EXHIBIT 2.6
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made as of
this 7th day of December, 2000, by and between ASPi Europe, Inc., a Florida
corporation (the "Parent") and ASPi Europe, Inc., a Delaware corporation (the
"Subsidiary").
RECITALS:
WHEREAS, the Parent is a corporation organized and existing under the laws
of the State of Florida;
WHEREAS, the Subsidiary is a corporation organized and existing under the
laws of the State of Delaware and is a wholly-owned subsidiary of the Parent;
WHEREAS, the parties hereto desire that the Parent merge with and into the
Subsidiary and that the Subsidiary shall continue as the surviving corporation
in such merger, which is intended to qualify as a tax-free reorganization under
Section 368(a)(1)(F) or 368(a)(1)(A) of the Internal Revenue Code of 1986, as
amended, upon the terms and subject to the conditions herein set forth and in
accordance with the laws of the State of Florida and the laws of the State of
Delaware (the "Merger").
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
PRINCIPAL TERMS OF THE MERGER
Section 1.1. Merger of Parent into Subsidiary. At the Effective Time of the
Merger (as defined in Section 1.2 hereof), the Parent shall merge with and into
the Subsidiary in accordance with the Florida Business Corporation Act (the
"FBCA") and the Delaware General Corporation Law (the "DGCL"). The separate
existence of the Parent shall thereupon cease and the Subsidiary shall be the
surviving corporation (hereinafter sometimes referred to as the "Surviving
Corporation") and shall continue its corporate existence under the laws of the
State of Delaware.
Section 1.2. Effective Time of the Merger. The Merger shall become
effective as of the date and time (the "Effective Time of the Merger") the
following actions are completed: (a) appropriate articles of merger are filed
with the Secretary of State of the State of Florida, and a certificate of merger
is issued by the Secretary of State of the State of Florida in accordance with
the FBCA and (b) an appropriate certificate of merger is filed with the
Secretary of the State of Delaware in accordance with the DGCL.
Section 1.3. Effects of the Merger. At the Effective Time of the Merger,
the Merger shall have the effects specified in the FBCA, the DGCL and this
Merger Agreement.
Section 1.4. Certificate of Incorporation and Bylaws. At the Effective Time
of the Merger, the Certificate of Incorporation and Bylaws of the Subsidiary, as
in effect immediately prior to the Effective Time of the Merger, shall become
the Certificate of Incorporation and Bylaws of the Surviving Corporation until
duly amended in accordance with their terms and as provided by the DGCL.
Section 1.5. Directors and Officers. At the Effective Time of the Merger,
the directors and officers of the Subsidiary in office at the Effective Time of
the Merger shall become the directors and officers, respectively, of the
Surviving Corporation, each of such directors and officers to hold office,
subject to the applicable provisions of the Certificate of Incorporation and
bylaws of the Surviving
Corporation and the DGCL, until his or her successor is duly elected or
appointed and qualified.
Section 1.6 Shareholders' Dissenters Rights. The Shareholders of the Parent
are entitled to dissenters' rights under sections 607.1301, 607.1302 and
607.1320 of the FBCA. In the event that shareholders collectively owning more
than one percent (1%) of the shares of the Parent exercise his, her or its
dissenters' rights, the Parent's board of directors may abandon the Merger in
its sole discretion.
ARTICLE II
CONVERSION AND EXCHANGE OF STOCK
Section 2.1. Conversion. At the Effective Time of the Merger, each of the
following transactions shall be deemed to occur simultaneously:
(a) Each share of the Parent's common stock, $0.001 par value (the
"Parent's Common Stock") issued and outstanding, immediately prior to the
Effective Time of the Merger shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into and become one
validly issued, fully paid and nonassessable share of the Subsidiary's common
stock, par value $0.001 per share (the "Subsidiary's Common Stock").
(b) Each option to purchase shares of the Parent's Common Stock outstanding
immediately prior to the Effective Time of the Merger shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and become an option to purchase, upon the same terms and conditions, the
number of shares of the Subsidiary's Common Stock, which is equal to the number
of shares of the Parent's Common Stock that the optionee would have received had
the optionee exercised such option in full immediately prior to the Effective
Time of the Merger (whether or not such option was then exercisable). The
exercise price per share under each of said options shall be equal to the
exercise price per share thereunder immediately prior to the Effective Time of
the Merger.
(c) Each warrant to purchase shares of the Parent's Common Stock
outstanding immediately prior to the Effective Time of the Merger shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into and become a warrant to purchase, upon the same terms and
conditions, the number of shares of the Subsidiary's Common Stock which is equal
to the number of shares of the Parent's Common Stock that the warrant holder
would have received had the warrant holder exercised such warrant in full
immediately prior to the Effective Time of the Merger (whether or not such
warrant was then exercisable). The exercise price per share under each of said
warrants shall be equal to the exercise price per share thereunder immediately
prior to the Effective Time of the Merger.
(d) Each share of the Subsidiary's Common Stock issued and outstanding
immediately prior to the Effective Time of the Merger and held by the Parent
shall be canceled without any consideration being issued or paid therefor.
Section 2.2. Exchange.
(a) After the Effective Time of the Merger, each certificate theretofore
representing issued and outstanding shares of the Parent's Common Stock shall
represent the same number of shares of the Subsidiary's Common Stock.
(b) At any time on or after the Effective Time of the Merger, any holder of
certificates theretofore evidencing ownership of shares of the Parent's Common
Stock will be entitled, upon surrender of such certificates to the transfer
agent of the Surviving Corporation, to receive in exchange therefor one or more
new stock certificates evidencing ownership of the number of shares of the
Subsidiary's Common Stock, into which the Parent's Common Stock shall have been
converted in the Merger. If any certificate representing shares of the
Subsidiary's Common Stock is to be issued in a name other than that in which the
certificate surrendered in exchange therefor is registered, it shall be a
condition of the issuance thereof that the certificate so surrendered shall be
properly endorsed and otherwise in proper form for transfer and that the person
requesting such exchange shall pay to the transfer agent any transfer or other
taxes required by reason of the issuance of a certificate representing shares of
the Parent's Common Stock in any name other than that of the registered holder
of the certificate surrendered, or otherwise required, or shall establish to the
satisfaction of the transfer agent that such tax has been paid or is not
payable.
ARTICLE III
EMPLOYEE BENEFIT AND INCENTIVE COMPENSATION PLANS
At the Effective Time of the Merger, each employee benefit plan, incentive
compensation plan and other similar plans to which the Parent is then a party
shall be assumed by, and continue to be the plan of, the Surviving Corporation.
To the extent any employee benefit plan, incentive compensation plan or other
similar plan of the Parent provides for the issuance or purchase of, or
otherwise relates to, the Parent's Common Stock, after the Effective Time of the
Merger such plan shall be deemed to provide for the issuance or purchase of, or
otherwise relate to, the Subsidiary's Common Stock.
ARTICLE IV
CONDITIONS
Consummation of the Merger is subject to the satisfaction at or prior to
the Effective Time of the Merger of the following conditions:
Section 4.1. Shareholder Approval. This Merger Agreement and the Merger
shall have been adopted and approved by the affirmative vote of a majority of
the votes entitled to be cast by all shareholders entitled to vote on the record
date fixed for determining the shareholders of the Parent entitled to vote
thereon. This Agreement and the Merger shall also have been adopted and approved
by the Parent as the holder of all the outstanding shares of the Subsidiary's
Common Stock prior to the Effective Time of the Merger.
Section 4.2. Third Party Consents. The Parent shall have received all
required consents to and approvals of the Merger.
ARTICLE V
MISCELLANEOUS
Section 5.1. Amendment. This Merger Agreement may be amended, modified or
supplemented in whole or in part, at any time prior to the Effective Time of the
Merger with the mutual consent of the boards of directors of the parties hereto;
provided, however, that the Merger Agreement may not be amended after it has
been adopted by the shareholders of the Parent in any manner which, in the
judgment of the board of directors of the Parent, would have a material adverse
effect on the rights of such shareholders or in any manner not permitted under
applicable law.
Section 5.2. Termination. This Merger Agreement may be terminated or
abandoned by the parties hereto at any time prior to the filing of the
certificate of merger notwithstanding approval of this Merger
Agreement by the shareholders of either or both of the Parent or the Subsidiary.
Section 5.3. Necessary Actions, etc. If at any date after the Effective
Time of the Merger, the Surviving Corporation shall consider that any
assignments, transfers, deeds or other assurances in law are necessary or
desirable to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, title to any property or rights of the Parent, the Parent and its
officers and directors at the Effective Time of the Merger shall execute and
deliver such documents and do all things necessary and proper to vest, perfect
or confirm title to such property or rights in the Surviving Corporation, and
the officers and directors of the Surviving Corporation are fully authorized in
the name of the Parent or otherwise to take any and all such action.
Section 5.4. Counterparts. This Merger Agreement may be executed in any
number of counterparts, each of which shall be considered to be an original
instrument.
Section 5.5. Descriptive Headings. The descriptive headings are for
convenience of reference only and shall not control or affect the meaning or
construction of any provision of this Merger Agreement.
Section 5.6. Governing Law. This Merger Agreement shall be construed in
accordance with the laws of the State of Delaware, except to the extent the laws
of the State of Florida shall mandatorily apply to the Merger.
IN WITNESS WHEREOF, the undersigned officers of each of the parties to this
Merger Agreement, pursuant to authority duly given by their respective boards of
directors, have caused this Merger Agreement to be duly executed on the date set
forth above.
Attested to by: ASPI EUROPE, INC.,
a Florida corporation
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Xxxxxxx XxXxxxx Xxxxx Xxxxx
Secretary Chief Executive Officer and President
Attested to by: ASPI EUROPE, INC.,
a Delaware corporation
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Xxxxxxx XxXxxxx Xxxxx Xxxxx
Secretary Chief Executive Officer and President
CERTIFICATES
The undersigned, Secretary of ASPi Europe, Inc., a Florida corporation,
hereby certifies, pursuant to Section 252(c) of the General Corporation Law of
the State of Delaware, that the foregoing Agreement and Plan of Merger to which
this Certificate is attached, after having been first duly signed on behalf of
ASPi Europe, Inc. by its President and attested to by its Secretary, was duly
submitted to the shareholders of ASPi Europe, Inc. at a meeting thereof called
for the purpose of considering and acting upon said Agreement and Plan of
Merger, held after due notice on the 26th day of September, 2000, and that at
said meeting said Agreement and Plan of Merger was adopted by the shareholders
of ASPi Europe, Inc. in accordance with the Florida Business Corporation Act of
1989.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on the
____ day of ____________, 2000.
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Xxxxxxx XxXxxxx, Secretary
The undersigned, Secretary of ASPi Europe, Inc., a Delaware corporation,
hereby certifies, pursuant to Section 252(c) of the General Corporation Law of
the State of Delaware, that the foregoing Agreement and Plan of Merger to which
this Certificate is attached, after having been first duly signed on behalf of
ASPi Europe, Inc. by its Chief Executive Officer and attested to by its
Secretary, was duly submitted to the sole stockholder of ASPi Europe, Inc. for
the purpose of considering and acting upon said Agreement and Plan of Merger, on
the 5th day of December, 2000, and through a written consent said Agreement and
Plan of Merger was adopted by the sole stockholder of ASPi Europe, Inc., in
accordance with the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on the
_____ day of _______________, 2000.
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Xxxxxxx XxXxxxx, Secretary
