EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made as of
this day of December 3, 2004, by and between J Net Enterprises, Inc., a
Nevada corporation (the "Nevada Corporation"), and Epoch Holding
Corporation, a Delaware corporation (the "Delaware Corporation").
W I T N E S S E T H:
WHEREAS, the Nevada Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Nevada, and on the date of this Agreement has authority to issue sixty
million (60,000,000) shares of common stock, par value $0.01 per share
(the "Nevada Common Stock"), and one million (1,000,000) shares of
preferred stock, $1.00 par value per share (the "Nevada Preferred Stock"),
of which 17,834,737 shares of the Nevada Common Stock are issued and
outstanding and no shares of Nevada Preferred Stock is issued and
outstanding;
WHEREAS, the Delaware Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, and has authority to issue sixty million (60,000,000) shares of
common stock, par value $0.01 per share (the "Delaware Common Stock"), and
one million (1,000,000) shares of preferred stock, $1.00 par value per
share (the "Delaware Preferred Stock"), of which 100 shares of the Delaware
Common Stock are issued and outstanding and owned by the Nevada
Corporation;
WHEREAS, the respective Boards of Directors of the Nevada Corporation
and the Delaware Corporation have determined that, for purposes of
effecting the reincorporation of the Nevada Corporation in the State of
Delaware, it is advisable, to the advantage of and in the best interests
of the Delaware Corporation and its stockholder and the Nevada Corporation
and its stockholders that the Nevada Corporation merge with and into the
Delaware Corporation upon the terms and subject to the conditions herein
provided;
WHEREAS, the parties intend, by executing this Agreement, to adopt a
plan of reorganization within the meaning of Section 368 of the Internal
Revenue Code of 1986, as amended (the "Code"), and to cause the merger
described herein to qualify as a reorganization under the provisions of
Section 368 of the Code; and
WHEREAS, the respective Boards of Directors of the Nevada Corporation
and the Delaware Corporation and the stockholder of the Delaware
Corporation have unanimously adopted and approved this Agreement, and the
Board of Directors of the Nevada Corporation has directed that this
Agreement be submitted to the stockholders of the Nevada Corporation for
their consideration;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and intending to be legally bound, the Nevada
Corporation and the Delaware Corporation hereby agree as follows:
1. Merger. Subject to the approval of the stockholders of the
Nevada Corporation in accordance with the Nevada Revised Statutes (the
"NRS"), at such time thereafter as the parties hereto shall mutually
agree, the Nevada Corporation shall be merged with and into the Delaware
Corporation (the "Merger"), and the Delaware Corporation shall be the
surviving company (hereinafter sometimes referred to as the "Surviving
Corporation"). The Merger shall be effective upon (a) the filing of this
Agreement together with Articles of Merger (the "Articles of Merger") with
the office of the Secretary of State of the State of Nevada in accordance
with the provisions of Chapter 92-A of the NRS; and (b) the filing of a
duly certified counterpart of this Agreement and a duly executed
Certificate of Merger (the "Certificate of Merger") with the Secretary of
State of the State of Delaware in accordance with the applicable
provisions of the Delaware General Corporation Law (the "DCGL"); the date
and time of the later of such filings being hereinafter referred to as the
"Effective Date." Immediately following the due approval of the Merger by
the stockholders of the Nevada Corporation, subject to the provisions of
this Agreement, the Articles of Merger shall be duly executed by the
Delaware Corporation and the Nevada Corporation and thereafter delivered
to the office of the Secretary of State of the State of Nevada, as
provided in Chapter 92-A of the NRS, and the Certificate of Merger
shall be duly executed by the Delaware Corporation and the Nevada
Corporation and thereafter delivered to the office of the Secretary of
State of Delaware, pursuant to Section 251 of the DGCL.
2. Governing Documents.
a. The Certificate of Incorporation of the Delaware Corporation,
a copy of which is attached hereto as Exhibit A, shall be the Certificate
of Incorporation of the Surviving Corporation.
b. The By-Laws of the Delaware Corporation, a copy of which is
attached hereto as Exhibit B, shall be the By-Laws of the Surviving
Corporation.
3. Officers and Directors. The directors of the Nevada Corporation
immediately prior to the Effective Date shall be the directors of the
Surviving Corporation and the officers of the Nevada Corporation
immediately prior to the Effective Date shall be the officers of the
Surviving Corporation. Such directors and officers will hold office from
the Effective Date until their respective successors are duly elected or
appointed and qualified in the manner provided in the Certificate of
Incorporation and By-Laws of the Surviving Corporation, as the same may be
lawfully amended, or as otherwise provided by law.
4. Succession. As of the Effective Date, the separate existence of
the Nevada Corporation shall cease and the Nevada Corporation shall be
merged with and into the Delaware Corporation, and the name of the
Surviving Corporation shall be Epoch Holding Corporation. The Surviving
Corporation shall have all of the rights, privileges, immunities and powers
and be subject to all of the duties and liabilities granted or imposed by
Section 259 of the DGCL.
5. Further Assistance. From and after the Effective Date, as and
when required by the Delaware Corporation or by its successor and assigns,
there shall be executed and delivered on behalf of the Nevada Corporation
such deeds and other instruments, and there shall be taken or caused to be
taken by it 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 the property,
interests, assets, rights, privileges, immunities, power, franchises and
authority of the Nevada Corporation, and otherwise to carry out the
purposes of this Agreement, and the officers and directors of the Delaware
Corporation are fully authorized in the name and on behalf of the Nevada
Corporation or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
6. Capital Stock. At the Effective Date, by virtue of the Merger and
without any action on the part of the holder thereof, each share of Nevada
Common Stock outstanding immediately prior thereto shall be changed and
converted into one fully paid and non-assessable share of Delaware Common
Stock. At the Effective Date, any shares of treasury stock presently held
by the Nevada Corporation shall be canceled and retired and no shares of
Delaware Common Stock or other securities of Delaware Common Stock shall be
issued in respect thereof.
7. Outstanding Stock of the Delaware Corporation. At the Effective
Date, the 100 shares of the Delaware Common Stock presently issued and
outstanding in the name of the Nevada Corporation shall be canceled 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
Delaware Common Stock shall be issued in respect thereof.
8. Stock Certificates. From and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of
Nevada Common Stock shall be deemed for all purposes to evidence ownership
and to present the shares of Delaware Common Stock into which such shares
of Nevada Common Stock 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 agent 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 agent, have and be entitled to exercise any voting and other
rights with respect to and to receive any dividend and other distributions
upon the shares of Delaware Common Stock evidenced by such outstanding
certificates as above provided.
9. Options. At the Effective Date, each outstanding option or other
right to purchase shares of Nevada Common Stock, including options granted
and outstanding under the 2004 Omnibus Long-Term Compensation Plan and the
1992 Incentive and Non-Qualified Stock Option Plan (collectively, the
"Nevada Option Plans"), shall, by virtue of the Merger and without any
action on part of the holder thereof, be converted into and become an
option or right to purchase the same number of shares of Delaware Common
Stock at a price per share equal to the exercise price of the option or
right to purchase Nevada Common Stock and upon the same terms and subject
to the same conditions as set forth in the Nevada Option Plans and the
agreements entered into by the Nevada Corporation pertaining to such
options or rights. A number of shares of Delaware Common Stock shall be
reserved for purposes of such options and rights equal to the number of
shares of Nevada Common Stock so reserved immediately prior to the
Effective Date. As of the Effective Date, the Delaware Corporation shall
assume all obligations of the Nevada Corporation under agreements
pertaining to such options and rights, including the Nevada Option Plans,
and the outstanding options or other rights, or portions
hereof, granted pursuant thereto.
10. Validity of Delaware Common Stock. All shares of Delaware Common
Stock into which Nevada Common Stock is to be converted pursuant to the
Merger shall not be subject to any statutory or contractual preemptive
rights, shall, when issued, be validly issued, fully paid and nonassessable
and shall be issued in full satisfaction of all rights pertaining to such
Nevada Common Stock.
11. Rights of Former Holders. From and after the Effective Date, no
holder of certificates which evidenced Nevada Common Stock immediately
prior to the Effective Date shall have any rights with respect to the
shares formerly evidenced by those certificates, other than to receive the
shares of Delaware Common Stock into which such Nevada Common Stock shall
have been converted pursuant to the Merger.
12. Covenants of the Delaware Corporation. The Delaware Corporation
covenants and agrees that, effective not later than the Effective Date, it
will (a) qualify to do business as a foreign corporation in all states in
which the Nevada Corporation is so qualified and in which failure so to
qualify would have a material adverse effect on the business or financial
condition of the Delaware Corporation and its subsidiaries, taken together
as a whole, and, in connection therewith, shall irrevocably appoint an
agent for service of process as required under applicable provisions of
state law in the states in which qualification is required hereunder; and
(b) file any and all documents with the Nevada Franchise Tax Board
necessary to the assumption by the Delaware Corporation of all of the
franchise tax liabilities of the Nevada Corporation.
13. Condition. It shall be a condition precedent to the consummation
of the Merger and the other transactions contemplated in this Agreement
that the shares of Delaware Common Stock to be issued by Epoch Holding
Corporation shall, upon official notice of issuance, be listed for
quotation on the Over-the-Counter Bulletin Board as of the Effective Date.
14. Waiver and Amendment. At any time prior to the Effective Date and
after approval and adoption of this Agreement by the stockholders of the
Nevada Corporation, this Agreement may be amended in any manner as may be
determined in the judgment of the respective Boards of Directors of the
Delaware Corporation and the Nevada Corporation to be necessary, desirable
or expedient in order to clarify the intention of the parties hereto or to
effect or facilitate the purposes and intent of this Agreement without
action by the respective stockholders of the parties, except that any (a)
amendments to Section 6, (b) amendments changing the terms, rights, powers
or preferences of Delaware Common Stock or Delaware Preferred Stock, or
amendments altering any terms of this Agreement if such alteration would
adversely affect the holders of the capital stock of the Nevada Company or
the Delaware Company, must be approved by the holders of a majority of the
Nevada Common Stock.
15. Abandonment and Termination. At any time before the Effective
Date, this Agreement may be terminated and the Merger may be abandoned by
the Board of Directors of either the Nevada Corporation or the Delaware
Corporation or both, notwithstanding approval of this Agreement by the sole
stockholder of the Delaware Corporation and the stockholders of the Nevada
Corporation.
16. Counterparts. In order to facilitate the filing and recording of
this Agreement, this Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original.
17. Headings. The paragraph headings in the Agreement are intended
principally for convenience and shall not, by themselves, determine rights
and obligations of the parties to this Agreement.
18. Third Parties. Except as provided in this Agreement, nothing
herein expressed or implied is intended or shall be construed to confer
upon or give any person, firm or corporation, other than the parties hereto
or their respective successors and assigns, any rights or remedies under or
by reason of this Agreement.
19. Governing Law. The Merger shall be governed by, and construed in
accordance with the laws of the State of Delaware.
20. Approval of Nevada Corporation as the Sole Stockholder of the
Delaware Corporation. By its execution and delivery of this Agreement, the
Nevada Corporation, as the sole stockholder of the Delaware Corporation,
consents to, approves and adopts this Agreement and approves the Merger,
subject to the approval and adoption of this Agreement by the holders of a
majority of the shares of the Nevada Common Stock. The Nevada Corporation
agrees to execute such instruments as may be necessary or desirable to
evidence its approval and adoption of this Agreement and Merger as the sole
stockholder of the Delaware Corporation.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be executed as of this day and year
first above written.
J NET ENTERPRISES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
_______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
EPOCH HOLDING CORPORATION
By: /s/ Xxxx X. Xxxxxx
_______________________________
Name: Xxxx X. Xxxxxx
Title: President
Exhibit A
CERTIFICATE OF INCORPORATION
OF
EPOCH HOLDING CORPORATION
Pursuant to Section 102 of the General Corporation Law of the
State of Delaware
_____________________________________________________________
The undersigned, in order to form a corporation pursuant to Section
102 of the General Corporation Law of the State of Delaware, does hereby
certify:
FIRST: The name of the corporation is Epoch Holding Corporation
(the "Corporation").
SECOND: The address of the registered office of the Company in
the State of Delaware is c/o National Registered Agents, Inc., 0 Xxxx
Xxxxxxxxxx Xxxxxx, Xxxxx 0X, Xxxxx, Xxxxxxxx 00000, County of Kent.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares which the Corporation shall
have authority to issue is 61,000,000 shares of capital stock consisting of
60,000,000 shares of common stock, $0.01 par value per share (the "Common
Stock"); and 1,000,000 shares of preferred stock, $1.00 par value per share
(the "Preferred Stock").
Authority is hereby vested in the Board of Directors of the
Corporation to provide for the issuance of shares of Preferred Stock and in
connection therewith to fix by resolution providing for the issue of such
class, the number of shares to be included and such of the preferences and
relative participating, optional or other special rights and limitations of
such class, including, without limitation, dividends, voting rights, rights
of redemption, or conversion into Common Stock, to the fullest extent now
or hereafter permitted by the Delaware General Corporation Law.
FIFTH: The name and mailing address of the Incorporator is as
follows:
Name Address
Xxxx Xxxxxxxxxxx J Net Enterprises, Inc.
0000 Xxxxxx Xxxxxxx #000
Xxxxx, Xxxxx 00000
SIXTH: The Corporation is to have perpetual existence.
SEVENTH: The Corporation expressly elects not to be subject to
the provisions of Section 203 of the Delaware General Corporation Law.
EIGHTH: The board of directors is expressly authorized to adopt,
amend or repeal the by-laws of the Corporation.
NINTH: Elections of directors need not be by written ballot
unless the by-laws of the Corporation shall otherwise provide.
TENTH: No director of the Corporation shall be liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
General Corporation Law, or (iv) for any transaction from which the
director derived an improper personal benefit.
ELEVENTH: Except as may otherwise be specifically provided in
this Certificate of Incorporation, no provision of this Certificate of
Incorporation is intended by the corporation to be construed as limiting,
prohibiting, denying or abrogating any of the general or specific powers or
rights conferred under the General Corporation Law upon the Corporation,
upon its stockholders, bondholders and security holders, and upon its
directors, officers and other corporate personnel, including, in
particular, the power of the Corporation to furnish indemnification to
directors and officers in the capacities defined and prescribed by the
General Corporation Law and the defined and prescribed rights of said
persons to indemnification as the same are conferred under the General
Corporation Law. The Corporation shall, to the fullest extent permitted by
the laws of the State of Delaware, including, but not limited to Section
145 of the General Corporation Law, as the same may be amended and
supplemented, indemnify any and all directors and officers of the
Corporation and may, in the discretion of the board of directors, indemnify
any and all other persons whom it shall have power to indemnify under said
Section or otherwise under Delaware law from and against any and all of the
expenses, liabilities or other matters referred to or covered by said
Section. The indemnification provisions contained in the General
Corporation Law shall not be deemed exclusive of any other rights to
which those indemnified may be entitled under any by-law, agreement,
resolution of stockholders or disinterested directors, or otherwise, and
shall continue as to a person who has ceased to be a director, officer,
employee or agent, both as to action in his official capacity and as to
action in another capacity while holding such office, and shall inure to
the benefit of the heirs, executors and administrators of such person.
TWELFTH: The number of directors constituting the Board of
Directors shall be determined by the Board of Directors, subject to the by-
laws of the Corporation. Any vacancy in the Board of Directors, whether
arising from death, resignation, removal (with or without cause), an
increase in the number of directors or any other cause, may be filled by
the vote of either a majority of the directors then in office, though less
than a quorum, or by the stockholders at the next annual meeting thereof or
at a special meeting called for such purpose. Stockholders may not apply
to request that the Delaware Court of Chancery summarily order an election
to be held to fill any vacancies in the Board of Directors whether or not,
at the time of filling any vacancy or any newly created directorship, the
directors then in office shall constitute less than a majority of the whole
Board of Directors as constituted immediately prior to any such vacancy or
increase. Each director so elected shall hold office until the next
meeting of the stockholders in which the election of directors is
in the regular order of business and until his successor shall have been
elected and qualified.
IN WITNESS WHEREOF, I have hereunto set my hand this 29th day of
November, 2004 and I affirm that the foregoing certificate is my act and
deed and that the facts stated herein are true.
/s/ Xxxx Xxxxxxxxxxx
______________________________
Xxxx Xxxxxxxxxxx, Incorporator
0000 Xxxxxx Xxxxxxx #000
Xxxxx, Xxxxx 00000
