EXHIBIT 2.1
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER (the "Agreement") dated as of
_________________________, 1998, pursuant to Article 5.16 of the Texas
Business Corporation Act (the "TBCA") and Section 253 of the General
Corporation Law of Delaware (the "DGCL") is made and entered into by and
between Xxxxxxxx-Xxxxxxxx, Inc., a Texas corporation ("C-A Texas"), and
Xxxxxxxx-Xxxxxxxx, Inc., a Delaware corporation ("C-A Delaware").
W I T N E S S E T H:
WHEREAS, C-A Texas is a corporation organized and existing under the
laws of the State of Texas, having been incorporated on January 22, 1979; and
WHEREAS, C-A Delaware is a wholly-owned subsidiary corporation of C-A
Texas, organized and existing under the laws of the State of Delaware, having
been incorporated on March 10, 1998; and
WHEREAS, the respective Boards of Directors of C-A Texas and C-A
Delaware have determined that it is desirable to merge C-A Texas with and
into C-A Delaware (hereinafter the "Merger");
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that
C-A Texas shall merge with and into C-A Delaware upon the terms and
conditions set forth.
ARTICLE I
MERGER
On the effective date of the Merger (the "Effective Date") as provided
herein, C-A Texas shall be merged with and into C-A Delaware, the separate
existence of C-A Texas shall cease and C-A Delaware (hereinafter sometimes
referred to as the "Surviving Corporation") shall continue to exist under the
name of C-A Delaware by virtue of, and shall be governed by, the laws of the
State of Delaware. The address of the registered office of the Surviving
Corporation in the State of Delaware will be Corporation Trust Center, 0000
Xxxxxx Xxxxxx, in the County of New Castle, in the City of Xxxxxxxxxx,
Xxxxxxxx 00000. The name of the registered agent is The Corporation Trust
Company.
ARTICLE II
CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION
The name of the Surviving Corporation shall be "Xxxxxxxx-Xxxxxxxx, Inc."
The Certificate of Incorporation of the Surviving Corporation as in effect on
the date hereof shall be the Certificate of Incorporation of C-A Delaware
(the "Delaware Charter") without change unless and until amended in
accordance with Article VIII of this Agreement or otherwise amended in
accordance with applicable law.
ARTICLE III
BYLAWS OF THE SURVIVING CORPORATION
The Bylaws of the Surviving Corporation as in effect on the date hereof
shall be the Bylaws of C-A Delaware (the "Delaware Bylaws") without change
unless and until amended in accordance with applicable law.
ARTICLE IV
EFFECT OF MERGER ON STOCK OF CONSTITUENT CORPORATIONS
4.1 On the Effective Date, (i) each outstanding share of Class A
voting Common Stock of C-A Texas, no par value (the "Class A Common Stock"),
shall be converted into 7.7 shares of C-A Delaware common stock, par value
$.01 per share (the "Delaware Common Stock"), rounded to the nearest whole
share; (ii) each outstanding share of Class B non-voting Common Stock of C-A
Texas, no par value (the "Class B Common Stock"), shall be converted into 7.7
shares of the Delaware Common Stock, rounded to the nearest whole share (the
Class A Common Stock and the Class B Common Stock, collectively referred to
hereinafter as the "Texas Common Stock"), other than the shares, if any, for
which appraisal rights shall be perfected under Articles 5.12 and 5.13 of the
TBCA, (iii) each outstanding share of the Texas Common Stock held by C-A
Texas shall be retired and cancelled; and (iv) each outstanding share of the
Delaware Common Stock held by C-A Texas shall be retired and cancelled.
4.2 All options and rights to acquire any Texas Common Stock under
employee benefit plans and other options plans and under all other
outstanding options, warrants or rights outstanding on the Effective Date
will automatically be converted into options and rights to purchase shares of
Delaware Common Stock on the basis of 7.7 shares of Delaware Common Stock for
each share of Texas Common Stock, rounded to the nearest whole share.
4.3 After the Effective Date, certificates representing shares of the
Texas Common Stock will represent shares of Delaware Common Stock and upon
surrender of the same to the transfer agent for C-A Delaware, the holder
thereof shall be entitled to receive in exchange
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therefor a certificate or certificates representing the number of shares of
Delaware Common Stock into which such shares of Texas Common Stock shall have
been converted pursuant to Article 4.1 of this Agreement.
ARTICLE V
CORPORATE EXISTENCE, POWERS AND
LIABILITIES OF SURVIVING CORPORATION
5.1 On the Effective Date, the separate existence of C-A Texas shall
cease. C-A Texas shall be merged with and into C-A Delaware, the Surviving
Corporation, in accordance with the provisions of this Agreement.
Thereafter, C-A Delaware shall possess all the rights, privileges, powers and
franchises of a public as well as of a private nature, and shall be subject
to all the restrictions, disabilities and duties of each of the parties to
this Agreement; all singular rights, privileges, powers and franchises of C-A
Texas and C-A Delaware, and all property, real, personal and mixed and all
debts due to each of them on whatever account, shall be vested in C-A
Delaware; and all property, rights, privileges, powers and franchises, and
all and every other interest shall be thereafter as effectually the property
of C-A Delaware, the Surviving Corporation, as they were of the respective
constituent entities, and the title to any real estate, whether by deed or
otherwise, vested in C-A Texas and C-A Delaware, or either of them, shall not
revert or be in any way impaired by reason of the Merger, but all rights of
creditors and all liens upon the property of the parties hereto, shall be
preserved unimpaired, and all debts, liabilities and duties of C-A Texas,
shall thenceforth attach to C-A Delaware, and may be enforced against it to
the same extent as if said debts, liabilities and duties had been incurred or
contracted by it.
5.2 C-A Texas agrees that it will execute and deliver, or cause to be
executed and delivered, all such deeds and other instruments and will take or
cause to be taken such further or other action as the Surviving Corporation
may deem necessary in order to vest in and confirm to the Surviving
Corporation title to and possession of all the property, rights, privileges,
immunities, powers, purposes and franchises, and all and every other interest
of C-A Texas and otherwise to carry out the intent and purposes of this
Agreement.
ARTICLE VI
OFFICERS AND DIRECTORS OF SURVIVING CORPORATION
6.1 Upon the Effective Date, the officers of C-A Texas shall become
the officers of C-A Delaware, and such persons shall hold office in
accordance with the Delaware Bylaws until their respective successors shall
have been appointed or elected. Upon the Effective Date, the directors of
C-A Delaware shall remain the directors of the Surviving Corporation, such
persons to hold office in accordance with the Delaware Charter and Delaware
Bylaws and until their successors shall have been duly elected and qualified.
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6.2 If upon the Effective Date, a vacancy shall exist in the Board of
Directors of the Surviving Corporation, such vacancy shall be filled in the
manner provided by the Delaware Bylaws.
ARTICLE VII
DISSENTING SHARES
Holders of shares of Texas Common Stock who have complied with all
requirements for perfecting their rights of appraisal set forth in Articles
5.12 and 5.13 of the TBCA shall be entitled to their rights under Texas law.
ARTICLE VIII
APPROVAL BY SHAREHOLDERS, EFFECTIVE DATE,
CONDUCT OF BUSINESS PRIOR TO EFFECTIVE DATE
8.1 Soon after the approval of this Agreement by the requisite number
of shareholders of C-A Texas, the respective Boards of Directors of C-A Texas
and C-A Delaware will cause their duly authorized officers to make and
execute Articles of Merger and a Certificate of Ownership and Merger or other
applicable certificates or documentation effecting this Agreement and shall
cause the same to be filed with the Secretaries of State of Texas and
Delaware, respectively, in accordance with the TBCA and the DGCL, the
Effective Date shall be the date on which the Merger becomes effective under
the TBCA or the date on which the Merger becomes effective under the DGCL,
whichever occurs later.
8.2 The Boards of Directors of C-A Texas and C-A Delaware may amend
this Agreement and the Delaware Charter at any time prior to the Effective
Date, provided that an amendment made subsequent to the approval of the
Merger by the shareholders of C-A Texas may not (i) change the type of shares
or the number of shares to be received in exchange for or on conversion of
the shares of the Texas Common Stock, (ii) alter or change any term of the
Delaware Charter, or (iii) change any term of the terms and conditions of
this Agreement if such change would adversely affect the holders of the Texas
Common Stock.
ARTICLE IX
TERMINATION OF MERGER
This Agreement may be terminated and the Merger abandoned at any time
prior to the Effective Date, whether before or after shareholder approval of
this Agreement, by the consent of the Boards of Directors of C-A Texas and
C-A Delaware.
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ARTICLE X
MISCELLANEOUS
In order to facilitate the filing and recording of the Agreement, this
Agreement may be executed in counterparts, each of which when so executed
shall be deemed to be an original, and all such counterparts shall together
constitute one and the same instrument. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective Chief Executive Officers and Secretaries, all as
of the day and year first above written.
XXXXXXXX-XXXXXXXX, INC.,
a Texas corporation
By:
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Chairman of the Board and
Chief Executive Officer
ATTEST:
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Secretary
XXXXXXXX-XXXXXXXX, INC.,
a Delaware corporation
By:
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Chairman of the Board and
Chief Executive Officer
ATTEST:
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Secretary
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