Agreement and Plan of Merger - Premier Graphics Inc. and Phoenix Communications Inc.
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated this 16th day of December 1997,
pursuant to Section 252 of the General Corporation Law of the State of Delaware
and Section 14-2-1101 of the Georgia Business Corporations Code, between Premier
Graphics, Inc. ("Premier" or "Surviving Corporation"), a Delaware corporation
and Phoenix Communications, Inc. ("Phoenix" or "Merged Corporation"), a Georgia
corporation (the "Agreement").
WITNESSETH that:
WHEREAS, all of the constituent corporations desire to merge into a single
corporation; and
NOW, THEREFORE, the corporations, parties to this Agreement, in
consideration of the mutual covenants, agreements and provisions hereinafter
contained, do hereby prescribe the terms and conditions of said merger and mode
of carrying the same into effect as follows:
FIRST: Premier, hereby merges into itself Phoenix and Phoenix shall be
and hereby is merged into Premier, which shall be the Surviving Corporation.
SECOND: The Certificate of Incorporation and Bylaws of Premier, as in
effect on the date of merger provided for in this Agreement, shall continue in
full force and effect as the Certificate of Incorporation of the corporation
surviving this merger.
THIRD: The Certificate of Incorporation of Premier, is set forth in its
entirety and attached hereto as Exhibit A, and all the terms and provisions
thereof are hereby incorporated in this Agreement and made a part hereof with
the same force and effect as if herein set forth in full; and, from and after
the effective date of the merger and until further amended as provided by law,
said Exhibit A, separate and apart from this Agreement and Plan of Merger shall
be, and may be separately certified as, the Certificate of Incorporation, as
amended, of the Surviving Corporation.
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FOURTH: The manner of converting the outstanding shares of the capital of
each of the constituent corporations into the shares or other securities of the
Surviving Corporation shall be as follows:
(a) Each share of stock of the Surviving Corporation, which shall be
issued and outstanding on the effective date of this Agreement, shall
remain issued and outstanding.
(b) Each share of common stock of the Merged Corporation which shall
be outstanding on the effective date of this Agreement, and all rights in
respect thereto shall be cancelled.
(c) After the effective date of this Agreement, each holder of an
outstanding certificate representing shares of common stock of Phoenix
shall surrender the same to the Surviving Corporation and said shares shall
be cancelled since at the effective time of the merger, all of the issued
and outstanding shares of the constituent corporations will be owned by the
same shareholder. Until so surrendered, the outstanding shares of stock of
the Merged Corporation to be cancelled as provided herein, may be treated
by the Surviving Corporation for all corporate purposes as evidencing the
ownership of shares of the Surviving Corporation as though said surrender
and exchange had taken place. After the effective date of this Agreement,
each registered owner of any shares of common stock of the Merged
Corporation shall have said shares cancelled.
FIFTH: The terms and conditions of the merger are as follows:
(a) The Bylaws of the Surviving Corporation as they shall exist on
the effective date of this Agreement shall be and remain the Bylaws of the
Surviving Corporation until the same shall be altered, amended and repealed
as therein provided.
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(b) The directors and officers of the Surviving Corporation shall
continue in office until the next annual meeting of stockholders and until
their successors shall have been elected and qualified.
(c) This merger shall become effective upon filing with the Secretary
of State of Delaware and Georgia.
(d) Upon the merger becoming effective, all the property, rights,
privileges, franchises, patents, trademarks, licenses, registrations and
other assets of every kind and description of the Merged Corporation shall
be transferred to, vested in and devolve upon the Surviving Corporation
without further act or deed and all property, rights, and every other
interest of the Surviving Corporation and the Merged Corporation shall be
as effectively the property of the Surviving Corporation as they were of
the Surviving Corporation and the Merged Corporation respectively. The
Merged Corporation hereby agrees from time to time, as and when requested
by the Surviving Corporation or by its successors or assigning, to secure
and deliver or cause to be executed and delivered all such deeds and
instruments and to take or cause to be taken such further or other action
as the Surviving Corporation title to and possession of any property of the
Merged Corporation acquired or to be acquired by reason of or as a result
of the merger herein provided for and otherwise to carry out the intent and
purposes hereof and the proper officers and directors of the Merged
Corporation and the proper officers and directors of the Surviving
Corporation are fully authorized in the name of the Merged Corporation or
otherwise to take any and all such action.
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SIXTH: Anything herein or elsewhere to the contrary notwithstanding,
this Agreement may be terminated and abandoned by the Board of Directors of any
constituent corporation at any time prior to the date of filing this Agreement
with the Secretary of State of Delaware and Georgia. This Agreement may be
amended by the Board of Directors of its constituent corporations at any time
prior to the date of filing this Agreement with the Secretary of State of
Delaware and Georgia, provided that an amendment made subsequent to the adoption
of the Agreement by the stockholders of any constituent corporation shall not
(1) alter or change the amount or 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, (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
terms and conditions of the Agreement if such alteration or change would
adversely affect the holders of any class or series thereof of such constituent
corporation.
IN WITNESS WHEREOF, the parties to this Agreement, pursuant to the approval
and authority duly given by resolutions adopted by their respective Boards of
Directors have caused these presents to be executed by the President of each
party hereto as the respective act, deed and agreement of said corporation on
this 16th day of December, 1997.
PREMIER GRAPHICS, INC.
By: /s/ John P. Miller
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John P. Miller, President
PHOENIX COMMUNICATIONS, INC.
By: /s/ John P. Miller
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John P. Miller, President
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I, Lance Fair, Secretary of Premier Graphics, Inc., a corporation organized
and existing under the laws of the State of Delaware, hereby certify, as such
Secretary that the Agreement and Plan of Merger to which this Certificate is
attached, after having been first duly signed on behalf of the said corporation
and having been signed on behalf of Phoenix Communications, Inc., a corporation
of the State of Georgia, was duly adopted pursuant to Section Section 228 of
Title 8 of the Delaware Code by the unanimous written consent of the
stockholders holding all of the issued and outstanding shares of the capital
stock of the corporation, same being of the shares issued and outstanding having
voting power, which Agreement and Plan of Merger was thereby adopted as the act
of the stockholders of said Premier Graphics, Inc., and the duly adopted
agreement and act of the said corporation.
WITNESS my hand on this 16th day of December, 1997.
/s/ Lance Fair
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Secretary
I, Lance Fair, Secretary of Phoenix Communications, Inc., a corporation
organized and existing under the laws of the State of Delaware, hereby certify,
as such Secretary that the Agreement and Plan of Merger to which this
Certificate is attached, after having been first duly signed on behalf of the
said corporation and having been signed on behalf of Premier Graphics, Inc., a
corporation of the State of Delaware, was duly adopted pursuant to 14-2-704 of
the Georgia Business Corporations Code by the unanimous written consent of the
stockholders holding all of the issued and outstanding shares of the capital
stock of the corporation, same being of the shares issued and outstanding having
voting power, which Agreement and Plan of Merger was thereby adopted as the act
of the stockholders of said Phoenix Communications, Inc., and the duly adopted
agreement and act of the said corporation.
WITNESS my hand on this 16th day of December, 1997.
/s/ Lance Fair
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Secretary
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