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EXHIBIT 2.1
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (this "Agreement") is entered into as of July
31, 1998 between A-55, L.P., a Nevada limited partnership (the "Partnership"),
and A-55, Inc., a Delaware corporation (the "Corporation").
BACKGROUND
A. The Partnership is a Nevada limited partnership governed by a
Restated Agreement of Limited Partnership dated as of January 3, 1994, as
amended by First, Second, Third, Fourth, Fifth and Sixth Amendments effective as
of January 26, 1994, January 1, 1995, February 23, 1995, April 1, 1996,
September 16, 1997, and January 1, 1998 respectively (collectively, the
"Partnership Agreement").
B. RWG, Inc., a Nevada corporation, is the sole general partner of the
Partnership (the "General Partner"), and the Partnership's limited partners
consist of Class A, Class B and Class C limited partners (collectively, the
"Limited Partners"). (The General Partner and the Limited Partners are referred
to, collectively, as the "Partners" and, individually, as a "Partner." The
partnership interest of each Partner, whether a general partnership interest or
a Class A, Class B or Class C limited partnership interest, is referred to as a
"Partnership Interest.")
C. The Corporation is a newly-organized Delaware corporation. Its only
outstanding shares of stock are 50 shares of common stock, all of which are
owned by the Partnership.
D. The parties intend that the Partnership merge with and into the
Corporation (the "Merger") pursuant to the terms and conditions set forth herein
and the applicable provisions of Delaware and Nevada law, and that upon the
Merger's Effective Date (as defined below), all of the Partners of the
Partnership will become stockholders of the Corporation. The shares of the
Corporation's common stock to be received by such persons pursuant to the Merger
will not be registered under federal or state securities laws and will therefore
be restricted shares subject to a stock legend restricting the transfer of such
shares.
NOW, THEREFORE, the parties hereby agree as follows:
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1. The Merger.
(a) Effective Date. The Partnership will be merged with and into
the Corporation effective as of the date (the "Effective Date") that this
Agreement or a certificate of merger is filed with the Delaware Secretary of
State. Upon the Effective Date, the separate existence of the Partnership will
cease, and the Corporation will be the surviving entity of the Merger.
(b) Consummation. This Agreement or a certificate of merger will
be filed with the Delaware Secretary of State by the officers of the Corporation
at such date as will be determined by the Corporation's Board of Directors on or
prior to the date of consummation of the Corporation's initial public offering
of its common stock.
2. Representations and Warranties.
(a) Partnership. The Partnership represents and warrants to the
Corporation as follows:
(i) The Partnership has been duly formed and is validly
existing in good standing as a limited partnership under the laws of the State
of Nevada.
(ii) The execution and delivery of this Agreement, and
the consummation of the transactions contemplated hereby, have been duly
authorized by all necessary partnership action.
(b) Corporation. The Corporation represents and warrants to the
Partnership as follows:
(i) The Corporation has been duly organized and is
validly existing in good standing as a corporation under the laws of the State
of Delaware.
(ii) The execution and delivery of this Agreement, and
the consummation of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action.
(iii) The shares of common stock to be issued to the
Partners in connection with the Merger will be validly issued, fully paid and
nonassessable.
3. Conversion of Partnership Interests Into Shares.
(a) General. On the Effective Date, by virtue of the Merger, and
without any further action by any Partner, (i) each Partner's Partnership
Interest in the Partnership
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outstanding immediately prior to the Effective Date will be converted into
shares of common stock of the Corporation pursuant to the terms set forth in
this Section 3, and (ii) the 50 shares of common stock currently issued and
outstanding in the name of the Partnership will be cancelled, and no additional
shares or securities will be issued, and no payments will be made, in respect
thereof.
(b) Number of Shares. The total number of shares into which all
the Partnership Interests will be converted will be determined by the
Corporation prior to the Effective Date. Immediately after the Effective Date,
the Corporation's only issued and outstanding shares of stock will be the shares
of common stock issued in the Merger (the "Shares").
(c) Apportionment of Shares Among Partners. The number of Shares
to be received by each Partner will be determined in accordance with the terms
of the Partnership Agreement, including the distribution provisions of Section
10.03 of the Partnership Agreement. The Partnership contemplates that prior to
the Effective Date, it will have made cash distributions to the Partners of a
sufficient amount to satisfy the "Priority Return" (as defined in the
Partnership Agreement), such that any further distributions would be distributed
to the Partners in proportion to their respective "Participation Percentages"
(as defined in the Partnership Agreement). In such case, immediately after the
Effective Date, each Partner would own that number of Shares determined by
multiplying the total number of Shares outstanding immediately after the
Effective Date by such Partner's Participation Percentage in the Partnership.
(d) Example. This example is based on the assumptions that (i)
before the Effective Date, the Partnership will have made sufficient cash
distributions to the Partners to satisfy the Priority Return, and (ii) the
Corporation determines that it wishes to have 100,000,000 Shares issued and
outstanding immediately after the Effective Date. In such case, a Partner with a
Participation Percentage of 1.543648% in the Partnership immediately before the
Effective Date would, by virtue of the Merger, have his Partnership Interest
converted into 1,543,648 Shares, which would represent 1.543648% of the issued
and outstanding stock of the Corporation immediately after the Effective Date.
4. Corporate Matters.
(a) Certificate of Incorporation. The Corporation's Certificate
of Incorporation as it exists on the Effective Date will be the Certificate of
Incorporation of the Corporation immediately after the Effective Date,
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unless and until it is amended or repealed in accordance with the provisions
thereof and of Delaware law.
(b) Bylaws. The Bylaws of the Corporation as they exist on the
Effective Date will be the Bylaws of the Corporation immediately after the
Effective Date, unless and until they are amended or repealed in accordance with
the provisions thereof.
(c) Directors and Officers. The directors and officers of the
Corporation immediately after the Effective Date will be the same as they are
immediately before the Effective Date.
5. Transfer, Conveyance and Assumption. As of the Effective Date, the
Corporation will continue in existence as the surviving entity, and all of the
assets and property of whatever kind and character of the Partnership will vest
in the Corporation; thereafter, the Corporation, as the surviving entity, will
be liable for all of the liabilities and obligations of the Partnership, and any
claim or judgment against the Partnership may be enforced against the
Corporation, as the surviving entity.
6. Termination. If the Effective Date does not occur on or before
December 31, 1998, this Agreement will terminate and be of no further force and
effect.
7. Miscellaneous.
(a) Further Action. Each party agrees to use reasonable efforts
to take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Agreement. In particular, the parties will
file whatever documents are required by Delaware and Nevada law to effectuate
the Merger.
(b) Amendments. This Agreement may be amended before the
Effective Date if, and only if, such amendment is in writing and signed by the
parties to this Agreement.
(c) Integration. All prior agreements, contracts, promises,
representations and statements, if any, between the parties are merged into this
Agreement, and this Agreement will constitute the entire understanding between
the parties with respect to the subject matter hereof.
(d) Successors and Assigns. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns.
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(e) Governing Law. This Agreement will be construed in
accordance with and governed by the laws of the State of Delaware, without
giving effect to principles of conflicts of law.
(f) Counterparts. This Agreement may be signed in any number of
counterparts, each of which will be an original, with the same effect as if the
signatures were upon the same document.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed by their respective authorized representatives as of the date set
forth above.
A-55, L.P., a Nevada limited partnership
By: RWG, Inc., a Nevada corporation,
its sole general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
President
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Secretary
A-55, INC., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Chief Executive Officer
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Secretary
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AMENDMENT NO. 1
TO
AGREEMENT OF MERGER
THIS AMENDMENT NO. 1 TO AGREEMENT OF MERGER (this "Amendment") is
entered into as of December 30, 1998 between A-55, L.P., a Nevada limited
partnership (the "Partnership"), and A-55, Inc., a Delaware corporation (the
"Corporation").
BACKGROUND
A. The parties previously entered into an Agreement of Merger dated as
of July 31, 1998 (the "Merger Agreement"). (Capitalized terms not otherwise
defined in this Amendment will have the meanings set forth in the Merger
Agreement.)
B. The parties wish to extend the termination of the Merger Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Section 6 of the Merger Agreement is hereby amended and restated as
follows:
If the Effective Date does not occur on or before January 31, 1999,
this Agreement will terminate and be of no further force and effect.
2. All other terms of the Merger Agreement remain in full force and
effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed by their respective authorized representatives as of the date set
forth above.
A-55, L.P., a Nevada limited partnership
By: RWG, Inc., a Nevada corporation, its
sole general partner
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Secretary
A-55, INC., a Delaware corporation
By: /s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
Secretary