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EXHIBIT 2.3
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of this 30th day of December, 1996, by and between THE ENSTAR
GROUP, INC., a Delaware corporation ("Enstar-Delaware"), and THE ENSTAR GROUP,
INC., a Georgia corporation ("Enstar-Georgia")(Enstar-Delaware and
Enstar-Georgia being sometimes collectively referred to herein as the
"Constituent Corporations").
WITNESSETH:
WHEREAS, Enstar-Delaware is a corporation organized under the laws of
the State of Delaware;
WHEREAS, Enstar-Delaware has authorized capital stock consisting of
100 shares of common stock, having a $.01 par value, of which 100 shares are
issued and outstanding;
WHEREAS, Enstar-Georgia is a corporation organized under the laws of
the State of Georgia;
WHEREAS, Enstar-Georgia has authorized capital stock consisting of
55,000,000 shares of common stock, having a $.01 par value, of which 100 shares
are issued and outstanding;
WHEREAS, Enstar-Georgia is a newly formed and wholly-owned subsidiary
of Enstar-Delaware;
WHEREAS, the laws of the State of Georgia and the State of Delaware
permit a merger of the Constituent Corporations;
WHEREAS, the Boards of Directors of Enstar-Delaware and
Enstar-Georgia have determined that it is advisable and for the
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benefit of each of the Constituent Corporations and their respective
shareholders that Enstar-Delaware be merged with and into Enstar-Georgia on the
terms and conditions hereinafter set forth, and by resolutions duly adopted
have adopted the terms and conditions of this Agreement; and directed that the
proposed merger be submitted to the sole shareholder of Enstar-Delaware and the
sole shareholder of Enstar-Georgia; and recommended to such sole shareholders
the approval of the terms and conditions hereinafter set forth; and
WHEREAS, the Constituent Corporations intend for the proposed merger
to be treated as a reorganization under Section 368(a)(1)(F) of the Internal
Revenue Code;
NOW, THEREFORE, for and in consideration of the premises and of the
mutual agreements, promises and covenants contained herein, it is agreed by and
between the parties hereto, subject to the conditions hereinafter set forth and
in accordance with the Georgia Business Corporation Code and the Delaware
General Corporation Law, that Enstar-Delaware shall be and hereby is, at the
"Effective Time" (as hereinafter defined), merged with and into Enstar-Georgia
(with Enstar-Delaware subsequent to such merger being referred to in this
Agreement as the "Merged Corporation" and Enstar-Georgia being referred to as
the "Surviving Corporation") and that the terms and conditions of said merger
and mode of carrying the same into effect shall be as follows:
Section 1. Enstar-Delaware shall be merged with and into
Enstar-Georgia.
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Section 2. The Articles of Incorporation of Enstar-Georgia, as in
effect on the Effective Time of this Agreement, shall continue in full force
and effect as the Articles of Incorporation of the Surviving Corporation.
Section 3. The manner of converting the outstanding shares of the
capital stock of each of the Constituent Corporations into the shares or other
securities of the Surviving Corporation shall be as follows:
(a) All of the outstanding shares of common stock of the Merged
Corporation shall be converted into shares of common stock of the Surviving
Corporation to be held by the sole shareholder in trust for the former
shareholders of the Merged Corporation until distribution or other disposition
of the shares of common stock of the Surviving Corporation pursuant to the
terms of the Merged Corporation's Second Amended Plan of Reorganization dated
December 5, 1991, as modified (the "Plan").
(b) All of the outstanding shares of common stock of the Surviving
Corporation held by the Merged Corporation as sole shareholder shall be
cancelled.
(c) The merger of the Constituent Corporations is intended to be
treated as a reorganization pursuant to Section 368 (a)(1)(F) of the Internal
Revenue Code.
Section 4. The terms and conditions of the merger are as follows:
(a) The Bylaws of the Surviving Corporation as they shall exist on
the Effective Time of this Agreement shall be and remain
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the Bylaws of the Surviving Corporation until the same shall be altered,
amended and repealed as therein provided.
(b) The directors and officers of the Surviving Corporation shall
continue in office until the next annual meeting of shareholders as provided in
the Bylaws of the Surviving Corporation.
(c) This Agreement shall be submitted for approval to the sole
shareholder of Enstar-Georgia and the sole shareholder of Enstar-Delaware as
provided in the Georgia Business Corporation Code and the Delaware General
Corporation Law. If this Agreement is duly authorized and adopted by the sole
shareholders and is not terminated and abandoned pursuant to the provisions of
Section 6 hereof, this Agreement shall be executed, and Certificates of Merger
incorporating the terms of this Agreement, shall be filed and recorded in
accordance with the laws of the State of Georgia and the State of Delaware as
soon as practicable after the approval of the sole shareholders. The Board of
Directors and the proper officers of the Constituent Corporations are
authorized, empowered and directed to do any and all acts and things, and to
make, execute, deliver, file, record any and all instruments, papers and
documents which shall be or become necessary, proper, or convenient to carry
out or put into effect any of the provisions of this Agreement or of the merger
provided for herein.
(d) This merger shall become effective as of 11:59 p.m. on
December 31, 1996 (the "Effective Time").
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(e) Upon the Effective Time, all the property, rights, privileges,
franchises, patents, trademarks, licenses, registrations and other assets of
every kind and description of the Merged Corporation (including, without
limitation, the liabilities and obligations of the Merged Corporation pursuant
to the Plan) shall be transferred to, vested in and devolve upon the Surviving
Corporation without further act or deed and all property, rights, and every
other interest of the Surviving Corporation and the Merged Corporation shall be
as effectively the property of the Surviving Corporation as they were of the
Surviving Corporation and the Merged Corporation respectively. The Merged
Corporation hereby agrees from time to time, as and when requested by the
Surviving Corporation or by its successors or assigns, to execute and deliver
or cause to be executed and delivered all such deeds and instruments and to
take or cause to be taken such further or other action as the Surviving
Corporation may deem necessary or desirable in order to vest in and confirm to
the Surviving Corporation title to and possession of any property of the Merged
Corporation acquired or to be acquired by reason of or as a result of the
merger herein provided for and otherwise to carry out the intent and purposes
hereof and the proper officers and directors of the Merged Corporation and the
proper officers and directors of the Surviving Corporation are fully authorized
in the name of the Merged Corporation or otherwise to take any and all such
action.
Section 5. The Surviving Corporation may be served with process in the
State of Delaware in any proceeding for enforcement
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of any obligation of Enstar-Delaware as well as for enforcement of any
obligation of the Surviving Corporation arising from the merger, including any
suit or other proceeding to enforce the right of any shareholder as determined
in appraisal proceedings pursuant to the provisions of Section 262 of the
Delaware General Corporation Law and the Surviving Corporation does hereby
irrevocably appoint the Secretary of State of Delaware as its agent to accept
service of process in any such suit or other proceeding. The address to which
a copy of such process shall be mailed by the Secretary of State of Delaware is
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000 until the Surviving
Corporation shall hereafter have designated in writing to the said Secretary of
State a different address for such purpose. Service of such process may be
made by personally delivering to and leaving with the Secretary of State of
Delaware duplicate copies of such process, one of which copies the Secretary of
State of Delaware shall forthwith send by registered mail to said
Enstar-Georgia at the above address.
Section 6. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement may be terminated and abandoned by mutual
consent of the Board of Directors of either of the Constituent Corporations at
any time prior to the date of filing a Certificate of Merger with the Secretary
of State of Delaware and a Certificate of Merger with the Secretary of State of
Georgia. This Agreement may be amended by the Board of Directors of its
Constituent Corporations at any time prior to the date of filing a Certificate
of Merger with the Secretary of State of Delaware and
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a Certificate of Merger with the Secretary of State of Georgia, provided that
an amendment made subsequent to the adoption of this Agreement by the
shareholders of either of the Constituent Corporations shall not (1) alter or
change the amount or kind of shares, securities, cash, property and/or rights
to be received in exchange for or on conversion of all or any of the shares of
any class or series of shares thereof of such Constituent Corporation, (2)
alter or change any term of the Articles of Incorporation of the Surviving
Corporation to be effected by the merger, or (3) alter or change any of the
terms and conditions of this Agreement if such alteration or change would
adversely affect the holders of any class or series thereof of either of the
Constituent Corporations.
IN WITNESS WHEREOF, the Constituent Corporations have each caused this
Agreement to be executed, their respective corporate seals to be affixed and
the foregoing attested, all by their respective duly authorized officers, as of
the 30th day of December, 1996.
THE ENSTAR GROUP, INC.,
ATTEST: a Delaware corporation
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxx, Secretary Xxxxxx X. Xxxxxx, President
[CORPORATE SEAL]
THE ENSTAR GROUP, INC.,
ATTEST: a Georgia corporation
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxx, Secretary Xxxxxx X. Xxxxxx, President
[CORPORATE SEAL]
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