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EXHIBIT 2.1
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER dated as of November 20, 1997 is between
Keebler Corporation, a Delaware corporation ("Keebler"), and INFLO Holdings
Corporation, a Delaware corporation ("INFLO", and together with Keebler, the
"Constituent Corporations"). All of the issued and outstanding capital stock
of Keebler is owned by INFLO.
ARTICLE I
1.1 On the Merger Date (as defined in paragraph 1.6), INFLO shall be
merged with and into Keebler (the "Merger") in accordance with the General
Corporation Law of the State of Delaware (the "DGCL") and the separate
corporate existence of INFLO shall thereafter cease. Keebler shall be the
surviving corporation in the Merger (hereinafter sometimes referred to as, the
"Surviving Corporation") and its separate corporate existence, with all its
purposes, objects, rights, privileges, powers and franchises, shall continue
unaffected and unimpaired by the Merger. Following the Merger, the name of the
Surviving Corporation shall be "Keebler Corporation".
1.2 Keebler shall succeed to all of the rights, privileges, powers and
franchises, as well of a public as of a private nature, of INFLO, all of the
properties and assets of INFLO and all of the debts, choses in action and other
interests due or belonging to INFLO and shall be subject to, and responsible
for, all of the debts, liabilities and duties of INFLO with the effect set
forth in the DGCL.
1.3 If, at any time after the Merger Date, Keebler shall consider or be
advised that any deeds, bills of sale, assignments, assurances or any other
actions or things are necessary or desirable to vest, perfect or confirm of
record or otherwise in Keebler its right, title or interest in, to or under any
of the rights, properties or assets of INFLO acquired or to be acquired by
Keebler as a result of, or in connection with, the Merger or to otherwise carry
out this Plan and Agreement of Merger, the officers and directors of Keebler
shall and will be authorized to execute and deliver, in the name and on behalf
of the Constituent Corporations or otherwise, all such deeds, bills of sale,
assignments and assurances and to take and do, in the name and on behalf of the
Constituent Corporations or otherwise, all such other actions and things as may
be necessary or desirable to vest, perfect or confirm any and all right, title
and interest in, to and under such rights, properties or assets in Keebler or
to otherwise carry out this Plan and Agreement of Merger.
1.4 The Certificate of Incorporation and Bylaws of Keebler, in each case
as amended to and including the Merger Date, shall be the Certificate of
Incorporation and Bylaws of the Surviving Corporation and shall thereafter
continue to be the Certificate of Incorporation and Bylaws of the Surviving
Corporation until changed as provided therein and by law.
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1.5 The directors and officers of Keebler immediately prior to the
Merger Date shall be the directors and officers of the Surviving Corporation
and shall thereafter continue in office in accordance with the Certificate of
Incorporation and Bylaws of the Surviving Corporation.
1.6 If this Plan and Agreement of Merger is not terminated pursuant to
paragraph 3.1, a Certificate of Ownership and Merger with respect to the Merger
shall be promptly filed and recorded in accordance with the DGCL. The Merger
shall become effective at the time and date of such filings or at such date and
time otherwise specified in the Certificate of Ownership and Merger (such time
and date are herein collectively referred to as, the "Merger Date").
ARTICLE II
2.1 On the Merger Date, by virtue of the Merger and without further
action by the holder thereof, each share of Keebler capital stock held by INFLO
shall be canceled and cease to exist immediately upon the Merger Date.
2.2 On the Merger Date, each issued and outstanding share of capital
stock of INFLO (together with any issued and outstanding options, warrants or
other securities of like nature evidencing a right to purchase the capital
stock of INFLO) shall be exchanged for one (1) share of the corresponding
security of Keebler having the same rights, privileges and preferences as such
share of capital stock or other security of INFLO.
ARTICLE III
3.1 This Plan and Agreement of Merger may be amended to the extent
permitted by applicable law.
3.2 This Plan and Agreement of Merger may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to each of the other parties.
3.3 This Plan and Agreement of Merger shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to conflict
of laws thereof.
[signature page follows]
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IN WITNESS WHEREOF, this Plan and Agreement of Merger has been executed by
each of parties hereto by their duly authorized officers, as of the date first
above written.
KEEBLER CORPORATION
By: /s/ XXXXXX X. X'XXXXX
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Its: Vice President and Secretary
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INFLO HOLDINGS CORPORATION
By: /s/ XXXXXX X. X'XXXXX
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Its: Vice President and Secretary
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