Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER ("Merger Agreement"), dated as of
June 19, 2003, is between Solomon Technologies, Inc., a Maryland corporation
(the "Company") and Solomon Technologies, 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 be submitted to a vote of 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:
1. 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 two shares 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
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Delaware Common Stock or other securities of the Delaware Corporation
shall be issued in respect thereof.
(c) Exchange of Certificates.
(1) Exchange Procedures. As soon as reasonably
practicable after the Effective Time, the Company 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 (1) a letter of
transmittal and (2) instructions for use in effecting the
surrender of Certificates in exchange for Delaware
Certificates. Upon surrender of a Certificate for cancellation
to the Company 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 the Company Common Stock shall cease to have any
rights with respect to such the 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 herein.
(3) No Liability. None of the Surviving Corporation
or the Company 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 Company shall issue, in
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exchange for such lost, stolen or destroyed Certificate, a
Delaware Certificate deliverable in respect of such
Certificate as provided herein.
6. CONDITIONS TO MERGER.
(a) The Merger shall have received the requisite approval of
the holders of the Company Common Stock and the Delaware Common Stock.
(b) Unless otherwise waived by the Company and the Delaware
Corporation, 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, warrant
or other convertible security ("Option") of the Company to purchase or acquire
the Company Common Stock shall be converted into and become an option, warrant
or convertible security to purchase the same proportionate number of shares of
Delaware Common Stock at the same proportionate exercise or conversion 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.
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
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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.
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.
SOLOMON TECHNOLOGIES, INC.
A Maryland Corporation
By: /s/ XXXXX X. TETHER
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Xxxxx X. Tether
President and Chief Executive Officer
SOLOMON TECHNOLOGIES, INC.
A Delaware Corporation
By: /s/ XXXXX X. TETHER
-------------------
Xxxxx X. Tether
President and Chief Executive Officer
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