations of SWI in the same manner as if Sun World had
itself incurred them, all as more fully provided under the applicable
provisions of the Delaware General Corporation Law.
II.
MANNER OF CONVERSION OF STOCK
2.1 SWI CAPITAL STOCK. Upon the Effective Date of Merger, each
share of SWI Common Stock issued and outstanding immediately prior thereto
and each share of SWI Preferred Stock issued and outstanding immediately
prior thereto, shall, by virtue of the Merger and without any further
action by the Constituent Corporations, their stockholders, or any other
person, be converted into and exchanged for fully paid and nonassessable
shares of the Surviving Corporation, on the basis of one share of Sun World
Common Stock or Sun World Preferred Stock, as the case may be, for every
share of SWI Common Stock or SWI Preferred Stock.
2.2 OPTION AND WARRANTS. Upon the Effective Date, pursuant to the
terms of the Plan, all of SWI's outstanding options or warrants to purchase
shares of either SWI Common Stock or SWI Preferred Stock shall be canceled.
2.3 SUN WORLD COMMON STOCK. Upon the Effective Date of Merger,
each share of Sun World Common Stock issued and outstanding immediately
prior thereto shall, by virtue of the Merger and without any action by the
holder of such shares or any other person, be canceled and returned to the
status of authorized but unissued shares.
2.4 NO EXCHANGE OF CERTIFICATES. After the Effective Date of
Merger, Holders of certificates representing either SWI Common Stock or SWI
Preferred Stock will not be instructed to present such certificate or
certificates to the Surviving Corporation or its transfer agent for
exchange for certificates of the Surviving Corporation. Each certificate
or certificates representing shares of either SWI Common Stock or SWI
Preferred Stock shall be honored as if such certificate or certificates
were for the same number of shares of the Surviving Corporation's Common
Stock or Preferred Stock into which the surrendered shares were converted
as herein provided, and shall be deemed for all purposes to evidence
ownership of and to represent the number of whole shares of the Surviving
Corporation's Common Stock or Preferred Stock.
The registered owner on the books and records of the Surviving
Corporation or the Surviving Corporation's transfer agent of any such
outstanding certificate shall 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 the Surviving Corporation represented by
such outstanding certificate as provided above.
III.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
3.1 AMENDED AND RESTATED CERTIFICATE. The Amended and Restated Sun
World Certificate shall become the certificate of incorporation of the
Surviving Corporation in accordance with the provisions hereof and thereof
and applicable law.
3.2 AMENDED AND RESTATED BYLAWS. The amended and restated bylaws
of Sun World, a copy of which are attached hereto as Exhibit C ("Amended
and Restated Sun World Bylaws") shall become the bylaws of the Surviving
Corporation until duly amended in accordance with the provisions hereof and
thereof and applicable law.
3.3 DIRECTORS AND OFFICERS. The directors and officers of the
Surviving Corporation at the Effective Date of Merger shall be as listed in
the Certificate of Merger.
IV.
MISCELLANEOUS
4.1 COVENANTS OF SUN WORLD. Sun World covenants and agrees that it
will, on or before the Effective Date of Merger:
(a) File any and all documents with the Delaware Franchise Tax
Board necessary for the assumption by Sun World of all of the franchise
tax liabilities of SWI.
(b) Take such other actions as may be required by the Delaware
General Corporation Law in order to effectuate the Merger and to carry
out the purpose and intent of this Agreement.
4.2. FURTHER ASSURANCES. From time to time, as and when required by
Sun World or by its successors or assigns, there shall be executed and
delivered on behalf of SWI such deeds and other instruments, and there
shall be taken or caused to be taken by it such further and other action,
as shall be appropriate or necessary in order to vest or perfect in or
conform of record or otherwise by Sun World the title to and possession of
all the property, interest, assets, rights, privileges, immunities, powers,
franchises and authority of SWI and otherwise to carry out the purpose of
this Agreement, and the officers and directors of Sun World are fully
authorized in the name and on behalf of SWI or otherwise to take any and
all such action and to execute and deliver any and all such deeds and other
instruments.
4.3 REGISTERED OFFICE. The registered office of the Surviving
Corporation in the State of Delaware is located at 0000 Xxxxxx Xxxxxx, in
the City of Xxxxxxxxxx, 00000, County of New Castle, and The Corporation
Trust Company is the registered agent of the Surviving Corporation at such
address.
4.4 AGREEMENT. Executed copies of this Agreement will be on file
at the principal place of business of the Surviving Corporation at Sun
World International, Inc., 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxxx 00000, and copies thereof will be furnished to any stockholder
of either Constituent Corporation, upon request and without cost.
4.5 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 Delaware.
4.6 COUNTERPARTS. In order to facilitate the filing and recording
of this Agreement, the same may be executed in any number of counterparts,
each of which shall be deemed to be an original and all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement is hereby executed on behalf of
each of such two corporations and attested by their respective officers
thereunto duly authorized.
SUN WORLD INTERNATIONAL, INC.
ATTEST: a Delaware corporation
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
__________________________ -----------------------
Xxxx X. Xxxxx Xxxxxxx Xxxxxx
Title: Secretary Title: Chief Restructuring Officer
SUN WORLD, INC.
ATTEST: a Delaware corporation
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
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Xxxx X. Xxxxx Xxxxxxx Xxxxxx
Title: Secretary Title: Chief Restructuring Officer
