Exhibit 2.1
FORM OF
AGREEMENT AND PLAN OF MERGER
BETWEEN
COMPUTER PROGRAMS AND SYSTEMS, INC.,
A DELAWARE CORPORATION
AND
COMPUTER PROGRAMS AND SYSTEMS, INC.,
AN ALABAMA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated this day of , 2002
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(this "Agreement") by and between Computer Programs and Systems, Inc., a
Delaware corporation ("CPSI-Delaware"), and Computer Programs and Systems, Inc.,
an Alabama corporation ("CPSI-Alabama"). CPSI-Delaware and CPSI-Alabama are
sometimes hereinafter collectively referred to as the "Constituent
Corporations."
RECITALS
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A. CPSI-Delaware is a corporation organized and existing under the laws of
the State of Delaware and, as of the date hereof, one hundred (100) shares of
Common Stock of CPSI-Delaware are issued and outstanding, all of which are held
by CPSI-Alabama.
B. CPSI-Alabama is a corporation organized and existing under the laws of
the State of Alabama and, as of the date hereof, 9,288,000 shares of common
stock of CPSI-Alabama are issued and outstanding, comprised of 4,644,000 shares
of voting common stock, par value $.001 (the "Voting Common Stock") and
4,644,000 shares of non-voting common stock, par value $.001 (the "Non-Voting
Common Stock").
C. The Board of Directors and shareholders of CPSI-Alabama have determined
that, for the purpose of effecting the reincorporation of CPSI-Alabama in the
State of Delaware, it is advisable and in the best interests of CPSI-Alabama
that it merge with and into CPSI-Delaware upon the terms and conditions herein
provided.
D. The Board of Directors and stockholders of CPSI-Delaware have determined
that, for the purpose of effecting the reincorporation of CPSI-Alabama in the
State of Delaware, it is advisable and in the best interests of CPSI-Delaware
that CPSI-Alabama be merged with and into it upon the terms and conditions
herein provided.
E. The respective stockholders and Boards of Directors of the Constituent
Corporations have approved this Agreement, and deem it advisable to consummate
the transactions provided for herein pursuant to which CPSI-Alabama will merge
with and into CPSI-Delaware.
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NOW THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, CPSI-Delaware and CPSI-Alabama hereby agree, subject to the terms
and conditions hereinafter set forth, as follows:
ARTICLE I
THE MERGER
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Section 1.1 Merger. In accordance with the provisions of this Agreement,
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the Delaware General Corporation Law and the Alabama Business Corporation Act,
CPSI-Alabama shall be merged with and into CPSI-Delaware (the "Merger"),
whereupon the separate existence of CPSI-Alabama shall cease and CPSI-Delaware
shall be the surviving corporation (hereinafter sometimes referred to as, the
"Surviving Corporation.") On the Effective Date of the Merger (as hereinafter
defined) the name of the Surviving Corporation shall be "Computer Programs and
Systems, Inc." Its address shall be 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxx 00000.
Section 1.2 Filing and Effectiveness. The Merger shall become effective
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when the following actions shall have been completed:
(a) this Agreement and the Merger shall have been adopted and approved
by the stockholders of CPSI-Delaware and the shareholders of CPSI-Alabama in
accordance with the requirements of the Delaware General Corporation Law and the
Alabama Business Corporation Act, as the case may be;
(b) all of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(c) an executed Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the Delaware General Corporation Law
shall have been filed with the Secretary of State of the State of Delaware; and
(d) executed Articles of Merger meeting the requirements of the
Alabama Business Corporation Act shall have been filed with the Secretary of
State of the State of Alabama.
The date and time when the Merger shall become effective, as aforesaid, is
herein referred to as the "Effective Date of the Merger."
Section 1.3 Effect of the Merger. On the Effective Date of the Merger, the
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separate existence of CPSI-Alabama shall cease, and CPSI-Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger; (ii) shall be subject to all actions previously taken by its and
CPSI-Alabama's Board of Directors; (iii) shall succeed, without other transfer,
to all of the assets,
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rights, powers and property of CPSI-Alabama in the manner more fully set forth
in Section 259 of the Delaware General Corporation Law; (iv) shall continue to
be subject to all of its debts, liabilities and obligations as constituted
immediately prior to the Effective Date of the Merger; and (v) shall succeed,
without other transfer, to all of the debts, liabilities and obligations of
CPSI-Alabama in the same manner as if CPSI-Delaware had itself incurred them,
all as more fully provided under the applicable provisions of the Delaware
General Corporation Law and the Alabama Business Corporation Act.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
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Section 2.1 Certificate of Incorporation. The Certificate of Incorporation
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of CPSI-Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
Section 2.2 Bylaws. The Bylaws of CPSI-Delaware as in effect immediately
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prior to the Effective Date of the Merger shall continue in full force and
effect as the Bylaws of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
Section 2.3 Directors and Officers. The directors and officers of
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CPSI-Delaware immediately prior to the Effective Date of the Merger, who are
serving in the same capacities and terms for CPSI-Alabama, shall be the
directors and officers of the Surviving Corporation, and such directors shall
serve for such terms of office as are in accordance with the Bylaws and the
Certificate of Incorporation of CPSI-Delaware.
ARTICLE III
MANNER OF CONVERSION OF SHARES
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Section 3.1 CPSI-Alabama Voting Common Shares. Upon the Effective Date of
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the Merger, each share of Voting Common Stock of CPSI-Alabama, issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by the Constituent Corporations, the holder of such shares or any
other person, be converted into and exchanged for one (1) fully paid and
nonassessable share of common stock, par value $0.001 per share, of the
Surviving Corporation.
Section 3.2 CPSI-Alabama Non-Voting Common Shares. Upon the Effective Date
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of the Merger, each share of Non-Voting Common Stock of CPSI-Alabama, issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by the Constituent Corporations, the holder of such shares or any
other person, be converted into and exchanged for one (1) fully paid and
nonassessable share of common stock, par value $0.001 per share, of the
Surviving Corporation.
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Section 3.3 CPSI-Delaware Common Stock. Upon the Effective Date of the
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Merger, each share of CPSI-Delaware common stock, par value $0.001 per share,
issued and outstanding immediately prior thereto shall, by virtue of the Merger
and without any action by CPSI-Delaware, the holder of such shares or any other
person, be canceled and returned to the status of authorized but unissued
shares.
Section 3.4 Exchange of Certificates.
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(a) After the Effective Date of the Merger, each holder of an
outstanding certificate representing shares of Voting Common Stock or Non-Voting
Common Stock of CPSI-Alabama may, at such holder's option, surrender the same
for cancellation to such entity as the Surviving Corporation may designate as
exchange agent (the "Exchange Agent"), and each such holder shall be entitled to
receive in exchange therefor a certificate or certificates representing the
number of shares of the Surviving Corporation's Common Stock into which the
surrendered shares were converted, or to which such holder was otherwise
entitled, as herein provided. Until so surrendered, each outstanding certificate
theretofore representing shares of Voting Common Stock or Non-Voting Common
Stock of CPSI-Alabama shall be deemed for all purposes to represent the number
of shares of the Surviving Corporation's common stock into which such shares of
CPSI-Alabama were converted in the Merger and which the holder of such
certificate was otherwise entitled to receive pursuant to this Agreement.
(b) The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation or the Exchange Agent, have
and be entitled to exercise any voting and other rights with respect to and to
receive dividends and other distributions upon the shares of common stock of the
Surviving Corporation represented by such outstanding certificate as provided
above.
(c) Each certificate representing common stock of the Surviving
Corporation so issued in the Merger shall bear the same legends, if any, with
respect to the restrictions on transferability that appeared on the certificates
of CPSI-Alabama so converted and given in exchange therefor, unless otherwise
determined by the Board of Directors of the Surviving Corporation in compliance
with applicable laws.
(d) If any certificate for shares of common stock of the Surviving
Corporation 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
issuance thereof that the certificate so surrendered shall be properly endorsed
and otherwise in proper form for transfer, that such transfer otherwise be
proper and that the person requesting such transfer pay to the Exchange Agent
any transfer or other taxes payable by reason of issuance of such new
certificate in a name other than that of the registered
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holder of the certificate surrendered, or establish to the satisfaction of the
Surviving Corporation that such tax has been paid or is not payable.
ARTICLE IV
GENERAL PROVISIONS
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Section 4.1 Covenants of CPSI-Delaware. CPSI-Delaware covenants and agrees
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that it will on or before the Effective Date of the Merger:
(a) take such action as may be required to qualify to do business as a
foreign corporation in the states in which CPSI-Alabama is qualified to do
business and in connection therewith irrevocably appoint an agent for service of
process as required under the applicable provisions of the relevant state law;
and
(b) take all such other actions as may be required by the Delaware
General Corporation Law and the Alabama Business Corporation Act to effect the
Merger.
Section 4.2 Further Assurances. From time to time, as and when required by
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CPSI-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of CPSI-Alabama such deeds and other instruments, and there
shall be taken or caused to be taken by it such further and other actions as
shall be appropriate or necessary in order to vest or perfect in or confirm of
record or otherwise by CPSI-Delaware the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of CPSI-Alabama and otherwise to carry out the purposes of this
Agreement, and the officers and directors of CPSI-Delaware are fully authorized
in the name and on behalf of CPSI-Alabama or otherwise to take any and all such
action and to execute and deliver any and all such deeds and other instruments.
Section 4.3 Abandonment. At any time before the Effective Date of the
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Merger, this Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of CPSI-Alabama or CPSI-Delaware,
notwithstanding the approval of this Agreement by the shareholders of
CPSI-Alabama or the stockholders of CPSI-Delaware, or by both.
Section 4.4 Amendment. The Boards of Directors of the Constituent
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Corporations may amend this Agreement at any time prior to the filing of this
Agreement or certificate in lieu thereof with the Secretary of State of the
State of Delaware, provided that an amendment made subsequent to the adoption of
this Agreement by the shareholders of CPSI-Alabama or the stockholders of
CPSI-Delaware shall not (i) alter or change the amount or kind of shares,
securities, cash, property or rights to be received in exchange for or on
conversion of all or any of the shares of any class or series thereof of such
Constituent Corporation; (ii) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation to be effected by the Merger; or
(iii) alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class or series
of capital stock of either Constituent Corporation.
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Section 4.5 Registered Office. The registered office of the Surviving
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Corporation in the State of Delaware is located at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx. The Corporation Trust Company is the registered agent of
the Surviving Corporation at such address.
Section 4.6 Agreement. Executed copies of this Agreement will be on file at
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the principal place of business of the Surviving Corporation in Mobile, Alabama,
and copies thereof will be furnished to any stockholder or shareholder of either
Constituent Corporation, upon request and without cost.
Section 4.7 Governing Law. This Agreement shall in all respects be
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construed, interpreted and enforced in accordance with and governed by the laws
of the State of Delaware and, so far as applicable, the merger provisions of the
Alabama Business Corporation Act.
Section 4.8 Counterparts. In order to facilitate the filing and recording
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of this Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement, having first been approved by the
resolutions of the Board of Directors of CPSI-Delaware and CPSI-Alabama, is
hereby executed on behalf of each of such corporations and attested by their
respective officers thereunto duly authorized, under penalties of perjury,
hereby declaring and certifying that this is their act and deed and the facts
herein stated are true.
COMPUTER PROGRAMS AND SYSTEMS, INC.,
a Delaware corporation
By:
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Xxxxx X. Xxx
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Its: President
ATTEST:
By:
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M. Xxxxxxx Xxxxxx
Its: Secretary
COMPUTER PROGRAMS AND SYSTEMS, INC.,
an Alabama corporation
By:
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Xxxxx X. Xxx
Its: President
ATTEST:
By:
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M. Xxxxxxx Xxxxxx
Its: Secretary
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