EXHIBIT 2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated January 30, 2004 (the
"Agreement"), is between Xxxxxxx Corporation, an Alabama corporation ("Xxxxxxx
Alabama"), and Xxxxxxx Corporation, a Delaware corporation ("Xxxxxxx Delaware")
and a wholly owned subsidiary of Xxxxxxx Alabama. Xxxxxxx Alabama and Xxxxxxx
Delaware are sometimes hereinafter collectively referred to as the "Constituent
Corporations."
RECITALS
WHEREAS, Xxxxxxx Alabama is a corporation organized and existing under
the laws of the State of Alabama, and, as of the date hereof, has 32,525,306
shares of common stock, par value $0.01 per share, issued and outstanding
("Xxxxxxx Alabama Common Stock").
WHEREAS, Xxxxxxx Delaware is a corporation organized and existing under
the laws of the State of Delaware, and, as of the date hereof, has 1,000 shares
of common stock, par value $0.01 per share, issued and outstanding ("Xxxxxxx
Delaware Common Stock"), all of which are held by Xxxxxxx Alabama.
WHEREAS, the respective Boards of Directors of Xxxxxxx Alabama and
Xxxxxxx Delaware have adopted and approved, as the case may be, this Agreement,
which is the plan of merger for purposes of the Alabama Business Corporation Act
and the agreement of merger for purposes of the Delaware General Corporation
Law, and the transactions contemplated by this Agreement, including the Merger
(as hereinafter defined).
WHEREAS, the Board of Directors of Xxxxxxx Alabama has determined that
for the purpose of effecting the reincorporation of Xxxxxxx Alabama in the State
of Delaware, this Agreement and the transactions contemplated by this Agreement,
including the Merger, are advisable and in the best interests of Xxxxxxx Alabama
and its shareholders, and the Board of Directors of Xxxxxxx Delaware has
determined that this Agreement and the transactions contemplated by this
Agreement, including the Merger are advisable and in the best interests of
Xxxxxxx Delaware and its sole stockholder.
WHEREAS, the respective Boards of Directors of Xxxxxxx Alabama and
Xxxxxxx Delaware have determined to recommend this Agreement and the Merger to
their respective shareholders and stockholder, as the case may be.
NOW THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Xxxxxxx Alabama and Xxxxxxx Delaware hereby agree, subject to
the terms and conditions hereinafter set forth, as follows:
ARTICLE I
THE MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the Alabama Business Corporation Act,
Xxxxxxx Alabama shall be merged with and into Xxxxxxx Delaware (the "Merger"),
whereupon the separate existence of Xxxxxxx Alabama shall cease and Xxxxxxx
Delaware shall be, and is hereinafter sometimes referred to as, the "Surviving
Corporation."
1.2 Filing and Effectiveness. The Merger shall become effective, upon
the filing of (i) the certificate of merger with the Secretary of State of the
State of Delaware and (ii) the articles of merger with the Secretary of State of
the State of Alabama, unless another date and time is set forth in the
certificate of merger and the articles of merger. The date and time when the
Merger shall become effective is referred to herein as the "Effective Date of
the Merger."
1.3 Effect of the Merger. On the Effective Date of the Merger, the
separate existence of Xxxxxxx Alabama shall cease, and the Merger shall have the
effects set forth in the applicable provisions of the Delaware General
Corporation Law and the Alabama Business Corporation Act.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Restated Certificate of
Incorporation of Xxxxxxx Delaware in effect immediately prior to the Effective
Date of the Merger shall be, as of the Effective Date of the Merger, the
certificate of incorporation of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
2.2 By-laws. The Amended and Restated By-laws of Xxxxxxx Delaware in
effect immediately prior to the Effective Date of the Merger shall be, as of the
Effective Date of the Merger, the by-laws of the Surviving Corporation until
duly amended in accordance with the provisions thereof and applicable law.
2.3 Directors and Officers. The directors and officers of the Surviving
Corporation as of the Effective Date of the Merger shall be the same as the
directors and officers of Xxxxxxx Alabama immediately prior to the Effective
Date of the Merger.
ARTICLE III
MANNER OF CONVERSION OF SHARES
3.1 Xxxxxxx Alabama Common Stock. Upon the Effective Date of the
Merger, each share of Xxxxxxx Alabama Common Stock (excluding shares held by
shareholders who perfect their provided in Section 3.2 of this Agreement) that
is issued and outstanding immediately prior thereto shall, by virtue of the
Merger and without any action by the Constituent Corporations, the holder of
such shares or any other person, be converted into the right to receive one
fully paid and nonassessable share of Xxxxxxx Delaware Common Stock (the "Merger
Consideration"). As of the Effective Date of the Merger, all shares of Xxxxxxx
Alabama Common Stock shall no longer be outstanding and shall automatically be
cancelled and retired and shall cease to exist and each certificate that
previously represented such shares of Xxxxxxx Alabama Common Stock shall
thereafter represent the Merger Consideration for all such shares.
3.2 Dissenting Shareholders. Any holder of shares of Xxxxxxx Alabama
Common Stock who perfects his or her dissenters' rights of appraisal in
accordance with and Corporation Act shall be entitled to receive the value of
such shares in cash as determined pursuant to Article 13 of the Alabama Business
Corporation Act; provided, however, that no such payment shall be made to any
dissenting shareholder unless and until such dissenting shareholder has complied
with the applicable provisions of the Alabama Business Corporation Act, and
surrendered to the Surviving Corporation the certificate or certificates
representing the shares for which payment is being made. In the event that after
the Effective Date of the Merger a dissenting shareholder of Xxxxxxx Alabama
fails to perfect, or effectively withdraws or loses, his or her right to
appraisal and of payment for his or her shares, such dissenting shareholder
shall be entitled to receive the Merger Consideration in accordance with Section
3.1 upon surrender of the certificate or certificates representing the shares of
Xxxxxxx Alabama Common Stock held by such shareholder.
3.3 Shareholders Rights Plan. Shares of Xxxxxxx Delaware Common Stock
that shall be issuable to shareholders of Xxxxxxx Alabama pursuant to Section
3.1 shall include the associated rights (the "Rights") issued pursuant to the
Rights Agreement between Xxxxxxx Alabama, Xxxxxxx Delaware and SunTrust Bank,
dated as of September 15, 1999, as amended immediately prior to the Effective
Date of the Merger.
3.4 Xxxxxxx Alabama Options, Stock Purchase Rights and Other
Equity-Based Awards.
(a) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume and continue any and all stock option, stock
incentive and other equity-based award plans heretofore adopted by
Xxxxxxx Alabama (individually, an "Equity Plan" and, collectively, the
"Equity Plans"), and shall reserve for issuance under each Equity Plan
a number of shares of Xxxxxxx Delaware Common Stock equal to the number
of shares of Xxxxxxx Alabama Common Stock so reserved immediately prior
to the Effective Date of the Merger. Each unexercised option or other
right to purchase Xxxxxxx Alabama Common Stock granted under and by
virtue of any such Equity Plan which is outstanding immediately prior
to the Effective Date of the Merger shall, upon the Effective Date of
the Merger, become an option or right to purchase Xxxxxxx Delaware
Common Stock on the basis of one share of Xxxxxxx Delaware Common Stock
for each share of Xxxxxxx Alabama Common Stock issuable pursuant to any
such option or stock purchase right, and otherwise on the same terms
and conditions and at an exercise or conversion price per share equal
to the exercise or conversion price per share applicable to any such
Xxxxxxx Alabama option or stock purchase right. Upon the Effective Date
of the Merger, each warrant to purchase Xxxxxxx Alabama Common Stock
which is outstanding immediately prior to the Effective Date of the
Merger shall, upon the Effective Date of the Merger, become a warrant
to purchase Xxxxxxx Delaware Common Stock on the basis of one share of
Xxxxxxx Delaware Common Stock for each share of Xxxxxxx Alabama Common
Stock issuable immediately prior to the Effective Date of the Merger
pursuant to any such warrant, and otherwise on the same terms and
conditions and at an exercise price per share equal to the exercise
price per share applicable to any such Xxxxxxx Alabama warrant
immediately prior to the Effective Date of the Merger. Each other
equity-based award relating to Xxxxxxx Alabama Common Stock granted or
awarded under any of the Equity Plans which is outstanding immediately
prior to the Effective Date of the Merger shall, upon the Effective
Date of the Merger, become an award relating to Xxxxxxx Delaware Common
Stock on the basis of one share of Xxxxxxx Delaware Common Stock for
each share of Xxxxxxx Alabama Common Stock to which such award relates
and otherwise on the same terms and conditions applicable to such award
immediately prior to the Effective Date of the Merger.
(b) On or as soon as practicable following the Effective Date
of the Merger, Xxxxxxx Delaware shall file with the Securities and
Exchange Commission one or more registration statements on an
appropriate form or one or more post-effective amendments to previously
filed registration statements under the Securities Act of 1933, as
amended, with respect to the shares of Xxxxxxx Delaware Common Stock
which, upon the Effective Date of the Merger, will become subject to
outstanding stock options and other equity-based awards under the
Equity Plans, and shall use its best efforts to comply with any
applicable state securities or "blue sky" laws, for as long as such
options or other equity-based awards remain outstanding.
3.5 Xxxxxxx Delaware Common Stock. Upon the Effective Date of the
Merger, each share of Xxxxxxx Delaware Common Stock issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by the Constituent Corporations, the holder of such shares or any other person,
be cancelled without compensation therefor and returned to the status of
authorized but unissued shares.
3.6 Exchange of Certificates.
(a) After the Effective Date of the Merger, each holder of an
outstanding certificate representing Xxxxxxx Alabama Common Stock
(excluding holders of certificates who perfect their appraisal as
provided in Section 3.2 of this Agreement) may, at such cancellation to
such entity as the Surviving Corporation so designates as exchange
agent (the "Exchange Agent"), and each such holder shall be entitled to
receive in exchange therefor a certificate or certificates representing
the Merger Consideration. Until so surrendered, each outstanding
certificate theretofore representing Xxxxxxx Alabama Common Stock shall
be deemed for all purposes to represent the Merger Consideration and
the associated Rights.
(b) The registered owners of Xxxxxxx Alabama Common Stock on
the books and records of Xxxxxxx Alabama immediately prior to the
Effective Date of the Merger (excluding registered owners who perfect
their dissenters' rights of appraisal as provided in owners of Xxxxxxx
Delaware Common Stock on the books and records of Xxxxxxx Delaware
immediately after the Effective Time of the Merger, and the holders of
shares of Xxxxxxx Alabama Common Stock, until such certificates shall
have been surrendered for transfer or conversion or otherwise accounted
for by the Surviving Corporation, shall be entitled to exercise any
voting and other rights with respect to, and receive dividends and
other distributions upon, the shares of Xxxxxxx Delaware Common Stock
that the holders of Xxxxxxx Alabama Common Stock would be entitled to
receive pursuant to the Merger.
(c) Each certificate representing Xxxxxxx Delaware Common
Stock so issued in the Merger shall bear the same legends, if any, with
respect to the restrictions on transfer that appeared on the
certificates representing Xxxxxxx Alabama Common Stock so converted and
given in exchange therefor, unless otherwise determined by the Board of
Directors of the Surviving Corporation in compliance with applicable
laws.
(d) If any certificate representing shares of Xxxxxxx Delaware
Common Stock is to be issued in a name other than the name in which the
certificate surrendered in exchange therefor is registered, the
following conditions must be satisfied before the issuance thereof: (i)
the certificate so surrendered shall be properly endorsed and otherwise
in proper form for transfer; (ii) such transfer shall otherwise be
proper; and (iii) the person requesting such transfer shall pay to the
Exchange Agent any transfer or other taxes payable by reason of
issuance of such new certificate in a name other than the name of the
registered holder of the certificate surrendered or shall establish to
the satisfaction of the Surviving Corporation that such tax has been
paid or is not payable.
ARTICLE IV GENERAL
PROVISIONS
4.1 Covenants of Xxxxxxx Alabama. Xxxxxxx Alabama covenants and agrees
that it will on or before the Effective Date of the Merger take all such other
actions as may be required by the Delaware General Corporation Law and the
Alabama Business Corporation Act to effect the Merger.
4.2 Covenants of Xxxxxxx Delaware. Xxxxxxx Delaware covenants and
agrees that it will on or before the Effective Date of the Merger:
(a) take such action as may be required to qualify to do
business as a foreign corporation in the states in which Xxxxxxx
Alabama is qualified to do business immediately before the Effective
Date of the Merger and in connection therewith irrevocably appoint an
agent for service of process as required under the applicable
provisions of the relevant state laws;
(b) take all such other actions as may be required by the
Delaware General Corporation Law and the Alabama Business Corporation
Act to effect the Merger.
4.3 Conditions to the Obligations of the Constituent Corporations to
Effect the Merger. The respective obligation of each Constituent Corporation to
effect the Merger shall be subject to the satisfaction at or prior to the
Effective Date of the Merger of the following conditions:
(a) The Agreement shall have been approved by two thirds of
the outstanding shares of Xxxxxxx Alabama Common Stock entitled to vote
on the Agreement, and the Agreement shall have been adopted by the
affirmative vote of a majority of the outstanding shares of Xxxxxxx
Delaware Common Stock entitled to vote on the Agreement.
(b) No statute, rule, regulation, executive order, decree,
ruling, injunction or other order (whether temporary, preliminary or
permanent) shall have been enacted, entered, promulgated or enforced by
any court or governmental authority of competent jurisdiction which
prohibits, restrains, enjoins or restricts the consummation of the
Merger; provided, however that the Constituent Corporations shall use
their reasonable best efforts to cause any such decree, ruling,
injunction or other order to be vacated or lifted.
(c) The shares of Xxxxxxx Delaware Common Stock issuable
pursuant to this Agreement shall have been approved for listing on the
New York Stock Exchange and the Pacific Exchange, subject to official
notice of issuance.
4.4 Further Assurances. From time to time, as and when required by
Xxxxxxx Delaware, Xxxxxxx Alabama shall execute and deliver or shall cause to be
executed and delivered such deeds and other instruments, and Xxxxxxx Alabama
shall take or cause to be taken any actions as shall be appropriate or
necessary, (a) to vest or perfect in Xxxxxxx Delaware or confirm that Xxxxxxx
Delaware shall have record ownership of or otherwise own the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Xxxxxxx Alabama on the Effective
Date of the Merger or shortly thereafter and (b) to carry out the purposes of or
to effectuate this Agreement by the Effective Date of the Merger or shortly
thereafter, unless a specific deadline is established by this Agreement.
4.5 Abandonment. At any time before the Effective Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of any Constituent Corporation,
notwithstanding the approval or adoption, as the case may be, of this Agreement
by the shareholders or stockholder, as the case may be, of any or both of the
Constituent Corporations.
4.6 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at 0000 Xxxxxxxxxxx Xxxx, Xxxxx
000, and Corporation Services Company is the registered agent of the Surviving
Corporation at such address.
4.7 Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation in Atlanta, Georgia,
and copies thereof will be furnished to any shareholder or stockholder, as the
case may be, of either Constituent Corporation, upon request and without cost.
4.8 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 (without giving effect to principles of conflicts of laws)
and, so far as applicable, the merger provisions of the Alabama Business
Corporation Act.
4.9 Counterparts. In order to facilitate the filing and recording of
this Agreement, this Agreement 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.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, Xxxxxxx Alabama and Xxxxxxx Delaware have caused
this Agreement to be executed as of the day and year first above written by
their respective duly authorized officers.
XXXXXXX CORPORATION, an Alabama XXXXXXX CORPORATION,
corporation a Delaware corporation
By: /s/ XXXXX X. XXXXXXX By: /s/ XXXXX X. XXXXXXX
------------------------------------------------- -------------------------------------------------
NAME: XXXXX X. XXXXXXX NAME: XXXXX X. XXXXXXX TITLE:
TITLE: SENIOR VICE PRESIDENT, CORPORATE DEVELOPMENT TITLE: PRESIDENT
