EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER OF
TRANS-CENTURY RESOURCES, INC.
INTO
EINSURE NETWORKS CORPORATION
This Agreement and Plan of Merger is made as of this 15th day of
November, 2001, by and between TRANS-CENTURY RESOURCES, INC., a Texas
corporation ("Trans-Century"), and EINSURE NETWORKS CORPORATION, a Delaware
corporation ("eInsure"), such corporations being hereinafter collectively
referred to as the "Constituent Corporations",
W I T N E S S E T H:
WHEREAS, Trans-Century is a corporation duly organized and existing
under the laws of the State of Texas, having been incorporated on June 4, 2001,
and having an authorized capital stock of 2,000 shares of voting common stock,
without par value (the "Voting Common Stock of Trans-Century"), of which 1,200
shares are issued and outstanding; and
WHEREAS, eInsure is a corporation duly organized and existing under the
laws of the State of Delaware, having been incorporated on November 25, 1998,
and having authorized capital stock of 100,000,000 shares of voting common
stock, par value $0.001 per share (the "Voting Common Stock of eInsure"), of
which 2,000,000 shares are issued and outstanding, and 8,000,000 shares of
preferred stock, par value $0.01 per share, none of which have been issued; and
WHEREAS, the respective Boards of Directors of Trans-Century and
eInsure deem it advisable and in the best interests of said corporations that
Trans-Century be merged with and into eInsure as the surviving corporation, as
authorized by the statutes of the State of Texas and State of Delaware, under
and pursuant to the terms and conditions hereinafter set forth, and each such
Board has duly approved this Plan of Merger (this "Plan"); and,
WHEREAS, each of the Constituent Corporations contemplates that no gain
or loss shall be recognized by any of the holders of the capital stock of the
Constituent Corporations by virtue of the application of Sections 354(a)(1) and
368(a)(1)(A) of the Internal Revenue Code of 1986, as amended, to the
transactions contemplated in this Plan;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for the purpose of setting forth
the terms and conditions of said merger, the mode of carrying the same into
effect, the manner and basis of converting the shares of each Constituent
Corporation into shares of the Surviving Corporation (as hereinafter defined)
and such other details and provisions as are deemed necessary or desirable, the
parties hereto have agreed and do hereby agree, subject to the approval or
adoption of this Plan by the requisite vote of the stockholders of each
Constituent Corporation, and subject to the conditions hereinafter set forth, as
follows:
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1. The name and state of domicile of each domestic or foreign company
that is a party to the Merger is:
Name Domicile
Trans-Century Resources, Inc. (a Texas corporation) Texas
eInsure Networks Corporation (a Delaware corporation) Delaware
2. The name of the Delaware Corporation that will survive the merger
is: eInsure Networks Corporation.
3. No new domestic or foreign limited liability company or other entity
will be created by the terms of the this Plan.
4. The terms and conditions of the merger are (in addition to those set
forth elsewhere in this Plan) as follows:
(a) At the Effective Time of the merger:
(i) The Constituent Corporations shall be a single corporation,
which shall be eInsure, the corporation designated herein as the Surviving
Corporation.
(ii) The separate existence of Trans-Century shall cease.
(iii) The Surviving Corporation shall thereupon and thereafter
possess all the rights, privileges, powers and franchises of a public as well as
a private nature, and be subject to all the liabilities and duties of each
Constituent Corporation; and all and singular, the rights, privileges, powers
and franchises of each Constituent Corporation, and all property, real, personal
and mixed, and all debts due to each Constituent Corporation on whatever
account, as well for stock subscriptions as all other things in action or
belonging to either Constituent Corporation, shall be vested in the Surviving
Corporation; and all property, rights, privileges, powers and franchises, and
all and every other interest shall be thereafter as effectually the property of
the Surviving Corporation as they were of the respective Constituent
Corporations, and the title to any real estate vested by deed or otherwise in
either Constituent Corporation shall not revert or be in any way impaired by
reason of the merger; but all rights of creditors and all liens upon any
property of either Constituent Corporation shall be preserved unimpaired, and
all debts, liabilities and duties of the respective Constituent Corporations
shall thenceforth attach to the Surviving Corporation and may be enforced
against it to the same extent as if said debts, liabilities and duties had been
incurred or contracted by it.
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(iv) All corporate acts, plans, policies, contracts, approvals
and authorizations of each Constituent Corporation and its shareholders, Board
of Directors, committees elected or appointed by the Board of Directors,
officers and agents, which were valid and effective immediately prior to the
Effective Time of the Merger shall be taken for all purposes as the acts, plans,
policies, contracts, approvals and authorizations of the Surviving Corporation
and shall be as effective and binding thereon as the same were with respect to
each Constituent Corporation. The employees of each Constituent Corporation
shall become the employees of the Surviving Corporation and continue to be
entitled to the same rights and benefits which they enjoyed as employees of such
Constituent Corporation.
(v) The assets, liabilities, reserves and accounts of each
Constituent Corporation shall be recorded on the books of the Surviving
Corporation at the amounts at which they, respectively, shall then be carried on
the books of such Constituent Corporation subject to such adjustments or
eliminations of intercompany items as may be appropriate in giving effect to the
merger.
(b) The Board of Directors, and the members thereof, and the
officers of eInsure immediately prior to the Effective Time of the Merger shall
be and constitute the Board of Directors, and the members thereof, and the
officers of the Surviving Corporation to serve in accordance with the Bylaws of
eInsure until their respective successors shall have been duly elected and
qualified.
5. The total authorized capital stock of the Surviving Corporation
shall be as set forth in the Restated Certificate of Incorporation of eInsure
filed August 31, 2001, that is 100,000,000 shares of voting common stock, par
value $0.001 per share (the "Voting Common Stock of the Surviving Corporation"),
and 8,000,000 shares of preferred stock, par value $0.001 per share.
6. The manner and basis of converting the shares of each Constituent
Corporation into shares of the Surviving Corporation and the mode of carrying
the merger into effect are as follows:
(a) Each share of the Voting Common Stock of Trans-Century
outstanding at the Effective Time of the Merger shall be converted into 10,000
fully paid and nonassessable shares of Voting Common Stock of the Surviving
Corporation without any action on the part of the holder thereof. After the
Effective Time of the Merger, each holder of an outstanding certificate which
prior thereto represented shares of the Voting Common Stock of Trans-Century
shall be entitled, upon surrender thereof to the Surviving Corporation or to any
transfer agent therefor, to receive in exchange therefor a certificate or
certificates representing the number of whole shares of the Voting Common Stock
of the Surviving Corporation into which the shares of the Voting Common Stock of
Trans-Century so surrendered shall have been converted as aforesaid. Until so
surrendered, each such outstanding certificate which, prior to the Effective
Time of the Merger, represented shares of the Voting Common Stock of
Trans-Century shall for all purposes evidence the ownership of the shares of the
Voting Common Stock of the Surviving Corporation into which such shares shall
have been so converted.
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(b) All shares of the Voting Common Stock of the Surviving
Corporation into which outstanding shares of the Voting Common Stock of
Trans-Century shall have been converted pursuant to this paragraph 6 shall be
issued in full satisfaction of all rights pertaining to such converted shares.
(c) Each share of the Voting Common Stock of eInsure
outstanding at the Effective Time of the Merger shall be converted into one
fully paid and nonassessable share of Voting Common Stock of the Surviving
Corporation without any action on the part of the holder thereof. After the
Effective Time of the Merger, each holder of an outstanding certificate which
prior thereto represented shares of the Voting Common Stock of eInsure shall be
entitled, upon surrender thereof to the Surviving Corporation or to any transfer
agent therefor, to receive in exchange therefor a certificate or certificates
representing the number of whole shares of the Voting Common Stock of the
Surviving Corporation into which the shares of the Voting Common Stock of
eInsure so surrendered shall have been converted as aforesaid. Until so
surrendered, each such outstanding certificate which, prior to the Effective
Time of the Merger, represented shares of the Voting Common Stock of eInsure
shall for all purposes evidence the ownership of the shares of the Voting Common
Stock of the Surviving Corporation into which such shares shall have been so
converted.
(d) All shares of the Voting Common Stock of the Surviving
Corporation into which shares of the Voting Common Stock of eInsure shall have
been converted pursuant to this paragraph 6 shall be issued in full satisfaction
of all rights pertaining to such converted shares.
(e) No fraction of a share of Voting Common Stock of the
Surviving Corporation shall be issued, but in lieu thereof each holder of shares
of a Constituent Corporation who would otherwise be entitled to a fraction of a
share shall be afforded an opportunity during a period of thirty (30) days
following the Effective Time of the Merger to instruct X. X. Xxxxxxxxx, as agent
of such holder, either to purchase for such holder a fraction of a share
sufficient (when added to the fraction to which such holder would be entitled)
to equal a whole share of Voting Common Stock of the Surviving Corporation or to
sell for such holder the fraction of a share to which such holder would be
entitled. No such holder shall be entitled to dividends or any other rights in
respect of such fractional interest. If no instructions are received within such
period with respect to any such fractional interest, such fractional interest
shall be sold for the account of the beneficial owner thereof, and the proceeds
thereof shall be distributed to such beneficial owner.
7. The Restated Certificate of Incorporation and the Bylaws of eInsure
as existing and constituted immediately prior to the Effective Time of the
Merger shall, upon the merger's becoming effective, be and constitute the
Certificate of Incorporation and the Bylaws of the Surviving Corporation until
amended in the manner provided by law, except that the Restated Certificate of
Incorporation of eInsure shall be amended as follows:
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(a) The First Article of the Restated Certificate of
Incorporation of eInsure is amended to read in its entirety as follows:
FIRST: The name of the corporation is TRANS-CENTURY RESOURCES,
INC., hereinafter referred to as the "Corporation."
(b) The Second Article of the Restated Certificate of
Incorporation of eInsure is amended to read in its entirety as follows:
SECOND: The address of the registered office of the Corporation
in the State of Delaware is Corporation Trust Center, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000, County of New Castle. The name of the
registered agent of the Corporation at that address is The Corporation
Trust Company.
8. This Plan shall be submitted to the stockholders of each Constituent
Corporation as provided by Article 5.03 of the Texas Business Corporation Act
and Sections 251 and 252 of the Delaware General Corporation Law. After the
approval or adoption thereof by the stockholders of each Constituent Corporation
in accordance with the requirements of the laws of the State of Texas and the
State of Delaware, all required documents shall be executed, filed and recorded
and all required acts shall be done in order to accomplish the merger under the
provisions of the applicable statutes of the State of Texas and the State of
Delaware.
9. Each Constituent Corporation shall bear and pay all costs and
expenses incurred by it or on its behalf (including without limitation fees and
expenses of financial consultants, accountants and counsel) in connection with
the consummation of the merger.
10. The merger is intended to qualify as a tax-free reorganization
under Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as amended.
11. This Plan shall automatically terminate on December 31, 2001 if the
merger shall not have become effective on or before such date, unless
Trans-Century and eInsure shall have otherwise agreed in writing on or prior to
such date.
12. At any time, whether before or after submission to or adoption by
the respective stockholders of the Constituent Corporations, this Plan may be
amended in matters of form, or supplemented by additional agreements, articles
or certificates, as may be determined in the judgment of the Boards of Directors
of each of the Constituent Corporations to be necessary, desirable or expedient
to clarify the intentions of the parties hereto or to effect or facilitate the
filing, recording or official approval of this Plan and the consummation hereof
and the merger provided for herein, in accordance with the purpose and intent of
this Plan.
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13. The merger shall become effective (such date being herein referred
to as the "Effective Time of the Merger") when all the following actions shall
have been taken:
(a) this Plan shall have been adopted and approved in
accordance with the Texas Business Corporation Act and by the Delaware General
Corporation Law;
(b) Articles of Merger setting forth the information required
by, and executed in accordance with, the Texas Business Corporation Act shall
have been filed in the office of the Secretary of State of the State of Texas;
and
(c) a Certificate of Merger setting forth the information
required by, and executed in accordance with, the Delaware General Corporation
Law shall have been filed in the office of the Secretary of State of the State
of Delaware.
14. For the convenience of the parties and to facilitate the filing and
recording of this Plan, any number of counterparts hereof may be executed; each
such counterpart shall be deemed to be an original instrument, all of which
together shall constitute one agreement.
15. This Plan and the legal relations between the parties hereto shall
be governed by and construed in accordance with the laws of the State of
Delaware.
16. This Plan cannot be altered or amended except pursuant to an
instrument in writing signed on behalf of the parties hereto.
17. At any time, or from time to time, after the Effective Time of the
Merger, the last acting officers and directors of Trans-Century shall, as and
when requested by the Surviving Corporation or its successors or assigns,
execute and deliver all such deeds, assignments and other instruments and take
or cause to be taken all such further action as the Surviving Corporation or its
successors and assigns may deem necessary or desirable in order to vest, perfect
or confirm in the Surviving Corporation title to and possession of all
properties, rights, privileges, powers, franchises, immunities and interests of
Trans-Century, and otherwise to carry out the purpose of this Plan.
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IN WITNESS WHEREOF, Trans-Century has caused this Plan to be executed
by its President pursuant to authorization contained in a resolution adopted by
its Board of Directors approving this Plan, and eInsure has caused this Plan to
be executed by its President pursuant to authorization contained in a resolution
adopted by its Board of Directors approving this Plan, all on the date first
above written.
TRANS-CENTURY RESOURCES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------
Xxxx X. Xxxxxxxxx, President
EINSURE NETWORKS CORPORATION
By: /s/ Xxxxxx Xxxx
----------------------------
Xxxxxx Xxxx, President
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