EXHIBIT 2.1
STATE OF FLORIDA
ARTICLES OF MERGER
OF
COAST DENTAL SERVICES, INC.
a Delaware corporation
INTO
COAST FLORIDA ACQUISITION, INC.
a Florida corporation
Pursuant to Florida Statutes Section 607.1101 entitled "Merger", the
undersigned corporations adopt the following Articles of Xxxxxx:
FIRST: The Agreement and Plan of Merger ("Plan of Merger") attached
hereto as Exhibit A was adopted by the Board of Directors and the shareholders
of Coast Dental Services, Inc., a Delaware corporation (the "Merged
Corporation") as of April 22, 2002 and August 2, 2002, respectively. The Plan of
Merger was adopted by the Board of Directors of Coast Florida Acquisition, Inc.,
a Florida corporation (the "Surviving Corporation"), as of August 29, 2002. The
shareholders of the Surviving Corporation were not required to approve the Plan
of Merger.
SECOND: The Effective Date and Time of these Articles of Merger shall
be the date these Articles of Merger are filed with the State of Florida in
accordance with Florida Statutes Chapter 607.
IN WITNESS WHEREOF, the undersigned have executed these Articles of
Merger this 29th day of August, 2002.
MERGED CORPORATION:
COAST DENTAL SERVICES, INC.
By: /S/ XXXXX XXXXXX
------------------------------------------
Xxxxx Xxxxxx
Chief Executive Officer
SURVIVING CORPORATION:
COAST FLORIDA ACQUISITION, INC.
By: /S/ XXXXX XXXXXX
------------------------------------------
Xxxxx Xxxxxx
Chief Executive Officer
EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of August 29, 2002 (this
"Agreement"), is entered into by and between Coast Dental Services, Inc., a
Delaware corporation ("CDS"), and Coast Florida Acquisition, Inc., a Florida
corporation and a wholly owned subsidiary of CDS ("Coast Florida" or the
"Surviving Corporation", and together with CDS, the "Constituent Corporations").
RECITALS
A. The Boards of Directors of CDS and Coast Florida desire that CDS
merge with and into Coast Florida pursuant to the terms and conditions of this
Agreement and in accordance with Section 607.1107 of the Florida Business
Corporation Act (the "FBCA") and Section 252 of the Delaware General Corporation
Law (the "DGCL"), and have adopted and approved this Agreement in accordance
with Section 607.1103 of the FBCA and Section 252 of the DGCL, respectively.
B. CDS, as the sole shareholder of Coast Florida, has adopted and
approved this Agreement in accordance with Section 607.1107 of the FBCA.
C. CDS intends to solicit, at its 2002 annual meeting of shareholders
(the "Annual Meeting"), the approval of this Agreement by the holders of CDS
Shares (as defined below) entitled to vote thereon in accordance with Section
252 of the DGCL.
AGREEMENT
In consideration of the premises and agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledges, the parties hereto agree as follows.
1. RECITALS. The foregoing recitals are true and correct and are
incorporated herein by reference.
2. MERGER. CDS shall be merged with and into Coast Florida (the
"Merger"). Coast shall be the surviving corporation in the Merger, and at the
Effective Time (as defined below), the separate existence of CDS shall cease.
The corporate existence of Coast Florida, with its purposes, powers and objects,
shall continue unaffected and unimpaired by the Merger, and as the surviving
corporation it shall succeed to all the rights, assets, liabilities and
obligations of CDS as and to the extent provided in Section 607.1106 of the
FBCA and Section 259 of the DGCL.
EXHIBIT "A"
3. EFFECTIVE TIME. The Merger shall become effective immediately upon
the later of the parties hereto causing the filing of this Agreement with (i) a
certificate of merger with the Secretary of State of the State of Delaware, in
such form as is required by, and executed in with, Section 252 of the DGCL and
(ii) articles of merger with the Department of State of the State of Florida, in
such form as is required by, and executed in accordance with, Section 607.1105
of the FBCA; provided, however, that if such certificate of merger and articles
of merger specify a later time, then the Merger shall become effective upon such
specified later time. The time of such effectiveness is hereinafter called the
"Effective Time."
4. ARTICLES OF INCORPORATION. The Articles of Incorporation of Coast
Florida shall, as of the Effective Time, be the Articles of Incorporation of
Coast Florida after the Effective Time in full force and effect unless and until
the same shall thereafter be amended or repealed in accordance with the
provisions thereof and the FBCA. Immediately prior to the Effective Time, Coast
Florida shall file such Amended and Restated Articles of Incorporation with the
Department of State of the State of Florida.
5. NAME. The name of the Surviving Corporation, as of the Effective
Time, shall be "Coast Dental Services, Inc."
6. BYLAWS. The Bylaws of Coast Florida in existence as of the Effective
Time shall be the Bylaws of Coast Florida at the Effective Time, and shall
continue in full force and effect after the Effective Time unless and until
thereafter the same shall be amended or repealed in accordance with the
provisions thereof, the Amended and Restated Articles of Incorporation of Coast
Florida and the FBCA.
7. DIRECTORS AND OFFICERS. At the Effective Time, the directors and
officers of CDS immediately prior to the Effective Time shall be and constitute
the directors and officers of Coast Florida until the earlier of their
resignation or removal or until their respective successors are duly elected and
qualified, as the case may be, in accordance with the Amended and Restated
Articles of Incorporation and Bylaws of Coast Florida and the FBCA.
8. REQUIRED APPROVALS. This Agreement is subject to the adoption and
approval at the Annual Meeting of the holders of a majority of the outstanding
shares of the CDS common stock entitled to vote thereon at the Annual Meeting
(the "CDS Shareholder Approval"). As of August 2, 2002, 2,091,206 shares of
common stock, par value $0.001 per share, of CDS (the "CDS Common Stock") were
outstanding. This Agreement has been adopted and approved by CDS, the sole
shareholder of Coast Florida, in accordance with Section 607.1103 of the FBCA.
As of August 29, 2002, 100 shares of common stock, par value $0.01 per share, of
COAST Florida (the "Coast Florida Shares") were outstanding.
9. CONVERSION OF SECURITIES. At the Effective Time, by virtue of the
Merger and without any action on the part of the Constituent Corporations or the
holders of any securities thereof:
(a) Cancellation of Certain Capital Stock of CDS. Each of the
shares of CDS Common Stock that are owned by CDS as treasury stock or
any of its subsidiaries shall be canceled and cease to exist.
(b) Conversion of CDS Common Stock. Each issued and
outstanding share of CDS Common Stock (excluding shares canceled under
Section 9(a)) shall be converted into the right to receive one fully
paid and non-assessable share of common stock, par value $0.001, of
Coast Florida (the "CF Common Stock").
(c) Conversion of CDS Stock Options. Each stock option of CDS
to purchase shares of CDS Common Stock (the "CDS Stock Options") issued
pursuant to CDS stock option plans (as assumed by COAST Florida by
virtue of the Merger) shall be converted into the right to receive a
stock option to purchase, on the same terms and conditions as were
applicable under such CDS Stock Options, the same number of shares of
CF Common Stock, and each agreement representing such CDS Stock Options
shall for all purposes be deemed to evidence the ownership of a stock
option to purchase shares of COAST Common Stock.
(d) Cancellation of CDS Securities Upon Conversion. Upon the
conversion of the CDS Common Stock and the CDS Stock Options pursuant
to paragraphs (b) and (c) of this Section 9, respectively, such
securities shall be canceled and cease to exist, and each holder a
certificate or instrument representing such securities shall cease to
have any rights with respect thereto, other than the right to receive
securities of Coast Florida as provided in paragraphs (b) and (c)
above, as the case may be.
(f) Cancellation of the Coast Florida Shares. Each Coast
Florida Share that is issued and outstanding immediately prior to the
Effective Time shall be canceled and cease to exist.
10. CLOSING OF TRANSFER BOOKS. From and after the Effective Time, the
stock transfer books of CDS shall be closed and no transfer of any capital stock
of CDS shall thereafter be made. If, at the Effective Time, certificates
representing any shares of such capital stock are presented to the Surviving
Corporation, they shall be canceled and exchanged for the merger consideration
specified in Section 9.
11. REPRESENTATIONS AND WARRANTIES. Each Constituent Corporation hereby
represents and warrants to the other that such Constituent Corporation: (i) is a
corporation duly organized and in good standing in its jurisdiction of
incorporation; (ii) has obtained the approval of its board of directors to
effect the Merger; and (iii) has full power and authority to execute, deliver
and perform this Agreement.
12. CLOSING CONDITIONS; THE CLOSING.
(a) Closing Conditions. The consummation of the Merger and the
other transactions contemplated hereby is conditioned upon the
satisfaction of the following conditions: (i) the CDS Shareholder
Approval shall have been obtained; (ii) all required consents, orders,
approvals and all other requirements prescribed by applicable law or
otherwise shall have been obtained; and (iii) there shall not be any
pending or threatened litigation, action or proceeding concerning the
Merger or any other transaction contemplated by this Agreement that, in
the judgment of the Board of Directors of CDS, would materially
adversely affect any Constituent Corporation or any right of their
shareholders. The Constituent Corporations shall use their commercially
reasonable efforts to satisfy the foregoing conditions.
(b) Closing. The closing under this Agreement shall occur on a
date not more than ten business days following the satisfaction of the
foregoing conditions at a place mutually agreed upon by the Constituent
Corporations.
13. TERMINATION OR ABANDONMENT OF THE MERGER. This Agreement may be
terminated and the Merger may be abandoned at any time prior to the Effective
Time by action of the respective Board of Directors of CDS, if the Board of
Directors of CDS shall determine, whether before or after having received
shareholder approval, for any reason that the consummation of the transactions
contemplated hereby would be inadvisable or not in the best interest of CDS or
its shareholders.
14. AMENDMENTS. At any time prior to the Effective Time, the
Constituent Corporations may by written agreement amend, modify or supplement
any provision of this Agreement, provided that no such amendment, modification
or supplement may be made if, in the sole judgment of the Board of Directors of
CDS, it would adversely affect the rights and interests of CDS shareholders in
any material respect.
15. FURTHER ASSURANCES. The Constituent Corporations each agree to
execute such documents and instruments and to take such further action as may be
necessary or desirable to consummate the Merger.
16. BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement may not be
assigned by either Constituent Corporation without the consent of the other
Constituent Corporation. This Agreement shall be binding upon and inure to the
benefit of the respective successors and permitted assigns of the Constituent
Corporations.
17. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which, when so executed, shall be deemed to be an
original, and such counterparts when taken together shall constitute one and the
same instrument.
18. INSPECTION OF AGREEMENT. A copy of this Agreement is on file at the
principal place of business of Coast Florida, c/o Coast Dental Services, Inc.,
0000 Xxxxx Xxxxx Xxxxx Xxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000, and will be
furnished by the Surviving Corporation, on request and without cost, to any
shareholder of either Constituent Corporation.
19. GOVERNING LAW. This Agreement shall in all respects be construed
under and in accordance with the laws of the State of Florida applicable to
contracts to be fully performed in such State, without giving effect to
applicable choice of law principles.
20. HEADINGS. The headings set forth herein are for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
21. SERVICE OF PROCESS. From and after the Effective Time, Coast
Florida hereby agrees that it may be served with process in the State of
Delaware in any proceeding for enforcement of any obligation of either
Constituent Corporation arising from the Merger, including any suit or other
proceeding to enforce the right of any stockholder as determined in appraisal
proceedings pursuant to the provisions of Section 262 of the DGCL, and hereby
irrevocably appoints the Secretary of State of the State of Delaware as its
agent to accept service of process in any such suit or other proceeding.
22. EXTENSIONS OF TIME. At any time prior to the Effective Time, the
Constituent Corporations may, by written agreement, extend time for performance
of any of their obligations or other acts hereunder.
IN WITNESS WHEREOF, each of CDS and Coast Florida has caused this
Agreement and Plan of Merger to be executed on its behalf by its officers duly
authorized, all as of the date first above written.
COAST DENTAL SERVICES, INC.
By: /S/ XXXXX XXXXXX
------------------------------------
Xxxxx Xxxxxx
Chief Executive Officer
COAST FLORIDA ACQUISITION, INC.
By: /S/ XXXXX XXXXXX
------------------------------------
Xxxxx Xxxxxx
Chief Executive Officer
