Exhibit 2.2
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PLAN AND AGREEMENT OF MERGER
OF
T.P.C. HOME CARE SERVICES, INC.,
a New York corporation
WITH AND INTO
EXTENDED FAMILY CARE CORPORATION,
a New York corporation
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Dated as of March 18, 1997
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PLAN AND AGREEMENT OF MERGER
OF
T.P.C. HOME CARE SERVICES, INC.,
a New York corporation
WITH AND INTO
EXTENDED FAMILY CARE CORPORATION
a New York corporation
THIS PLAN AND AGREEMENT OF MERGER (hereinafter referred to as the "Plan
and Agreement of Merger"), is made as of March 18, 1997, by and among T.P.C.
HOME CARE SERVICES, INC., a New York corporation ("TPC") and EXTENDED FAMILY
CARE CORPORATION, a New York corporation ("EFCC").
W I T N E S S E T H :
WHEREAS, EFCC is the legal and beneficial owner of 82.92% of
the issued and outstanding shares of TPC; and
WHEREAS, the directors of each of EFCC and TPC deem it advisable and in
the best interests of each such corporation that TPC merge with and into EFCC as
set forth in this Plan and Agreement of Merger (hereinafter referred to as the
"Merger"), upon the terms and conditions herein provided.
NOW, THEREFORE, for the purpose of prescribing the terms and conditions
of the Merger, the manner and mode of carrying the same into effect, and such
other details as are deemed necessary or desirable, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
NAMES OF CONSTITUENT CORPORATIONS;
SURVIVING CORPORATION
Section 1.1 Names of Constituent Corporations. The names
of each of the constituent corporations to the Merger are as
follows:
(a) "T.P.C. HOME CARE SERVICES, INC.",
a New York corporation,
(b) "EXTENDED FAMILY CARE CORPORATION",
a New York corporation.
Hereinafter, TPC and EFCC are sometimes hereinafter referred to
individually as a "Constituent Corporation" and collectively as the "Constituent
Corporations."
Section 1.2 The Surviving Corporation. The name of the surviving
corporation of the Merger is "EXTENDED FAMILY CARE CORPORATION", a New York
corporation (sometimes, hereinafter, the "Surviving Corporation"), which shall
continue to exist as the Surviving Corporation pursuant to the provisions of the
Business Corporation Law of the State of New York (the "New York BCL").
Section 1.3 Filing of Certificate of Incorporation; etc.
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(a) The Certificate of Incorporation of EFCC was originally filed
by the Office of the Department of State of the State of New
York on May 10, 1978 under the name of M.A.E. Enterprises,
Inc. The name of the corporation was changed to Cosmetic
Sciences, Inc. by filing a certificate of amendment to the
corporation's Certificate of Incorporation on March 20, 1980.
The name of the corporation was changed for the second and
last time to Extended Family Care Corporation by filing a
certificate of amendment to the corporation's Certificate of
Incorporation on October 1, 1996.
(b) The Certificate of Incorporation of TPC was filed by the
Office of the Department of State of the State of New York on
October 26, 1983.
ARTICLE II
DESIGNATION AND NUMBER OF SHARES
OF CONSTITUENT CORPORATIONS
Section 2.1 Capitalization. As to each Constituent
Corporation, the designation and number of outstanding shares of
each class and series are as follows:
Constituent Corporation Class Number Outstanding
T.P.C. HOME CARE SERVICES, Common Stock,
INC., a New York $.01 par value 1,750,000 Shares
corporation ("TPC Common Stock")
EFCC FAMILY CARE Common Stock,
CORPORATION, a New York $.01 par value 32,000,226 Shares
corporation ("EFCC Common Stock")
82.92% of the shares of TPC Common Stock are owned by EFCC, and the
balance of the shares of TPC Common Stock are owned by approximately 1,100
shareholders.
Section 2.2 Voting Rights. The Common Stock of each of
the Constituent Corporations is entitled to one vote per share.
The number of outstanding shares of each of the Constituent Corporations shall
not change prior to the Effective Date (hereinafter defined).
ARTICLE III
TERMS AND CONDITIONS OF MERGER OF TPC
WITH AND INTO EFCC
The terms and conditions of the Merger are as follows:
Section 3.1 Merger; Effective Date. (a) Upon the terms and subject to
the conditions herein contained, and in accordance with the provisions of the
New York BCL, TPC shall be merged with and into EFCC as soon as practicable
following the satisfaction of the conditions set forth in Article V hereof, but
not later than the Effective Date (hereafter defined). The Merger shall become
effective upon the filing with the Department of State of the State of New York,
in accordance with the provisions of Section 904 of the New York BCL, of a
Certificate of Merger substantially in the form of Exhibit A attached hereto.
The parties hereto may determine a later time that the Merger may become
effective. The date and time when the Merger shall become effective is sometimes
herein referred to as the "Effective Date".
Section 3.2 Effect of Merger. On the Effective Date, the separate
existence of TPC shall cease and TPC shall be merged with and into EFCC in
accordance with the provisions of this Plan and Agreement of Merger and EFCC
shall survive such Merger and shall continue in existence and shall, without
other transfer, succeed to and possess all the rights, privileges, immunities,
powers and purposes of each of the Constituent Corporations, and all the
property, real and personal, including subscriptions to shares, causes of action
and every other asset of each of the Constituent Corporations shall vest in EFCC
without further act or deed; and EFCC shall assume and be liable for all the
liabilities, obligations and penalties of each of the Constituent Corporations.
No liability or obligation due or to become due, claims or demands for any cause
existing against any of the Constituent Corporations, or any shareholder,
officer or director thereof, shall be released or impaired solely by virtue of
the Merger. No action or proceeding, civil or criminal, then pending by or
against any Constituent Corporation, or any shareholder, officer or director
thereof, shall xxxxx or be discontinued solely by virtue of the
Merger, but may be enforced prosecuted, settled or compromised as if such Merger
had not occurred, or the Surviving Corporation may be substituted in such action
in place of any Constituent Corporation.
Section 3.3 Exchange and Cancellation of Shares of TPC Common Stock.
(a) On the Effective Date, each issued and outstanding share of TPC Common Stock
shall, automatically, by virtue of the Merger and without any action on the part
of any of the Constituent Corporations or the holders thereof, be transferred to
EFCC and be cancelled and each share of TPC Common Stock shall entitle the
holder thereof to be issued 18.745545 shares of EFCC Common Stock, such shares
of EFCC Common Stock to be issued, subject to Section 3.11, as soon as
practicable after the Effective Date. TPC Common Stock owned by EFCC will be
cancelled as a result of the Merger and no EFCC Common Stock shall be issued to
EFCC in respect thereof. No fractional shares of EFCC Common Stock shall be
issued in the Merger; rather in lieu of any such fractional shares of EFCC
Common Stock, each holder of shares of TPC Common Stock who would otherwise be
entitled to fractional shares of EFCC Common Stock shall, upon surrender of such
shareholder's TPC stock certificate (the "TPC Certificate") be paid an amount
(without interest) equal to such shareholder's proportionate interest in such
fractional shares multiplied by the last quoted bid price of EFCC Common Stock
as supplied by the National Quotation Bureau, Inc. at the Effective Date. The
shares of EFCC Common Stock and cash in lieu of fractional shares issuable
pursuant to the Merger is sometimes hereinafter referred to as the "Merger
Consideration."
Section 3.4 No Impact on Capital Stock of EFCC. Other than with respect
to shares of EFCC Common Stock to be issued pursuant to the Merger, the Merger
shall have no impact whatsoever on the shares of EFCC Common Stock which were
issued and outstanding immediately prior to the Merger, which shares shall
remain issued and outstanding after giving effect to the Merger.
Section 3.5 Abandonment of Merger. If, at any time prior to the
Effective Date, events or circumstances occur which, in the opinion of a
majority of the board of directors of either Constituent Corporation, renders it
inadvisable to consummate the Merger, this Plan and Agreement of Merger shall
not become effective even though previously adopted by the shareholders of the
Constituent Corporations. The filing of the Certificate of Merger referred to in
Paragraph 3.1 above shall conclusively establish that no action to terminate
this Plan and Agreement of Merger has been taken by the board of directors of
either Constituent Corporation.
Section 3.6 Dissenters' Rights. Shares of TPC Common Stock that have
not been voted in favor of the adoption of the Merger and with respect to which
dissenters' rights shall have been validly and properly demanded and perfected
in accordance with the New York BCL ("Dissenting Shares") shall not be converted
into the right to
receive the Merger Consideration on or after the Effective Date unless and until
the holder of such shares of TPC Common Stock withdraws his demand for such
appraisal in accordance with applicable law or becomes ineligible for such
appraisal, at which time such shares of TPC Common Stock shall be converted into
and represent the right to receive the Merger Consideration. TPC shall give
EFCC: (i) prompt notice of any written demand for appraisal, withdrawals of
demands for appraisal and any other instrument in respect thereof received by
TPC; and (ii) the opportunity to direct all negotiations and proceedings with
respect to demands for appraisal. TPC will not voluntarily make any payment with
respect to any demands for appraisal and will not, except with the prior written
consent of EFCC, settle or offer to settle any such demand.
Section 3.7 Exchange of Certificates. As of the Effective Date, EFCC
shall deposit, or shall cause to be deposited, with American Stock Transfer and
Trust Company, or such other bank or trust company which shall be mutually
acceptable to the parties hereto (the "Exchange Agent"), for the benefit of
holders of shares of TPC Common Stock, for exchange in accordance with Section
3.3 through the Exchange Agent: (i) certificates representing the shares of EFCC
Common Stock (the "EFCC Certificates") to be issued pursuant to the Merger; and
(ii) the estimated amount of cash to be paid in lieu of fractional shares (in
each case other than with respect to Dissenting Shares) (together, all such
certificates and cash being hereinafter referred to as the "Exchange Fund"). The
Exchange Agent shall deliver, pursuant to irrevocable instruments, the shares of
EFCC Common Stock and cash in lieu of fractional shares to be issued pursuant to
Section 3.3.
Section 3.8 Instruction to TPC Shareholders. As soon as
-------------------------------
reasonably practicable after the Effective Date, the Exchange Agent
shall mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Date
represented outstanding shares of TPC Common Stock, whose shares of
TPC Common Stock were converted into the right to receive the
Merger Consideration pursuant to Section 3.3: (i) a letter of
transmittal (which shall specify that delivery shall be effected,
and risk of loss and title to the TPC Certificates shall pass, only
upon delivery of the TPC Certificates to the Exchange Agent and
shall be in such form and have such other provisions as EFCC may
reasonably specify); and (ii) instructions for use in effecting the
surrender of TPC Certificates in exchange for the certificates
representing shares of EFCC Common Stock. Upon surrender of a TPC
Certificate for cancellation to the Exchange Agent, or to such
other agent or agents as may be appointed by EFCC, together with
such letter of transmittal, duly executed, and such other documents
as may be reasonably required by the Exchange Agent, the holder of
such TPC Certificate shall be entitled to receive in exchange
therefor the Merger Consideration and the TPC Certificate so
surrendered shall forthwith be cancelled. In the event of a
transfer of ownership of TPC Common Stock which is not registered
on the transfer records of TPC, the Merger Consideration may be
paid to and certificates representing the proper number of shares
of EFCC Common Stock may be issued to a transferee if the TPC Certificate
representing such TPC Common Stock is presented to the Exchange Agent,
accompanied by all documents required to evidence and effect such transfer and
by evidence that any applicable stock transfer taxes have been paid. Until
surrendered as contemplated by this Section 3.8, each TPC Certificate shall be
deemed at any time after the Effective Date to represent only the right to
receive upon such surrender the Merger Consideration. The Exchange Agent shall
not be entitled to vote or exercise any rights of ownership with respect to the
EFCC Common Stock held by it from time to time hereunder.
Section 3.9 Distributions with Respect to Unexchanged Shares. No
dividends or other distributions with respect to EFCC Common Stock with a record
date after the Effective Date shall be paid to the holder of any unsurrendered
TPC Certificate with respect to the shares of EFCC Common Stock represented
thereby and no cash payment (including, without limitation, cash payment in lieu
of fractional shares) shall be paid to any such holder pursuant to Section 3.3
until the surrender of such Certificate in accordance with Section 3.8. Subject
to the effect of applicable laws, following surrender of any such TPC
Certificate, there shall be paid to the holder of the share certificate
representing whole shares of EFCC Common Stock issued in exchange therefor,
without interest: (i) at the time of such surrender, the amount of dividends or
other distributions with a record date after the Effective Date theretofore paid
with respect to such whole shares of EFCC Common Stock; and (ii) at the
appropriate payment date, the amount of dividends or other distributions with a
record date after the Effective Date but prior to such surrender and with a
payment date subsequent to such surrender payable with respect to such whole
shares of EFCC Common Stock.
Section 3.10 No Further Ownership Rights in Common Stock. All shares of
EFCC Common Stock issued, upon the surrender for exchange of TPC Certificates in
accordance with the terms hereof (including any cash paid pursuant to Section
3.3) shall be deemed to have been issued (and/or paid) in full satisfaction of
all rights pertaining to such shares of TPC Common Stock and there shall be no
further registration of transfers on the stock transfer books of the Surviving
Corporation of the shares of TPC Common Stock which were outstanding immediately
prior to the Effective Date. If, after the Effective Date, TPC Certificates are
presented to the Surviving Corporation or the Exchange Agent for any reason,
they shall be canceled and exchanged as provided in Section 3.3.
Section 3.11 Possible Merger with Star Multi Care Services, Inc.. In
the event that a currently contemplated merger between EFCC and Star Multi Care
Services, Inc., a New York corporation ("Star"), is consummated (hereinafter
referred to as the "Star Merger"), EFCC shareholders and those holders of shares
of TPC Common Stock entitled to receive the Merger Consideration will receive a
combination of Star common stock, par value $.001 per share, and cash, or all
cash, pursuant to the terms of an Agreement
and Plan of Merger dated as of January 3, 1997 among Star, EFCC and an
acquisition subsidiary of Star, assuming that such persons are shareholders of
record of EFCC on the record date of the Star Merger and do not exercise
dissenters' rights with respect thereto. In such event, the holder of shares of
TPC Common Stock who is entitled to receive the Merger Consideration hereunder
and does not dissent from the Star Merger, as a matter of expediency and not in
alteration or derogation of the rights granted to such holder hereunder, will
not be issued EFCC Certificates in connection with the Merger, but rather will
be deemed to have been issued such EFCC Certificates. Such shareholders will
receive the same consideration payable to an EFCC shareholder in the Star
Merger, in proportion to the number of shares of EFCC Common Stock issuable to
such shareholder as Merger Consideration hereunder, as if such shares EFCC
Certificates had actually been issued.
ARTICLE IV
CERTIFICATE OF INCORPORATION, BY-LAWS,
DIRECTORS AND OFFICERS OF SURVIVING CORPORATION
The Certificate of Incorporation of EFCC and the By-Laws of EFCC as
they exist prior to the Effective Date, shall be and remain the Certificate of
Incorporation and the By-Laws of the Surviving Corporation until the same shall
be altered, amended or repealed as provided therein. The directors and officers
of EFCC shall continue to be the directors and officers of the Surviving
Corporation and shall serve until the expiration of the terms for which they
were elected and until their successors are duly elected and qualified or as
otherwise as provided in the By-Laws of the Surviving Corporation.
ARTICLE V
CONDITIONS PRECEDENT
Anything herein contained notwithstanding, the respective obligations
of each Constituent Corporation to effect the Merger are subject to, and the
Effective Date shall not occur until, all of the following conditions precedent
have been fully satisfied or waived, which satisfaction or waiver may occur
simultaneously on the Effective Date: (i) this Plan and Agreement of Merger
shall have been submitted to the shareholders of each of the Constituent
Corporations for adoption hereof, and shall have been adopted and approved by
the shareholders of each Constituent Corporation in accordance with the
requirements of Section 903 of the New York BCL, and applicable federal proxy
rules; (ii) a registration statement with respect to the shares of EFCC Common
Stock to be issued to TPC shareholders in the Merger shall have been declared
effective and no stop order suspending the effectiveness of the registration
statement shall have been issued by the Securities and Exchange Commission (the
"Commission") or shall be continuing in effect, and no proceedings for that
purpose shall have been initiated or threatened by the Commission; (iii) EFCC
shall have
received all state securities laws or "blue sky" permits and authorizations
necessary to issue the shares of EFCC Common Stock pursuant to the Merger and
the transactions contemplated thereby; (iv) no governmental authority or other
agency, commission or court of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any statute, rule, regulation,
injunction or the order (whether temporary, preliminary or permanent) which is
in effect and has the effect of making the Merger illegal or otherwise
prohibiting consummation of the transactions contemplated by this Plan and
Agreement of Merger; provided, however, that, prior to invoking this condition,
each party to this Plan and Agreement of Merger shall use all reasonable efforts
to have such statute, rule, regulation, injunction or order vacated; (v) the
receipt of the opinion of Xxxxxxx, Lippe, Goldstein, Wolf & Xxxxxxxxx, P.C.
that, more likely than not, the Merger will constitute a tax-free reorganization
under Section 368(a) of the Internal Revenue Code; and (vi) any consents,
permits, approvals or authorizations required by any third party, including
private parties and governmental or regulatory authorities, in connection with
the transactions contemplated hereby shall have been obtained.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Counterparts. For the convenience of the parties and to
facilitate approval of this Plan and Agreement of Merger, any number of
counterparts hereof may be executed, and each such executed counterpart shall be
deemed to be an original instrument.
Section 6.2 Further Assurances. If at any time after the Effective
Date, the Surviving Corporation shall consider or be advised that any deeds,
assignments or assurances in law or any other things are necessary, desirable or
proper to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, the title to any property or rights of any of the Constituent
Corporations acquired or to be acquired by reason of, or as a result of, the
Merger, the Constituent Corporations agree that the Surviving Corporation and
its proper officers and directors shall and will execute and deliver all such
proper deeds, assignments and assurances in law and do all things necessary,
desirable or proper to vest, perfect or confirm title to such property or rights
in the Surviving Corporation and otherwise to carry out the purposes of this
Plan and Agreement of Merger, and that the proper officers and directors of the
Surviving Corporation are fully authorized in the name of each of the
Constituent Corporations or otherwise to take any and all such action.
Section 6.3 Amendment. Subject to applicable law, this Plan and
Agreement of Merger may be amended, modified or supplemented only by written
agreement signed by each of the parties hereto.
Section 6.4 Entire Agreement. This Plan and Agreement of Merger,
including the certificates referred to herein, embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein.
Section 6.5 Assignment. This Plan and Agreement of Merger shall be
binding upon and inure to the benefits of the parties hereto and their
respective successors and permitted assigns, but neither this Plan and Agreement
of Merger nor any of the rights, interests or obligations hereunder shall be
assigned by any party hereto without the prior written consent of the other
party hereto, nor is this Plan and Agreement of Merger intended to confer upon
any other person or entity except the parties any rights or remedies hereunder.
Section 6.6 Governing Law. This Plan and Agreement of Merger shall be
governed by and construed in accordance with the internal, substantive laws of
the State of New York, without giving effect to the conflicts of laws principles
thereof.
Section 6.7 Existing Agreements. TPC and the Surviving Corporation
shall insure and guaranty that the provisions with respect to indemnification by
TPC or any of its subsidiaries or affiliates in favor of any present or former
director, officer, employee or agent (and their respective heirs and assigns) of
TPC or any of its subsidiaries or affiliates (the "Indemnified Parties"), as set
forth in their respective charters or bylaws or pursuant to other agreements
(including any insurance policies), shall survive the Merger, shall not be
amended, repealed or modified in any manner as to adversely affect the rights of
such Indemnified Parties and shall continue in full force and effect for a
period of at least six years from the Effective Date. This Section 6.7 shall
survive the closing of any of the transactions contemplated hereby, is intended
to benefit the directors and officers of TPC and affiliates at the Effective
Date and each of the Indemnified Parties (each of which shall be entitled to
enforce
this Section 6.7 against TPC and the Surviving Corporation, as the case may be,
as a third-party beneficiary of this Plan and Agreement of Merger), and shall be
binding on all successors and assigns of the Surviving Corporation.
IN WITNESS WHEREOF, the undersigned have executed this Plan and
Agreement of Merger on this 18th day of March, 1997.
T.P.C. HOME CARE SERVICES, INC.,
a New York corporation
By: Xxxx Xxx Page
Name: Xxxx Xxx Page
Title:
EXTENDED FAMILY CARE CORPORATION,
a New York corporation
By: Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: VP
