Exhibit 2.3
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated April 25, 2002 (this "Agreement"), by
and between Xxxxx Inc., an Ohio corporation ("Kroll Ohio"), and Xxxxx Inc., a
Delaware corporation and a wholly-owned subsidiary of Kroll Ohio ("Kroll
Delaware").
WHEREAS, the respective boards of directors of Kroll Ohio and Kroll Delaware,
deeming it advisable and for the respective benefit of Kroll Ohio and Kroll
Delaware and their stockholders, have approved this Agreement pursuant to which
Kroll Ohio will be merged with and into Kroll Delaware (the "Merger ") on the
terms and conditions contained herein and in accordance with the General
Corporation Law of the State of Ohio (the "OGCL") and the General Corporation
Law of the State of Delaware (the "DGCL");
NOW, THEREFORE, in consideration of the premises and agreements herein
contained, and intending to be legally bound hereby, Kroll Ohio and Kroll
Delaware hereby agree as follows:
ARTICLE 1
THE MERGER
SECTION 1.1 The Merger. Upon the terms and subject to the conditions
of this Agreement, at the Effective Time and in accordance with the OGCL and the
DGCL, Kroll Ohio shall be merged with and into Kroll Delaware. Following the
Merger, the separate corporate existence of Kroll Ohio shall cease and Kroll
Delaware shall continue as the surviving corporation (the "Surviving Corporation
") under the name "Xxxxx Inc."
SECTION 1.2 Effective Time. The parties hereto shall cause the
Merger to be consummated by filing a certificate of merger (the "Certificate of
Merger") in such form as is required by and executed in accordance with the
relevant provisions of the OGCL and the DGCL. The Merger shall become effective
at such time as the Certificate of Merger is duly filed with the Secretary of
State of the State of Ohio and the Secretary of State of the State of Delaware
or at such subsequent time as the parties shall agree and shall be specified in
the Certificate of Merger (the date and time the Merger becomes effective being
the "Effective Time").
SECTION 1.3 Certificate of Incorporation. At the Effective Time, the
certificate of incorporation of Kroll Delaware, as in effect immediately prior
to the Effective Time, shall be the certificate of incorporation of the
Surviving Corporation, unless and until thereafter changed or amended as
provided therein or in accordance with applicable law.
SECTION 1.4 By-laws. At the Effective Time, the by-laws of Kroll
Delaware, as in effect immediately prior to the Effective Time, shall be the
by-laws of the Surviving Corporation, unless and until thereafter changed or
amended as provided therein or in the certificate of incorporation of the
Surviving Corporation or by applicable law.
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SECTION 1.5 Directors and Officers. At the Effective Time, the
directors of Kroll Ohio immediately preceding the Effective Time shall become
the directors of the Surviving Corporation to serve until the earlier of their
death, resignation or removal and until their respective successors are duly
elected and qualified. At the Effective Time, the officers of Kroll Ohio
immediately preceding the Effective Time shall become the officers of the
Surviving Corporation until the earlier of their death, resignation or removal
and until their respective successors are duly elected or qualified.
ARTICLE 2
CONVERSION OF CAPITAL STOCK OF
THE CONSTITUENT CORPORATIONS
As of the Effective Time, by virtue of the Merger and without any action
on the part of Kroll Ohio, Kroll Delaware or their respective stockholders:
SECTION 2.1 Conversion of Capital Stock of Kroll Ohio. Subject to
Section 2.6, (a) each share of common stock, par value $.01 per share, of Kroll
Ohio (the "Kroll Ohio Common Stock") issued and outstanding immediately prior to
the Effective Time shall be converted into one (1) validly issued, fully paid
and non-assessable share of common stock, par value $.01 per share, of the
Surviving Corporation (the "Kroll Delaware Common Stock"), and (b) each share of
Preferred Stock, par value $.01 per share, of Kroll Ohio ("Kroll Ohio Preferred
Stock"), if any, issued and outstanding immediately prior to the Effective Time
shall be converted into one (1) validly issued, fully paid and non assessable
share of identical Preferred Stock, par value $.01 per share, of the Surviving
Corporation ("Kroll Delaware Preferred Stock").
SECTION 2.2 Kroll Ohio Stock Options. At the Effective Time, the
Surviving Corporation shall assume and continue Kroll Ohio's (a) Kroll Inc. 1996
Stock Option Plan (the "1996 Plan"), (b) Xxxxx Inc. 1998 Stock Incentive Plan
(the "1998 Plan"), (c) Xxxxx Inc. 2000 Stock Option Plan (the "2000 Plan"), (d)
Xxxxx Inc. 2001 Non-Employee Directors Stock Option Plan (the "Directors Plan"),
(e) Xxxxx Inc. Amended and Restated Employee Stock Purchase Plan (the "Purchase
Plan"), (f) any other option plan heretofore adopted by the Board of Directors
of Kroll Ohio and in effect on the date hereof (the "Other Plans," and, together
with the 1996 Plan, the 1998 Plan, the 2000 Plan, the Directors Plan and the
Purchase Plan, the "Plans") and (h) each option or warrant to purchase Kroll
Ohio Common Stock, whether or not granted pursuant to the Plans (each, a "Kroll
Ohio Option"), shall be assumed by Kroll Delaware and shall be converted into
and shall constitute an option to purchase, for the same exercise price per
share and on the same terms and conditions as are contained in such Kroll Ohio
Option on the Effective Date, one fully paid and non-assessable share of Kroll
Delaware Common Stock. As soon as practicable following the Effective Time,
Kroll Delaware shall cause to be delivered to each holder of an outstanding
Kroll Ohio Option an appropriate notice setting forth such holder's rights
pursuant
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thereto and that such Kroll Ohio Option shall continue in effect on the same
terms and conditions.
SECTION 2.3 Conversion of Capital Stock of Kroll Delaware. Each
share of Kroll Delaware Common Stock issued and outstanding immediately prior to
the Effective Time and held by Kroll Ohio shall be cancelled and retired and
cease to exist, without any conversion thereof.
SECTION 2.4 Treasury Shares. Each share of Kroll Ohio Common Stock
and Kroll Delaware Common Stock held in treasury by Kroll Ohio and Kroll
Delaware, respectively, immediately prior to the Effective Time shall be
cancelled and retired and cease to exist, without any conversion thereof.
SECTION 2.5 Stock Certificates. On or after the Effective Time, all
of the outstanding stock certificates which prior to that time represented
shares of Kroll Ohio Common Stock or Kroll Ohio Preferred Stock, if any, shall
be deemed for all purposes to evidence ownership of and to represent the shares
of Kroll Delaware Common Stock and Kroll Delaware Preferred Stock, respectively,
into which the shares of Kroll Ohio Common Stock or Kroll Delaware Preferred
Stock, if any, represented by such certificates have been converted as provided
by Section 2.1 and shall be so registered on the books and records of the
Surviving Corporation or its transfer agent. The registered owner of any such
outstanding stock certificate shall, until such certificate shall been
surrendered for transfer or conversion to the Surviving Corporation or its
transfer agent, have and be entitled to exercise any voting and other rights
with respect to and to receive any dividend and other distributions upon the
shares of Kroll Delaware Common Stock or Kroll Delaware Preferred Stock, if any,
evidenced by such outstanding stock certificate as provided in this Section 2.5.
SECTION 2.6 Dissenters' Rights. Notwithstanding any provision of
this Agreement to the contrary, any shares of Kroll Ohio Common Stock or Kroll
Ohio Preferred Stock, if any, outstanding immediately prior to the Effective
Time held by a holder who has demanded and perfected the right, if any, for
appraisal of those shares in accordance with the provisions of Section 1701.85
of the OGCL and as of the Effective Time has not withdrawn or lost such right to
appraisal shall not be converted into or represent a right to receive Kroll
Delaware Common Stock or Kroll Delaware Preferred Stock, as the case may be,
pursuant to Section 2.1, but the holder shall only be entitled to such rights as
are granted by said Section of the OGCL. If a holder of shares of Kroll Ohio
Common Stock or Kroll Ohio Preferred Stock, if any, who demands appraisal of
those shares under the OGCL shall effectively withdraw or lose (through failure
to perfect or otherwise) the right to appraisal, then, as of the Effective Time
or the occurrence of such event, whichever last occurs, those shares shall be
converted into and represent only the right to receive Kroll Delaware Common
Stock or Kroll Delaware Preferred Stock, as the case may be, as provided in
Section 2.1, without interest.
SECTION 2.7 Tax Consequences. It is intended by the parties hereto
that the Merger shall constitute a reorganization within the meaning of Section
368 of the Code and the regulations promulgated thereunder. The parties hereto
hereby adopt this Agreement as a "plan
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of reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of
the United States Treasury Regulations with respect to the Merger.
ARTICLE 3
CONDITIONS TO CONSUMMATION OF THE MERGER
SECTION 3.1 Conditions to Each Party's Obligations to Effect the
Merger. The respective obligations of each party hereto to effect the Merger and
the other transactions contemplated by this Agreement are subject to the
satisfaction at or prior to the Effective Time of the following conditions:
(a) this Agreement (including the Merger) shall have been approved and
adopted by the applicable requisite vote of the shareholders of Kroll Ohio in
accordance with the applicable provisions of the OGCL;
(b) this Agreement (including the Merger) shall have been approved and
adopted by Kroll Ohio, as the sole stockholder of Kroll Delaware, in accordance
with the applicable provisions of the DGCL;
(c) no statute, rule, regulation, executive order, decree, ruling or
injunction shall have been enacted, entered, promulgated or enforced by any
governmental entity which prohibits, restrains, enjoins or restricts the
consummation of the transactions contemplated by this Agreement (including the
Merger) or which subjects any party to substantial damages as a result of the
consummation of the transactions contemplated by this Agreement (including the
Merger); and
(d) all required consents, approvals, waivers and authorizations of any
governmental entity or regulatory agency which are necessary to effect the
transactions contemplated by this Agreement (including the Merger) shall have
been obtained.
ARTICLE 4
MISCELLANEOUS
SECTION 4.1 Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time, notwithstanding
approval thereof by the shareholders of Kroll Ohio or the sole stockholder of
Kroll Delaware, by the Board of Directors of either Kroll Ohio or Kroll Delaware
or both if, in the opinion of the Boards of Directors of Kroll Ohio and Kroll
Delaware, such action would be in the best interest of such corporations. In the
event that this Agreement is terminated and the Merger abandoned pursuant to
this Section 4.1, no party hereto and none of their respective subsidiaries or
any of the officers or directors of any of them shall have any liability of any
nature whatsoever hereunder, or in connection with the transactions contemplated
hereby.
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SECTION 4.2 Amendment. This Agreement may be amended by action taken
by Kroll Ohio and Kroll Delaware at any time before or after approval of the
Merger by the shareholders of Kroll Ohio and the sole stockholder of Kroll
Delaware but, after any such approval, no amendment shall be made which requires
the approval of such stockholders under applicable law without such approval.
This Agreement may not be amended except by an instrument in writing signed on
behalf of the parties hereto.
SECTION 4.3 Entire Agreement; Assignment. This Agreement (a)
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and (b) shall not be assigned by operation of law or
otherwise.
SECTION 4.4 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
SECTION 4.5 Interpretation. The headings herein are for convenience
of reference only, do not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions hereof. Where a
reference in this Agreement is made to a Section or Article, such reference
shall be to a Section or Article of this Agreement unless otherwise indicated.
Where the reference "hereby" or "herein" appears in this Agreement, such
reference shall be deemed to be a reference to this Agreement as a whole.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." Words denoting the singular include the plural, and vice versa, and
references to it or its or words denoting any gender shall include all genders.
SECTION 4.6 Further Assurances. By its signature hereto, each party
consents and agrees to all of the transactions contemplated hereby. Each party
hereto shall execute, deliver, file and record any and all instruments,
certificates, agreements and other documents, and take any and all other
actions, as reasonably requested by the other party hereto in order to
consummate the transactions contemplated hereby.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be duly executed on its behalf as of the day and year first above written.
KROLL INC., an Ohio corporation
By: /s/
-------------------------
Name:
Title:
XXXXX INC., a Delaware corporation
By: /s/
-------------------------
Name:
Title:
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