Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is dated as of November 6, 1998, by and
among Xxxxxxx Xxxxxxxx Xxxxxxxx, LLC, a Delaware limited liability company (the
"LLC"), Xxxxxxx Xxxxxxxx Xxxxxxxx Inc., a Massachusetts corporation (the
"Corporation"), and Xxxxxxx Xxxxxxxx Xxxxxxxx Co., a business trust formed under
the laws of The Commonwealth of Massachusetts ("Parent").
W I T N E S S E T H:
WHEREAS, the Corporation is a corporation duly incorporated and validly
existing under the laws of The Commonwealth of Massachusetts;
WHEREAS, the LLC is a limited liability company duly formed and validly
existing under the laws of the State of Delaware;
WHEREAS, Parent is a business trust duly organized and validly existing
under the laws of The Commonwealth of Massachusetts and is the sole member and
beneficial owner of all the interests in the LLC;
WHEREAS, upon the terms and subject to the conditions of this Agreement and
in accordance with the Delaware Limited Liability Company Act (the "Act"),
Chapter 156B of the General Laws of The Commonwealth of Massachusetts (the
"BCA"), and the Limited Liability Company Agreement of the LLC dated November 5,
1998, the LLC and the Corporation desire to enter into a business combination
transaction pursuant to which the Corporation will merge with and into the LLC
with the LLC surviving, which merger is intended to constitute a tax free
incorporation under Section 368(a)(1)(F) of the Internal Revenue Code of 1986,
as amended;
WHEREAS, the sole Member of the LLC has adopted and approved this Agreement
and the Merger (as hereinafter defined) in accordance with the LLC Agreement and
Section 209 of the Act; and
WHEREAS, the Board of Directors and stockholders of the Corporation have
approved this Agreement and the Merger pursuant to Section 78 of the BCA.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, each
of the LLC and the Corporation agrees as follows:
1. The Merger. In accordance with the relevant provisions of the Act and
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the BCA, at the Effective Time (as hereinafter defined), the Corporation shall
be merged with and into the LLC (the "Merger"). As a result of and following
the Merger, the separate existence of the Corporation shall cease to exist and
the LLC shall continue as the surviving entity of the
Merger (the "Surviving Company"), and all identity, rights, assets and
liabilities of the Corporation shall be vested in the Surviving Company in
accordance with Section 209(g) of the Act.
2. The Effective Time. The Merger shall become effective (the "Effective
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Time") immediately upon the later of (i) the date on which a Certificate of
Merger, together with any other documents required to be filed to consummate the
Merger, is filed with and accepted by the Secretary of State of the State of
Delaware, and the Articles of Merger, together with any other documents required
to be filed to consummate the Merger, is filed with the Secretary of State of
The Commonwealth of Massachusetts or (ii) any future effective date or time of
the Merger stated in the Certificate of Merger filed with and accepted by the
Secretary of State of the State of Delaware and the Articles of Merger filed
with the Secretary of State of The Commonwealth of Massachusetts.
3. Certificate of Formation. The Certificate of Formation of the LLC, as
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in effect on the Effective Date, shall be the Certificate of Formation of the
Surviving Company until thereafter changed or amended as provided therein or by
applicable law.
4. Limited Liability Company Operating Agreement. The Limited Liability
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Company Operating Agreement of the LLC as in effect on the Effective Date and
attached hereto as Exhibit A (the "Surviving Company Operating Agreement") shall
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be the Limited Liability Company Operating Agreement of the Surviving Company
until thereafter changed or amended as provided therein or by applicable law.
5. Purposes. The purposes of the Surviving Company shall be as set forth
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in the Surviving Company Operating Agreement as in effect on the date hereof
until such time as such purposes may be changed or amended as provided in the
Surviving Company Operating Agreement and by applicable law.
6. Officers of Surviving Company. The officers of the Corporation on the
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Effective Date shall become the officers of the Surviving Company in accordance
with the Surviving Company Operating Agreement and the delegation of authority
thereunder by the Member, until successors therefor are duly appointed and
qualified, or such delegation is revoked, as the case may be.
7. Cancellation of Common Stock; LLC Interests; Beneficial Shares.
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(a) As of the Effective Date, all of the issued and outstanding common
stock, no par value per share ("Stock"), of the Corporation shall be canceled,
and the membership units in the Surviving Company outstanding immediately prior
to the Merger shall remain issued and outstanding until the earlier of their
redemption, cancellation or change by operation of law.
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(b) In exchange for the cancellation of their shares of Stock, each of
the stockholders of the Corporation shall receive the number of beneficial
shares in the Parent as set forth in Schedule I attached hereto.
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(c) At the Effective Time, Parent shall repurchase all of the
beneficial shares of Parent issued and outstanding prior to the Mergers for an
aggregate purchase price of $1,000, such that only the beneficial shares set
forth on Schedule I attached hereto shall be issued and outstanding at such
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time.
(d) In addition, at the Effective Time, the Trust shall assume all of
the Corporation's obligations with respect to the stock option and other equity
plans of the Corporation in effect as at such time (the "Plans"), and from and
after the Effective Time agrees to assume the outstanding awards under the Plans
as if such awards were granted by the Trust or pursuant to Trust plans,
including, without limitation, (i) all outstanding options to purchase Stock,
whether issued pursuant to a Plan or otherwise, (ii) all outstanding stock
appreciation rights granted under the Corporation's 1997 Stock Appreciation
Rights Plan, and (iii) all claw back rights granted to Xxxxx Xxxxxxxx and
Xxxxxxx Xxxxxxxx in their respective Stock Redemption Agreement entered into
with the Company. The Trust, on behalf of the Surviving Company, also agrees to
assume all of the Corporation's obligations with respect to the equity of the
Corporation which are contained in all employment agreements with the
Corporation. The parties agree that all references to "Company" or
"Corporation" under the Plans and such employment agreements shall mean and
include the Trust and any subsidiary of the Trust, including, without
limitation, the Surviving Company.
8. Additional Actions. If, at any time on and after the Effective Time,
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the Surviving Company or its successors and assigns shall consider or be advised
that any further assignments or assurances in law or any organizational or other
acts are necessary or desirable (a) to vest, perfect or confirm, of record or
otherwise, in the Surviving Company title to and possession of any property or
right of the Corporation acquired or to be acquired by reason of, or as a result
of, the Merger, or (b) otherwise to carry out the purposes of this Agreement,
the Corporation and its Directors shall be deemed to have granted to the
Surviving Company an irrevocable power of attorney to execute and deliver all
such proper deeds, assignments and assurances in law and to do all acts
necessary or proper to vest, perfect or confirm title to and possession of such
property or rights in the Surviving Company and otherwise to carry out the
purposes of this Agreement.
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9. Termination. Notwithstanding the prior approval of this Agreement by
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the Members of the LLC and the Board of Directors and stockholders of the
Corporation, this Agreement may be terminated by the Members of the LLC and
Directors of the Corporation for any reason and at any time prior to the
Effective Time.
10. Amendment. Notwithstanding the prior approval of this Agreement by
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the Members of the LLC and the Board of Directors and stockholders of the
Corporation, any term or provision of this Agreement may be amended by the
Members of the LLC and the Directors of the Corporation for any reason and at
any time prior to the Effective Time; provided, however, that any amendment
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which directly, materially and adversely affects any right specifically granted
hereunder to a particular party in a manner different than other parties shall
not be effective unless such party has consented to such amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement and
Plan of Merger as of the date first set forth above.
XXXXXXX XXXXXXXX XXXXXXXX INC., a
Massachusetts corporation
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Treasurer
XXXXXXX XXXXXXXX XXXXXXXX, LLC, a
Delaware limited liability company
By: Xxxxxxx Xxxxxxxx Xxxxxxxx Co., its Sole
Member
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Trustee
XXXXXXX XXXXXXXX XXXXXXXX, CO., a
Massachusetts business trust
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Trustee
BSH
SCHEDULE I
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Shares of Stock Beneficial Shares
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Stockholder
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Certificate No. No. of Shares Certificate No. No. of Shares
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Xxxxxxx X. Xxxxxxx 1 100 2 100
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18 7,200 3 7,200
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19 7,200 4 7,200
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20 7,200 5 7,200
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21 7,200 6 7,200
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22 7,200 7 7,200
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23 7,200 8 7,200
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24 7,200 9 7,200
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25 7,200 10 7,200
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26 7,200 11 7,200
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27 7,200 12 7,200
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28 7,200 13 7,200
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29 7,187.75 14 7,187.75
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31 385,190 15 385,190
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Xxxxxxx X. Xxxxxxx and Xxxx
Xxxxxxx as Trustees under the
Xxxxxxx X. Xxxxxxx Annuity Trust
dated July 16, 1998 30 385,812 16 385,812
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Xxxxx Xxxxxxxx 4 2.27 17 2.27
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12 5.50 18 5.50
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5 38,005.11 19 38,005.11
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XXXXXXX XXXXXXXX XXXXXXXX INC.
CERTIFICATE OF CLERK
I, Xxxxx Xxxxxxxxxx, the Clerk of Xxxxxxx Xxxxxxxx Xxxxxxxx Inc., hereby
certify that the Agreement and Plan of Merger to which this Certificate is
attached was duly adopted by the Board of Directors and stockholders of Xxxxxxx
Xxxxxxxx Xxxxxxxx Inc. pursuant to Section 78 of Chapter 156B of the
Massachusetts General Laws.
WITNESS my hand this 6/th/ day of November ___, 1998.
/s/ Xxxxx Xxxxxxxxxx
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Clerk
Exhibit A
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Xxxxxxx Xxxxxxxx Xxxxxxxx, LLC
Limited Liability Company Agreement
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This Agreement is made as of November __, 1998 by and between Xxxxxxx
Xxxxxxxx Xxxxxxxx, LLC, a Delaware limited liability company (the "LLC"), and
Xxxxxxx Xxxxxxxx Xxxxxxxx Co., a Massachusetts business trust with a business
office at The Prudential Tower, 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX 00000, as the
sole member (the "Member") of the LLC.
WHEREAS, the LLC was formed as a limited liability company under the
Delaware Limited Liability Company Act (as amended from time to time, the "Act")
on November __, 1998; and
WHEREAS, the Member wishes to set out fully its rights, obligations and
duties regarding the LLC and its assets and liabilities.
NOW, THEREFORE, in consideration of the mutual covenants expressed herein,
the parties hereby agree as follows:
1. Purpose; Powers. The principal business activity and purposes of the
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LLC shall initially be to provide direct marketing and consulting services, and
to engage in any business related thereto or useful in connection therewith, as
well as any and all other activities permitted under the Act. The LLC shall
possess and may exercise all the powers and privileges granted by the Act, any
other law or this Agreement, together with any powers incidental thereto, and
may take any other action not prohibited under the Act or other applicable law,
so far as such powers and actions are necessary or convenient to the conduct,
promotion or attainment of the business, purposes or activities of the LLC.
2. Principal Place of Business. The principal office and place of
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business of the LLC shall be located at The Prudential Tower, 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000. The Member may change the principal office
or place of business of the LLC at any time and may cause the LLC to establish
other offices or places of business in various jurisdictions and appoint agents
for service of process in such jurisdictions. The initial registered agent of
the LLC shall be The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000. The registered office of the LLC in the State of Delaware, as
required by Section 18-104 of the Act, shall be The Corporation Trust Company at
such address.
3. Fiscal Year. The fiscal year end of the LLC shall be December 31.
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4. Capital Contributions. The contribution made by the Member to the
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capital of the LLC as of the date hereof and the percentage interest of the
Member in the profits and losses of the LLC are as follows:
Initial
Capital Percentage
Member Contribution Interest
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Xxxxxxx Xxxxxxxx Xxxxxxxx Co. $10.00 100%
Future contributions to capital, if any, shall be made in such amounts and at
such times as the Member may determine.
5. Capital Account; Distributions. A capital account shall be
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established for the Member and shall be maintained in accordance with applicable
regulations under Section 704(b) of the Internal Revenue Code of 1986, as
amended (the "Code"). A capital account shall be maintained for the sole
purpose of allocating income, gain, loss and deduction to the Member and shall
have no effect on the amount of any distributions to the Member in liquidation
or otherwise.
6. Certificates.
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(a) General. At the option of the Member, interests in the LLC may be
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represented by one or more certificates, in such form as may from time to time
be prescribed by the Manager. Such certificate shall be signed by the Member or
an officer of the Member on the Member's behalf, which signature may be a
facsimile thereof. In case the Member or officer of the Member who has signed
or whose facsimile signature has been placed on such certificate shall have
ceased to be the Member or an officer of the Member, as the case may be, before
such certificate is issued, it may be issued by the LLC with the same effect as
if such person were the Member or an officer of the Member at the time of its
issue. The certificate shall contain a legend with respect to any restrictions
on transfer.
(b) Application of Article 8 of the Uniform Commercial Code. The LLC
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hereby irrevocably elects that all interests in the LLC shall be securities
governed by Article 8 of the Uniform Commercial Code in effect in the State of
Delaware. Each certificate, if any, evidencing an interest in the LLC shall
bear the following legend:
"This Certificate evidences a membership interest in Xxxxxxx Xxxxxxxx
Xxxxxxxx, LLC and shall be a security for purposes of Article 8 of the
Uniform Commercial Code in effect in the State of Delaware."
No change to this provision shall be effective until all outstanding
certificates have been surrendered for cancellation and any new certificates
thereafter issued shall not bear the foregoing legend.
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7. Management.
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(a) General. The management of the LLC's business and affairs shall
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be vested in the Member. The Member shall have full power and authority (a) to
take any action and execute any documents on behalf of the LLC, and (b) to
appoint such officers, representatives, or agents for the LLC (each of whom
shall serve in such capacity until the Member removes such person or appoints a
successor for such person), and to grant to any such officer, representative or
agent the power and authority to take such action and execute such documents on
behalf of the LLC as may be determined by the Member. In addition, the Member
may enter into one or more management agreements with one or more third party
managers, and assign such managers the rights, duties and obligations as
provided in such management agreement. Any delegation of powers and duties
pursuant to this Section 7 may be revoked at any time by the Member. Any
officer of the LLC may be removed with or without cause at any time by the
Member.
(b) Officers of the LLC. Unless the Member decides otherwise, the
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officers of the Member from time to time shall have the authority to act on
behalf of the Member in managing and conducting the business of the LLC as
provided for in this Section 7. Unless the Member decides otherwise, if an
official title is one commonly used for officers of a business corporation
formed under the Delaware General Corporation Law, the assignment or incumbency
of such title to a person who serves as such officer of the Member shall
constitute assignment of the same title, and delegation of the authorities and
duties normally associated with that office, to such person as such officer of
the LLC.
8. Limitation of Liability. Except as otherwise provided in the Act, the
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Member shall not be obligated personally for any debt, obligation or liability
of the LLC, whether arising in contract, tort or otherwise, solely by reason of
being a member of the LLC. The Member shall have no responsibility to restore
any negative balance in its capital account. The Member shall not be personally
liable to the LLC for acting in good faith reliance upon the provisions of this
Agreement, or for breach of any fiduciary or other duty that does not involve
(i) a breach of the duty of loyalty to the LLC, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, or (iii) a transaction from which the Member derived an improper personal
benefit.
9. Other Business. The Member may engage or have an interest in other
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business ventures which are similar to or competitive with the business of the
LLC, and the pursuit of such ventures, even if competitive, shall not be deemed
wrongful or improper or give the LLC any rights with respect thereto. The
Member shall not be obligated to present an investment opportunity to the LLC
even if it is similar or consistent with the business of the LLC, and it shall
have a right to take for its own account or recommend to others any such
investment opportunity.
10. Indemnification. To the fullest extent permitted by law, the LLC
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shall indemnify the Member and any and all officers and agents of the LLC and
the officers,
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directors, trustees, partners, members and shareholders of any such person which
is a corporation, trust, partnership, limited liability company or other entity,
against any and all liability incurred and/or for any act performed by them in
good faith within the scope of the authority conferred on them by this
Agreement, and/or for any act in good faith omitted to be performed by them
(including, without limitation, reasonable legal and other professional fees and
expenses), except for their gross negligence or willful misconduct.
11. Term. The LLC shall have a perpetual existence and shall not
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terminate upon the resignation, bankruptcy or dissolution of the Member or the
occurrence of any other event which terminates the continued membership of the
Member in the LLC; provided, however, the LLC shall terminate upon the first to
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occur of the following:
(a) the written consent of the Member; or
(b) the entry of a decree of judicial dissolution under Section 18-802
of the Act.
Upon any such dissolution, the Member shall proceed to liquidate the LLC and
wind up its affairs and make final distributions as provided in the Act. The
cost of dissolution and liquidation shall be borne as an expense of the LLC. On
completion of the liquidation, the LLC shall be terminated and the Member (or
such other person or persons as the Act may require or permit) shall file a
Certificate of Cancellation with the Secretary of State of the State of Delaware
under the Act and take such other actions as may be necessary to terminate the
existence of the LLC and cancel any other filings as appropriate.
12. Amendment. This Agreement may only be amended pursuant to an
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instrument in writing signed by the Member.
13. Governing Law. This Agreement is governed by and shall be construed
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in accordance with the laws of the State of Delaware, exclusive of its conflict-
of-laws principles.
14. Entire Agreement. This Agreement embodies the entire agreement and
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understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
matter.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
MEMBER:
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Xxxxxxx Xxxxxxxx Xxxxxxxx Co.,
a Massachusetts business trust
By:__________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Trustee
LLC:
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Xxxxxxx Xxxxxxxx Xxxxxxxx, LLC,
a Delaware limited liability company
By: Xxxxxxx Xxxxxxxx Xxxxxxxx Co.,
a Massachusetts business trust, as
sole Member
By:_____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Trustee
