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Plan And Agreement Of Merger
PLAN AND AGREEMENT OF MERGER
[Name of Surviving Corporation]
Between
[Name of Merged Corporation]
And
This Plan and Agreement of Merger is made, and entered into, on [Date of agreement], by and between [Name of Surviving Corporation], a Corporation, hereinafter referred to as the Surviving Corporation, and [Name of Merged Corporation], a Corporation, hereinafter referred to as the Merged Corporation. Said Corporations are hereinafter sometimes referred to jointly as the Constituent Corporations.
WITNESSETH:
WHEREAS the Surviving Corporation is organized and exists under the laws of the State of [State of Jurisdiction of Surviving Corporation], having filed its Certificate of Incorporation in the Office of the Secretary of State of the State of [State of Jurisdiction of Surviving Corporation], on [Date of incorporation of Surviving Corporation], and recorded it in the office of the Recorder of Deeds for the county of [County of record of Surviving Corporation], in the aforesaid State, on [Date of record of Surviving Corporation], and having its registered office at [Office Address of Surviving Corporation] in the City of [City of Surviving Corporation], County of [County of Surviving Corporation], and having as its registered agent [Name of registered agent]; and
WHEREAS the total number of shares of stock which the Surviving Corporation has authority to issue is [Total number of shares allowed to issue] shares, of which [Total number of shares issued] shares are now issued and outstanding; and
WHEREAS the Merged Corporation is organized and exists under the laws of the State of [State of Jurisdiction of Merged Corporation], its Articles of Incorporation having been filed in the office of the Secretary of State of the State of [State of incorporation of Merged Corporation] on [Date of incorporation of Merged Corporation], and its Certificate of Incorporation, after being issued to the Merged Corporation by the Secretary of State on that date, was recorded in the office of the Recorder of Deeds of County, [city of Merged Corporation], on the [Date of record of Merged Corporation], and the address of its registered office is [Address of Registered office of Merged Corporation], in the County of [County of Merged Corporation], in the State of [State of Merged Corporation], and its registered agent being [registered agent of Merged Corporation]; and
WHEREAS the aggregate number of shares which the Merged Corporation has authority to issue is [Total number of shares allowed to issue of Merged company], of which [Total number of shares issued of merged company] shares are issued and outstanding; and
WHEREAS the Board of Directors of each of the Constituent Corporations deems it advisable that the Merged Corporation be merged into the Surviving Corporation on the terms and conditions set forth below, in accordance with the applicable provisions of the statutes of the States of [State of Jurisdiction of Surviving Company] and [State of Jurisdiction of Merged Company], respectively, which permit such merger;
THEREFORE, in consideration of the agreements, covenants and provisions set out below, the Surviving Corporation and the Merged Corporation, by their Boards of Directors, do hereby agree as follows:
ARTICLE I
The Surviving Corporation and the Merged Corporation shall be merged into a single Corporation, in accordance with applicable provisions of the laws of the State of and of the State of by the Merged Corporation merging into the Surviving Corporation, which shall be the Surviving Corporation.
ARTICLE II
Upon the merger becoming effective under the laws of the States of [State of Jurisdiction of Surviving Company] and [such time being referred to herein as the "EFFECTIVE DATE OF THE MERGER"]:
1. The two Constituent Corporations shall be a single corporation, which shall be the Surviving Corporation, and the separate existence of the Merged Corporation shall cease, except to the extent, if any, provided by the laws of the State of [State of Jurisdiction of Merged Company].
2. The Surviving Corporation shall thereupon possess all the rights, privileges, immunities and franchises of the Constituent Corporations; and all property, real and personal, and all debts due on whatever account, and every other interest belonging to or due to each of the Constituent Corporations, shall be vested in the Surviving Corporation without further act or deed.
3. The Surviving Corporation shall be responsible and liable for all of the liabilities and obligations of each Constituent Corporation; and all existing or pending claims, actions or proceedings by or against the Constituent Corporations may be prosecuted to judgment as if the merger had not taken place, or the Surviving Corporation may be substituted in the place of the appropriate Constituent Corporation, and neither the rights of creditors nor any liens upon the property of the Constituent Corporations shall be impaired by the merger.
4. The Surviving Corporation hereby agrees that it may be served with process in the State of [State of Jurisdiction of Surviving Company] in any proceeding for the enforcement of any obligation of either Constituent Corporation, including those arising from the merger, and hereby irrevocably appoints the Secretary of State of [State of Jurisdiction of Surviving Company] as its agent to accept service of process in any such suit or other proceedings, and further agrees that service of any such process may be made by providing the Secretary of State of the State of with duplicate copies of such process; and the Surviving Corporation authorizes the aforesaid Secretary of State to send such process to it by registered mail directed to its registered office at: [Address of Surviving Company].
5. With respect to each Constituent Corporation, the aggregate amount of net assets of each Constituent Corporation that was available to support and pay dividends before the merger, shall continue to be available for the payment of dividends by the Surviving Corporation, except to the extent that all or a portion of those net assets may be transferred to the stated capital of the Surviving Corporation.
6. The Bylaws of the Surviving Corporation as they existed immediately before the effective date of merger shall be the Bylaws of the Surviving Corporation.
7. The persons who will serve on the Board of Directors and as the officers of the Surviving Corporation shall be the same persons who served as directors and officers of the Surviving Corporation immediately before the effective date of the merger.
ARTICLE III
The Articles of Incorporation of the Surviving Corporation shall not be amended in any respect by reason of this Agreement of Merger, and said Articles of Incorporation shall constitute the Articles of Incorporation of the Surviving Corporation unless or until it is subsequently amended by the action of the Board of Directors and shareholders; the said Articles of Incorporation are set forth in Exhibit A attached hereto and are made a part of this Plan and Agreement of Merger.
ARTICLE IV
The shares of the Constituent Corporations shall be converted into shares of the Surviving Corporation in the following manner:
1. Each share of each Constituent Corporation shall be converted into fully paid and non-assessable share(s) of capital stock of the Surviving Corporation.
ARTICLE V
The Surviving Corporation shall pay all expenses incurred for the purpose of bringing both this Agreement of Merger and the merger herein described into effect.
ARTICLE VI
If the Surviving Corporation shall have reason to request any further assignments, conveyances or other transfers that it is advised by counsel are necessary to vest in the Surviving Corporation title to any property or rights of either of the Constituent Corporations, the officers and directors of the appropriate Constituent Corporation shall execute any assignment, conveyance or transfer to vest such property or rights in the Surviving Corporation.
ARTICLE VII
This Plan and Agreement of Merger shall be submitted to the shareholders of each of the Constituent Corporations for consideration at a meeting of shareholders held in accordance with the Bylaws of each Constituent Corporation and with the laws of their State of incorporation, and upon
1. The approval by the shareholders of each Constituent Corporation, and
2. The subsequent execution, filing and recording of such documents shall then take effect and be the Plan of Merger of the Constituent Corporations.
This Plan and Agreement of Merger may be abandoned by
1. Either of the Constituent Corporations by the action of its Board of Directors if such action is taken before the Plan and Agreement of Merger has been approved by the shareholders of the Constituent Corporation whose Board seeks abandonment, or
2. The mutual consent of the Constituent Corporations if their respective Boards of Directors each adopt a resolution abandoning the Plan and Agreement of Merger before the effective date of the merger.
IN WITNESS WHEREOF, each Constituent Corporation acting by the authority set out in a resolution adopted by its Boards of Directors has directed this Plan and Agreement of Merger to be executed by the President and attested to by the Secretary of each Constituent Corporation, and to have the corporate seal of each Constituent Corporation affixed hereto.
Attest:
Secretary President
I, [Name of Secretary], Secretary of [Name of Surviving Corporation], a Corporation organized and existing under the laws of the State of , hereby certify, as such Secretary, and under the seal of the said Corporation, that the Agreement of Merger to which this certificate is attached, after having been first duly signed on behalf of said Corporation by the President and Secretary of , a Corporation of the State of [State of Jurisdiction of Surviving Company], was duly submitted to the shareholders of , at a special meeting of said shareholders, called and held separately from the meeting of shareholders of any other Corporation, upon waiver of notice, signed by all shareholders, for the purpose of considering and taking action upon said Agreement of Merger, that shares of stock of said Corporation were on said date issued and outstanding and that the holders of shares voted by ballot in favor of said Agreement of Merger and the holders of shares voted by ballot against same, the said affirmative vote representing at least a majority of the total number of shares of the outstanding capital stock of said Corporation, and that thereby the Agreement of Merger was at said meeting duly adopted as the act of the shareholders of said corporation, and the duly adopted agreement of said Corporation.
WITNESS my hand and seal of said corporation on [Date of agreement].
Secretary
Seal:
THE ABOVE AGREEMENT OF MERGER, having been executed by the President and Secretary of each corporate party thereto, and having been adopted separately by the shareholders of each corporate party thereto, in accordance with the provisions of the laws of the State of [State of Jurisdiction], and the fact having been certified on said Agreement of Merger by the Secretary of each corporate party thereto, is now hereby executed under the corporate seals of the respective Corporations, by the authority of the directors and shareholders thereof, as the respective act, deed and agreement of each of said Corporation, on [Date signed].
Secretary President
Seal: