AGREEMENT AND PLAN OF MERGER
BETWEEN
TUMBLEWEED, LLC AND TUMBLEWEED, INC.
PURSUANT TO THE
KENTUCKY LIMITED LIABILITY COMPANY ACT
AND
DELAWARE GENERAL CORPORATION LAW
This Agreement and Plan of Merger (this "Agreement and Plan of Merger")
dated as of June 23, 1998, is entered into by TUMBLEWEED, LLC, a Kentucky
limited liability company and TUMBLEWEED, INC., a Delaware corporation.
ARTICLE I
THE CONSTITUENT ENTITIES
The name of each business entity that is a party to the merger (the
"Merger") are Tumbleweed, LLC, a Kentucky limited liability company (the "LLC")
and Tumbleweed, Inc., a Delaware corporation (the "Corporation") which shall be
the surviving business entity (the "Surviving Business Entity").
ARTICLE II
THE MERGER
Upon the terms and subject to the conditions set forth in this Agreement
and Plan of Merger; and in accordance with the Delaware General Corporation Law
(the "DGCL") and the Kentucky Limited Liability Company Act (the "KLLCA"), the
LLC shall be merged with and into the Corporation at the Effective Time (as
hereinafter defined). The Surviving Business Entity shall be governed by the
DGCL, and the separate existence of the LLC shall cease forthwith upon the
Effective Time. Limited liability shall be retained by the Surviving Business
Entity.
ARTICLE III
CONVERSION OF LLC INTERESTS AND SHARES
At the Effective Time, by virtue of the Merger and without any further
action on the part of the holders thereof:
(a) Each Class A Unit of the LLC that is outstanding immediately prior to
the Effective Time shall be converted into the right to receive 53,426
validly issued, fully paid and nonassessable shares of Common Stock,
$.01 par value, of the Surviving Business Entity (rounded to the
lowest whole number of shares of Common Stock of the Surviving
Business Entity with respect to the conversion of fractional Class A
Units of the LLC).
(b) Each Class B Unit of the LLC that is outstanding immediately prior to
the Effective time shall be converted into the right to receive 59,377
validly issued, fully paid and nonassessable shares of Common Stock,
$.01 par value, of the Surviving Business Entity.
(c) The membership interest issued to the sole Class C Member of the LLC
in his capacity as such shall convert into 514,377 validly issued,
fully paid and nonassessable shares of Common Stock, $.01 par value,
of the Surviving Business Entity.
(d) The aggregate membership interests issued to all of the Common Members
of the LLC in their capacity as such that are outstanding immediately
prior to the Effective Time shall be converted into 2,830,351 validly
issued, fully paid and nonassessable shares of Common Stock, $.01 par
value, of the Surviving Business Entity (allocated among such Common
Members in accordance with their relative Participating Percentages).
(e) Each of the Common Stock, $.01 par value, of the Corporation issued
and outstanding immediately prior to the Effective Time shall
remain issued, outstanding and unchanged as a validly issued, fully
paid and nonassessable share of Common Stock, $.01 par value, of
the Surviving Business Entity.
ARTICLE IV
CERTIFICATE OF INCORPORATION AND BYLAWS
From and after the Effective Time, until changed or amended in accordance
with the Certificate of Incorporation, Bylaws or applicable law, the Certificate
of Incorporation and Bylaws of the Corporation will be the Certificate of
Incorporation and Bylaws of the Surviving Business Entity.
ARTICLE V
EFFECTS OF THE MERGER
At and after the Effective Time, the Merger will have the effects set forth
in the DGCL and the KBCA. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, all the property rights, privileges,
powers and franchises of the LLC shall be vested in the Surviving Business
Entity, and all debts, liabilities and duties of the LLC shall become the debts,
liabilities and duties of the Surviving Business Entity.
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ARTICLE VI
ABANDONMENT
(1) Pursuant to Section 251(d) of the DGCL, the Board of Directors of the
Corporation may at any time prior to the filing of the Agreement and Plan of
Merger with the Secretary of State of the State of Delaware and with the
Secretary of State of the Commonwealth of Kentucky terminate the Agreement and
Plan of Merger notwithstanding approval of the Agreement and Plan of Merger by
the stockholders of the Corporation and the members of the LLC.
(2) Pursuant to the Section 275.350(3) of the Kentucky Limited Liability
Company Act, the Managers of the LLC, may at any time prior to the filing of the
Agreement and Plan of Merger with the Secretary of State of the State of
Delaware and with the Secretary of State of the Commonwealth of Kentucky,
abandon and terminate the Agreement and Plan of Merger notwithstanding approval
of the Agreement and Plan of Merger by the stockholders of the Corporation and
the members of the LLC.
ARTICLE VII
EFFECTIVE TIME
The Merger shall become effective upon the filing of a Certificate of
Merger (the "Certificate of Merger"), with the Secretary of State of the State
of Delaware and Articles of Merger ("Articles of Merger"), with the Secretary of
State of the Commonwealth of Kentucky or at such subsequent time as shall be
specified in the Certificate of Merger and in the Articles of Merger as the date
and time the Merger shall become effective being the "Effective Time".
IN WITNESS WHEREOF, the parties hereto have caused this Agreement and Plan
of Merger to be executed on their behalf as of the date first above written.
TUMBLEWEED, LLC
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxx X. Xxxxxxxxx, Manager
TUMBLEWEED, INC.
By: /s/ Xxxx X. Xxxxxxx, Xx.
-----------------------------------
Xxxx X. Xxxxxxx, Xx., President
and Chief Executive Officer
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