Exhibit 2
AGREEMENT OF MERGER dated as
of June 28, 1999, between QF
ACQUISITION CORP., a Delaware
corporation ("QFAC"), and QFAC,
LLC, a Delaware limited liability
company ("LLC").
CFP Holdings, Inc., a Delaware corporation ("Holdings"), owns 100
percent of the outstanding capital stock of QFAC and 100 percent of the
outstanding limited liability company interests ("LLC Interests") of LLC.
Holdings has approved the terms and provisions of this Agreement in accordance
with the General Corporation Law of the State of Delaware (the "DGCL") and the
Limited Liability Company Act of the State of Delaware (the "LLC Act"). The
board of directors of QFAC and the board of managers of LLC have duly adopted
and approved this Agreement pursuant to the DGCL and the By-laws of LLC,
respectively.
NOW, THEREFORE, in consideration of the mutual benefits to be derived
from this Agreement, the parties hereby agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. In accordance with the provisions of this Agreement and the LLC
Act, QFAC shall be merged (the "Merger") with and into LLC, which, at and after
the Effective Time shall be, and is sometimes herein referred to as, the
"Surviving Company". QFAC and LLC are sometimes herein referred to as the
"Constituent Entities".
1.2 Effective Time of the Merger. The Merger shall become effective (the
"Effective Time") upon the filing of a certificate of merger in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
1.3 Effect of Merger. At the Effective Time, the separate existence of QFAC
shall cease and QFAC shall be merged with and into the Surviving Company, and
the Surviving Company shall continue in existence and the Merger shall in all
respects have the effects provided for by the LLC Act. Upon consummation of the
Merger, all previously issued and outstanding shares of stock of QFAC shall
automatically be cancelled. At the Effective Time, all of the assets and
liabilities of QFAC shall automatically become the assets and liabilities of the
Surviving Company, which shall have the benefit of all rights, and be bound by
all obligations, of QFAC, as if the Surviving Company had originally been the
beneficiary or obligor with respect to such rights or obligations, as
applicable.
1.4 Charter and By-Laws of Surviving Company. From and after the Effective Time,
(a) the Certificate of Formation of LLC shall be the Certificate of Formation
(the "Surviving Certificate") of the Surviving Company, unless and until
altered, amended or repealed as provided in the LLC Act or such Surviving
Certificate, and (b) the by-laws of LLC shall be the by-laws of the Surviving
Company (the "Surviving By-Laws"), unless and until altered, amended or repealed
as provided in the LLC Act, the Surviving Certificate or the Surviving By-Laws.
1.5 Directors and Officers of Surviving Company. From and after the Effective
Time, the managers and officers of LLC shall be the managers and officers,
respectively, of the Surviving
Company, unless and until removed, or until their respective terms of office
shall have expired, in accordance with the LLC Act, the Surviving Certificate
and the Surviving By-Laws, as applicable.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK AND LLC INTERESTS
OF THE CONSTITUENT CORPORATIONS
2.1 Total Consideration; Effect on Capital Stock and LLC Interests. At the
Effective Time, subject and pursuant to the terms and conditions of this
Agreement, by virtue of the Merger and without any action on the part of the
Constituent Entities or the holders of the capital stock of the Constituent
Entities:
(a) Capital Stock of QFAC. Each issued and outstanding share of Class A
Common Stock, $.01 par value, of QFAC, Class B Common Stock, $.01 par value, and
Preferred Stock, $.01 par value, of QFAC shall be canceled. All shares of
treasury stock of QFAC shall be canceled and retired.
(b) LLC Interests of LLC. Each member's percentage interest in LLC
immediately prior to the Effective Date shall remain the percentage interest of
such member and shall continue to be outstanding, unimpaired by the Merger.
ARTICLE III
APPROVAL OF AGREEMENT;
FILING THEREOF
3.1 Approval. The holders of all shares of QFAC and all LLC Interests of LLC,
respectively, entitled to vote thereon have approved, by written consent, the
Merger and this Agreement. The board of directors of QFAC and the board of
managers of LLC have, by resolutions duly adopted, unanimously approved and
adopted the Merger and this Agreement.
ARTICLE IV
MISCELLANEOUS
4.1 Amendment. This Agreement may be amended by the Constituent Entities, by
action taken by their respective boards of directors or managers, as the case
may be, at any time prior to the Effective Time. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
Constituent Entities.
4.2 Entire Agreement. This Agreement contains the entire agreement among the
parties hereto with respect to the transactions contemplated hereby and
supersedes all prior arrangements or understandings, written or oral, with
respect thereto.
4.3 Notices. All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered personally or sent by
nationally-recognized
overnight courier or by registered or certified mail, postage prepaid, return
receipt requested or by telecopier, with confirmation as provided above
addressed as follows:
(a) if to QFAC, to:
QF Acquisition Corp.
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: President
(b) if to LLC, to:
QFAC, LLC
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: President
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. All such notices
or communications shall be deemed to be received (i) in the case of personal
delivery or telecopy, on the date of such delivery, (ii) in the case of
nationally-recognized overnight courier, on the next business day after the date
when sent and (iii) in the case of mailing, on the third business day following
the date on which the piece of mail containing such communication was posted.
4.4 Counterparts. This Agreement may be executed in any number of counterparts
by original or facsimile signature, each such counterpart shall be an original
instrument, and all such counterparts together shall constitute one and the same
agreement.
4.5 Benefits of Agreement. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Agreement shall not be
assignable by any party hereto without the consent of the other party hereto.
4.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed wholly therein.
4.7 Descriptive Headings. Descriptive headings are for convenience only and
shall not control or affect the meaning or construction of any provision of this
Agreement.
* * * *
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement of Merger to be executed and delivered on its behalf as of the date
first above written.
QF ACQUISITION CORP.
By: ________________________________
Name:
Title:
QFAC, LLC
By: ________________________________
Name:
Title:
