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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER AND REINCORPORATION
This AGREEMENT AND PLAN OF MERGER AND REINCORPORATION (the "Agreement") is
entered into as of this 10th day of March, 1999, by and between XXXXXX
CORPORATION, a Delaware corporation ("Xxxxxx"), and XXXXXX CORPORATION, a Nevada
corporation ("Xxxxxx-Nevada").
W I T N E S S E T H:
WHEREAS, Xxxxxx-Nevada is a corporation duly organized and existing under
the laws of the State of Nevada;
WHEREAS, Xxxxxx is a corporation duly organized and existing under the laws
of the State of Delaware;
WHEREAS, on the date of this Agreement, Xxxxxx-Nevada has authority to
issue 100 shares of common stock, par value $.001 per share (the "Xxxxxx-Nevada
Common Stock"), of which 100 shares are issued and outstanding and owned by
Xxxxxx;
WHEREAS, on the date of this Agreement, Xxxxxx has authority to issue (a)
165,000,000 shares of common stock, par value $.01 per share (the "Xxxxxx Common
Stock"), of which approximately 23,877,078 shares were issued and outstanding,
(b) 2,000,000 shares of preferred stock, of which no shares are issued and
outstanding and (c) 18,000,000 shares of preference stock, of which no shares
are issued and outstanding;
WHEREAS, the respective Boards of Directors of Xxxxxx-Nevada and Xxxxxx
have determined that, for the purpose of effecting the reincorporation of Xxxxxx
in the State of Nevada, it is advisable, to the advantage of and in the best
interests of Xxxxxx and its stockholders and Xxxxxx-Nevada and its stockholder
that Xxxxxx merge with and into Xxxxxx-Nevada 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 Xxxxxx-Nevada and Xxxxxx and
the stockholders of Xxxxxx-Nevada have unanimously adopted and approved this
Agreement, and the Board of Directors of Xxxxxx has directed that this Agreement
be submitted to the stockholders of Xxxxxx for their consideration;
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Xxxxxx and Xxxxxx-Nevada hereby agree as follows:
1. MERGER. Subject to the approval of the stockholders of Xxxxxx in
accordance with the Delaware General Corporation Law the ("DGCL"), at such time
thereafter as the parties hereto shall mutually agree, Xxxxxx shall be merged
with and into Xxxxxx-Nevada (the "Merger"), and Xxxxxx-Nevada shall be the
surviving corporation (the "Surviving Corporation") in the Merger. 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 Nevada Secretary of
State in accordance with the provisions of Chapter 92-A of the Nevada Revised
Statutes (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 Delaware Secretary of State in accordance with the applicable
provisions of the DGCL, the date and time of the later of such filings being
hereinafter referred to as the "Effective Time." Immediately following the due
approval of the Merger by the stockholders of Xxxxxx, subject to the provisions
of this Agreement, the Articles of Merger shall be duly executed by Xxxxxx-
Nevada and Xxxxxx and thereafter delivered to the office of the Nevada Secretary
of State for filing, as provided in Chapter 92-A of the NRS, and a Certificate
of Merger shall be duly executed by Xxxxxx and Xxxxxx-Nevada and thereafter
delivered to the office of the Delaware Secretary of State for filing, pursuant
to Section 251 of the DGCL.
2. GOVERNING DOCUMENTS. The Articles of Incorporation of Xxxxxx-Nevada, a
copy of which is attached hereto as Exhibit A, shall be the Articles of
Incorporation of the Surviving Corporation and (b) the
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By-Laws of Xxxxxx-Nevada, a copy of which is attached hereto as Exhibit B, shall
be the By-Laws of the Surviving Corporation.
3. DIRECTORS AND OFFICERS. The directors (including their respective
denomination as Class I, Class II or Class III directors) and officers of Xxxxxx
shall be the directors (denominated in like manner by class) and officers of the
Surviving Corporation from and after the Effective Time until their respective
successors are duly elected or appointed.
4. SUCCESSION. At the Effective Time, Xxxxxx-Nevada shall succeed to
Xxxxxx in the manner of and as more fully set forth in Section 259 of the DGCL
and NRS 92A.250.
5. FURTHER ASSURANCES. From time to time, as and when required by
Xxxxxx-Nevada or by its successors and assigns, there shall be executed and
delivered on behalf of Xxxxxx 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 Xxxxxx-Nevada the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of Xxxxxx, and otherwise to carry out the purposes of this Agreement,
and the officers and directors of Xxxxxx-Nevada are fully authorized in the name
and on behalf of Xxxxxx or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
6. STOCK OF XXXXXX. At the Effective Time, by virtue of the Merger and
without any action on the part of the holder thereof, each share of Xxxxxx
Common Stock outstanding immediately prior thereto shall be changed and
converted into one fully paid and nonassessable share of Xxxxxx-Nevada Common
Stock.
7. OUTSTANDING STOCK OF XXXXXX-NEVADA. At the Effective Time, the 100
shares of Xxxxxx-Nevada Common Stock presently issued and outstanding in the
name of Xxxxxx shall be canceled and retired and resume the status of authorized
and unissued shares of Xxxxxx-Nevada Common Stock, and no shares of
Xxxxxx-Nevada Common Stock or other securities of Xxxxxx-Nevada shall be issued
in respect thereof.
8. STOCK CERTIFICATES. From and after the Effective Time, all of the
outstanding certificates which prior to that time represented shares of Xxxxxx
Common Stock shall be deemed for all purposes to evidence ownership and to
represent the shares of Xxxxxx-Nevada Common Stock into which the shares of
Xxxxxx Common Stock represented by such certificates have been converted as
herein provided. The registered owner on the books and records of Xxxxxx-Nevada
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 Xxxxxx-Nevada 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 Xxxxxx-Nevada Common Stock evidenced by such
outstanding certificate as above provided.
9. OPTIONS. At the Effective Time, each outstanding option or other right
to purchase shares of Xxxxxx Common Stock, including options granted and
outstanding under Xxxxxx'x 1990 Stock Option Plan, Special Incentive Plan (or
amended and restated) and 1996 Long-Term Incentive Plan (collectively the
"Xxxxxx Option Plans"), shall be converted into and become an option or right to
purchase the same number of shares of Xxxxxx-Nevada Common Stock at a price per
share equal to the exercise price of the option or right to purchase Xxxxxx
Common Stock and upon the same terms and subject to the same conditions as set
forth in the Xxxxxx Option Plans and the agreements entered into by Xxxxxx
pertaining to such options or rights. A number of shares of Xxxxxx-Nevada Common
Stock shall be reserved for purposes of such options and rights equal to the
number of shares of Xxxxxx Common Stock so reserved immediately prior to the
Effective Time. As of the Effective Time, Xxxxxx-Nevada shall assume all
obligations of Xxxxxx under agreements pertaining to such options and rights,
including the Xxxxxx Option Plans, and the outstanding options or other rights,
or portions thereof, granted pursuant thereto.
10. COVENANTS OF XXXXXX-NEVADA. Xxxxxx-Nevada covenants and agrees that,
effective not later than the Effective time, it will:
(a) qualify to do business as a foreign corporation in all states in
which Xxxxxx is so qualified and in which the failure so to qualify would
have a material adverse effect on the business or financial condition
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of Xxxxxx-Nevada 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 Delaware Franchise Tax Board
necessary to the assumption by Xxxxxx-Nevada of all of the franchise tax
liabilities of Xxxxxx.
11. BOOK ENTRIES. As of the Effective Time, entries shall be made upon
the books of Xxxxxx-Nevada in accordance with the following:
(a) The assets and liabilities of Xxxxxx shall be recorded at the
amounts at which they were carried on the books of Xxxxxx immediately prior
to the Effective Time, with appropriate adjustments to reflect the
retirement of the 100 shares of Xxxxxx-Nevada Common Stock presently issued
and outstanding.
(b) There shall be credited to the capital stock of Xxxxxx-Nevada the
aggregate amount of the par value of all shares of Xxxxxx-Nevada Common
Stock resulting from the conversion of the outstanding Xxxxxx Common Stock
pursuant to the Merger.
(c) There shall be credited to the capital surplus account of
Xxxxxx-Nevada the aggregate of the amounts shown in the capital stock and
capital surplus accounts of Xxxxxx immediately prior to the Effective Time,
less the amount credit to the common stock account of Xxxxxx-Nevada
pursuant to Paragraph 11(b) above.
(d) There shall be credited to the retained earnings account of
Xxxxxx-Nevada an amount equal to that carried in the retained earnings
account of Xxxxxx immediately prior to the Effective Time.
12. CONDITION. It shall be a condition precedent to the consummation of
the Merger and the other transactions contemplated by this Agreement that the
shares of Xxxxxx-Nevada Common Stock to be issued by Xxxxxx-Nevada shall, upon
official notice of issuance, be listed on the New York Stock Exchange as of the
Effective Time.
13. AMENDMENT. At any time prior to the Effective Time, whether before or
after approval and adoption of this Agreement by the stockholders of Xxxxxx,
this Agreement may be amended in any manner as may be determined in the judgment
of the respective Boards of Directors of Xxxxxx-Nevada and Xxxxxx 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; provided that any amendment made subsequent to the approval or
adoption of this Agreement by the stockholders of Xxxxxx-Nevada or the
stockholders of Xxxxxx shall be subject to all applicable limitations of the
applicable provisions of the DGCL and the NRS.
14. ABANDONMENT. At any time before the Effective Time, this Agreement
may be terminated and the Merger may be abandoned by the Board of Directors of
either Xxxxxx or Xxxxxx-Nevada or both, notwithstanding approval of this
Agreement by the sole stockholder of Xxxxxx-Nevada and the stockholders of
Xxxxxx.
15. 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.
16. 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.
17. GOVERNING LAW. This Agreement and the legal relations between the
parties hereto shall be governed by and construed in accordance with the
internal laws of the State of Nevada, without reference to conflict of laws
principles.
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IN WITNESS WHEREOF, this Agreement, having first been duly approved by
resolutions of the respective Boards of Directors of Xxxxxx and Xxxxxx-Nevada,
is hereby executed on behalf of each of said two corporations by their
respective officers duly authorized.
XXXXXX CORPORATION,
a Delaware Corporation
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: President and CEO
XXXXXX CORPORATION,
a Nevada Corporation
By: /s/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx
Title: President and CEO
