EXHIBIT 3.7
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN MERGER (the "Agreement"), dated as of November
__, 1999, is entered into by and between Holiday RV Superstores, Incorporated, a
Florida corporation ("Holiday Florida") and Holiday RV Superstores, Inc., a
Delaware corporation ("Holiday-Delaware").
WITNESSETH:
WHEREAS, Holiday Florida is a corporation duly organized and existing
under the laws of the State of Florida;
WHEREAS, the respective Boards of Directors of Holiday Florida and
Holiday Delaware have determined that it is advisable and in the best interests
of each of such corporations that Holiday Florida merge with and into Holiday
Delaware (the "Merger") upon the terms and subject to the conditions set forth
in this Agreement for the purpose of effecting the change of the state of
incorporation of Holiday Florida from Florida to Delaware;
WHEREAS, the respective Boards of Directors of Holiday Florida and
Holiday Delaware have, by resolutions duly adopted, approved this Agreement,
subject to the approval of the shareholders of each of Holiday Delaware and
Holiday Florida; and
WHEREAS, this Agreement is intended as a tax free plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Holiday Florida and Holiday Delaware hereby agree as follows:
1. MERGER. Holiday Florida shall be merged with and into Holiday
Delaware and Holiday Delaware shall be the surviving corporation (hereinafter
sometimes referred to as the "Surviving Corporation"). The Merger shall become
effective upon the date and time when this Agreement is made effective in
accordance with applicable law (the "Effective Time").
2. GOVERNING DOCUMENTS; EXECUTIVE OFFICERS AND DIRECTORS. The
Certificate of Incorporation of Holiday Delaware, from and after 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. The Bylaws of Holiday Delaware from and
after the Effective Time, shall be the Bylaws of the Surviving Corporation
without change or amendment until thereafter amended in accordance with the
provisions thereof, or the Certificate of Incorporation of the Surviving
Corporation and applicable laws. The executive officers, directors and members
of committees of the Board of Directors of Holiday Florida, as of the Effective
Time, shall become the executive officers, directors and members of committees
of the Board of Directors of the Surviving Corporation, from and after the
Effective Time, until their respective successors have been duly elected and
qualify, unless they earlier die, resign or are removed.
3. SUCCESSION. At the Effective Time, the separate corporate
existence of Holiday Florida shall cease, and Holiday Delaware shall possess all
the rights, privileges, powers and franchises of a
public and private nature of Holiday Florida; and all property, real, personal
and mixed, and all debts due to Holiday Florida on whatever account, as well as
for share subscriptions as all other things in action belonging to Holiday
Florida, shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every interest shall be
thereafter as effectually the property of the Surviving Corporation as they were
of Holiday Florida, and the title to any real estate vested by deed or otherwise
in Holiday Florida shall not revert or be in any way impaired by reason of the
Merger; but all rights of creditors and all liens upon any property of Holiday
Florida shall be preserved unimpaired, and all debts, liabilities and duties of
Holiday Florida shall thenceforth 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 Holiday Florida 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, approvals and
authorizations of the Surviving Corporation and shall be as effective and
binding thereon as the same were with respect to Holiday Florida. The employees
and agents of Holiday Florida shall become the employees and agents of the
Surviving Corporation and continue to be entitled to the same rights and
benefits which they enjoyed as employees and agents of Holiday Florida. The
requirements of any plans or agreements of Holiday Florida involving the
issuance or purchase by Holiday Florida of certain shares of its capital stock
shall be satisfied by the issuance or purchase of a like number of shares of the
Surviving Corporation.
4. FURTHER ASSURANCES. From time to time, as and when required by the
Surviving Corporation or by its successors or assigns, there shall be executed
and delivered on behalf of Holiday Florida 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, advisable or necessary in order to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation the
title to and possession of all property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Holiday Florida, and otherwise
to carry out the purposes of this Agreement, and the officers and directors of
the Surviving Corporation are fully authorized in the name and on behalf of
Holiday Florida 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 SHARES. 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 common stock, par value $.01 per share
(the "Holiday Florida Common Stock") of Holiday Florida outstanding
immediately prior to the Effective Time shall be changed and converted
into and shall be one fully paid and nonassessable share of common
stock, par value $.01 per share (the "Holiday Delaware Common Stock")
of Holiday Delaware and no fractional shares shall be issued and
fractions of half or more shall be rounded to a whole share and
fractions of less than half shall be disregarded, such that the issued
and outstanding capital stock of Holiday Delaware resulting from the
conversion of the capital stock of Holiday Florida upon the Effective
Time shall be equal to the number of shares of Common Stock at that
time; and
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(b) As of the Effective Time, Holiday Delaware hereby assumes
all obligations under any and all employee benefit plans of Holiday
Florida in effect as of the Effective Time or with respect to which
employee rights or accrued benefits are outstanding as of the Effective
Time and shall continue the stock option plans of Holiday Florida. Each
outstanding and unexercised option, warrant or other right to purchase,
or security convertible into Holiday Florida Common Stock shall become
an option, warrant or right to purchase, or a security convertible into
the Surviving Corporation's Common Stock on the basis of one share of
the Surviving Corporation's Common Stock for each share of Holiday
Florida Common Stock issuable pursuant to any such option, warrant or
stock purchase right or convertible security, on the same terms and
conditions and at an exercise or conversion price per share equal to
the exercise or conversion price per share applicable to any such
Holiday Florida option, warrant, stock purchase right or other
convertible security at the Effective Time. A number of shares of the
Surviving Corporation's Common Stock shall be reserved for issuance
upon the exercise of options, warrants, stock purchase rights and
convertible securities equal to the number of shares of Holiday Florida
Common Stock so reserved immediately prior to the Effective Time.
(c) The shares of Holiday Delaware Common Stock presently
issued and outstanding in the name of Holiday Florida shall be canceled
and retired and resume the status of authorized and unissued shares of
Holiday Delaware Common Stock, and no shares of Holiday Delaware Common
Stock or other securities of Holiday Florida shall be issued in respect
thereof.
6. STOCK CERTIFICATES. As of and after the Effective Time, all of the
outstanding certificates which, immediately prior to the Effective Time,
represented shares of Holiday Florida Common Stock shall be deemed for all
purposes to evidence ownership of, and to represent, shares of Holiday Delaware
Common Stock into which the shares of Holiday Florida Common Stock formerly
represented by such certificates, have been converted as herein provided. The
registered owner on the books and records of the Surviving 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 Surviving 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 Holiday Delaware Common
Stock evidenced by such outstanding certificate as above provided.
7. SHAREHOLDER APPROVAL. This Agreement has been approved by Holiday
Florida under Section 607.1103 of the Florida Business Corporation Act by the
shareholders representing in excess of 50% of the issued and outstanding voting
securities of Holiday Florida entitled to vote on this Agreement. This Agreement
has been approved by Holiday Delaware under Section 253 of the General
Corporation Law of the State of Delaware. The signature of Holiday Florida on
this Agreement shall constitute its written consent as sole shareholder of
Holiday Delaware, to this Agreement and the Merger.
8. AMENDMENT. To the full extent permitted by applicable law, this
Agreement may be amended, modified or supplemented by written agreement of the
parties hereto, either before or after
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approval of the shareholders of the constituent corporations and at any time
prior to the Effective Time with respect to any of the terms contained herein.
9. ABANDONMENT. At any time prior to the Effective Time, this Agreement
may be terminated and the Merger may be abandoned by the Boards of Directors of
Holiday Florida or Holiday Delaware, notwithstanding approval of this Agreement
by the shareholders of Holiday Delaware or by the shareholders of Holiday
Florida, or both, if, in the opinion of either of the Boards of Directors of
Holiday Florida or Holiday Delaware, circumstances arise which in the opinion of
such Boards of Directors, make the Merger for any reason inadvisable.
10. COUNTERPARTS. In order to facilitate the filing and recording of
this 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.
11. FLORIDA APPOINTMENT. Holiday Delaware hereby agrees that it may be
served with process in the State of Florida in any action or special proceeding
for enforcement of any liability or obligation of Holiday Florida or Holiday
Delaware arising from the Merger. Holiday Delaware appoints the Secretary of
State of the State of Florida as its agent to accept service of process in any
such suit or other proceeding and a copy of such process shall be mailed by the
Secretary of State of Florida to Holiday Delaware at 0000 Xxxxxxxxxx Xxxxxxx,
Xxxxxxx, Xxxxxxx 00000.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, Holiday Florida and Holiday Delaware have caused
this Agreement to be executed and delivered at Orlando, Florida by their
respective duly authorized officers as of the date first above written.
HOLIDAY RV SUPERSTORES, INCORPORATED
a Florida corporation
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Chairman
HOLIDAY RV SUPERSTORES, INC.,
a Delaware corporation
By: /s/ XXXXXXX X. XXXXX
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Xxxxxxx X. Xxxxx
Chairman
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