Exhibit 10.4
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger is entered into between FLF, Inc., a
corporation duly organized and existing under the laws of the State of
California, herein called the "Surviving Corporation", and ▇▇▇▇▇▇ Acquisition
Company, Inc., a corporation duly organized and existing under the laws of the
State of California, herein called the "Disappearing Corporation" (the two
parties sometimes collectively referred to as the "Constituent Corporations").
WHEREAS, Disappearing Corporation is a corporation duly organized and
existing under the laws of the State of California with authorized capital of
1,000 shares of Common Stock, with a par value $0.0001, 100 of which are issued
and outstanding and all 100 issued and outstanding shares are owned by ▇▇▇▇▇▇
Holding Company, Inc., a Delaware corporation ("▇▇▇▇▇▇").
WHEREAS, Surviving Corporation is a corporation duly organized and
existing under the laws of the State of California with authorized capital of
100,000 shares of Common Stock, no par value per share, 29,165.23 shares of
which are issued and outstanding.
WHEREAS, the Board of Directors of Disappearing Corporation has
determined that the merger of Disappearing Corporation with and into Surviving
Corporation is in the best interest of Disappearing Corporation and its
shareholder, ▇▇▇▇▇▇.
WHEREAS, the Board of Directors of Surviving Corporation has determined
that it is in the best interests of Surviving Corporation and its shareholders
that Disappearing Corporation be merged with and into Surviving Corporation.
WHEREAS, the Board of Directors of Disappearing Corporation and
Surviving Corporation have each adopted and approved for submission to the
shareholders of each of the Constituent Corporations this Agreement and Plan of
Merger.
1. The Disappearing Corporation shall be merged with and into the Surviving
Corporation.
2. Any amendments to the articles of incorporation of the Surviving
Corporation to be effected by the merger are: None.
3. The terms and conditions of the merger are as follows:
a. Disappearing Corporation Cessation of Existence. Upon the Effective Date
(as defined herein), the Disappearing Corporation shall be merged with and into
the Surviving Corporation and thereupon the separate existence of the
Disappearing Corporation shall cease.
b. Assets and Liabilities. All of the property, real, personal and mixed,
tangible and intangible of the Disappearing Corporation shall become the
property of the Surviving Corporation. All of the liabilities of the
Disappearing Corporation shall be assumed by and become the liabilities of the
Surviving Corporation, including all applicable state taxes.
4. The manner of converting the shares of the Disappearing Corporation into
shares or other securities of the Surviving Corporation, and the cash, rights,
securities or other property which the holders of those shares are to receive in
exchange for the shares, which cash, rights, securities, or other property may
be in addition to or in lieu of shares or other securities of the Surviving
Corporation, are as follows:
a. Disappearing Corporation Shares. Each share of the Disappearing
Corporation issued and outstanding immediately prior to the Effective Date shall
thereupon be converted into and become one share of common stock of the
Surviving Corporation. Each share of common stock issued pursuant to this
section shall be fully paid and nonassessable.
b. Surviving Corporation Shares. Each share of common stock of the
Surviving Corporation issued and outstanding immediately prior to the Effective
Date shall by virtue of the merger and without any action on the part of the
holder thereof, be exchanged for the following amounts per share of common stock
of the Surviving Corporation: $62.23 per share in cash and 41.49 shares of
▇▇▇▇▇▇ common stock (valued at $6.00 per share).
5. Any other details or provisions are as follows:
a. Directors and Officers of the Surviving Corporation. The directors of
the Surviving Corporation after the merger will be: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III to serve until their successors are duly elected or
appointed and qualified. The officers of the Surviving Corporation immediately
after the merger will be: (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman and CEO; (b) ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, President and COO; (c) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President and
Secretary; (d) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President and Assistant
Secretary; (e) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President and Assistant Secretary;
(f) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President; (g) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President; and
(h) ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President, to serve until their successors are duly
elected or appointed and qualified.
b. Effective Date. The Merger shall be effective January 26, 2005
("Effective Date").
c. State Filings. The proper officers of the Surviving and the Disappearing
Corporation shall make and execute whatever certificates and documents are
required by applicable state law to effect the Merger and to cause the same to
be filed, in the manner provided by law, and to all things whatsoever, which may
be necessary and proper to effect such Merger.
d. Further Assurances. If at any time after the Effective Date, the
Surviving Corporation shall determine that any further actions or instruments of
conveyance are necessary or desirable in order to vest in and confirm to
Surviving Corporation full title to and possession of all of the property (real,
personal and mixed), rights, privileges, immunities, powers, purposes and
franchises of the Disappearing Corporation, then the officers or directors of
the Surviving Corporation, or at their request the persons who were officers and
directors of the Disappearing Corporation immediately prior to the Effective
Date, shall have the authority to and shall take all such actions and execute
2
and deliver all such instruments as the Surviving Corporation may so
determine to be necessary or desirable.
e. Counterparts. This document may be executed in one or more counterparts,
all of which together shall constitute one and the same instrument.
f. Acquisition Agreement. The obligations of the Surviving Corporation and
the Disappearing Corporation to effect the merger shall be subject to all of the
terms and conditions of the Acquisition Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement on this 26
day of January, 2005.
SURVIVING CORPORATION:
FLF, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
DISAPPEARING CORPORATION:
▇▇▇▇▇▇ ACQUISITION COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III, President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, Secretary
OFFICERS' CERTIFICATE
We, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, certify that:
1. We are the President and Secretary of FLF, Inc., a corporation duly organized
and existing under the laws of the State of California.
2. The total number of outstanding shares of each class of the corporation
entitled to vote on the merger is as follows:
Class Total No. of Shares Entitled to Vote
Common _________________
3. The principal terms of the Agreement and Plan of Merger in the form attached
were approved by the shareholders of this corporation by a vote of the number of
shares of each class which equaled or exceeded the vote required by each class
to approve the Agreement and Plan of Merger.
4. Each class entitled to vote and the minimum percentage vote of each class is
as follows:
Class Minimum Percentage Vote
Common 100% approved of merger
5. No parent corporation is a party to this merger.
We further declare under penalty of perjury under the laws of the State
of California that the matters set forth in this certificate are true and
correct of our own knowledge.
DATE: January __, 2005
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▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇,
President
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary
This document may be executed in one or more counterparts, all of which together
shall constitute one and the same instrument.
OFFICERS' CERTIFICATE
We, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III and ▇▇▇▇▇ ▇▇▇▇▇▇▇, certify that:
1. We are the President and Secretary of ▇▇▇▇▇▇ Acquisition Company, Inc., a
corporation duly organized and existing under the laws of the State of
California.
2. The total number of outstanding shares of each class of the corporation
entitled to vote on the merger is as follows:
Class Total No. of Shares Entitled to Vote
Common _________________
3. The principal terms of the Agreement and Plan of Merger in the form attached
were approved by the shareholders of this corporation by a vote of the number of
shares of each class which equaled or exceeded the vote required by each class
to approve the Agreement and Plan of Merger.
4. Each class entitled to vote and the minimum percentage vote of each class is
as follows:
Class Minimum Percentage Vote
Common 100% approved of merger
5. No parent corporation is a party to this merger.
We further declare under penalty of perjury under the laws of the State
of California that the matters set forth in this certificate are true and
correct of our own knowledge.
DATE: January __, 2005
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III, President
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▇▇▇▇▇ ▇▇▇▇▇▇▇, Secretary
This document may be executed in one or more counterparts, all of which together
shall constitute one and the same instrument.
FLF, INC.
WRITTEN CONSENT IN LIEU OF SPECIAL MEETING OF
BOARD OF DIRECTORS AND SHAREHOLDERS
The Undersigned, being all of the Shareholders and Directors of FLF, Inc.
(the "Corporation"), waive notice and hereby adopt the following resolutions as
the acts of this Corporation:
Approval of Merger
WHEREAS, it is determined to be in the best interest of this Corporation
and its Shareholders to merge this Corporation with ▇▇▇▇▇▇ Acquisition Company,
Inc. on terms that would enable FLF, Inc. to continue as the surviving
corporation;
BE IT RESOLVED, that the Agreement and Plan of Merger, exhibited to the
Undersigned, is approved in the form submitted;
FURTHER RESOLVED, that the President and Secretary of this Corporation are
directed to execute the Agreement and Plan of Merger on behalf of this
Corporation; and
FURTHER RESOLVED, that the President and Secretary of this Corporation are
authorized and directed to execute, acknowledge and file such instruments and to
do such other acts in the name of and on behalf of this Corporation as may be
necessary or proper to fully perform the terms and conditions of the Agreement
and Plan of Merger and to consummate the matters contemplated thereunder.
Executed as of , 2004.
SHAREHOLDERS/DIRECTORS:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ACQUISITION COMPANY, INC.
WRITTEN CONSENT IN LIEU OF SPECIAL MEETING OF
BOARD OF DIRECTORS AND SHAREHOLDERS
The Undersigned, being the sole Shareholder and Directors of ▇▇▇▇▇▇
Acquisition Company, Inc. (the "Corporation"), waive notice and hereby adopt the
following resolutions as the acts of this Corporation:
Approval of Merger
WHEREAS, it is determined to be in the best interest of this Corporation
and its Shareholder to merge this Corporation with FLF, Inc., on terms that
would enable FLF, Inc. to continue as the surviving corporation;
BE IT RESOLVED, that the Agreement and Plan of Merger, exhibited to the
Undersigned, is approved in the form submitted;
FURTHER RESOLVED, that the President and Secretary of this Corporation are
directed to execute the Agreement and Plan of Merger on behalf of this
Corporation; and
FURTHER RESOLVED, that the President and Secretary of this Corporation are
authorized and directed to execute, acknowledge and file such instruments and to
do such other acts in the name of and on behalf of this Corporation as may be
necessary or proper to fully perform the terms and conditions of the Agreement
and Plan of Merger and to consummate the matters contemplated thereunder.
Executed as of January __, 2005.
SHAREHOLDER:
▇▇▇▇▇▇ HOLDING COMPANY, INC.
By: _________________________________
R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
DIRECTORS:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
