AGREEMENT AND PLAN OF
MERGER
THIS AGREEMENT AND
PLAN OF MERGER dated as of December 29, 2008 (this “
Merger Agreement ”), is made by and between Triad
Financial Corporation, a California corporation (“ TFC
”), and Triad Financial SM LLC, a Delaware limited liability
company (the “ Company ”). TFC and the Company
are sometimes collectively referred to herein as the “
Constituent Companies .”
WHEREAS, the
authorized capital stock of TFC consists of (i) 100,000 shares
of Common Stock, no par value (the “ Common ”),
and (ii) 3,000,000 shares of Preferred Stock, no par value
(the “ Preferred ” and, together with the
Common, the “ TFC Capital Stock ”) of which
(i) 9,067 shares of Common are issued and outstanding, fully
paid and nonassessable, and (ii) no shares of Preferred are
issued and outstanding;
WHEREAS, TFC
desires to merge with and into the Company;
WHEREAS, the
Company desires to merge with TFC, with the Company being the
surviving entity;
WHEREAS, the Board
of Directors of TFC and the Board of Managers of the Company deem
it advisable that TFC merge with and into the Company and that the
Company continue as the surviving business entity, upon the terms
set forth herein and in accordance with the laws of the State of
Delaware (the “ Merger ”), and that the shares
of TFC Capital Stock be canceled upon consummation of the Merger as
set forth herein;
WHEREAS, the Board
of Directors of TFC have, by resolutions duly adopted, approved the
provisions of this Merger Agreement, as required by the California
Corporations Code (“ California Law ”),
including Chapters 11 and 12 thereof; and
WHEREAS, the Board
of Managers of the Company have, by resolutions duly adopted,
approved the provisions of this Merger Agreement, as required by
Section 18-209 of the Limited Liability Company Act of the
State of Delaware (“ Delaware Law ”).
NOW,
THEREFORE, the parties hereto agree as follows:
Effect of the Merger; Manner
and
Basis of Converting and Canceling Shares
Section 1.1.
At the Effective Time (as hereinafter defined), TFC shall be merged
with and into the Company, the separate corporate existence of TFC
(except as may be continued by operation of law) shall cease, and
the Company shall continue as the surviving business entity, all
with the effects provided by applicable law. The Company in its
capacity as the surviving
business entity
of the Merger, is hereinafter sometimes referred to as the “
Surviving Business Entity .”
Section 1.2.
At the Effective Time, each share of Common issued and outstanding
and any share of Preferred, whether held in the treasury of TFC or
otherwise, immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of TFC, the
Company, the holder thereof or any other person, be canceled and no
cash or securities or other property shall be payable in respect
thereof.
Section 1.3.
At the Effective Time, all equity securities of the Company,
whether held in the treasury of the Company or otherwise,
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