Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Plan") is made as of this 18th
day of May, 2004, by and among EMC PACKAGING, INC., a Delaware corporation
("EMC"), NEW JERSEY ACQUISITION, INC., a Delaware corporation ("New Jersey"),
and NEW JERSEY MERGER SUB, INC., a Delaware corporation and wholly-owned
subsidiary of New Jersey ("Merger Sub" and, together with New Jersey, the
"Constituent Corporations").
W I T N E S S E T H:
WHEREAS, EMC and Merger Sub desire to merge on the terms and subject to
the conditions set forth in this Plan;
WHEREAS, the respective Boards of Directors of EMC and each of the
Constituent Corporations deem it advisable and in the best interests of said
corporations and their respective stockholders that Merger Sub be merged with
and into EMC, as the surviving corporation (the "Merger"), as authorized by the
statutes of the State of Delaware, under and pursuant to the terms and
conditions hereinafter set forth, and each such Board has duly approved this
Plan;
WHEREAS, EMC is a corporation duly organized and existing under the laws
of the State of Delaware, having been incorporated on May 31, 2002 and having an
authorized capital stock of 10,000,000 shares of voting common stock, par value
$.001 per share, of which 234 shares are issued and outstanding as of the date
hereof; and
WHEREAS, Merger Sub is a corporation duly organized and existing under the
laws of the State of Delaware, having been incorporated on March 2, 2004 and
having an authorized capital stock of 1,500 shares of voting common stock, par
value $.01 per share (the "Voting Common Stock of Merger Sub"), of which, as of
the date hereof, 100 shares are issued and outstanding; and
WHEREAS, EMC and each of the Constituent Corporations contemplates that no
gain or loss shall be recognized by any of the holders of the capital stock of
EMC or either of the Constituent Corporations by virtue of the application of
Sections 354(a)(1) and 368(a)(1)(A) of the Internal Revenue Code of 1986, as
amended (the "Code"), to the transactions contemplated in this Plan.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, EMC and each of
the Constituent Corporations hereby agrees that Merger Sub will be merged with
and into EMC in accordance with the provisions of the laws of the State of
Delaware, subject to the conditions hereinafter set forth, as follows:
1. The name and state of domicile of each domestic or foreign company that
is a party to the Merger is:
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NAME DOMICILE
EMC Packaging, Inc. Delaware
New Jersey Merger Sub, Inc. Delaware
2. EMC (hereinafter sometimes referred to as the "Surviving Corporation")
will survive the Merger.
3. No new domestic or foreign limited liability company or other entity
will be created by the terms of this Plan.
4. The terms and conditions of the Merger are (in addition to those set
forth elsewhere in this Plan) as follows:
(a) At the Effective Time (as defined hereinafter) of the Merger:
(i) Merger Sub shall be merged with EMC and will constitute a
single corporation, which shall be EMC, the Surviving
Corporation.
(ii) The separate existence of Merger Sub shall cease.
(iii) The Surviving Corporation shall hereupon and thereafter
possess all the rights, privileges, powers and franchises of a
private nature, and be subject to all the liabilities and
duties of Merger Sub; and all and singular, the rights,
privileges, powers and franchises of Merger Sub, and all
property, real, personal and mixed, and all debts due to
Merger Sub on whatever account, as well for stock
subscriptions as all other things in action or belonging to
Merger Sub, shall be vested in the Surviving Corporation; and
all property, rights, privileges, powers and franchises, and
all and every other interest shall be thereafter as
effectually the property of the Surviving Corporation as they
were of Merger Sub; but all rights of creditors and all liens
upon any property of Merger Sub shall be preserved unimpaired,
and all debts, liabilities and duties of Merger Sub shall
attach to the Surviving Corporation and may be enforced
against it to the same extent as if said debts, liabilities
and duties had been incurred or contracted by it.
(iv) All corporate acts, plans, policies, contracts, approvals
and authorizations of Merger Sub, its stockholders, Board of
Directors, committees elected or appointed by the Board of
Directors, officers and agents, which were valid and effective
immediately prior to the Effective Time of the Merger shall be
taken for all purposes as the acts, plans, policies,
contracts, approvals and authorizations of the Surviving
Corporation and shall be as effective and binding thereon as
the same were with respect to Merger Sub. The employees of
Merger Sub shall become
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the employees of the Surviving Corporation and continue to be
entitled to the same rights and benefits which they enjoyed as
employees of Merger Sub.
(v) The assets, liabilities, reserves and accounts of Merger
Sub shall be recorded on the books of the Surviving
Corporation at the amounts at which they, respectively, shall
then be carried on the books of the Surviving Corporation
subject to such adjustments or eliminations of intercompany
items as may be appropriate in giving effect to the Merger.
(b) At the Effective Time of the Merger, the Board of Directors, and
the members thereof, and the officers of the Surviving Corporation shall be as
follows, serving in such capacities until their respective successors shall have
been duly elected and qualified:
Directors Officers
Xxxx Xxxxxxx Xxxx Xxxxxxx - Chairman and
Xxxxxx Xxxxxx Chief Executive Officer
Xxxxxxx Xxxxx Xxxxxx Xxxxxx - President
Xxxxxxx Xxxxxxx
5. The total authorized capital stock of the Surviving Corporation shall
be as set forth in the Certificate of Incorporation of Merger Sub as filed on
March 2, 2004, that is 1,500 shares of voting common stock, par value $.01 per
share (the "Voting Common Stock of the Surviving Corporation").
6. By virtue of the Merger and without any further action on the part of
any holder of any capital stock of EMC, New Jersey or Merger Sub:
(a) Each share of the Voting Common Stock of Merger Sub outstanding
at the Effective Time of the Merger shall be converted into one fully paid and
nonassessable share of the Voting Common Stock of the Surviving Corporation
without any action on the part of the holder thereof. After the Effective Time
of the Merger, each holder of an outstanding certificate which prior thereto
represented shares of the Voting Common Stock of Merger Sub shall be entitled,
upon surrender thereof to the Surviving Corporation or to any transfer agent
therefor, to receive in exchange therefor a certificate or certificates
representing the number of whole shares of the Voting Common Stock of the
Surviving Corporation into which the shares of the Voting Common Stock of Merger
Sub so surrendered shall have been converted as aforesaid. Until surrendered,
each such outstanding certificate which, prior to the Effective Time of the
Merger, represented shares of the Voting Common Stock of Merger Sub shall for
all purposes evidence the ownership of the shares of the Voting Common Stock of
the Surviving Corporation into which such shares shall have been so converted.
(b) All shares of the Voting Common Stock of the Surviving
Corporation into which outstanding shares of the Voting Common Stock of Merger
Sub shall have been converted pursuant to this Paragraph 6 shall be issued in
full satisfaction of all rights pertaining to such converted shares.
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(c) Each share of Voting Common Stock of Merger Sub held in the
treasury of Merger Sub immediately prior to the Effective Time of the Merger
will, by virtue of the Merger, cease to be issued and shall be canceled and
retired without payment of any consideration therefore.
(d) No fraction of a share of the Voting Common Stock of the
Surviving Corporation shall be issued, but in lieu thereof each holder of shares
of the Voting Common Stock of Merger Sub who would otherwise be entitled to a
fraction of a share shall receive cash from the Surviving Corporation in the
amount equal to such fractional share.
7. From and after the Effective Time, the stock transfer books of Merger
Sub (but not of the Surviving Corporation) shall be closed and no transfer of
the Voting Common Stock of Merger Sub shall thereafter be made. If, after the
Effective Time, certificates formerly representing the Voting Common Stock of
Merger Sub are presented to the Surviving Corporation, they will be canceled and
exchanged for certificates representing shares of the Voting Common Stock of the
Surviving Corporation.
8. The Certificate of Incorporation and the Bylaws of Merger Sub as
existing and constituted immediately prior to the Effective Time of the Merger
shall, upon the Merger becoming effective, be and constitute the Certificate of
Incorporation and the Bylaws of the Surviving Corporation until amended in the
manner provided by law.
9. This Plan shall be submitted to the stockholders of EMC and the sole
stockholders of each of the Constituent Corporations, respectively, as provided
by Sections 251 and 252 of the Delaware General Corporation Law. After the
approval or adoption thereof by the stockholders of EMC and the sole
stockholders of each of the Constituent Corporations in accordance with the
requirements of the laws of the State of Delaware, all required documents shall
be executed, filed and recorded and all required acts shall be done in order to
accomplish the Merger under the provisions of the applicable statutes of the
State of Delaware.
10. Each of EMC and the Constituent Corporations shall bear and pay all
costs and expenses incurred by it or on its behalf (including, without
limitation, fees and expenses of financial consultants, accountants and counsel)
in connection with the consummation of the Merger and the related transactions;
provided, however, that EMC will bear the expenses of EMC and both of the
Constituent Corporations with respect to any filings that may be required to be
made with the Securities and Exchange Commission related to the transactions
contemplated herein. Additionally, notwithstanding the foregoing, EMC will bear
the expenses related to the preparation of any financial statements that may be
required to be filed with the Securities and Exchange Commission, which
financial statements will meet the requirements of the Securities Act of 1933,
as amended, and the rules and regulations promulgated thereunder.
11. The Merger is intended to qualify as a tax-free reorganization under
Section 368(a)(1)(A) of the Code.
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12. At any time prior to the Effective Time, this Plan may be terminated
and abandoned by the unilateral action of the appropriate officers, as
authorized by the respective Boards of Directors of EMC and each of the
Constituent Corporations.
13. At any time, whether before or after submission to or adoption by the
respective stockholders of EMC and each of the Constituent Corporations, this
Plan may be amended or supplemented by additional agreements, articles or
certificates, as may be determined in the judgment of the Boards of Directors of
EMC and each of the Constituent Corporations to be necessary, desirable or
expedient to clarify the intentions of the parties hereto or to effect or
facilitate the filing, recording or official approval of this Plan and the
consummation hereof and the Merger provided for herein, in accordance with the
purpose and intent of this Plan.
14. The Merger shall become effective (such date being herein referred to
as the "Effective Time") when all the following actions shall have been taken:
(a) this Plan shall have been adopted and approved in accordance
with the Delaware General Corporation Law; and
(b) a Certificate of Merger setting forth the information required
by, and executed in accordance with, the Delaware General Corporation Law shall
have been filed in the office of the Secretary of State of the State of
Delaware.
15. This Plan may be executed in counterparts; each such counterpart shall
be deemed to be an original instrument, all of which together shall constitute
one agreement.
16. This Plan and the transactions contemplated hereunder shall be
governed by and construed in accordance with the laws of the State of Delaware,
without regard to conflicts of law principles.
17. This Plan cannot be modified or amended except pursuant to an
instrument in writing signed on behalf of the parties hereto.
18. At any time, or from time to time, after the Effective Time, the last
acting officers and directors of Merger Sub shall, as and when requested by the
Surviving Corporation or its successors or assigns, execute and deliver all such
deeds, assignments and other instruments and take or cause to be taken all such
further action as the Surviving Corporation or its successors and assigns may
deem necessary or desirable in order to vest, perfect or confirm in the
Surviving Corporation title to and possession of all properties, rights,
privileges, powers, franchises, immunities and interests of Merger Sub, and
otherwise to carry out the purpose of this Plan.
{Signature Page Follows}
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IN WITNESS WHEREOF, EMC has caused this Plan to be executed by its
Chairman and Chief Executive Officer pursuant to authorization contained in a
resolution adopted by its Board of Directors approving this Plan, Merger Sub has
caused this Plan to be executed by its President pursuant to authorization
contained in a resolution adopted by its Sole Director in approving this Plan,
and New Jersey has caused this Plan to be executed by its President pursuant to
authorization contained in a resolution adopted by its Sole Director in
approving this Plan, all on the date first above written.
EMC PACKAGING, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------
Xxxx Xxxxxxx, Chairman and
Chief Executive Officer
NEW JERSEY MERGER SUB, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx, President
NEW JERSEY ACQUISITION, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx, President
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