EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated as of May 20, 2004 (the
"Agreement"), by and between Xxxxxxx Holding, Inc., a Delaware corporation
("Buyer"), Trim Merger Co., a Delaware corporation and a wholly-owned subsidiary
of Buyer ("Transitory Subsidiary"), and Trim Systems, Inc., a Delaware
corporation ("Target"). Buyer, Transitory Subsidiary, and Target are sometimes
collectively referred to herein as the "Constituent Corporations."
WITNESSETH:
WHEREAS, the capitalization for each of Buyer, Transitory
Subsidiary, and Target is set forth in Schedule A attached hereto.
WHEREAS, this Agreement contemplates a transaction in which Buyer
will acquire all of Target's outstanding stock in exchange for common stock of
Buyer through a reverse subsidiary merger of Buyer's Transitory Subsidiary with
and into Target;
WHEREAS, the respective Boards of Directors of the Constituent
Corporations deem it advisable that Transitory Subsidiary merge with and into
Target and that Target continue as the surviving corporation, upon the terms set
forth herein and in accordance with the laws of the State of Delaware (the
"Merger"), and that the shares of Transitory Subsidiary be converted upon
consummation of the Merger as set forth herein; and
WHEREAS, the respective Boards of Directors of the Constituent
Corporations have, by resolutions duly approved and adopted the provisions of
this Agreement, as the plan of merger required by Section 251 of the General
Corporation Law of the State of Delaware (the "Delaware Law").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
EFFECT OF THE MERGER; MANNER AND
BASIS OF CONVERTING SHARES.
Section 1.1. At the Effective Time (as hereinafter defined),
Transitory Subsidiary will merge with and into Target, and the separate
corporate existence of Transitory Subsidiary (except as may be continued by
operation of law) shall cease. Target shall be the corporation surviving the
Merger (the "Surviving Corporation").
Section 1.2. At and as of the Effective Time, (i) each Target share
of Class A-1 Common shall be converted into the right to receive .099 shares of
Buyer's Class A Common, (ii) each Target share of Class A-2 Common shall be
converted into the right to receive .099 shares of Buyer's Class A Common, (iii)
each Target share of Class B Common shall be
converted into the right to receive .099 shares of Buyer's Class B Common, and
(iv) each Target share of Class C Common shall be converted into the right to
receive .099 shares of Buyer's Class C Common; accordingly, each Target
shareholder's common stock in Target shall be converted into Buyer's common
stock in the number and class of stock as indicated on Schedule B attached
hereto (the "Merger Consideration").
Section 1.3. At and as of the Effective Time, each share of
Transitory Subsidiary's common stock, $0.01 par value per share, shall be
converted into one share of Surviving Corporation's common stock, $0.01 par
value per share. At and as of the Effective Time, the Surviving Corporation
shall issue shares of common stock, $0.01 par value per share, to Buyer in
consideration for Buyer's issuing its common stock to former stockholders of
Target pursuant to Section 1.2. The number of shares of Surviving Corporation's
common stock issued to Buyer pursuant to this Section 1.3 shall be equal to the
number of Transitory Subsidiary common shares outstanding immediately before the
Effective Time.
Section 1.4. At and as of the Effective Time, the Surviving
Corporation shall possess all the rights, privileges, immunities and franchises,
of both a public and private nature, and be subject to all the duties and
liabilities of Transitory Subsidiary; and all rights, privileges, immunities and
franchises of Transitory Subsidiary and all property, real, personal and mixed,
and all debts due on whatever accounts, including subscriptions to shares, and
all other choses in action, and all and every other interest, of or belonging to
Transitory Subsidiary shall be taken and deemed to be transferred to and vested
in the Surviving Corporation without further act or deed; and title to any real
estate, or any interest therein, vested in Transitory Subsidiary shall not
revert or be in any way impaired by reason of the Merger; and the Surviving
Corporation shall thenceforth be responsible and liable for all liabilities and
obligations of Transitory Subsidiary and any claim existing or action or
proceeding pending by or against Transitory Subsidiary may be prosecuted to
judgment as if the Merger had not taken place or the Surviving Corporation may
be substituted in its place; all with the effect set forth in Section 251 of the
Delaware Law. The authority of the officers of Transitory Subsidiary shall
continue with respect to the due execution in the name of each respective
corporation of tax returns, instruments of transfer or conveyance and other
documents where the execution thereof is required or convenient to comply with
any provision of the Delaware Law or any contract to which Transitory Subsidiary
was a party or this Agreement.
Section 1.5. The name of the Surviving Corporation shall be "Trim
Systems, Inc."
ARTICLE 2
EFFECTIVE TIME.
Section 2.1. The Merger shall become effective when a Certificate of
Merger (the "Certificate of Merger"), executed in accordance with Section 251 of
the General Corporation Law of the State of Delaware, is duly filed with the
Secretary of State of the State of Delaware, or as such other time as specified
in the Certificate of Merger. When used in this Agreement, the term "Effective
Time" shall mean the later of the date and time at which the Target Certificate
of Merger is duly filed with the Secretary of State of the State of Delaware or
such later time
-2-
established by the Certificate of Merger. The filing of the Certificate of
Merger shall be made as soon as practicable after the satisfaction or waiver of
the conditions to the Merger set forth in Article 4 hereof.
ARTICLE 3
CERTIFICATE OF INCORPORATION AND
BY-LAWS; BOARD OF DIRECTORS.
Section 3.1. The Certificate of Incorporation of Surviving
Corporation shall be the Certificate of Incorporation of Trim Systems, Inc.,
attached hereto as Exhibit A.
Section 3.2. The By-laws of Surviving Corporation shall be amended
and restated at and as of the Effective Time to read as did the Bylaws of
Transitory Subsidiary immediately prior to the Effective Time (except that the
name of the Surviving Corporation shall remain unchanged).
Section 3.3. The directors and officers of Transitory Subsidiary
shall become the directors and officers of Surviving Corporation at and as of
the Effective Time (retaining their respective positions and terms of office).
ARTICLE 4
CONDITIONS.
Section 4.1. The respective obligations of each of Constituent
Corporations to consummate the Merger under this Agreement is subject to the
fulfillment or waiver by all parties hereto of the following conditions:
(a) At the option of Transitory Subsidiary, Buyer, or Target, any third
party consents which are required in order to avoid a breach, violation,
conflict or default under any agreement, contract, statute, rule or regulation
shall have been obtained;
(b) There shall have been no law, statute, rule or regulation, domestic or
foreign, enacted or promulgated which would make consummation of the Merger
illegal;
(c) No preliminary or permanent injunction or other order by any federal
or state court of competent jurisdiction that makes illegal or otherwise
prevents the consummation of the Merger shall have been issued and shall remain
in effect; and
(d) The board of directors of each Constituent Corporation shall have
determined that the Registration Statement is reasonably likely to become
effective within the next seven (7) business days in accordance with the
provisions of the Securities Act.
-3-
ARTICLE 5
TERMINATION
Section 5.1. This Agreement and all obligations to consummate the
Merger shall terminate immediately upon the Buyer's withdrawal of the
Registration Statement from the review of the SEC.
ARTICLE 6
MISCELLANEOUS
Section 6.1. This Agreement may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
instrument.
Section 6.2. The internal law, not the law of conflicts, of the
State of Delaware will govern all questions concerning the construction,
validity and interpretation of this Agreement.
Section 6.3. This Agreement is not intended to confer upon any
person (other than the parties hereto and their respective successors and
assigns) any rights or remedies hereunder or by reason hereof; provided however,
that the provisions in Section 1.2 above concerning payment of the Merger
Consideration are intended for the benefit of Target's shareholders
Section 6.4. The Schedules and Exhibits identified in this Agreement
are incorporated herein by reference and made a part hereof.
Section 6.5. As used in this Agreement, the following terms have the
meanings specified below:
"Applicable Law" means all applicable laws, statutes, orders, rules,
regulations and all applicable legally binding policies or guidelines
promulgated, or judgments, decisions or orders entered, by any governmental
entity.
"Registration Statement" means Buyer's registration statement on
Form S-1 and any amendments or supplements thereto, which is to be filed with
the SEC in connection with its initial public offering.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
* * * *
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by their respective officers thereunto duly authorized, all as of the
day and year first written above.
XXXXXXX HOLDING, INC.
By: /s/ Xxx Xxxxxx
--------------------------------
Name:
Title:
TRIM SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name:
Title:
TRIM MERGER CO.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name:
Title:
[Signature Page to Agreement and Plan of Merger]
-5-
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
TRIM SYSTEMS, INC.
-6-
SCHEDULE A
CAPITALIZATION OF BUYER, TARGET,
AND TRANSITORY SUBSIDIARY.
XXXXXXX HOLDING, INC.
AUTHORIZED, PAR VALUE $0.01
ITEM CLASS OF STOCK PER SHARE ISSUED AND OUTSTANDING
---------------------------------------------------------------------------------------------------------
1 Class A Common 75,000 6,968.010
2 Class B Common 170,000 121,296.260
3 Class C Common 40,000 30,324.000
4 Class D-1 Common 125,000 97,964.000
5 Class D-2 Common 25,000 0.000
6 Class E Common 25,000 24,491.000
TRIM SYSTEMS, INC.
AUTHORIZED, PAR VALUE $0.01
ITEM CLASS OF STOCK PER SHARE ISSUED AND OUTSTANDING
---------------------------------------------------------------------------------------------------------
1 Class A-1 Common 400,000 366,370.585
2 Class A-2 Common 150,000 18,861.710
3 Class B Common 450,000 282,141.970
4 Class C Common 100,000 56,250.000
TRIM MERGER CO.
AUTHORIZED, PAR VALUE $0.01
ITEM CLASS OF STOCK PER SHARE ISSUED AND OUTSTANDING
---------------------------------------------------------------------------------------------------------
1 Common 1,000 1,000.000
-7-
SCHEDULE B
MERGER CONSIDERATION.
The following table provides the amount and class of Buyer common stock
that each Target shareholder shall receive as consideration in exchange for
its or his or her common stock in Target.
THE MERGER CONSIDERATION
PRE-MERGER TRIM SYSTEMS, INC. PRE-MERGER COMMON SHARES OF TRIM POST CONVERSION XXXXXXX
ITEM SHAREHOLDER SYSTEMS, INC. HOLDING, INC. COMMON STOCK
---------------------------------------------------------------------------------------------------------------
CLASS A-1 COMMON STOCK
1 Xxxxx X. Xxxxxxx 2,797.865 276.989
2 Xxxxxx X Xxxxxxx 2,797.865 276.989
3 Xxxxx X. Xxxx 2,098.410 207.743
4 Xxxxxx X. Xxxxx 1,398.930 138.494
5 Xxxx X. Xxxxxx 1,398.930 138.494
6 Xxxx X. Read 1,398.930 138.494
7 Xxxxx X. Xxxx 699.465 69.247
8 Xxxxxx X. Xxxxxx 699.465 69.247
9 Xxxx-Xxxxxx X. Xxxxxxx and her
successors in trust, as Trustees of
the Xxxx-Xxxxxx X. Xxxxxxx
Revocable Trust under Agreement
dated November 12, 2001 699.465 69.247
10 1170821 Ontario Inc. 2,974.000 294.426
11 1170809 Ontario Inc. 2,119.000 209.781
12 1170812 Ontario Inc. 2,640.000 261.360
13 Kyzalea Company 1,512.000 149.688
14 1170819 Ontario Inc. 1,042.000 103.158
15 1170698 Ontario Inc. 992.000 98.208
16 1301449 Ontario Inc. 146.000 14.454
17 13525365 Ontario Inc. 134.000 13.266
18 1376653 Ontario Inc. 73.000 7.227
19 1352537 Ontario Inc. 19.000 1.881
20 Onex DHC LLC 299,492.280 29,649.736
21 Trim Systems Executive Investco LLC 11,820.000 1,170.180
22 Trim Systems Executive Investco II
LLC 9,375.000 928.125
23 3062601 Nova Scotia Company 2,663.000 263.637
24 Onex Advisor III LLC 17,380.000 1,720.620
CLASS A-2 COMMON STOCK
1 Xxxxxxx Xxxxxxxxxxx 500.00 49.50
2 Xxxxx X. Xxxxx 1,000.00 99.00
3 Xxx Xxxxxxx 1,098.90 108.79
4 Xxxxx Xxxxx 2,800.00 277.20
5 Xxxx Xxxxx 479.47 47.47
6 Xxxx Xxxxxx 8,915.65 882.65
-8-
THE MERGER CONSIDERATION
PRE-MERGER TRIM SYSTEMS, INC. PRE-MERGER COMMON SHARES OF TRIM POST CONVERSION XXXXXXX
ITEM SHAREHOLDER SYSTEMS, INC. HOLDING, INC. COMMON STOCK
---------------------------------------------------------------------------------------------------------------
7 Xxxxxx X. Xxxxxx 549.45 54.40
8 Xxxxxx Xxxxxxx 752.40 74.49
9 Xxxxxx Xxxx 855.29 84.67
10 Xxxxx Xxxxxxxx 1,500.00 148.50
11 Xxxxx Xxxxxxxx 342.11 33.87
12 Xxxxx Xxxxx 68.42 6.77
CLASS B COMMON STOCK
1 1170809 Ontario Inc. 1,851.40 183.29
2 1170819 Ontario Inc. 750.78 74.33
3 1170821 Ontario Inc. 1,290.97 127.81
4 1170812 Ontario Inc 1,192.43 118.05
5 1170698 Ontario Inc 811.65 80.35
6 AMON Canadian
Investments, Ltd. 1,068.60 105.79
7 MHON Canadian
Investments, Ltd. 1,009.23 99.91
8 ONEX DHC LLC 239,081.47 23,669.07
9 Kyzalea Company 1,192.85 118.09
10 Trim Systems Executive
Investco II LLC 8,465.79 838.11
11 Trim Systems Executive
Investco LLC 9,101.80 901.08
12 1301449 Ontario Inc. 11.43 1.13
13 1352536 Ontario Inc. 9.15 0.91
14 1352537 Ontario Inc. 2.29 0.23
15 302601 Nova Scotia Company 2,201.66 217.96
16 Onex Advisor III LLC 14,100.47 1,395.95
CLASS C
1 J2R Partners II 56,250.00 5,568.75
-9-
