EXHIBIT A
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated March 11, 1996 (the "Agreement"), is
entered into between XXXXXX & XXXXX CORPORATION, a New Jersey corporation ("T&B
New Jersey") and XXXXXX & XXXXX TENNESSEE, INC., a Tennessee corporation ("T&B
Tennessee").
RECITALS
A. T&B New Jersey has an aggregate authorized capital of 80,000,000 shares
of Common Stock, par value $.50 per share (the "New Jersey Common Stock"), and
500,000 shares of Preferred Stock, no par value.
B. T&B Tennessee has an aggregate authorized capital stock of 80,000,000
shares of Common Stock, no par value (the "Tennessee Common Stock"), of which
100 shares of Tennessee Common Stock were duly issued to T&B New Jersey and are
now outstanding, and 500,000 shares of Preferred Stock, no par value, of which
no shares have been issued.
C. The respective Boards of Directors of T&B New Jersey and T&B Tennessee
believe that the best interests of T&B New Jersey and T&B Tennessee and their
respective shareholders will be served by the merger of T&B New Jersey with and
into T&B Tennessee under and pursuant to the provisions of this Agreement, the
New Jersey Business Corporation Act and the Tennessee Business Corporation Act.
NOW, THEREFORE, in consideration of the Recitals and the mutual agreements
and undertakings herein contained, the parties hereby agree as follows:
1. MERGER. The names of the corporations planning to merge are Xxxxxx &
Xxxxx Corporation and Xxxxxx & Xxxxx Tennessee, Inc. T&B New Jersey shall be
merged with and into T&B Tennessee (the "Merger").
2. EFFECTIVE TIME. The Merger shall become effective immediately upon
the filing of a certificate of merger with the Secretary of State of New
Jersey in accordance with the New Jersey Business Corporation Act and the
filing of articles of merger with the Secretary of State of Tennessee in
accordance with the Tennessee Business Corporation Act. The time of such
effectiveness is hereinafter called the "Effective Time."
3. SURVIVING CORPORATION. T&B Tennessee shall be the surviving
corporation of the Merger (the "Surviving Corporation") and shall continue
to be governed by the laws of the State of Tennessee. At the Effective Time,
the separate corporate existence of T&B New Jersey shall cease.
4. NAME OF SURVIVING CORPORATION. At the Effective Time, Article I of
the Charter of T&B Tennessee shall automatically by virtue of the Merger be
amended to change the name of T&B Tennessee to Xxxxxx & Xxxxx Corporation.
As so amended, the text of Article I of the Charter of T&B Tennessee shall
read in its entirety as follows:
The name of the corporation is Xxxxxx & Xxxxx Corporation.
5. CHARTER. Except as provided in Section 4, the Charter of T&B
Tennessee as it exists at the Effective Time shall be the Charter of the
Surviving Corporation following the Effective Time until the same shall
thereafter be amended or repealed in accordance with the laws of the State
of Tennessee.
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6. BYLAWS. The Bylaws of T&B Tennessee as they exist at the Effective
Time shall be the Bylaws of the Surviving Corporation following the
Effective Time, unless and until the same shall be amended or repealed in
accordance with the provisions thereof and the laws of the State of
Tennessee.
7. BOARD OF DIRECTORS AND OFFICERS. The members of the Board of
Directors and the officers of T&B New Jersey immediately prior to the
Effective Time shall be the members of the Board of Directors and the
officers, respectively, of the Surviving Corporation following the Effective
Time, and such persons shall serve in such offices for the terms provided by
law or in the Bylaws, or until their respective successors are elected and
qualified.
8. RETIREMENT OF OUTSTANDING TENNESSEE COMMON STOCK. At the Effective
Time, each of the 100 shares of the Tennessee Common Stock issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger, be retired and canceled and returned to the status of authorized but
unissued shares, and no shares of Tennessee Common Stock or other securities
of the Surviving Corporation shall be issued in respect thereof.
9. CONVERSION OF OUTSTANDING NEW JERSEY COMMON STOCK. At the Effective
Time, each issued and outstanding share of New Jersey Common Stock and all
rights in respect thereof shall be converted into one fully-paid and
nonassessable share of Tennessee Common Stock, and each certificate
representing shares of New Jersey Common Stock shall automatically by virtue
of the Merger for all purposes be deemed to evidence the ownership of the
same number of shares of Tennessee Common Stock as are set forth in such
certificate. After the Effective Time, each holder of an outstanding
certificate which, immediately prior to the Effective Time, represented
shares of New Jersey Common Stock may (but will not be required to)
surrender the same to the Surviving Corporation's registrar and transfer
agent for cancellation, and each such holder shall be entitled to receive in
exchange therefor a certificate(s) evidencing the ownership of the same
number of shares of Tennessee Common Stock as are represented by the
certificate(s) so surrendered to the Surviving Corporation's registrar and
transfer agent.
10. CANCELLATION OF NEW JERSEY COMMON STOCK HELD IN TREASURY. Shares of
New Jersey Common Stock that have been issued and are held in treasury by
T&B New Jersey immediately prior to the Effective Time shall automatically
by virtue of the Merger be canceled at the Effective Time, and no shares of
Tennessee Common Stock or other securities of the Surviving Corporation
shall be issued in respect thereof.
11. STOCK OPTIONS, ETC. At the Effective Time, each stock option and
other right to subscribe for, purchase or receive shares of New Jersey
Common Stock shall automatically by virtue of the Merger be converted into
a stock option or other right to subscribe for, purchase or receive, on the
same terms and conditions, the same number of shares of Tennessee Common
Stock, and each certificate, agreement, note or other document representing
such stock option or other right to subscribe for, purchase or receive
shares of New Jersey Common Stock shall for all purposes be deemed to
evidence the ownership of a stock option or other right to subscribe for,
purchase or receive shares of Tennessee Common Stock.
12. RIGHTS AND LIABILITIES OF THE SURVIVING CORPORATION. At and after
the Effective Time, and all in the manner of and as more fully set forth in
the Tennessee Business Corporation Act and the New Jersey Business
Corporation Act, the title to all real estate and other property, or any
interest therein, owned by each of T&B New Jersey and T&B Tennessee shall be
vested in the Surviving Corporation without reversion or impairment; the
Surviving Corporation shall succeed to and possess, without further act or
deed, all estates, rights, privileges, powers, and franchises, both public
and private, and all of the property, real, personal and mixed, of each of
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T&B New Jersey and T&B Tennessee without reversion or impairment; the
Surviving Corporation shall thenceforth be responsible and liable for all
the liabilities and obligations of each of T&B New Jersey and T&B Tennessee;
any claim existing or action or proceeding pending by or against T&B New
Jersey or T&B Tennessee may be continued as if the Merger did not occur or
the Surviving Corporation may be substituted for T&B New Jersey in the
proceeding; neither the rights of creditors nor any liens upon, or security
interests in, the property of T&B New Jersey or T&B Tennessee shall be
impaired by the Merger; and the Surviving Corporation shall indemnify and
hold harmless the officers and directors of each of the parties hereto
against all such debts, liabilities and duties and against all claims and
demands arising out of the Merger.
13. CONDITION; TERMINATION. Consummation of the Merger shall be subject
to the receipt of the approval of this Agreement by the shareholders of T&B
New Jersey and T&B Tennessee in accordance with the New Jersey Business
Corporation Act and the Tennessee Business Corporation Act, respectively.
This Agreement may be terminated and abandoned by action of either the Board
of Directors of T&B New Jersey or the Board of Directors of T&B Tennessee at
any time prior to the Effective Time, whether before or after approval by
the shareholders of either or both of the parties hereto.
14. AMENDMENT. The Boards of Directors of the parties hereto may amend
this Agreement at any time prior to the Effective Time; provided that an
amendment made subsequent to the approval of this Agreement by the
shareholders of either of the parties hereto shall not: (a) change the
amount or kind of shares, securities, cash, property or rights to be
received in exchange for or on conversion of all or any of the shares of the
parties hereto, (b) change any term of the Charter of T&B Tennessee, or (c)
change any other terms or conditions of this Agreement if such change would
adversely affect the holders of any capital stock of either party hereto.
15. GOVERNING LAW; SEVERABILITY. This Agreement shall in all respects be
construed, interpreted and enforced in accordance with and governed by the
laws of the State of Tennessee. If any one or more of the provisions
contained in this Agreement shall be invalid, illegal or unenforceable for
any reason, such invalidity, illegality or unenforceability shall not affect
any other provisions of this Agreement, which shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
IN WITNESS WHEREOF, each of the parties hereto, pursuant to authority duly
granted by their respective Board of Directors, has caused this Plan and
Agreement of Merger to be executed, respectively, by its Chairman and Chief
Executive Officer.
XXXXXX & XXXXX CORPORATION,
a New Jersey corporation
By:
..................................
T. Xxxxx Xxxxxxxx,
Chairman and Chief Executive
Officer
XXXXXX & XXXXX TENNESSEE, INC.,
a Tennessee corporation
By:
..................................
T. Xxxxx Xxxxxxxx,
Chairman and Chief Executive
Officer
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