Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER ("Merger Agreement"), dated as of
March 12, 1999, is between Commercial Assets, Inc., a Maryland corporation
(the "Company") and Commercial Assets, Inc., a Delaware corporation (the
"Delaware Corporation"). The Company and the Delaware Corporation are
hereafter sometimes collectively referred to as the "Constituent
Corporations."
WHEREAS, the Company is a corporation duly organized and existing
under the laws of the State of Maryland;
WHEREAS, the Delaware Corporation is a corporation duly organized and
existing under the laws of the State of Delaware;
WHEREAS, the respective Board of Directors of the Company and the
Delaware Corporation have determined that it is advisable and in the best
interests of each of such corporations that the Company merge with and into
the Delaware Corporation upon the terms and subject to the conditions of
this Merger Agreement for the purpose of effecting the reincorporation of
the Company in the State of Delaware; and
WHEREAS, the respective Boards of Directors of the Company and the
Delaware Corporation have, by resolutions duly adopted, approved this
Merger Agreement; the Company has adopted this Merger Agreement as the sole
stockholder of the Delaware Corporation and the Board of Directors of the
Company has directed that this Merger Agreement has submitted to a vote of
the the Company Common Stock shareholders.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, the Company and the Delaware Corporation hereby
agree as follows:
l. Merger. The Company shall be merged with and into the Delaware
Corporation (the "Merger"), and the Delaware Corporation shall be the
surviving corporation (hereafter sometimes referred to as the "Surviving
Corporation"). The Merger shall become effective upon the time and date of
filing with the Secretary of State of Delaware of a Certificate of Merger
under Section 252 of the General Corporation Law of the State of Delaware
(the "Effective Time").
2. Governing Documents.
(a) The Certificate of Incorporation of the Delaware
Corporation, as in effect immediately prior to the Effective Time, shall be
the Certificate of Incorporation of the Surviving Corporation without
change or amendment until thereafter amended in accordance with the
provisions thereof and applicable laws.
(b) The Bylaws of the Delaware Corporation, as in effect
immediately prior to the Effective Time, shall be the Bylaws of the
Surviving Corporation without change or amendment until thereafter amended
in accordance with the provisions thereof and applicable laws.
3. Succession. At the Effective Time, the separate corporate
existence of the Company shall cease, and the Delaware Corporation shall
possess all the rights, privileges, powers and franchises of a public and
private nature and be subject to all the restrictions, disabilities and
duties of the Company; and all the rights, privileges, powers and
franchises of the Company, and all property, real, personal and mixed, and
all debts due to the Company on whatever account, as well as share
subscriptions and all other things in action or belonging to the Company,
shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every other interest shall
thereafter be the property of the Surviving Corporation as if they were of
the Company, and the title to any real estate vested by deed or otherwise
in the Company, shall not revert or be in any way impaired by reason of the
General Corporation Law of the State of Delaware; but all rights of
creditors and all liens upon any property of the Company shall be preserved
unimpaired, and all debts, liabilities and duties of the Company shall
thence forth attach to the Surviving Corporation and may be enforced
against it to the same extent as if such debts, liabilities and duties had
been incurred or contracted by it. All corporate acts, plans, policies,
agreements, arrangements, approvals and authorizations of the Company, its
shareholders, Board of Directors and committees thereof, officers and
agents which were valid and effective immediately prior to the Effective
Time, shall be taken for all purposes as the acts, plans, policies,
agreements, arrangements, approvals and authorizations of the Delaware
Corporation and shall be as effective and binding thereon as the same were
with respect to the Company. The employees and agents of the Company shall
become the employees and agents of the Delaware Corporation and continue to
be entitled to the same rights and benefits which they enjoyed as employees
and agents of the Company. The officers and directors of the Company shall
become the officers and directors of the Surviving Corporation until such
time as successors are duly elected in accordance with the Bylaws of the
Surviving Corporation and any applicable laws. The requirements of any
plans or agreements of the Delaware Corporation involving the issuance or
purchase by the Company of certain shares of its capital stock shall be
satisfied by the issuance or purchase of a like number of shares of the
Delaware Corporation stock.
4. Further Assurances. From time to time, as and when required by
the Delaware Corporation, or by its successors and assigns, there shall be
executed and delivered on behalf of the Company such deeds and other
instruments, and there shall be taken or caused to be taken by it all such
further and other action, as shall be appropriate or necessary in order to
vest, perfect or confirm, of record or otherwise, in the Delaware
Corporation the title to and possession of all property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of the
Company and otherwise to carry out the purposes of this Merger Agreement,
and the officers of the Delaware Corporation are fully authorized in the
name and on behalf of the Company or otherwise, to take any and all such
action and to execute and deliver any and all such deeds and other
instruments.
5. Conversion of Stock. At the Effective Time, by virtue of the
Merger and without any action on the part of the holder thereof,
(a) Each share of the Company Common Stock outstanding
immediately prior to the Effective Time shall be changed and converted into
and shall be one fully paid and nonassessable share of Delaware Common
Stock, and
(b) The 100 shares of Delaware Common Stock presently issued
and outstanding in the name of the Company shall be cancelled and retired
and resume the status of authorized and unissued shares of Delaware Common
Stock, and no shares of Delaware Common Stock or other securities of the
Delaware Corporation shall be issued in respect thereof.
(c) Exchange of Certificates. The Company shall designate a
bank or trust company to act as agent for the holders of Shares in
connection with the Merger (the "Exchange Agent") to receive the funds to
which holders of the Company Common Stock shall become entitled pursuant
this Article 5. Such funds shall be invested by the Exchange Agent as
directed by the Company or the Surviving Corporation.
(1) Exchange Procedures. As soon as reasonably
practicable after the Effective Time, the Exchange Agent shall mail to each
holder of record of a Certificate or Certificates, whose shares of the
Company Common Stock were converted into the right to receive Delaware
Common Stock (i) a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall
pass, only upon delivery of the Certificates to the Exchange Agent and
shall be in such form and have such other provisions as the Company and the
Delaware Corporation may reasonably specify) and (ii) instructions for use
in effecting the surrender of Certificates in exchange for Delaware
Certificates. Upon surrender of a Certificate for cancellation to the
Exchange Agent or to such other agent or agents as may be appointed by the
Company, together with such letter of transmittal, duly executed, the
holder of such Certificate shall be entitled to receive in exchange
therefor the Delaware Certificate for each Share formerly represented by
such Certificate, and the Certificate so surrendered shall forthwith be
cancelled. If the Delaware Certificate is to be made to a person other than
the person in whose name the surrendered Certificate is registered, it
shall be a condition of exchange that the Certificate so surrendered shall
be properly endorsed or shall be otherwise in proper form for transfer and
that the person requesting such exchange shall have paid any transfer and
other taxes required by reason of the exchange of the Certificate to a
person other than the registered holder of the Certificate surrendered or
shall have established to the satisfaction of the Surviving Corporation
that such tax either has been paid or is not applicable. Until surrendered
as contemplated by this section, each Certificate shall be deemed, at any
time after the Effective Time, to represent only the right to receive a
Delaware Certificate as contemplated by this section.
(2) Transfer Books; No Further Ownership Rights in
Shares. At the Effective Time, the stock transfer books of the Company
shall be closed and thereafter there shall be no further registration of
transfers of Shares on the records of the Company. From and after the
Effective Time, the holders of Certificates which immediately prior to the
Effective Time represented Company Common Stock shall cease to have any
rights with respect to such Company Common Stock, except as otherwise
provided for herein or by applicable law. If, after the Effective Time,
Certificates are presented to the Surviving Corporation for any reason,
they shall be cancelled and exchanged as provided in this Article II.
(3) Termination of Fund; No Liability. At any time
following six months after the Effective Time, the Surviving Corporation
shall be entitled to require the Exchange Agent to deliver to it any
Delaware Certificates which had been made available to the Exchange Agent
and which have not been disbursed to holders of Certificates, and
thereafter such holders shall be entitled to look to the Surviving
Corporation (subject to abandoned property, escheat or other similar laws)
only as general creditors thereof with respect to the Delaware Certificates
payable upon due surrender of their Certificates, without any interest
thereon. None of the Surviving Corporation, the Company or the Exchange
Agent shall be liable to any holder of a Certificate for a Delaware
Certificate delivered to a public official pursuant to any applicable
abandoned property, escheat or similar laws.
(4) Lost Certificates. In the event any Certificate shall
have been lost, stolen or destroyed, upon the making and delivery of an
affidavit of that fact by the person claiming such Certificate to have been
lost, stolen or destroyed and, if required by the Company, the posting by
such person of a bond in such reasonable amount as the Company may direct
as indemnity against any claim that would be made against the Delaware
Corporation, the Surviving Corporation or the Company with respect to such
Certificate, the Exchange Agent shall issue, in exchange for such lost,
stolen or destroyed Certificate, a Delaware Certificate deliverable in
respect of such Certificate pursuant to this Article 5.
6. Conditions to Merger.
(1) The Merger shall have received the requisite approval
of the holders of the Company Common Stock and the Delaware Common
Stock.
(2) The holders of not more than 100,000 shares of the
Company Common Stock shall have exercised the right of appraisal under
Maryland law by delivering a notice of objection to the Company at or prior
to the stockholders meeting held to approve this Agreement.
7. Stock Certificates. At and after the Effective Time, all of the
outstanding certificates which immediately prior to the Effective Time
represented the Company Common Stock shall be deemed for all purposes to
evidence ownership of, and to represent, Delaware Common Stock, into which
the Company Common Stock formerly represented by such certificates have
been converted as herein provided. The registered owner on the books and
records of the Delaware Corporation or its transfer agents of any such
outstanding stock certificate shall, until such certificate shall have been
surrendered for transfer or otherwise accounted for to the Delaware
Corporation or its transfer agents, have and be entitled to exercise any
voting and other rights with respect to and to receive any dividends and
other distributions upon the shares of Delaware Common Stock, evidenced by
such outstanding certificate as above provided.
8. Board of Directors and Officers. The members of the Board of
Directors and the officers of the Surviving Corporation immediately after
the Effective Time of the Merger shall be the persons who were the members
of the Board of Directors and the officers, respectively, of the Company
immediately prior to the Effective Time, and such persons shall serve in
such offices, respectively, for the terms provided by law or in the Bylaws,
or until their respective successors are elected and qualified.
9. Options. Upon the Effective Time, each outstanding option
("Option") of the Company to purchase the Company Common Stock shall be
converted into and become an option to purchase the same number of shares
of Delaware Common Stock at the same exercise price, and upon the same
terms and subject to the same conditions as set forth in each Option as in
effect on the Effective Time. As of the Effective Time, the Delaware
Corporation shall assume all of the obligations of the Company under the
Warrants.
10. Other Employee Benefit Plans. As of the Effective Time, the
Delaware Corporation hereby assumes all obligations of the Company under
any and all employee benefit plans in effect as of the Effective Time or
with respect to which employee rights or accrued benefits are outstanding
as of the Effective Time.
11. Amendment. Subject to applicable law, this Merger Agreement may
be amended, modified or supplemented by written agreement of the parties
hereto at any time prior to the Effective Time with respect to any of the
terms contained herein.
12. Abandonment. At any time prior to the Effective Time, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either the Company or the Delaware Corporation, or both,
notwithstanding approval of this Merger Agreement by the stockholders of
the Delaware Corporation or the shareholders of the Company or both, if
circumstances arise which, in the opinion of the Board of Directors of the
Company make the Merger inadvisable.
13. Counterparts. In order to facilitate the filing and recording of
this Merger Agreement the same may be executed in two or more counterparts,
each of which shall be deemed to be an original and the same agreement.
IN WITNESS WHEREOF, the Company and the Delaware Corporation
have caused this Merger Agreement to be signed by their respective duly
authorized officers as of the date first above written.
COMMERCIAL ASSETS, INC.
A Maryland Corporation
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Xxxxx Xxxxxxxxx
Chairman and Chief Executive
Officer
ATTEST:
By: /s/ Xxxxx X. Xxxxxx
------------------
Xxxxx X. Xxxxxx
Secretary
COMMERCIAL ASSETS, INC.,
A Delaware Corporation
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Xxxxx Xxxxxxxxx
Chairman and Chief Executive
Officer
ATTEST:
By: /s/ Xxxxx X. Xxxxxx
----------------------
Xxxxx X. Xxxxxx
Secretary
