AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") dated as of October
19, 2000, is made and entered into by and between XxxxxxXxx.xxx Inc., a Florida
corporation ("TNOW Florida") and XxxxxxXxx.xxx Inc., a Delaware corporation
("TNOW Delaware").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, TNOW Florida is a corporation organized and existing under the
laws of the State of Florida; and
WHEREAS, TNOW Delaware is a wholly-owned subsidiary corporation of TNOW
Florida, having been incorporated on October 3, 2000; and
WHEREAS, the respective Boards of Directors of TNOW Florida and TNOW
Delaware have determined that it is advisable and in the best interests of each
of such corporations that TNOW Florida merge with and into TNOW Delaware upon
the terms and subject to the conditions set forth in this Merger Agreement for
the purpose of effecting the change of the state of incorporation of TNOW
Florida from Florida to Delaware.
NOW THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Merger. On October 19, 2000, or as soon as practicable
thereafter (the "Effective Date"); TNOW Florida shall be merged with and
into TNOW Delaware (the "Merger"). The separate existence of TNOW Florida
shall cease, and TNOW Delaware shall be the surviving corporation
(hereinafter sometimes referred to as the "Surviving Corporation") and
shall be governed by the laws of the State of Delaware.
Section 2. Registered Office. The address of the registered office of TNOW
Delaware in the State of Delaware will be The Corporation Trust Company,
0000 Xxxxxx Xxxxxx, xx xxx Xxxx xx Xxxxxxxxxx, Xxxxxx of Newcastle, State
of Delaware.
Section 3. Certificate of Incorporation. The Certificate of Incorporation
of the TNOW Delaware as in effect on the date hereof shall be the
Certificate of Incorporation of the Surviving Corporation, without change
unless and until amended in accordance with applicable law.
Section 4. Bylaws. The bylaws of TNOW Delaware as in effect on the date
hereof shall be the bylaws of the Surviving Corporation, without change
unless and until amended or repealed in accordance with applicable law.
Section 5. Effect of Merger on Stock.
(a) On the Effective Date, by virtue of the Merger and without any
further action on the part of TNOW Florida or TNOW Delaware or their
shareholders (i) each outstanding share of TNOW Florida common stock, $.01
par value (the "Florida Common Stock") shall be converted into one (1)
share of TNOW Delaware common stock, $.01 par value, ("Delaware Common
Stock"), except for those shares of Florida Common Stock with respect to
which the holders thereof duly exercise their dissenters' rights under
Florida law, (ii) each share of Delaware Common Stock issued and
outstanding immediately prior thereto shall be cancelled and returned to
the status of authorized but unissued shares, and (iii) any fractional
Delaware Common Stock interests to which a holder of Florida Common Stock
would be entitled will be canceled with the holder thereof being entitled
to receive the next highest number of whole shares of Delaware Common
Stock.
(b) On and after the Effective Date, all of the outstanding
certificates which prior to that time represented shares of Florida Common
Stock shall be deemed for all purposes to evidence ownership of and to
represent the shares of Delaware Common Stock into which the shares of TNOW
Florida represented by such certificates have been converted as herein
provided and shall be so registered on the books and records of the
Surviving Corporation or its transfer agents. The registered owner of any
such outstanding stock certificate shall, until such certificate shall have
been surrendered for transfer or conversion or otherwise accounted for to
the Surviving 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 TNOW Delaware evidenced
by such outstanding certificate as above provided.
(c) All options and rights to acquire Florida Common Stock under or
pursuant to any options or warrants which are outstanding on the Effective
Date of the Merger will automatically be converted into equivalent options
and rights to purchase that whole number of Delaware Common Stock into
which the number of Florida Common Stock subject to such options or
warrants immediately prior to the Effective Date would have been converted
in the merger had such rights been exercised immediately prior thereto
(with any fractional Delaware Common Stock interest resulting from the
exercise being settled in cash in the amount such holder would have
received for any such fraction in the merger had he exercised such warrants
or options immediately prior to the Merger). The option price per share of
Delaware Common Stock shall be the option price per share of Florida Common
Stock in affect prior to the Effective Date. All plans or agreements of
TNOW Florida under which such options and rights are granted or issued
shall be continued and assumed by TNOW Delaware unless and until amended or
terminated in accordance with their respective terms.
Section 6. Succession. On the Effective Date, the rights, privileges,
powers and franchises, both of a public as well as of a private nature, of
each of TNOW Florida and TNOW Delaware (referred to herein as the
"Constituent Corporations") shall be vested in and possessed by the
Surviving Corporation, subject to all of the disabilities, duties and
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restrictions of or upon each of the Constituent Corporations; all property,
real, personal and mixed, of each of the Constituent Corporations and all
debts due to each of the Constituent Corporations on whatever account, and
all things in action or belonging to each of the Constituent Corporations
shall be transferred to and vested in the Surviving Corporation; all
property, rights, privileges, powers and franchises, and all and every
other interest, shall be thereafter the property of the Surviving
Corporation as they were of the Constituent Corporations, and the title to
any real estate vested by deed or otherwise in either of the Constituent
Corporations shall not revert or be in any way impaired by reason of the
Merger; provided, however, that the liabilities of the Constituent
Corporations and of their shareholders, directors and officers shall not be
affected and all rights of creditors and all liens upon any property of
either of the Constituent Corporations shall be preserved unimpaired, and
all debts, liabilities and duties of or upon each of the Constituent
Corporations shall 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.
Section 7. Further Assurances. TNOW Florida agrees that it will execute and
deliver, or cause to be executed and delivered, all such deeds, assignments
and other instruments, and will take or cause to be taken such further or
other action as the Surviving Corporation may deem necessary or desirable
in order to vest in and confirm to the Surviving Corporation title to and
possession of all the property, rights, privileges, immunities, powers,
purposes and franchises, and all and every other interest, of TNOW Florida
and otherwise to carry out the intent and purposes of this Merger
Agreement.
Section 8. Officers and Directors of the Surviving Corporation. On the
Effective Date, the officers and directors of TNOW Florida in office on
such date shall be the officers and directors of the Surviving Corporation,
and such persons shall hold office in accordance with the bylaws of TNOW
Delaware or until their respective successors shall have been appointed or
elected.
Section 9. Approval by Shareholders; Effective Date. This Merger Agreement
and the Merger contemplated hereby are subject to approval by the requisite
vote of shareholders in accordance with applicable Florida and Delaware
law. As promptly as practicable after approval of this Merger Agreement by
shareholders in accordance with applicable law, duly authorized officers of
the respective parties shall make and execute Articles of Merger and a
Certificate of Merger and shall cause such documents to be filed with the
Secretary of State of Florida and the Secretary of State of Delaware,
respectively, in accordance with the laws of the States of Florida and
Delaware. The Effective Date of the Merger shall be the date on which the
Merger becomes effective under the laws of Delaware.
Section 10. Amendment. The Board of Directors of TNOW Florida and TNOW
Delaware may amend this Merger Agreement at any time prior to the Effective
Date, provided that an amendment made subsequent to the approval of the
merger shall not (a) alter or change the amount or kind of shares to be
received in exchange for or on conversion of all or any of Florida Common
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Stock (b) alter or change any term of the Certificate of Incorporation of
TNOW Delaware, or (c) alter or change any of the terms and conditions of
this Merger Agreement if such alteration or change would adversely affect
the holders of Florida Common Stock.
Section 11. Abandonment or Deferral. Notwithstanding the approval of this
Merger Agreement by the shareholders of TNOW Florida or TNOW Delaware, this
Merger Agreement may be terminated and the Merger abandoned at any time
prior to the filing of this Merger Agreement with the Secretary of State of
Florida and the Secretary of State of Delaware by the Board of Directors of
either TNOW Florida or TNOW Delaware or both, or the consummation of the
Merger may be deferred for a reasonable period of time if, in the opinion
of the Boards of Directors of the Constituent Corporations, such action
would be in the best interest of such corporations. In the event of
termination of this Merger Agreement, this Merger Agreement shall become
void and of no effect and there shall be no liability on the part of either
party to this Merger Agreement or its Board of Directors or shareholders
with respect thereto.
Section 12. Counterparts. In order to facilitate the filing and recording
of this Merger Agreement, this Merger Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an
original and all such counterparts shall together constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Merger Agreement to
be executed by their respective officers, all as of the day and year first above
written.
XXXXXXXXX.XXX INC.
a Florida Corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
XXXXXXXXX.XXX INC.
a Delaware Corporation
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
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