EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made as
of this 13th day of May, 2002, by and between xxxxxxxxxxxxx.xxx, Inc., a Florida
corporation (the "Parent") and Forge, Inc., a Delaware corporation (the
"Subsidiary").
RECITALS:
WHEREAS, the Parent is a corporation organized and existing under the
laws of the State of Florida;
WHEREAS, the Subsidiary is a corporation organized and existing under
the laws of the State of Delaware and is a wholly-owned subsidiary of the
Parent;
WHEREAS, the parties hereto desire that the Parent merge with and into
the Subsidiary and that the Subsidiary shall continue as the surviving
corporation in such merger, which is intended to qualify as a tax-free
reorganization under Section 368(a)(1)(F) or 368(a)(1)(A) of the Internal
Revenue Code of 1986, as amended, upon the terms and subject to the conditions
herein set forth and in accordance with the laws of the State of Florida and the
laws of the State of Delaware (the "Merger").
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
PRINCIPAL TERMS OF THE MERGER
Section 1.1 Merger of Parent into Subsidiary. At the Effective Time of
the Merger (as defined in Section 1.2 hereof), the Parent shall merge with and
into the Subsidiary in accordance with the Florida Business Corporation Act (the
"FBCA") and the Delaware General Corporation Law (the "DGCL"). The separate
existence of the Parent shall thereupon cease and the Subsidiary shall be the
surviving corporation (hereinafter sometimes referred to as the "Surviving
Corporation") and shall continue its corporate existence under the laws of the
State of Delaware.
Section 1.2 Effective Time of the Merger. The Merger shall become
effective as of the date and time (the "Effective Time of the Merger") the
following actions are completed: (a) appropriate articles of merger are filed
with the Secretary of State of the State of Florida, and a certificate of merger
is issued by the Secretary of State of the State of Florida in accordance with
the FBCA and (b) an appropriate certificate of merger is filed with the
Secretary of the State of Delaware in accordance with the DGCL.
Section 1.3 Effects of the Merger. At the Effective Time of the Merger,
the Merger shall have the effects specified in the FBCA, the DGCL and this
Merger Agreement.
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Section 1.4 Certificate of Incorporation and Bylaws. At the Effective
Time of the Merger, the Certificate of Incorporation and bylaws of the
Subsidiary, as in effect immediately prior to the Effective Time of the Merger,
shall become the Certificate of Incorporation and bylaws of the Surviving
Corporation until duly amended in accordance with their terms and as provided by
the DGCL.
Section 1.5 Directors and Officers. At the Effective Time of the
Merger, the directors and officers of the Subsidiary in office at the Effective
Time of the Merger shall become the directors and officers, respectively, of the
Surviving Corporation, each of such directors and officers to hold office,
subject to the applicable provisions of the Certificate of Incorporation and
bylaws of the Surviving Corporation and the DGCL, until his or her successor is
duly elected or appointed and qualified.
Section 1.6 Shareholders' Dissenters Rights. The Shareholders of the
Parent are entitled to dissenters' rights under sections 607.1301, 607.1302 and
607.1320 of the FBCA. In the event that shareholders collectively owning more
than one percent (1%) of the shares of the Parent exercise his, her or its
dissenters' rights, the Parent's board of directors may abandon the Merger in
its sole discretion.
ARTICLE II
CONVERSION AND EXCHANGE OF STOCK
Section 2.1 Conversion. At the Effective Time of the Merger, each of
the following transactions shall be deemed to occur simultaneously:
(a) Each share of the Parent's common stock, $0.005 par value (the
"Parent's Common Stock") issued and outstanding, immediately prior to the
Effective Time of the Merger shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into and become one
twentieth (1/20) of a validly issued, fully paid and nonassessable share of the
Surviving Corporation's common stock, par value $0.001 per share (the "Surviving
Corporation's Common Stock").
(b) Each option to purchase shares of the Parent's Common Stock
outstanding immediately prior to the Effective Time of the Merger shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into and become an option to purchase, upon the same terms and
conditions, the number of shares of the Surviving Corporation's Common Stock,
which is one twentieth (1/20) the number of shares of the Parent's Common Stock
that the optionee would have received had the optionee exercised such option in
full immediately prior to the Effective Time of the Merger (whether or not such
option was then exercisable) and the exercise price per share under each of said
options shall be one twentieth (1/20) the exercise price per share thereunder
immediately prior to the Effective Time of the Merger, unless otherwise provided
in the instrument granting such option.
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(c) Each warrant to purchase shares of the Parent's Common Stock
outstanding immediately prior to the Effective Time of the Merger shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into and become a warrant to purchase, upon the same terms and
conditions, the number of shares of the Surviving Corporation's Common Stock
which is one twentieth (1/20) the number of shares of the Parent's Common Stock
that the warrant holder would have received had the warrant holder exercised
such warrant in full immediately prior to the Effective Time of the Merger
(whether or not such warrant was then exercisable) and the exercise price per
share under each of said warrants shall be one twentieth (1/20) the exercise
price per share thereunder immediately prior to the Effective Time of the
Merger, unless otherwise provided in the instrument granting such warrant.
(d) Each share of the Subsidiary's Common Stock issued and outstanding
immediately prior to the Effective Time of the Merger and held by the Parent
shall be canceled without any consideration being issued or paid therefor.
Section 2.2 Exchange.
(a) After the Effective Time of the Merger, each certificate
theretofore representing issued and outstanding shares of the Parent's Common
Stock shall represent one twentieth (1/20) number of shares of the Surviving
Corporation's Common Stock.
(b) At any time on or after the Effective Time of the Merger, each
holder of an outstanding certificate theretofore representing the Parent's
Common Stock will be requested to surrender such certificate to StockTrans, Inc.
as the exchange agent (the "Exchange Agent"). As soon as practicable after the
surrender to the Exchange Agent of any certificate which prior to the Merger
represented shares of the Parent's Common Stock, together with a duly executed
transmittal letter and any other documents the Exchange Agent may specify, the
Exchange Agent shall deliver to the person in whose name such certificate has
been issued certificates registered in the name of such person representing the
number of full shares of the Surviving Corporation's Stock into which the shares
of the Parent's Common Stock previously represented by the surrendered
certificate shall have been reclassified.
(c) No certificates or scrip representing fractional shares of
Surviving Corporation's Common Stock shall be issued in connection with the
Merger. Instead, stockholders holding a number of shares of the Parent's Common
Stock not evenly divisible by the exchange ratio, and stockholders holding less
than the exchange ratio of shares of the Parent's Common Stock, upon surrender
of their old certificates, will receive cash in lieu of fractional shares of
Surviving Corporation's Common Stock. The price payable by the Parent will be
determined by multiplying the fraction of a share of new Surviving Corporation's
Common Stock by the closing price for that number of shares as determined by the
Board of Directors of the Parent's Common Stock at the Effective Time of the
Merger for which transactions in the Parent's Common Stock are reported, as
reported by the Nasdaq Over the Counter Bulletin Board.
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ARTICLE III
EMPLOYEE BENEFIT AND INCENTIVE COMPENSATION PLANS
At the Effective Time of the Merger, each employee benefit plan,
incentive compensation plan and other similar plans to which the Parent is then
a party shall be assumed by, and continue to be the plan of, the Surviving
Corporation. To the extent any employee benefit plan, incentive compensation
plan or other similar plan of the Parent provides for the issuance or purchase
of, or otherwise relates to, the Parent's Common Stock, after the Effective Time
of the Merger such plan shall be deemed to provide for the issuance or purchase
of, or otherwise relate to, the Surviving Corporation's Common Stock.
ARTICLE IV
CONDITIONS
Consummation of the Merger is subject to the satisfaction at or prior
to the Effective Time of the Merger of the following conditions:
Section 4.1 Shareholder Approval. This Merger Agreement and the Merger
shall have been adopted and approved by the affirmative vote of a majority of
the votes entitled to be cast by all shareholders of the Parent entitled to vote
on the record date fixed for determining the shareholders of the Parent entitled
to vote thereon. This Agreement and the Merger shall also have been adopted and
approved by the Parent as the holder of all the outstanding shares of the
Subsidiary's Common Stock prior to the Effective Time of the Merger.
Section 4.2 Third Party Consents. The Parent shall have received all
required consents to and approvals of the Merger.
ARTICLE V
MISCELLANEOUS
Section 5.1 Amendment. This Merger Agreement may be amended, modified
or supplemented in whole or in part, at any time prior to the Effective Time of
the Merger with the mutual consent of the boards of directors of the parties
hereto; provided, however, that the Merger Agreement may not be amended after it
has been adopted by the shareholders of the Parent in any manner which, in the
judgment of the board of directors of the Parent, would have a material adverse
effect on the rights of such shareholders or in any manner not permitted under
applicable law.
Section 5.2 Termination. This Merger Agreement may be terminated or
abandoned by the parties hereto at any time prior to the filing of the
certificate of merger notwithstanding approval of this Merger Agreement by the
shareholders of either or both of the Parent or the Subsidiary.
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Section 5.3 Necessary Actions, etc. If at any date after the Effective
Time of the Merger, the Surviving Corporation shall consider that any
assignments, transfers, deeds or other assurances in law are necessary or
desirable to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, title to any property or rights of the Parent, the Parent and its
officers and directors at the Effective Time of the Merger shall execute and
deliver such documents and do all things necessary and proper to vest, perfect
or confirm title to such property or rights in the Surviving Corporation, and
the officers and directors of the Surviving Corporation are fully authorized in
the name of the Parent or otherwise to take any and all such action.
Section 5.4 Counterparts. This Merger Agreement may be executed in any
number of counterparts, each of which shall be considered to be an original
instrument.
Section 5.5 Descriptive Headings. The descriptive headings are for
convenience of reference only and shall not control or affect the meaning or
construction of any provision of this Merger Agreement.
Section 5.6 Governing Law. This Merger Agreement shall be construed in
accordance with the laws of the State of Delaware, except to the extent the laws
of the State of Florida shall mandatorily apply to the Merger.
IN WITNESS WHEREOF, the undersigned officers of each of the parties to
this Merger Agreement, pursuant to authority duly given by their respective
boards of directors, have caused this Merger Agreement to be duly executed on
the date set forth above.
XXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxxx Attest: /s/ Xxxxxx Xxxxx XxxXxxxxx
--------------------------- -----------------------------------
Xxxxxx Xxxxxx Xxxxxx Xxxxx XxxXxxxxx
Chief Executive Officer President and Secretary
FORGE, INC.
By: /s/ Xxxxxx Xxxxxx Attest: /s/ Xxxxxx Xxxxx XxxXxxxxx
--------------------------- -----------------------------------
Xxxxxx Xxxxxx Xxxxxx Xxxxx XxxXxxxxx
Chief Executive Officer President and Secretary
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CERTIFICATES
The undersigned, Secretary of Forge, Inc. a Delaware corporation,
hereby certifies, pursuant to Section 252(c) of the General Corporation Law of
the State of Delaware, that the foregoing Agreement and Plan of Merger to which
this Certificate is attached, after having been first duly signed on behalf of
Forge, Inc. by its Chief Executive Officer and attested to by its Secretary, was
duly submitted to the stockholders of Forge, Inc. for the purpose of considering
and acting upon said Agreement and Plan of Merger, on the 13th day of May, 2002,
and at said meeting said Agreement and Plan of Merger was adopted by the sole
stockholder of Forge, Inc., in accordance with the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
the 13th day of May, 2002.
/s/ Xxxxxx Xxxxx XxxXxxxxx
---------------------------------
Xxxxxx Xxxxx XxxXxxxxx, Secretary
The undersigned, Secretary of xxxxxxxxxxxxx.xxx, Inc., a Florida
corporation, hereby certifies, pursuant to Section 607.1103 of the Florida
Statutes, that the foregoing Agreement and Plan of Merger to which this
Certificate is attached, after having been first duly signed on behalf of
xxxxxxxxxxxxx.xxx, Inc. by its President and attested to by its Secretary, was
duly submitted to the shareholders of xxxxxxxxxxxxx.xxx, Inc. at a meeting
thereof called for the purpose of considering and acting upon said Agreement and
Plan of Merger, held after due notice on the 13th day of May, 2002, and that at
said meeting said Agreement and Plan of Merger was adopted by the shareholders
of xxxxxxxxxxxxx.xxx, Inc. in accordance with the Florida Business Corporation
Act of 1989.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
the 13th day of May, 2002.
/s/ Xxxxxx Xxxxx XxxXxxxxx
---------------------------------
Xxxxxx Xxxxx XxxXxxxxx, Secretary
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