Exhibit 2.2
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER dated as of June 25, 1998 (the "AGREEMENT"), by
and among Aurora Foods Holdings Inc., a Delaware corporation ("AURORA
HOLDINGS"), AurFoods Operating Co. Inc., a Delaware corporation (f/k/a Aurora
Foods Inc.) ("OLD AURORA"), VDK Holdings, Inc., a Delaware corporation ("VDK
HOLDINGS"), Van xx Xxxx'x, Inc., a Delaware corporation, ("VAN XX XXXX'X") and
Aurora Foods Inc., a Delaware corporation (f/k/a A Foods Inc.) ("NEW AURORA").
Aurora Holdings, Old Aurora, VDK Holdings and Van xx Xxxx'x are collectively
referred to herein as the "MERGING ENTITIES".
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of New Aurora and each of the
Merging Entities deem it advisable that the Merging Entities merge with and into
New Aurora (the "MERGER"), upon the terms and conditions herein and in
accordance with the laws of the State of Delaware.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
SECTION 1. TERMS
1.1. At the Effective Time (as hereinafter defined) of the Merger, the
Merging Entities shall be merged with and into New Aurora with New Aurora as the
surviving corporation (hereinafter also referred to as the "SURVIVING
CORPORATION").
1.2. The Surviving Corporation is New Aurora.
1.3. At the Effective Time, each share of Common Stock of each of the
Merging Entities issued and outstanding immediately prior to the Effective Time
shall, by virtue of the Merger, be cancelled and retired and no shares of Common
Stock or other securities of New Aurora shall be issuable as a result of the
Merger.
1.4. Upon and after the Effective Time, the Surviving Corporation shall
possess all the rights, privileges, powers and franchises, and be subject to all
the restrictions, disabilities and duties, of the Constituent Corporations (as
hereinafter defined); and all rights, privileges, powers and franchises of the
Constituent Corporations shall be vested in and be the property of the Surviving
Corporation; and all debts, liabilities and duties of the Constituent
Corporations shall thenceforth attach to the Surviving Corporation and may be
enforced against it to the same extent as if said debts, liabilities and duties
have been incurred or contracted by it.
SECTION 2. EFFECTIVE TIME
2.1. Subsequent to the execution of this Agreement, New Aurora and each of
the Merging Entities (collectively, the "CONSTITUENT CORPORATIONS") shall each
submit this Agreement to their respective stockholders for their approval
pursuant to the applicable provisions of the General Corporation Law of the
State of Delaware.
2.2. Following approval of this Agreement in accordance with Section 2.1
above, and provided that:
(a) each of the Constituent Corporations shall have received the approval
of its stockholders as required under law; and
(b) this Agreement has not been terminated and abandoned pursuant to
Section 4.2 hereof; the Surviving Corporation will cause a Certificate of Merger
to be executed, acknowledged and filed with the Secretary of State of the State
of Delaware as provided by law.
2.3. The Merger shall become effective immediately upon the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware (the
date and time of such filing being herein referred to as the "EFFECTIVE TIME").
Any of the Chairman, Vice Chairman, Chief Financial Officer, Executive Vice
President, Vice President, Secretary or Assistant Secretary of New Aurora is
authorized to sign the Certificate of Merger.
SECTION 3. CERTIFICATE OF INCORPORATION AND BY-LAWS; BOARD OF DIRECTORS
3.1. The Certificate of Incorporation of New Aurora constituted at the
Effective Time shall be the Certificate of Incorporation of the Surviving
Corporation until such time as it shall be further amended as provided by law.
3.2. The By-Laws of New Aurora shall be the By-Laws of the Surviving
Corporation, subject to alteration, amendment or repeal from time to time by the
Board of Directors or the stockholders of the Surviving Corporation.
3.3. From and after the Effective Time the members of the Board of
Directors of the Surviving Corporation shall consist of the members of the Board
of Directors of New Aurora immediately prior to the Effective Time, to hold
office until the expiration of their then current terms and until their
respective successors shall be elected.
3.4. From and after the Effective Time, the officers of New Aurora shall
consist of the officers of New Aurora immediately prior to the Effective Time,
to hold office until the next
-2-
annual meeting of the stockholders of New Aurora and until their respective
successors are elected and appointed.
SECTION 4. AMENDMENT AND TERMINATION
4.1. To the fullest extent permitted by applicable law, the Constituent
Corporations, by mutual consent of their respective Boards of Directors, may
amend, modify or supplement this Agreement in such a manner as may be agreed
upon by them in writing at any time prior to the Effective Time, even though the
Agreement shall have been approved by the stockholders of one or more of the
Constituent Corporations.
4.2. This Agreement may be terminated and the Merger abandoned for any
reason by resolution adopted by any one of the respective Boards of Directors of
the Constituent Corporations at any time prior to the Effective Time, even
though this Agreement shall have been approved by the stockholders of one or
more of the Constituent Corporations.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-3-
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to execute this Agreement as of the date first written above.
AURORA FOODS HOLDINGS INC.
By:/s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
AURFOODS OPERATING CO. INC.
By:/s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
VDK HOLDINGS, INC.
By:/s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
VAN XX XXXX'X, INC.
By:/s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
AURORA FOODS INC.
-4-
By:/s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice Chairman
-5-
