AGREEMENT AND PLAN OF
MERGER
This AGREEMENT AND PLAN OF MERGER, is entered
into as of February 7, 2007 (this “Agreement”), by and
among Simmons Holdco, Inc., a Delaware corporation
(“Parent”), Simmons Merger Company, a Delaware
corporation and a wholly-owned subsidiary of Parent (“Merger
Sub”), and Simmons Company, a Delaware corporation (the
“Company”).
WHEREAS, the respective Boards of Directors of
the Company and Merger Sub have approved and declared advisable,
and the Board of Directors of Parent has approved, this Agreement
and the merger of Merger Sub with and into the Company (the
“Merger”), on the terms and subject to the conditions
provided for in this Agreement;
WHEREAS, Parent, the Company and the
Company’s shareholders intend for the Merger to be treated as
an exchange that is governed, in part, by Section 351 of the
Internal Revenue Code of 1986, as amended (the “Code”);
and
WHEREAS, the respective shareholders of the
Company and Merger Sub have approved this Agreement and the Merger,
on the terms and subject to the conditions provided for in this
Agreement.
NOW, THEREFORE, in consideration of the
representations, warranties, covenants and agreements contained in
this Agreement, and intending to be legally bound hereby, Parent,
Merger Sub and the Company hereby agree as follows:
The Merger
SECTION 1.1.
The Merger
. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with the
General Corporation Law of the State of Delaware (the
“DGCL”), at the Effective Time (as defined below)
Merger Sub shall be merged with and into the Company, and the
separate corporate existence of Merger Sub shall thereupon cease,
and the Company shall be the surviving corporation in the Merger
(the “Surviving Corporation”).
SECTION 1.2.
Effective Time
. On a date to be mutually agreed
upon by the parties (the “Closing Date”), the parties
shall file with the Secretary of State of the State of Delaware a
certificate of merger, executed in accordance with the relevant
provisions of the DGCL (the “Certificate of Merger”).
The Merger shall become effective upon the filing of the
Certificate of Merger (the time at which the Merger becomes
effective is herein referred to as the “Effective
Time”).
SECTION 1.3.
Effects of the Merger
. The Merger shall have the effects
set forth in the DGCL. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all the
properties, rights, privileges, powers and franchises of the
Company and Merger Sub shall vest in the Surviving Corporation, and
all debts, liabilities and duties of the Company and Merger Sub
shall become the debts, liabilities and duties of the Surviving
Corporation.
SECTION 1.4.
Certificate of Incorporation and
By-laws of the Surviving Corporation .
(a) The certificate of incorporation of the Company,
as amended and restated in the form attached hereto as Exhibit
A , shall be the certificate of incorporation of the Surviving
Corporation until thereafter amended as provided therein or by
applicable law.
(b) The by-laws of the Company, as in effect
immediately prior to the Effective Time, shall be the by-laws of
the Surviving Corporation until thereafter amended as provided
therein or by applicable law.
SECTION 1.5.
Directors and Officers of the
Surviving Corporation .
(a) The directors of the Company immediately prior
to the Effective Time shall continue to be the directors of the
Surviving Corporation immediately following the Effective Time,
until their respective successors are duly elected or appointed and
qualified or their earlier death, resignation or removal in
accordance with the certificate of incorporation and by-laws of the
Surviving Corporation.
(b) The officers of the Company immediately prior to
the Effective Time shall continue to be the officers of the
Surviving Corporation until their respective successors are duly
appointed and qualified or their earlier death, resignation or
removal in accordance with the certificate of incorporation and
by-laws of the Surviving Corporation.
Effect of the Merger on the
Capital Stock of the
Constituent Corporations;
Exchange of Certificates; Company Stock Options
SECTION 2.1.
Effect on Capital
Stock . At the Effective
Time, by virtue of the Merger and without any action on the part of
the holder of any shares of Class A common stock, par value $0.01
per share, of the Company (“Class A Common Stock”), or
any shares of Class B common stock, par value $0.01 per share, of
the Company (“Class B Common Stock”, and collectively
with the Class A Common Stock, the “Company Common
Stock”), or any shares of capital stock of Merger
Sub:
(a)
Capital Stock of Merger
Sub . Each issued and
outstanding share of each class of capital stock of Merger Sub
shall be converted into and become one validly issued, fully paid
and nonassessable share of the common stock, par value $0.01 per
share, of the Surviving Corporation.
(b)
Cancellation of Treasury Stock
and Parent-Owned Stock .
Any shares of Company Common Stock that are owned by the Company as
treasury stock, and any shares of Company Common Stock
owned
