EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION, made and entered into as of
the 1st day of April, 1998, by and among Xxxxx Nursery Farms, Inc., a Puerto
Rico Corporation ("Xxxxx Nursery") and Interim Xxxxx, Inc. ("Newco"), a Puerto
Rico corporation (Xxxxx Nursery and Newco are hereinafter collectively referred
to as the "Corporations").
W I T N E S S E T H:
WHEREAS, Xxxxx Nursery is a Puerto Rico corporation that is engaged in
the production and distribution of tropical and flowering plants, garden
products as well as landscaping design and installation services;
WHEREAS, Newco is a newly formed Puerto Rico corporation that was
created to accomplish a restructuring of the corporate structure of Xxxxx
Nursery to create a holding company structure;
WHEREAS, the Corporations recognize that the corporate restructuring of
Xxxxx as a holding company will facilitate the future expansion or
diversification of its business activities and thereby contribute to the future
long range financial strength of Xxxxx Nursery;
WHEREAS, the Corporations recognize that the proposal corporate
restructuring will be effected through the transfer to Newco of substantially
all of Margo's assets in exchange for all the outstanding capital stock of Newco
in accordance with Article 9.01 of the Puerto Rico General Corporation Law of
1995, and the assumption of substantially all the liabilities of Xxxxx by Newco;
WHEREAS, Newco will change its name to "Xxxxx Nursery Farms, Inc." and
conduct the business presently conducted by Xxxxx Nursery and Xxxxx Nursery will
change its name to "Xxxxx Caribe, Inc.";
WHEREAS, to accomplish the foregoing purposes, the Corporations have
agreed to this Agreement and Plan of Reorganization whereby Xxxxx Nursery will
transfer substantially all of its assets and certain of its liabilities to Newco
so that following the effective date of the reorganization, the business
previously conducted by Xxxxx Nursery will hereforth be conducted by Newco as a
wholly-owned subsidiary of Xxxxx Nursery which will operate as a holding company
under the corporate name of "Xxxxx Caribe, Inc."
NOW THEREFORE, in consideration of the premises and mutual covenants
herein set forth the Corporations adopt the Plan of Reorganization and agree as
follows:
1. RECITALS. All of the recitals set forth are true and correct.
2. TRANSFER OF ASSETS AND ASSUMPTION OF LIABILITIES. The Corporations
hereby adopt this Agreement and Plan of Reorganization which is intended to be
effected as a tax-free reorganization pursuant to Section 1112(g) of the Puerto
Rico Internal Revenue Code of 1994 as amended. Pursuant to this Agreement and
Plan of Reorganization, all the assets of Xxxxx Nursery, except those identified
in Annex A hereto will be transferred to Newco as of the Effective Date (as
hereinafter defined), and Newco will assume substantially all the liabilities of
Xxxxx Nursery. In exchange from such transfer of assets, Newco agrees to issue
to Xxxxx Nursery 1000 shares of its Common Stock, $0.01 par value, representing
100% of Newco's outstanding Capital Stock. Upon
issuance in accordance with the terms of the Agreement, such shares will fully
paid and non-assessable shares of Newco.
3. EFFECTIVE DATE. The the transfer of the assets and assumption of
related liabilities will become effective on the date (the "Effective Date"), a
Xxxx of Sale and Assumption of Liabilities, in form and substance acceptable to
the parties and their counsel is executed, following compliance with the
conditions of this Agreement.
4. CHANGE OF NAME. As part of the corporate restructuring contemplated
hereby, Xxxxx Nursery agrees to take such action as may be required to change
its corporate name to "Xxxxx Caribe, Inc." and Newco agree to take such action
as may be required to change its corporate name to "Xxxxx Nursery Farms, Inc."
5. FURTHER ACTIONS. All necessary action shall be taken to transfer
information, contracts, assets, or any other real or personal property so that
this Agreement Plan of Reorganization be effected pursuant to the provisions
herewith.
6. CONDITIONS OF RESTRUCTURING. Consummation of the corporate
restructuring contemplated herein is subject to fulfillment, on or before the
Effective Date, of the following conditions: (i) the Corporations shall
cooperate and take all such actions or furnish all such information to enable
Newco to comply with the applicable bulk sales statutes under Puerto Rico law;
(ii) receipt of an opinion from Xxxxxxxxxxx, Xxxxxx & Xxxxxxx satisfactory in
form and substance to Xxxxx Nursery, to the effect that the reorganization
constitutes a tax-free reorganization under the Puerto Rico Internal Revenue
Code of 1994, as amended, and the United States Internal Revenue Code of 1986,
as amended, and (iii) Xxxxx Nursery shall have received the consent to the
reorganization contemplated
hereby of Puerto Rico Farm Credit ACA ("P.R. Farm Credit") under that certain
financing agreement dated December 15, 1994, between Xxxxx Nursery and P.R. Farm
Credit and of Banco Santander Puerto Rico ("Santander") under that certain
financing agreement dated September 27, 1994 between Xxxxx and Santander, and
any other consents that may be required under existing agreements all such
consents shall be in form and substance reasonably satisfactory to Xxxxx Nursery
and its counsel.
7. AUTHORIZATION. The appropriate officers of the Corporations are
authorized for and on behalf of and in the name of Corporations to take or cause
to be taken all such actions and to execute or cause to be executed such
certificates and other private or public documents as may be deemed necessary or
desirable by them in order to effectuate this Plan of Reorganization.
8. NOTICES. All notices to be given under this Agreement shall be sent
to the Corporations at the following address:
Xxxxxxx X. Xxxxxxx
Chief Executive Officer
XX Xxx 000
Xxxxxx, XX 00000
9. MISCELLANEOUS. This Agreement Plan of Reorganization constitutes the
entire Agreement and understanding between the parties and supersedes all prior
agreements and understandings related hereto. This Plan shall be governed by the
laws of the Commonwealth of Puerto Rico.
10. BENEFITS. This Agreement shall be binding upon and inure to benefit
the parties, their personal representatives, estates, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written:
XXXXX NURSERY FARMS, INC.,
a Puerto Rico corporation
By: /S/ XXXXXXX X. XXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxx, President
By: /S/ XXXXXXX XXXXXX
--------------------------------------
Xxxxxxx Xxxxxx
Assistant Secretary
Date executed: April 24, 1998
INTERIM XXXXX, INC.
A Puerto Rico Corporation
By: /S/ XXXXXXX X. XXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxx, President
By: /S/ XXXXXXX XXXXXX
-------------------------------------
Xxxxxxx Xxxxxx
Secretary
Date executed: April 24, 1998
