EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of November 26, 1997, by and between
Xxx. Xxxxxx' Original Cookies, Inc., a Delaware corporation (the "Company"), and
Xxx. Xxxxxx' Pretzel Concepts, Inc., a Delaware corporation ("MFPC").
WHEREAS, the Boards of Directors of the Company and MFPC have
approved the merger of MFPC with and into the Company upon the terms and subject
to the conditions set forth herein (the "Merger").
WHEREAS, the Company and MFPC intend the Merger to constitute
a tax-free reorganization under Section 368(a) of the Internal Revenue Code of
1986, as amended.
NOW, THEREFORE, in consideration of the covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I.
THE MERGER
Section A. The Merger. Upon the terms and subject to the
conditions of this Agreement, in accordance with the Delaware General
Corporation Law (the "DGCL"), at the Effective Time (as hereinafter defined),
MFPC shall be merged with and into the Company and the separate existence of
MFPC shall thereupon cease. The Company shall be the surviving corporation in
the Merger (hereinafter sometimes referred to as the "Surviving Corporation").
Section B. Effective Time. In order to effectuate the Merger,
on November 26, 1997, the parties hereto shall cause the Merger to be
consummated by filing a Certificate of Merger (the "Certificate of Merger") with
the Secretary of State of the State of Delaware, in such form as required by,
and executed in accordance with, the DGCL. The Merger shall be effective as of
the time of filing of the Certificate of Merger or at such date and time
otherwise specified in the Certificate of Merger (the "Effective Time").
Section C. Effects of Merger. At and after the Effective Time,
the Merger shall have the effects provided for in this Agreement and as set
forth in Section 259 of the DGCL.
ARTICLE II.
THE SURVIVING CORPORATION
Section A. Charter Documents. At the Effective Time, the
Restated Certificate of Incorporation of the Company as in effect immediately
prior to the Effective Time shall be the Certificate of Incorporation of the
Surviving Corporation, until further amended in accordance with applicable law.
At the Effective Time, the By-laws of the Company as in effect immediately prior
to the Effective Time shall be the By-laws of the Surviving Corporation, until
further amended in accordance with applicable law.
Section B. Directors and Officers. At and after the Effective
Time, the directors and officers of the Company holding office immediately prior
to the Effective Time shall be the directors and officers of the Surviving
Corporation, respectively, until their respective successors shall have been
duly elected or appointed and qualified.
ARTICLE III.
TREATMENT OF CAPITAL STOCK
Section A. Treatment of Capital Stock.
(a) Capital Stock of MFPC. As of the Effective Time,
by virtue of the Merger and without any action on the part of the
Company, each share of common stock, par value $.01 per share, of MFPC
shall be cancelled and retired and shall cease to exist and no stock of
the Company or the Surviving Corporation or any other consideration
shall be delivered in exchange therefor.
(b) Capital Stock of the Company. Each issued and
outstanding share of the common stock, par value $1.00 per share, of
the Company shall not be converted as a result of the Merger, shall
remain unchanged and shall be deemed to represent one fully paid and
nonassessable share of common stock, par value $.01 per share, of the
Surviving Corporation.
ARTICLE IV.
MISCELLANEOUS
Section A. Termination. This Agreement may be terminated at any time prior
to the Effective Time by the Board of Directors of either party hereto.
Section B. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflict of laws thereof.
IN WITNESS WHEREOF, the Company and MFPC have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
XXX. XXXXXX' ORIGINAL COOKIES, INC.
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title:
XXX. XXXXXX' PRETZEL CONCEPTS, INC.
By:/s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title:
