EXhibit 6.8
AGREEMENT AND PLAN OF MERGER
OF MPI TWO, INC.
INTO MPI THREE, INC.
AGREEMENT AND PLAN OF MERGER dated as of June 30th, 1998, by and
between MPI Two, Inc., a Delaware nonstock corporation ("MPI Two"), and MPI
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Three, Inc., a Delaware stock corporation ("MPI Three").
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WHEREAS, MPI Two is a nonstock corporation duly organized and existing
under the laws of the State of Delaware, having been incorporated on June 24,
1998;
WHEREAS, MPI Three is a stock corporation duly organized and existing
under the laws of the State of Delaware, having been incorporated on June 24,
1998;
WHEREAS, the respective Boards of Directors of MPI Two and MPI Three
and the sole stockholder of MPI Three with voting rights have approved the
merger of MPI Two into MPI Three (the "Merger"), upon the terms and subject to
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the conditions set forth in this Agreement
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained and of the mutual benefits hereby provided, it is
agreed by and between the parties hereto as follows:
1. THE MERGER. At the Effective Time of the Merger (as defined in
Section 3 hereof), upon the terms and subject to the conditions set forth in
this Agreement, and in accordance with the General Corporation Law of the State
of Delaware (the "Delaware Act"), MPI Two shall be merged with and into MPI
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Three. MPI Three shall be the surviving corporation in accordance with this
Agreement. The corporate and separate existence of MPI Two shall thereupon
cease. The corporate existence of MPI Three with all of its purposes, powers and
objects shall continue unaffected and unimpaired by the merger.
2. CLOSING. Upon the terms and subject to the conditions of this
Agreement, the closing of the Merger (the "Closing") shall take place at 11:15
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a.m. on July 1, 1998 (the "Closing Date") at the offices of Pennington, Moore,
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Xxxxxxxxx, Xxxx & Xxxxxx, P.A.,, unless another time, date or place is agreed to
in writing by the parties hereto.
3. EFFECTIVE TIME OF THE MERGER. Upon the Closing, the parties shall
file with the Secretary of State of the State of Delaware a certificate of
merger, substantially in the form of Exhibit A hereto (the "Certificate of
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Merger"), executed in accordance with the relevant provisions of the Delaware
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Act, and shall make all other filings, recordings or publications required under
the Delaware Act in connection with the Merger. 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 Delaware, or at such other time as the
parties may agree and specify in the Certificate of Merger (the time at which
the Merger becomes effective, the "Effective Time of the Merger").
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4. EFFECTS OF THE MERGER. The Merger shall have the effects set forth
in Section 259 of the Delaware Act.
5. SURVIVING CORPORATION. Following the Merger, the separate
corporate existence of MPI Two shall cease and MPI Three shall continue as the
surviving corporation (the "Surviving Corporation") and shall succeed to and
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possess without further act or deed, all of the estate, rights, privileges and
powers, both public and private, and all of the property, real, personal and
mixed, of each of the parties hereto; all debts due to MPI Two shall be vested
in the Surviving Corporation; all claims, demands, property, rights, privileges,
powers and franchises and every other interest of either of the parties hereto
shall be as effectively the property of the Surviving Corporation as they were
of the respective parties hereto; the title to any real estate vested by deed or
otherwise in MPI Two shall not revert or be in any way impaired by reason of the
merger, but shall be vested in the Surviving Corporation; all rights of
creditors and all liens upon any property of either of the parties hereto shall
be reserved unimpaired, limited in lien to the property affected by such lien at
the effective time of the merger; all debts, liabilities, and duties of either
of the parties shall be vested in the Surviving Corporation as if such debts,
liabilities or duties had been incurred or contracted by it; 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, all in accordance with the
Delaware Act. The Surviving Corporation shall continue to be governed by the
laws of the State of Delaware.
6. CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
MPI Three as in effect immediately prior to the Effective Time of the Merger
shall be the Certificate of Incorporation of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law.
7. BYLAWS. The Bylaws of MPI Three as in effect immediately prior to
the Effective Time of the Merger shall be the Bylaws of the Surviving
Corporation until thereafter changed or amended as provided therein or by
applicable law.
8. DIRECTORS. The individuals who are the directors of MPI Three
immediately prior to the Effective Time of the Merger shall be the directors of
the Surviving Corporation until thereafter they cease to be directors in
accordance with the Delaware Act and the Certificate of Incorporation and Bylaws
of the Surviving Corporation.
9. OFFICERS. The individuals who are the officers of MPI Three
immediately prior to the Effective Time of the Merger shall be the officers of
the Surviving Corporation until thereafter they cease to be officers in
accordance with the Delaware Act and the Certificate of Incorporation and Bylaws
of the Surviving Corporation.
10. MANNER OF CONVERTING THE MEMBERSHIP INTERESTS OF MPI TWO. At the
Effective Time of the Merger, each membership interest in MPI Two (members who
are co-owners of a mobile home located on a lot in the Xxxxxxx Mobile Home Park
shall be deemed to collectively hold one membership interest in MPI Two)
immediately prior to the Merger shall be converted solely into one share of
Class B common stock, par value $.01 per share, of MPI Three ("Class B Common
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Stock").
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11. TERMINATION. This Agreement may be terminated and abandoned by
action of the Board of Directors of MPI Two at any time prior to the Effective
Time of the Merger, whether before or after approval by the members of MPI Two
or the stockholders of MPI Three.
12. PLAN OF REORGANIZATION. This Agreement constitutes a Plan of
Reorganization to be carried out in the manner, on the terms and subject to the
conditions herein set forth.
13. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Delaware.
14. FURTHER ASSURANCES OF TITLE. If at any time the Surviving
Corporation shall consider or be advised that any acknowledgements or assurances
in law or other similar actions are necessary or desirable in order to
acknowledge or confirm in and to the Surviving Corporation any right, title or
interest of MPI Two held immediately prior to the Effective Time of the Merger,
MPI Two shall and will execute and deliver all such acknowledgements or
assurances in law and do all things necessary or proper to acknowledge or
confirm such right, title, or interest in the Surviving Corporation as shall be
necessary to carry out the purposes of this Agreement, and the Surviving
Corporation and the proper officers and directors thereof are fully authorized
to take any and all such action in the name of MPI Two or otherwise.
15. ASSETS, LIABILITIES, RESERVES, ACCOUNTS, ETC. At the Effective
Time of the Merger, the assets, liabilities, reserves and accounts of each
corporation shall be taken on the books of the Surviving Corporation at the
amounts at which they respectively, shall then be carried on the books of said
corporations subject to such adjustments, if any, as may be appropriate in
giving effect to the Merger.
16. GENERAL PROVISIONS
(a) No Rights or Remedies in Third Parties. Except as otherwise
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expressly provided in this Agreement, nothing herein expressed or implied is
intended, or shall be construed, to confer on or to give any person, firm or
corporation other than MPI Two and MPI Three any rights or remedies under or by
reason of this Agreement.
(b) Execution of Counterparts. This Agreement may be executed in any
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number of counterparts. Each such counterpart hereof shall be deemed to be an
original instrument but all such counterparts together shall constitute but one
Agreement.
(c) Entire Agreement. This Agreement, including the documents and
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instruments referred to herein (a) constitutes the entire agreement and
supercedes all other prior agreements and understandings, both written and oral,
between the parties, with respect to the subject matter hereof; (b) is not
intended to confer on any other person any rights or remedies hereunder; and (c)
shall not be assigned by operation or law or otherwise.
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(d) Severability. In the event that, for any reason, any provision of
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this Agreement is construed to be invalid, the invalidity of such provision is
not to be considered or held to impair or invalidate any other provision of this
Agreement.
(e) Filing of Required Documents. The parties each hereby agree to
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file in a timely manner such documents as are required, in the opinion of their
counsel, to be filed with any applicable governmental authority.
(f) Headings. The headings contained in this Agreement are for
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reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, each of the parties hereto have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the date first above written.
MPI TWO, INC.
By: /s/ Xxxxxxx XxXxxx
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Name: Xxxxxxx XxXxxx
Title: President
MPI THREE, INC.
By: /s/ Xxxxxxx XxXxxx
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Name: Xxxxxxx XxXxxx
Title: President
The undersigned, secretary of MPI Two, Inc. and MPI Three, Inc., hereby
certifies that the Board of Directors of MPI Two, Inc. adopted this Agreement by
unanimous written consent and that the holders of a majority of the outstanding
stock of MPI Three, Inc. entitled to vote thereon adopted this Agreement by
unanimous written consent.
/s/ Xxx Xxxxxxxxx
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Xxx Xxxxxxxxx
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