EXHIBIT 6.7
AGREEMENT AND PLAN OF MERGER
OF MPI-1, INC. INTO MPI TWO, INC.
AGREEMENT AND PLAN OF MERGER dated as of June 29, 1998 (this "Agreement"),
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by and between MPI-1, INC., a Florida nonstock, not-for-profit corporation
("MPI"), and MPI Two, Inc., a Delaware nonstock corporation ("MPI Two").
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WHEREAS, MPI is a nonstock, not-for-profit corporation duly organized and
existing under the laws of the State of Florida, having been incorporated on
March 8, 1988;
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, the respective Boards of Directors of MPI and MPI Two and the
Members of MPI have approved the merger of MPI into MPI Two (the "Merger"), upon
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the terms and subject to the conditions set forth in this Agreement and the
Members of MPI Two have no voting rights;
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 Chapter 617, Florida Statutes (the "Florida
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Act") and the General Corporation Law of the State of Delaware (the "Delaware
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Act"), MPI shall be merged with and into MPI Two. MPI Two shall be the
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surviving corporation in accordance with this Agreement. The corporate and
separate existence of MPI shall thereupon cease. The corporate existence of MPI
Two 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 11:00
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a.m. on June 29, 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
a certificate of merger, substantially in the form attached hereto as Exhibit A
(the "Certificate of Merger"), with the Secretary of State of the State of
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Delaware and articles of merger, substantially in the form attached hereto as
Exhibit B (the "Articles of Merger"), with the Department of State of the State
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of Florida, each executed in accordance with the relevant provisions of the
Delaware Act and the Florida Act, and shall make all other filings, recordings
or publications required under the Delaware Act or the Florida 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 and the Articles of Merger are duly
filed with the Department of State of the State of Florida, or at such other
time as the parties may agree and specify in the Certificate of Merger and the
Articles 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 and Section 617.1106, Florida Statutes.
5. SURVIVING CORPORATION. Following the Merger, the separate corporate
existence of MPI shall cease and MPI Two shall continue as the surviving
corporation (the "Surviving Corporation") and shall succeed to and possess
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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 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 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 and the Florida 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
Two 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 Two 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 individual or individuals who are the directors of MPI
Two immediately prior to the Effective Time of the Merger shall be the director
or 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 Two 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.
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10. EFFECT OF THE MERGER ON MEMBERSHIP INTERESTS. As of the Effective Time
of the Merger, by virtue of the Merger and without any action on the part of any
member of MPI or MPI Two, each individual who was a member of MPI immediately
prior to the Effective Time of the Merger shall become a member of the Surviving
Corporation and shall be entitled to those rights afforded to members under the
Certificate of Incorporation and Bylaws of the Surviving Corporation and the
Delaware Act.
11. SERVICE OF PROCESS ON SURVIVING CORPORATION. The Surviving Corporation
agrees that it may be served with process in the State of Florida in any
proceeding for enforcement of any obligation of MPI as well as for the
enforcement of any obligation of the Surviving Corporation arising from the
Merger.
12. TERMINATION. This Agreement may be terminated and abandoned by action
of the Board of Directors of MPI at any time prior to the Effective Time of the
Merger, whether before or after approval by the members of MPI.
13. 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.
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
held immediately prior to the Effective Time of the Merger, MPI 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 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 and MPI Two 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.
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(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.
(d) Severability. In the event that, for any reason, any provision
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of 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-1, INC.
By: /s/ Xxxxxxx XxXxxx
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Name: Xxxxxxx XxXxxx
Title: President
MPI TWO, INC.
By: /s/ Xxxxxxx XxXxxx
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Name: Xxxxxxx XxXxxx
Title: President
The Undersigned, secretary of MPI Two, Inc., hereby certifies that the Board of
Directors of MPI Two, Inc. adopted this Agreement by unanimous written consent.
/s/ Xxx Xxxxxxxxx
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Xxx Xxxxxxxxx
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