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Exhibit 2
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger, is made as of ____________ __, 1999,
by and among Midland Corporation of Kansas, a Kansas corporation ("Midland") and
MCM Capital Group, Inc., a Delaware corporation ("MCM").
W I T N E S S E T H:
WHEREAS, Midland is a corporation duly organized and existing under the
laws of the State of Kansas;
WHEREAS, MCM is a corporation duly organized and existing under the
laws of the State of Delaware;
WHEREAS, the authorized capital stock of Midland is: (i) 3,000,000
shares of common stock, without par value ("Midland Common Stock"), of which
1,000,000 are issued and outstanding;
WHEREAS, the authorized capital stock of MCM is: (i) 50,000,000 shares
of common stock, par value $.01 per share ("MCM Common Stock"), of which 1,000
shares are issued and outstanding; and (ii) 5,000,000 shares of Preferred Stock
("MCM Preferred Stock") par value $.01 per share, of which no shares are issued
and outstanding;
WHEREAS, the Board of Directors of Midland and MCM deem it advisable
and in the best interests of their respective corporations and shareholders that
Midland be merged with and into MCM, with MCM being the surviving corporation
(the "Reincorporation Merger");
WHEREAS, the Boards of Directors and stockholders of Midland and MCM
have approved this Agreement by resolutions duly adopted in accordance with the
laws of their respective jurisdictions of incorporation; and
WHEREAS, Midland and MCM desire to effect the Reincorporation Merger as
a plan of reorganization in accordance with the provisions of Section
368(a)(1)(F) of the Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and in accordance with applicable law, the parties hereto
agree as follows:
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ARTICLE I
REINCORPORATION MERGER
1.01 Surviving Corporation.
(a) The effective time of the Reincorporation Merger (the
"Effective Time") shall occur at the latest of: (i) the time and date that
shareholders of each of Midland and MCM approve this Agreement and the
Reincorporation Merger; (ii) the time and date that a certificate of merger is
duly filed with the Secretary of State of Delaware with respect to the
Reincorporation Merger or such later date and time as is set forth therein; and
(iii) the time and date that articles of merger are duly filed with the
Secretary of State of Kansas with respect to the Reincorporation Merger or such
later date and time as is set forth therein.
(b) At the Effective Time, Midland shall be merged with and
into MCM, with MCM being the surviving corporation of the Reincorporation
Merger. At the Effective Time, the separate corporate existence of Midland shall
cease and MCM shall possess all the rights, privileges, powers, and franchises
of a public and private nature and be subject to all the restrictions,
disabilities, and duties of each of Midland and MCM (collectively, the
"Constituent Corporations"); and all and singular, the rights, privileges,
powers and franchises of each of the Constituent Corporations, and all property,
real, personal, or mixed, and all debts due to each of the Constituent
Corporations on whatever account, as well for stock subscriptions as all other
things in action belonging to each of the Constituent Corporations, shall be
vested in MCM; and all property, rights, and privileges, powers, and franchises,
and all and every other interest shall be thereafter as effectually the property
of MCM as they were of the respective Constituent Corporations, and the title to
any real estate vested by deed or otherwise in either of such Constituent
Corporations shall not revert or be in any way impaired by reason of the Merger;
but all rights of creditors and all liens upon any property of Midland shall be
preserved unimpaired. To the extent permitted by law, any claim existing or
action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted as if the Reincorporation Merger had not taken
place. All debts, liabilities, and duties of the respective Constituent
Corporations shall thenceforth attach to MCM and may be enforced against it to
the same extent as if such debts, liabilities, and duties had been incurred or
contracted by it. All corporate acts, plans, policies, agreements, arrangements,
approvals, and authorizations of Midland, its shareholders, Board of Directors
and committees thereof, officers and agents which were valid and effective
immediately prior to the Effective Time, shall be taken for all purposes as the
acts, plans, policies, agreements, arrangements, approvals, and authorizations
of MCM and shall be effective and binding thereon as the same were with respect
to Midland. The employees and agents of Midland shall become the employees and
agents of MCM and continue to be entitled to the same rights and benefits which
they enjoyed as employees and agents of Midland. The requirements of any plans
or agreements of Midland involving the issuance or purchase by Midland of
certain shares of its capital stock shall be satisfied by the issuance or
purchase of a like number of shares of MCM subject to the adjustments
contemplated in Section 1.04 hereof.
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1.02 Certificate of Incorporation and Bylaws.
(a) From and after the Effective Time, the Certificate of
Incorporation of MCM, as in effect immediately prior to the Effective Time,
shall continue to be the Certificate of Incorporation of MCM, until altered,
amended, or repealed in accordance with the laws of the State of Delaware.
(b) From and after the Effective Time, the Bylaws of MCM, as
in effect immediately prior to the Effective Time, shall continue to be the
Bylaws of MCM, until altered, amended, or repealed in accordance with the laws
of the State of Delaware.
1.03 Directors and Officers.
(a) The number of directors of MCM immediately prior to the
Effective Time shall continue to be the number of directors of MCM from and
after the Effective Time until such number is altered in accordance with the
laws of the State of Delaware. The directors of MCM immediately prior to the
Effective Time shall continue to be the directors of MCM from and after the
Effective Time and shall hold office from and after the Effective Time in
accordance with the Bylaws of MCM until their respective successors are duly
appointed or elected and qualified.
(b) The officers of Midland immediately prior to the Effective
Time shall be the officers of MCM from and after the Effective Time and shall
hold the same offices from and after the Effective Time in accordance with the
Bylaws of MCM until their respective successors are duly appointed or elected
and qualified or until retirement, resignation or removal.
1.04 Terms of Merger.
(a) At the Effective Time, the shares of capital stock of
Midland shall be converted into shares of capital stock of MCM as follows: each
share of Midland Common Stock issued and outstanding immediately prior to the
Effective Time shall, automatically and without further act of Midland, MCM, or
any holder thereof, be extinguished and converted into 4.941131 issued and
outstanding and fully paid and nonassessable shares of MCM Common Stock subject
to the same terms, conditions, and restrictions, if any, as existed immediately
prior to the Effective Time.
(b) Each person who, as a result of the Reincorporation
Merger, holds one or more certificates representing one or more shares of
Midland Common Stock may surrender any such certificate to MCM, and upon such
surrender, MCM shall, within a reasonable time, deliver to such person, in
substitution and exchange therefor, one or more certificates evidencing the
number of shares of MCM Common Stock that such person is entitled to receive in
accordance with the terms of this Agreement, in substitution for the number of
shares of Midland Common Stock represented by each certificate so surrendered;
provided, however, that no such holder shall be required to surrender any such
certificate until such certificate otherwise would be surrendered for transfer
on the books of the issuing corporation in the ordinary course of business.
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(c) At the Effective Time, all of the shares of capital stock
of MCM issued or outstanding immediately prior to the Effective Time shall,
automatically and without further act of Midland, MCM, or any holder thereof, be
cancelled and cease to exist, without any consideration being payable therefor.
(d) At the Effective Time, each option to purchase a share of
Midland Common Stock outstanding immediately prior to the Effective Time, shall
automatically and without further act of Midland, MCM, or any holder thereof,
become an option to purchase 4.941131 shares of MCM Common Stock, at an exercise
price adjusted accordingly, but otherwise subject to the same terms and
conditions.
ARTICLE II
MISCELLANEOUS
2.01 Consent to Service of Process. MCM hereby consents and agrees,
effective as of the Effective Time, to be sued and served with process in the
State of Kansas in any proceeding for the enforcement of any obligations of
Midland and in any proceeding for the enforcement of the rights, if any, of a
dissenting shareholder of Midland against MCM. MCM hereby irrevocably appoints
the Kansas Secretary of State as its agent to accept service of process in any
such proceeding from and after the Effective Time. MCM hereby agrees that it
will pay to the dissenting shareholders of Midland the amount, if any, to which
they shall be entitled under the General Corporation Laws of the State of Kansas
with respect to dissenting shareholders.
2.02 Accounting Matters. Except as herein provided with respect to the
cancellation of the outstanding shares of Midland, MCM agrees that, upon the
Effective Time, the assets, liabilities, reserves and accounts of Midland and
MCM shall be taken up or continued on the books of MCM in the amounts at which
such assets, liabilities, reserves, and accounts shall have been carried on the
books of Midland and MCM immediately prior to the Effective Time, subject to
such adjustments, and such elimination of intercompany items, as may be
appropriate to give effect to the Reincorporation Merger.
2.03 Expenses of Reincorporation Merger. From and after the Effective
Time, MCM shall pay all unpaid expenses of carrying this Agreement into effect
and accomplishing the Reincorporation Merger.
2.04 Further Assurances. If, at any time from and after the Effective
Time, MCM shall consider or be advised that any further assignment or assurance
in law is necessary or desirable to vest in MCM the title to any property or
rights of Midland, the proper officers of MCM are hereby authorized, in the name
of Midland or otherwise, to execute and make all such proper assignments and
assurances in law, and to do all other things necessary or proper to vest such
property or rights in MCM and otherwise to carry out the purposes of this
Agreement.
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2.05 Approval. This Agreement shall be submitted for approval by the
holders of Midland Common Stock at an annual or special meeting of shareholders
or by unanimous written consent, and this Agreement constitutes the approval
thereof by written consent of Midland in its capacity as sole shareholder of
MCM.
2.06 Termination and Abandonment. At any time prior to the Effective
Time and for any reason, this Agreement may be terminated and abandoned by the
Board of Directors of Midland, notwithstanding approval of this Agreement by the
shareholders of Midland and MCM. Upon any such termination, this Agreement shall
become null and void and have no effect, without any liability to any person on
the part of Midland or MCM or their shareholders, directors, or officers.
2.07 Amendment. At any time prior to the Effective Time and for any
reason, this Agreement may be amended, notwithstanding approval of this
Agreement by the shareholders of Midland or MCM, by an agreement in writing
executed in the same manner as this Agreement; provided, however, that after
approval of this Agreement by the shareholders of Midland, this Agreement may
not be amended, without such further approval as is required by law, to the
extent that such amendment would: (i) alter or change the amount or kind of
shares to be received by the shareholders of MCM or Midland in the
Reincorporation Merger; (ii) alter or change any term of the Certificate of
Incorporation of MCM; or (iii) effect any alteration or change that would
adversely affect the shareholders of Midland or MCM.
MIDLAND CORPORATION OF KANSAS
a Kansas corporation
Attest:
By: By:
---------------------------- --------------------------------
Secretary Name:
Title:
MCM CAPITAL GROUP, INC.
a Delaware corporation
Attest:
By: By:
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Secretary Name:
Title:
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