AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
THIS AGREEMENT AND PLAN OF MERGER dated as of March 9, 2004 (the "Merger Agreement"), by and among Corporate Vision, Inc., an Oklahoma corporation ("CVI"), Wastech, Inc., an Oklahoma corporation ("Wastech"), and CV Merger, Inc., an Oklahoma corporation ("Merger").
WHEREAS, on the date hereof, CVI has authority to issue (a) 200,000,000 shares of common stock, $0.01 par value per share (the "CVI Common Stock"), of which 75,884,487 shares are issued and outstanding, and (b) 1,000,000 shares of Preferred Stock, par value $0.01 per share (the "CVI Preferred Stock," and with the CVI Common Stock, the "CVI Capital Stock"), of which no shares are issued and outstanding;
WHEREAS, on the date hereof, Wastech has authority to issue (a) 200,000,000 shares of common stock, $0.01 par value per share (the "Wastech Common Stock"), of which 1,000 shares are issued and outstanding and held by CVI, and (b) 1,000,000 shares of Preferred Stock, par value $0.01 per share (the "Wastech Preferred Stock," and with the Wastech Common Stock, the "Wastech Capital Stock"), of which no shares are issued and outstanding;
WHEREAS, on the date hereof, Merger has authority to issue (a) 200,000,000 shares of common stock, $0.01 par value per share (the "Merger Common Stock"), of which 1,000 shares are issued and outstanding and held by Wastech, and (b) 5,000,000 shares of Preferred Stock, par value $0.01 per share (the "Merger Preferred Stock," and with the Merger Common Stock, the "Merger Capital Stock"), of which no shares are issued and outstanding;
WHEREAS, the respective Boards of Directors of CVI, Merger and Wastech have determined that it is advisable and in the best interests of each of such corporations that they reorganize into a holding company structure pursuant to Section 1081(G) of the Oklahoma General Corporation Law, under which Wastech would survive as the holding company, by the merger of CVI with and into Merger, and with each holder of CVI Capital Stock receiving one share of Wastech Capital Stock in exchange for such share of CVI Capital Stock;
WHEREAS, under the respective certificates of incorporation of CVI and Wastech, the Wastech Capital Stock has the same designations, rights and powers and preferences, and the qualifications, limitations and restrictions thereof, as the CVI Capital Stock which will be exchanged therefor pursuant to the holding company reorganization;
WHEREAS, the certificate of incorporation and bylaws of Wastech, as the holding company, immediately following the merger will contain provisions identical to the certificate of incorporation and bylaws of CVI immediately prior to the merger, other than differences permitted by Section 1081(G) of the Oklahoma General Corporation Law;
WHEREAS, the certificate of incorporation of Merger is identical to the certificate of incorporation of CVI immediately prior to the merger, other than differences permitted by Section 1081(G) of the Oklahoma General Corporation Law pursuant to this Merger Agreement;
WHEREAS, the Boards of Directors of CVI, Wastech and Merger have approved this Merger Agreement, shareholder approval not being required pursuant to Section 1081(G) of the Oklahoma General Corporation Law;
WHEREAS, the parties hereto intend that the reorganization contemplated by this Merger Agreement shall constitute a tax-free reorganization pursuant to Section 368(a)(1) of the Internal Revenue Code;
NOW, THEREFORE, in consideration of the mutual agreements and covenants herein contained, CVI, Wastech and Merger hereby agree as follows:
- Merger. CVI shall be merged with and into Merger (the "Merger"), and Merger shall be the surviving corporation (hereinafter sometimes referred to as the "Surviving Corporation"). The Merger shall become effective upon the date and time of filing a certified copy of this Merger Agreement with the Secretary of State of the State of Oklahoma in accordance with Section 1081(G) of the Oklahoma General Corporation Law (the "Effective Time").
- Certificate of Incorporation of the Surviving Corporation. At the Effective Time, the Certificate of Incorporation of Merger, in effect immediately prior to the Effective Time, shall be amended as set forth below and as so amended shall thereafter continue in full force and effect as the Certificate of Incorporation of the Surviving Corporation until further amended as provided therein and under the Oklahoma General Corporation Law.
- Article Fourth shall be amended to read in its entirety as follows:
- Succession. At the Effective Time, the separate corporate existence of CVI shall cease, and Merger shall succeed to all of the assets and property (whether real, personal or mixed), rights, privileges, franchises, immunities and powers of CVI, and Merger shall assume and be subject to all of the duties, liabilities, obligations and restrictions of every kind and description of CVI, including, without limitation, all outstanding indebtedness of CVI, all in the manner and as more fully set forth in Section 1081(G) of the Oklahoma General Corporation Law.
- Directors. The directors of CVI immediately prior to the Effective Time shall be the directors of the Surviving Corporation and Wastech at and after the Effective Time to serve until the expiration of their respective terms and until their successors are duly elected and qualified.
- Officers. The officers of CVI immediately preceding the Effective Time shall be the officers of the Surviving Corporation and Wastech at and after the Effective Time until their successors are duly elected and qualified.
- Conversion of Securities. At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof:
- each share of CVI Common Stock issued and outstanding immediately prior to the Effective Time shall be changed and converted into and shall be one fully paid and nonassessable share of Wastech Common Stock;
- each share of CVI Preferred Stock issued and outstanding immediately prior to the Effective Time shall be changed and converted into and shall be one fully paid and nonassessable share of Wastech Preferred Stock;
- each share of CVI Capital Stock held in the treasury of CVI immediately prior to the Effective Time shall be cancelled and retired;
- each option, warrant, purchase right, unit or other security of CVI convertible into shares of CVI Capital Stock shall become convertible into the same number of shares of Wastech Capital Stock as such security would have received if the security had been converted into shares of CVI Capital Stock immediately prior to the Effective Time, and Wastech shall reserve for purposes of the exercise of such options, warrants, purchase rights, units or other securities an equal number of shares of Wastech Capital Stock as CVI had reserved; and
- each share of Wastech Capital Stock issued and outstanding in the name of CVI immediately prior to the Effective Time shall be cancelled and retired and resume the status of authorized and unissued shares of Wastech Capital Stock.
- Other Agreements. At the Effective Time, Wastech shall assume any obligation of CVI to deliver or make available shares of CVI Common Stock under any agreement or employee benefit plan not referred to in Paragraph 6 herein to which CVI is a party. Any reference to CVI Common Stock under any such agreement or employee benefit plan shall be deemed to be a reference to Wastech Common Stock and one share of Wastech Common Stock shall be issuable in lieu of each share of CVI Common Stock required to be issued by any such agreement or employee benefit plan, subject to subsequent adjustment as provided in any such agreement or employee benefit plan.
- Further Assurances. From time to time, as and when required by the Surviving Corporation or by its successors or assigns, there shall be executed and delivered on behalf of CVI such deeds and other instruments, and there shall be taken or caused to be taken by it all such further and other action, as shall be appropriate, advisable or necessary in order to vest, perfect or conform, of record or otherwise, in the Surviving Corporation, the title to and possession of all property, interests, assets, rights, privileges, immunities, powers, franchises and authority of CVI, and otherwise to carry out the purposes of this Merger Agreement, and the officers and directors of the Surviving Corporation are fully authorized, in the name and on behalf of CVI or otherwise, to take any and all such action and to execute and deliver any and all such deeds and other instruments.
- Certificates. At and after the Effective Time, all of the outstanding certificates which immediately prior thereto represented shares of CVI Capital Stock shall be deemed for all purposes to evidence ownership of and to represent the shares of Wastech Capital Stock, as the case may be, into which the shares of CVI Capital Stock represented by such certificates have been converted as herein provided and shall be so registered on the books and records of Wastech and its transfer agent. The registered owner of any such outstanding certificate shall, until such certificate shall have been surrendered for transfer or otherwise accounted for to Wastech or its transfer agent, have and be entitled to exercise any voting and other rights with respect to, and to receive any dividends and other distributions upon, the shares of Wastech Capital Stock, as the case may be, evidenced by such outstanding certificate, as above provided.
- Amendment. The parties hereto, by mutual consent of their respective boards of directors, may amend, modify or supplement this Merger Agreement prior to the Effective Time.
- Compliance with Section 1081(G) of the Oklahoma General Corporation Law. Prior to the Effective Time, the parties hereto will take all steps necessary to comply with Section 1081(G) of the Oklahoma General Corporation Law, including without limitation, the following:
- Certificate of Incorporation and By-Laws of Wastech. At the Effective Time, the Certificate of Incorporation and By-Laws of Wastech shall be in the form of the Certificate of Incorporation and By-Laws of CVI, as in effect immediately prior to the Effective Time.
- Directors and Officers of Wastech. At the Effective Time, the directors and officers of CVI immediately prior to the Effective Time shall be the directors and officers of Wastech, in the case of directors, until their successors are elected and qualified and, in the case of officers, to serve at the pleasure of the Board of Directors of Wastech.
- Filings. Prior to the Effective Time, the Surviving Corporation shall cause a certified copy of this Agreement to be executed and filed with the Oklahoma Secretary of State. Prior to the Effective Time, to the extent necessary to effectuate any amendments to the certificates of incorporation of the Surviving Corporation and Wastech contemplated by this Agreement, each of the Surviving Corporation and Wastech shall cause to be filed with the Oklahoma Secretary of State such certificates or documents required to give effect thereto.
- Termination. This Merger Agreement may be terminated, and the Merger and the other transactions provided for herein may be abandoned, at any time prior to the Effective Time, whether before or after approval of this Merger Agreement by the board of directors of CVI, Wastech and Merger, by action of the board of directors of CVI if it determines for any reason, in its sole judgment and discretion, that the consummation of the Merger would be inadvisable or not in the best interests of CVI and its stockholders.
- Counterparts. This Merger Agreement may be executed in one or more counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.
- Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Merger Agreement.
- Governing Law. This Merger Agreement shall be governed by and construed in accordance with the laws of the State of Oklahoma.
"ARTICLE FOURTH: Capital Stock. The aggregate number of shares which the Corporation shall have the authority to issue is One Thousand (1,000) shares of Common Stock, par value $0.01 per share."
(b) Article Fifteenth shall be added and will read as follows:
"ARTICLE FIFTEENTH: Holding Company. Any act or transaction by or involving the Corporation that requires for its adoption under the Oklahoma General Corporation Law or under this Certificate of Incorporation the approval of the Corporation's stockholders shall, pursuant to Section 1081(G) of the Oklahoma General Corporation Law, require, in addition, the approval of the stockholders of the Corporation's holding company, Wastech, Inc., or any successor by merger, by the same vote as is required by the Oklahoma General Corporation Law and/or by the Certificate of Incorporation of the Corporation."
IN WITNESS WHEREOF, CVI, Wastech and Merger have caused this Merger Agreement to be executed and delivered as of the date first above written.
CORPORATE VISION, INC., an Oklahoma corporation
/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President
WASTECH, INC., an Oklahoma corporation
/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President
CV MERGER, INC., an Oklahoma corporation
/s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: President
CERTIFICATION
STATE OF OHIO
COUNTY OF MAHONNING
Before me, a Notary Public in and for said County, personally appeared Xxxxxxx X. Xxxxxx, the President of Corporate Vision, Inc., CV Merger, Inc. and Wastech, Inc., on the 10th day of March, 2004, who certified that the foregoing Agreement and Plan of Merger was adopted by the board of directors of Corporate Vision, Inc., CV Merger, Inc. and Wastech, Inc. pursuant to Section 1081(G) of the Oklahoma General Corporation Law, and that the conditions in the first sentence of Section 1081 (G) have been satisfied.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed by notary seal on the day and year last aforesaid.
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Sworn to and subscribed before me
the 9th day of March, 2004.
/s/ Xxxxx X. Xxxxxxx
Commission Expires: April 5, 2005
