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EXHIBIT 2(iii)
PLAN AND AGREEMENT OF MERGER
OF
AU 'N AG, INC.
(A UTAH CORPORATION)
INTO
AU 'N AG, INC.
(A DELAWARE CORPORATION)
Plan and Agreement of Merger (hereinafter called "Agreement of
Merger") dated this 15th day of February 1994, by and between AU 'N AG, INC., a
corporation organized and existing under the laws of the state of Utah
(hereinafter sometimes referred to as "AU 'N AG (Utah)") and AU 'N AG, INC., a
corporation organized and existing under the laws of the state of Delaware
(hereinafter sometimes referred to as "AU 'N AG (Delaware)":). These two
parties are herein sometimes referred to collectively as the "merging
corporations," witnesseth:
WHEREAS, AU 'N AG (Delaware) is the wholly owned subsidiary of AU 'N
AG (Utah);
WHEREAS, AU 'N AG (Utah) wishes to change the state of its domicile by
merger into AU 'N AG (Delaware); and
WHEREAS, Section 252 of the Delaware General Corporation Law and
Section 16-10a-1104 of the Utah Business Corporation Act each authorize the
merger of AU 'N Ag (Utah) and AU 'N AG (Delaware);
NOW, THEREFORE, the merging corporations have agreed, and do hereby
agree, each with the other in consideration of the premises and the mutual
agreements, provisions, covenants and grants herein contained and in accordance
with the laws of the state of Delaware, and in accordance with the laws of the
state of Utah, that AU 'N AG (Utah) and AU 'N AG (Delaware) be merged into a
single corporation and that AU 'N AG (Delaware) shall be the continuing and
surviving corporation and do hereby agree upon and prescribe that the terms and
conditions of the merger hereby agreed upon and the mode of carrying the same
into effect and the manner of converting the presently outstanding shares of
each of the merging corporations into the shares of AU 'N AG (Delaware) are and
shall be hereinafter set forth.
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ARTICLE I
Manner of Conversion of Shares
a. The manner and basis of converting the shares of AU 'N AG
(Utah) into shares of AU 'N AG (Delaware) are as follows: at the effective time
of the merger, each share of common stock of AU 'N AG (Utah) shall thereupon be
converted into one share of AU 'N AG (Delaware). Each holder of outstanding
common stock of AU 'N AG (Utah) upon surrender to AU 'N AG (Delaware) of one
or more certificates for such shares for cancellation shall be entitled to
receive one or more certificates for the number of shares of common stock of AU
'N AG (Delaware) of one or more certificates for such shares for cancellation
shall be entitled to receive one or more certificates for the number of shares
of common stock of AU 'N AG (Delaware) represented by the certificates of AU 'N
AG (Utah) so surrendered for cancellation by such holder. Until so
surrendered, each such certificate representing outstanding shares of common
stock of AU 'N AG (Utah) shall represent the ownership of a like number of
shares of AU 'N AG (Delaware) for all corporate and legal purposes.
b. As of the effective time of the merger, all of the outstanding
shares of common stock of AU 'N AG (Delaware), which shares are held by AU 'N
AG (Utah), shall be redeemed by AU 'N AG (Delaware) for the sum of one dollar
($1) and such redeemed shares shall be cancelled and returned to the status of
authorized and unissued shares. None of such redeemed shares shall be retained
by AU 'N AG (Delaware) as treasury shares and such shares shall be reissued in
accordance with paragraph (b) of this Article I.
ARTICLE II
Effective Time
The effective time of the merger shall be upon the issuance of the
certificate of merger by the Division of Corporations of the State of Utah and
filing the agreement of merger in accordance with Section 252 of the Delaware
General Corporation Law with the Secretary of State of Delaware and recording
such agreement of merger in the office of the recorder of deeds. Prior to said
date, this plan and agreement of merger shall (1) have been submitted to
approved by the board of directors of each of the merging corporations; (2)
have been approved by the stockholders of each of the merging corporations in
accordance with law.
ARTICLE III
Effect of Merger
When the merger shall have been effected:
(a) The merging corporations shall be a single corporation known
as AU 'N AG, INC., a Delaware corporation.
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(b) The separate existence of AU 'N AG (Utah) shall cease.
(c) AU 'N AG (Delaware) shall have all rights, privileges,
immunities and powers and shall be subject to all the duties and liabilities of
a corporation organized under the Delaware General Corporation Law.
(d) AU 'N AG (Delaware) shall thereupon and thereafter possess all
the rights, privileges, immunities and franchises of a public as well as of a
private nature of each of the merging corporations and all property, real,
personal, and mixed, and all debts due on whatever account, including
subscriptions to shares and all other choices in action, and all and every
other interest of and belonging to or due to each of the merging corporations
shall be taken and deemed to be transferred to and vested in AU 'N AG
(Delaware) without further act or deed, and the title to any real estate or any
interest therein vested in either of the merging corporations shall not revert
or be in any way impaired by reason of the merger.
(e) AU 'N AG (Delaware) shall thenceforth be responsible and
liable for all the liabilities and obligations of each of the merging
corporations and any claim existing or action or processing pending by or
against either of the merging corporations may be prosecuted to judgment as if
such merger had not taken place, or AU 'N AG (Delaware) may be substituted in
its place. Neither the rights of creditors nor any liens upon the property of
either of the merging corporations shall be impaired by reason of the merger.
(f) After the effective time of the merger, the earned surplus of
AU 'N AG (Delaware) shall equal the aggregate of the earned surpluses of the
merging corporations immediately prior to the effective time of the merger.
The earned surplus determined as above provided shall continue to be available
for payment of dividends by AU 'N AG (Delaware).
(g) The certificate of incorporation of AU 'N AG (Delaware) as in
effect on the date of the merger provided for in this agreement of merger,
shall continue in full force and effect as the certificate of incorporation of
the corporation surviving this merger.
(h) The by-laws of AU 'N AG (Delaware) as they shall exist on the
effective date of this agreement of merger shall be and remain the by-laws of
the surviving corporation until the same shall be altered, amended or repealed
as therein provided.
(i) The directors and officers of AU 'N AG (Delaware) shall
continue in office until the next annual meeting of stockholders and until
their successors shall have been elected and qualified.
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ARTICLE IV
Service of Process; Rights of Dissenting Shareholders
AU 'N AG (Delaware) hereby agrees that it may be served with process
in the State of Utah in any proceeding for enforcement of any obligation of AU
'N AG (Utah), and in any proceeding for the enforcement of the rights of a
dissenting shareholder of AU 'N AG (Utah). AU 'N AG (Delaware) irrevocably
appoints the director of the Division of Corporations and Commercial Code as
its agent to accept service of process in any such proceeding. The address to
which a copy of the process may be mailed is ▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇. AU
'N AG (Delaware) will promptly pay to the dissenting shareholders of AU 'N AG
(Utah) the amount, if any, to which they shall be entitled under the provisions
of the Utah Business Corporation Act with respect to the rights of dissenting
shareholders.
ARTICLE V
Termination
If, at any time prior to the effective date hereof, events or
circumstances occur which in the opinion of a majority of the board of
directors of either constituent corporation renders it inadvisable to
consummate the merger, this Agreement of Merger shall not become effective even
though previously adopted by the shareholders of the corporation as herein
before provided. The filing of the merger shall conclusively establish that no
action to terminate this plan has been taken by the board of directors of
either corporation.
ARTICLE VI
Amendment
The boards of directors of the constituent corporations may amend the
Agreement of Merger at any time prior to the filing of the Agreement (or a
certificate in lieu thereof) with the states of Utah and Delaware provided that
an amendment made subsequent to the adoption of the Agreement of Merger by the
stockholders of any constituent corporation shall not (1) alter or change the
amount of any kind of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of the shares of any
class or series thereof of such constituent corporation, except to correct
manifest error as may be permitted by law; (2) alter or change any term of the
Certificate of Incorporation of the surviving corporation to be effected by the
merger; or (3) alter or change any of the other terms and conditions of the
Agreement of Merger if such alteration or change would adversely affect the
holders of any class or series thereof such constituent corporation.
IN WITNESS WHEREOF, AU 'N AG (Delaware), a Delaware corporation, has
caused this Plan and Agreement of Merger to be signed by its president and its
secretary in accordance with the requirements of Section 252 of the Delaware
General Corporation Law and AU 'N AG, INC., a Utah corporation, has caused this
Plan and
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Agreement of Merger to be signed by its president and its secretary in
accordance with the requirements of Section 16-10a-1104 of the Utah Revised
Business Corporation Act all as of the 15th day of February, 1994.
Attest: AU 'N AG, INC.
A Utah Corporation
/s/ ▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇▇, Secretary ▇.▇. ▇▇▇▇▇▇, President
Attest: AU 'N AG, INC.
A Delaware Corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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