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EXHIBIT 2.01
MERGER AGREEMENT
OF
XXXXXXXXXXX.XXX, LLC
WITH AND INTO
XXXXXXXXXXX.XXX, INC.
This Merger Agreement (this "AGREEMENT") is dated as of ____________,
1998 by and between Xxxxxxxxxxx.Xxx, LLC, a Delaware limited liability company
("TARGET"), and XxxxxxXxxxx.xxx, Inc., a Delaware corporation ("ACQUIRER").
1. Merger; Effective Time. Upon the terms and subject to the conditions
hereof, in accordance with the Delaware General Corporation Law (the "DGCL") and
the Delaware Limited Liability Company Act (the "DLLCA"), Target will be merged
with and into Acquirer (the "MERGER"). Acquirer will be the surviving
corporation (hereinafter referred to sometimes as the "SURVIVING CORPORATION")
of the Merger, and the separate existence of Target shall cease. The Merger will
be effective as of the date and at such time as this Agreement and any other
documents necessary to effect the Merger in accordance with the DGCL and DLLCA
are duly filed with the Secretary of State of the State of Delaware (the time
the Merger becomes effective being referred to herein as the "EFFECTIVE TIME").
2. Exchange of Securities.
(a) Conversion of Limited Liability Company Interests. At the
Effective Time, the limited liability company interests (the "INTEREST") in
Target of each member ("MEMBER") thereof immediately prior to the Effective Time
will, by virtue of the Merger and without further action on the part of any
Member, be converted into 4,500,000 shares of fully paid and nonassessable
Common Stock, par value $0.01 per share, of Acquirer ("ACQUIRER STOCK"). At the
Effective Time, the Interests held by the two Members, shall constitute 100% of
the outstanding Interests in Target.
(b) No Securities of Acquirer Outstanding. Immediately prior
to the Effective Time, there are no outstanding securities of Acquirer.
(c) Issuance of Stock Certificates. The Interests are not
represented by certificates. Promptly following the Effective Time, Acquirer
shall issue stock certificates representing the Acquirer Stock to the holders of
the Interests that were converted by virtue of the Merger.
(d) Target Options. At the Effective Time, each holder of an
outstanding option (collectively, the "Target Options") to purchase an Interest
shall be entitled, in accordance with the terms of such option, to purchase
after the Effective Time that number of shares of Acquirer's Common Stock,
determined by multiplying the Percentage Interest (as defined in the agreement
relating to such Target Option) subject to such Target Option on the Effective
Date by 100,000, and the exercise price per share for each such Target Option
will equal the aggregate
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exercise price of the Target Option immediately prior to the Effective Time
divided by the number of shares of Acquirer's Common Stock as determined above.
If the foregoing calculation results in an assumed option being exercisable for
a fraction of a share, then the number of shares of Acquirer's Common Stock
subject to such option will be rounded down to the nearest whole number with no
cash being payable for such fractional share. The term, exercisability, vesting
schedule, status as an "incentive stock option" under Xxxxxxx 000X xx xxx Xxxxxx
Xxxxxx Internal Revenue Code, if applicable, and all other terms of the Target
Options will otherwise be unchanged. Continuous employment with the Target will
be credited to an optionee for purposes of determining the number of shares
subject to exercise after the Effective Time.
3. Governing Documents. At the Effective Time, the Certificate of
Incorporation of Acquirer in effect immediately prior to the Effective Time
shall become the Certificate of Incorporation of the Surviving Corporation and
the Bylaws of Acquirer in effect immediately prior to the Effective Time shall
become the Bylaws of the Surviving Corporation.
4. Principal Office. The location of the principal office of Acquirer
is 000 Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000. The location of the
principal office of Acquirer in the State of Delaware is c/o The Corporation
Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The name of its
registered agent in Delaware is The Corporation Trust Company.
5. Directors and Officers. At the Effective Time, the directors and
officers of Acquirer immediately prior to the Effective Time shall be and become
the directors and officers (holding the same titles and positions) of the
Surviving Corporation, and after the Effective Time shall serve in accordance
with the Certificate of Incorporation and Bylaws of the Surviving Corporation.
6. Employee Benefit Plans. At the Effective Time, the obligations of
Target under or with respect to every plan, trust, program and benefit then in
effect or administered by Target for the benefit of the directors, officers and
employees of Target, shall become the lawful obligations of Acquirer and shall
be implemented and administered in the same manner and without interruption
until the same are amended or otherwise lawfully altered or terminated.
Effective at the Effective Time, Acquirer hereby expressly adopts and assumes
all obligations of Target under such employee benefit plans.
7. Further Assurances. After the Effective Time, Acquirer and its
officers and directors may execute and deliver such deeds, assignments,
assurances and other documents and do all other things necessary or desirable to
vest, perfect or confirm title to Target's property or rights in Acquirer and
otherwise to carry out the purposes of the Merger in the name of Target or
otherwise.
8. Approval of Merger. The Merger has been approved by the holders of
100% of the outstanding Interests in Target.
9. Assignment. Neither party hereto may assign any of its rights or
obligations hereunder without the prior written consent of the other party
hereto. This Agreement will be
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binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
10. Abandonment. At any time before the Effective Time, this Agreement
may be terminated and the Merger abandoned by the Management Committee of Target
or the Board of Directors of Acquirer, notwithstanding approval of this
Agreement by the holders of the outstanding Interests in Target and such
Management Committee and such Board of Directors.
11. Amendment. At any time before the Effective Time, this Agreement
may be amended, modified or supplemented by the Management Committee of Target
and the Board of Directors of Acquirer, notwithstanding approval of this
Agreement by the holders of the outstanding Interests in Target; provided,
however, that no such amendment, modification or supplement not approved by the
holders of the outstanding Interests in Target may materially adversely affect
the benefits intended under this Agreement for the holders of the outstanding
Interests in Target.
12. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts
entered into and to be performed wholly within the State of Delaware without
regard to principles of conflict of laws.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date and year first above written.
XXXXXXXXXXX.XXX, INC. XXXXXXXXXXX.XXX, LLC
By:_________________________ By:____________________________
Xxxxxxxx Xxxxxx, President and Xxxxxxxx Xxxxxx, President and
Chief Executive Officer Chief Executive Officer
Attest Attest
By:__________________________ By:____________________________
J. Xxxxx Xxxxxxxx, Chief Financial J. Xxxxx Xxxxxxxx, Chief
Officer and Secretary Financial Officer and Secretary
[SIGNATURE PAGE TO MERGER AGREEMENT]
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