EXHIBIT 99.2
DEAN HELLER Secretary of State 204 North Carson Street, Suite 1 Carson City, Nevada 89701-4299 (775) 684 5708 Website: secretaryofstate.biz |
Articles of Merger
(PURSUANT TO NRS 92A.200)
Page 1
Important: Read attached instructions before completing form. | ABOVE SPACE IS FOR OFFICE USE ONLY |
(Pursuant to Nevada Revised Statutes Chapter 92A)
(excluding 92A.200(4b))
SUBMIT IN DUPLICATE
1) | Name and jurisdiction of organization of each constituent entity (NRS 92A.200). If there are more than four merging entities, check boxo and attach an 8 1/2” x 11” blank sheet containing the required information for each additional entity. |
3333 Acquisition Corp. | ||
Name of merging entity | ||
Nevada | Corporation | |
Jurisdiction | Entity type * | |
Name of merging entity | ||
Jurisdiction | Entity type * | |
Name of merging entity | ||
Jurisdiction | Entity type * | |
Name of merging entity | ||
Jurisdiction | Entity type * | |
and, | ||
3333 Holding Corporation | ||
Name of surviving entity | ||
Nevada | Corporation | |
Jurisdiction | Entity type * |
* Corporation, non-profit corporation, limited partnership, limited-liability company or business trust.
This form must be accompanied by appropriate fees. See attached fee schedule. | Nevada Secretary of State AM Merger 2003 | |
Revised on: 10/24/03 |
DEAN HELLER Secretary of State 204 North Carson Street, Suite 1 Carson City, Nevada 89701-4299 (775) 684 5708 Website: secretaryofstate.biz |
Articles of Merger
(PURSUANT TO NRS 92A.200)
Page 2
Important: Read attached instructions before completing form. | ||
ABOVE SPACE IS FOR OFFICE USE ONLY |
2) | Forwarding address where copies of process may be sent by the Secretary of State of Nevada (if a foreign entity is the survivor in the merger — NRS 92A.1 90): |
Attn: | ||
c/o: | ||
3) | (Choose one) |
þ | The undersigned declares that a plan of merger has been adopted by each constituent entity (NRS 92A.200). | |||
o | The undersigned declares that a plan of merger has been adopted by the parent domestic entity (NRS 92A.180) |
4) | Owner’s approval (NRS 92A.200)(options a, b, or c must be used, as applicable, for each entity) (if there are more than four merging entities, check boxo and attach an 8 1/2” x 11” blank sheet containing the required information for each additional entity): |
(a) | Owner’s approval was not required from |
Name of merging entity, if applicable | ||
Name of merging entity, if applicable | ||
Name of merging entity, if applicable | ||
Name of merging entity, if applicable | ||
and, or; | ||
Name of surviving entity, if applicable |
This form must be accompanied by appropriate fees. See attached fee schedule. | Nevada Secretary of State AM Merger 2003 | |
Revised on: 10/24/03 |
DEAN HELLER Secretary of State 204 North Carson Street, Suite 1 Carson City, Nevada 89701-4299 (775) 684 5708 Website: secretaryofstate.biz |
Articles of Merger
(PURSUANT TO NRS 92A.200)
Page 3
Important., Read attached instructions before completing form. | ABOVE SPACE IS FOR OFFICE USE ONLY |
(b) | The plan was approved by the required consent of the owners of*: |
3333 Acquisition Corp. | ||
Name of merging entity, if applicable | ||
Name of merging entity, if applicable | ||
Name of merging entity, if applicable | ||
Name of merging entity, if applicable | ||
and, or; | ||
3333 Holding Corporation | ||
Name of surviving entity, if applicable |
* Unless otherwise provided in the certificate of trust or governing instrument of a business trust, a merger must be approved by all the trustees and beneficial owners of each business trust that is a constituent entity in the merger.
This form must be accompanied by appropriate fees. See attached fee schedule. | Nevada Secretary of State AM Merger 2003 | |
Revised on: 10/2//03 |
DEAN HELLER Secretary of State 204 North Carson Street, Suite 1 Carson City, Nevada 89701-4299 (775) 684 5708 Website: secretaryofstate.biz |
Articles of Merger
(PURSUANT TO NRS 92A.200)
Page 4
Important: Read attached instructions before completing form. | ABOVE SPACE IS FOR OFFICE USE ONLY |
(c) | Approval of plan of merger for Nevada non-profit corporation (NRS 92A.160): | |||
The plan of merger has been approved by the directors of the corporation and by each public officer or other person whose approval of the plan of merger is required by the articles of incorporation of the domestic corporation. | ||||
Name of merging entity, if applicable | ||||
Name of merging entity, if applicable | ||||
Name of merging entity, if applicable | ||||
Name of merging entity, if applicable | ||||
and, or; | ||||
Name of surviving entity, if applicable |
This form must be accompanied by appropriate fees. See attached fee schedule. | Nevada Secretary of State AM Merger 2003 | |
Revised on: 10/24/03 |
DEAN HELLER Secretary of State 204 North Carson Street, Suite 1 Carson City, Nevada 89701-4299 (775) 684 5708 Website: secretaryofstate.biz |
Articles of Merger
(PURSUANT TO NRS 92A.200)
Page 5
Important. Read attached instructions before completing form. | ABOVE SPACE IS FOR OFFICE USE ONLY |
5) | Amendments, if any, to the articles or certificate of the surviving entity. Provide article numbers, if available. (NRS 92A.200) *: | |||
Pursuant to Section 1.5 of the Agreement and Plan of Merger dated November 17, 2003, the articles of incorporation of the merging entity are to become the articles of incorporation of the surviving entity, except that the name of the merging entity will become the name of the surviving entity. The Certificate to Accompany Restated Articles and the amended and restated articles of incorporation of the surviving entity are attached to these Articles of Merger as Exhibit A. | ||||
6) | Location of Plan of Merger (check a or b): |
o | (a) The entire plan of merger is attached; | |||
or, | ||||
þ | (b) The entire plan of merger is on file at the registered office of the surviving corporation, limited-liability company or business trust, or at the records office address if a limited partnership, or other place of business of the surviving entity (NRS 92A.200). |
7) | Effective date (optional)”:8:59 p.m. Pacific Time on 02/29/04 |
* Amended and restated articles may be attached as an exhibit or integrated into the articles of merger. Please entitle them “Restated” or “Amended and Restated,” accordingly. The form to accompany restated articles prescribed by the secretary of state must accompany the amended and/or restated articles. Pursuant to NRS 92A.180 (merger of subsidiary into parent — Nevada parent owning 90% or more of subsidiary), the articles of merger may not contain amendments to the constituent documents of the surviving entity except that the name of the surviving entity may be changed.
** A merger takes effect upon filing the articles of merger or upon a later date as specified in the articles, which must not be more than 90 days after the articles are filed (NRS 92A.240).
This form must be accompanied by appropriate fees. See attached fee schedule. | Nevada Secretary of State AM Merger 2003 | |
Revised on: 10/24/03 |
DEAN HELLER Secretary of State 204 North Carson Street, Suite 1 Carson City, Nevada 89701-4299 (775) 684 5708 Website: secretaryofstate.biz |
Articles of Merger
(PURSUANT TO NRS 92A.200)
Page 6
Important. Read attached instructions before completing form. | ABOVE SPACE IS FOR OFFICE USE ONLY |
8) | Signatures — Must be signed by: An officer of each Nevada corporation; All general partners of each Nevada limited partnership; All general partners of each Nevada limited partnership; A manager of each Nevada limited-liability company with managers or all the members if there are no managers; A trustee of each Nevada business trust (NRS 92A.230)* (if there are more than four merging entities, check boxo and attach an 8½” x 11” blank sheet containing the required information for each additional entity.): |
3333 Acquisition Corp. | ||||||
Name of merging entity | ||||||
/s/ Raymond G. Smerge | Exec. Vice President & Secretary | |||||
Signature | Title | Date | ||||
Name of merging entity | ||||||
Signature | Title | Date | ||||
Name of merging entity | ||||||
Signature | Title | Date | ||||
Name of merging entity | ||||||
Signature | Title | Date | ||||
3333 Holding Corporation | ||||||
Name of surviving entity | ||||||
/s/ Stephen M. Weinberg | President & Chief Exec. Officer | |||||
Signature | Title | Date |
* The articles of merger must be signed by each foreign constituent entity in the manner provided by the law governing it (NRS 92A.230). Additional signature blocks may be added to this page or as an attachment, as needed.
IMPORTANT:Failure to include any of the above information and submit the proper fees may cause this filing to be rejected.
This form must be accompanied by appropriate fees. See attached fee schedule. | Nevada Secretary of State AM Merger 2003 | |
Revised on: 10/24/03 |
EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
DEAN HELLER Secretary of State 204 North Carson Street, Suite 1 Carson City, Nevada 89701-4299 (775) 684 5708 Website: secretaryofstate.biz |
Certificate to Accompany Restated Articles (PURSUANT TO NRS) |
Important: Read attached instructions before completing form. | ABOVE SPACE IS FOR OFFICE USE ONLY |
This Form is to Accompany Restated Articles of Incorporation
(Pursuant to NRS 78.403, 82.371, 86.221, 88.355 or 88A.250)
(This form is also to be used to accompany Restated Articles for Limited-Liability Companies, Certificates of
Limited Partnership, Limited-Liability Limited Partnerships and Business Trusts)
1.Name ofNevadaentity as last recorded in this office: | 3333 Holding Corporation |
2.The articles are beingoRestatedorþAmended and Restated(check only one). Please entitle your attached articles “Restated” or “Amended and Restated,” accordingly.
3.Indicate what changes have been made by checking the appropriate box.*
o | No amendments; articles are restated only and are signed by an officer of the corporation who has been authorized to execute the certificate by resolution of the board of directors adopted on . The certificate correctly sets forth the text of the articles or certificate as amended to the date of the certificate. | |
þ | The entity name has been amended. | |
o | The resident agent has been changed. (attach Certificate of Acceptance from new resident agent) | |
o | The purpose of the entity has been amended. | |
þ | The authorized shares have been amended. | |
o | The directors, managers or general partners have been amended. | |
o | IRS tax language has been added. | |
þ | Articles have been added. | |
þ | Articles have been deleted. | |
o | Other. The articles or certificate have been amended as follows: (provide article numbers, if available) |
*This form is to accompany Restated Articles which containnewlyaltered or amended articles. The Restated Articles must contain all of the requirements as set forth in the statutes for amending or altering the articles or certificates.
IMPORTANT:Failure to include any of the above information and submit the proper fees may cause this filing to be rejected.
SUBMIT IN DUPLICATE
This form must be accompanied by appropriate fees. See attached fee schedule. | Nevada Secretary of State AM RESTATED 2003 Revised on: 10/27/03 |
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
1. | The name of the corporation is 3333 Holding Corporation. | |||
2. | The resident agent is CSC Services of Nevada, Inc., whose address is 502 East John Street, Carson City, NV 89706. | |||
3. | The corporation has authority to issue 1,000 shares with a par value of $0.01 per share. | |||
4. | The purpose of the corporation is to engage in any lawful act, activity or business and to exercise any powers permitted to corporation sunder the Nevada Revised Statutes. | |||
5. | (a) The number of directors of the corporation may be increased or decreased in the manner provided in the Bylaws of the corporation; provided, that the number of directors shall never be less than one. In the interim between elections of directors by stockholders entitled to vote, all vacancies, including vacancies caused by an increase in the number of directors and including vacancies resulting from the removal of directors by the stockholders entitled to vote which are not filled by said stockholders, may be filled by the remaining directors, though less than a quorum. |
(b) The corporation shall have perpetual existence.
(c) 1. Elimination of Director or Officer Liability.
No director or officer of the corporation shall be personally liable to the corporation or any of its stockholders for damages for breach of fiduciary duty as a director or officer occurring on or after the date of incorporation; provided, however, that the foregoing provision shall not eliminate or limit the liability of a director or officer (i) for acts or omissions which involve intentional misconduct, fraud or a knowing violation of law, or (ii) the payment of dividends in violation of Section 78.300 of the Nevada Revised Statutes. Any repeal or modification of this paragraph 8(c)(1) by the stockholders of the corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director or officer of the corporation for acts or omissions prior to such repeal or modification.
2. | Indemnification. |
(A) The corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or
3333 Holding Corporation
Amended and Restated Articles of Incorporation
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is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, or other enterprise, against expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him in connection with the action, suit or proceeding, if he acted in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, does not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and that, with respect to any criminal action or proceeding, he had reasonable cause to believe that his conduct was unlawful.
(B) The corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, including amounts paid in settlement and attorney’s fees, actually and reasonably incurred by him in connection with the defense or settlement of the action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the corporation. Indemnification may not be made for any claim, issue or matter as to which such a person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines upon application that in vies of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expense as the court deems proper.
(C) To the extent that a director, officer, employee or agent of the corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subparagraphs (A) and (B), or in defense of any claim, issue or matter therein, he must be indemnified by the corporation against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense.
(D) Any indemnification under subparagraphs (A) and (B), unless ordered by a court of advanced pursuant to subparagraph (E) or provided for in the by-laws of the corporation must be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances. The determination must be made (1) by the Board of
3333 Holding Corporation
Amended and Restated Articles of Incorporation
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Directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding, or (2) if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding so orders, by independent legal counsel in a written opinion, or (3) if a quorum consisting of directors who were not parties to the action, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion, or (4) by the stockholders.
(E) The expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding must be paid by the corporation as they are incurred and in advance of the final disposition of the action, suit or proceeding upon receipt of any undertaking by or on behalf of the director or officer to repay the amount if it shall be determined by a court of competent jurisdiction that he is not entitled to be indemnified by the corporation. The provisions of this subparagraph do not affect any rights to advancement of expenses to which corporate personnel other than directors or officers may be entitled under any contract or otherwise.
(F) The indemnification and advancement of expenses authorized in or ordered by a court pursuant to this paragraph 8(c)(2) shall not be deemed exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise, for either an action in his official capacity or an action in another capacity while holding his office, except that indemnification, unless ordered by a court pursuant to subparagraph (B) or for the advancement of expenses made pursuant to subparagraph (E), may not be made to or on behalf of any director or officer if a final adjudication establishes that his acts or omission involved intentional misconduct, fraud or a knowing violation of the law and was material to the cause of action, and (2) continues for a person who has ceased to be a director, officer, employee or agent and inures to the benefit of the heirs, executors and administrators of such a person.
(G) To the extent permitted by law, the corporation shall have power to purchase and maintain insurance or make other financial arrangements on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise for any liability asserted against him and any liability and expenses incurred by him in any such capacity or arising out of his status as such.
(d) The corporation shall, to the fullest extent permitted by the General Corporation Law of the State of Nevada, as the same may be amended and supplemented, indemnify any and all persons whom it shall have power to indemnify under said Law from and against any and all of the expenses, liabilities, or other matters referred to in or covered by said Law, and the indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders
3333 Holding Corporation
Amended and Restated Articles of Incorporation
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or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee, or agent and shall inure to the benefit of the heirs, executors, and administrators of such a person.
(e) The corporation reserves the right to amend, alter, change, or repeal any provision contained in these Amended and Restated Articles of Incorporation in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
6. | The effective date and time of this filing is February 29, 2004 at 8:59 p.m. Pacific Time. |
3333 Holding Corporation
Amended and Restated Articles of Incorporation
Page 4 of 4