Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of June 21, 2001 (the "Merger
Agreement"), between WasteMasters, Inc., a Delaware corporation ("WMI"),
Environmental Energy Services, Inc., a Delaware corporation ("EEI"), and
WasteMasters Holdings, Inc., a Delaware corporation ("WHI ").
WHEREAS, on the date hereof, WMI has authority to issue (a)
295,000,000 shares of common stock, par value $0.001 per share (the "WMI
Common Stock"), of which 160,641,631 shares are issued and outstanding,
and (b) 5,000,000 shares of Preferred Stock, par value $0.001 per share
(the "WMI Preferred Stock," and with the WMI Common Stock, the "WMI
Capital Stock"), of which all 5,000,000 shares are issued and
outstanding;
WHEREAS, on the date hereof, EEI has authority to issue (a)
495,000,000 shares of common stock, par value $0.001 per share (the "EEI
Common Stock"), of which 1,000 shares are issued and outstanding, and (b)
5,000,000 shares of Preferred Stock, par value $0.001 per share (the "EEI
Preferred Stock," and with the EEI Common Stock, the "EEI Capital
Stock"), of which no shares are issued and outstanding;
WHEREAS, on the date hereof, WHI has authority to issue (a)
295,000,000 shares of common stock, par value $0.001 per share (the "WHI
Common Stock"), of which 1,000,000 shares are issued and outstanding, and
(b) 5,000,000 shares of Preferred Stock, par value $0.001 per share (the
"WHI Preferred Stock," and with the WHI Common Stock, the "WHI Capital
Stock"), of which no shares are issued and outstanding;
WHEREAS, the respective Boards of Directors of WMI, EEI and WHI 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 251(g) of the General Corporation Law of the State of
Delaware (the "DGCL"), under which EEI would survive as the holding
company, by the merger of WMI with and into WHI , and with each holder of
WMI Capital Stock receiving one share of EEI Capital Stock in exchange
for such share of WMI Capital Stock;
WHEREAS, under the respective certificates of incorporation of WMI
and EEI, the EEI Capital Stock has the same designations, rights and
powers and preferences, and the qualifications, limitations and
restrictions thereof, as the WMI Capital Stock which will be exchanged
therefor pursuant to the holding company reorganization;
WHEREAS, the certificate of incorporation and bylaws of EEI, as the
holding company, immediately following the merger will contain provisions
identical to the certificate of incorporation and bylaws of WMI
immediately prior to the merger, other than differences permitted by
Section 251(g)(4) of the DGCL;
WHEREAS, the certificate of incorporation of WHI is identical to the
certificate of incorporation of WMI immediately prior to the merger,
other than differences permitted by Section 251(g)(7) of the DGCL, and is
being amended in the manner required by Section 251(g)(7) pursuant to
this Merger Agreement;
WHEREAS, the Boards of Directors of WMI, EEI and WHI have approved
this Merger Agreement, shareholder approval not being required pursuant
to Section 251(g) of the DGCL;
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, WMI, EEI and WHI hereby agree as follows:
1. Merger. WMI shall be merged with and into WHI (the "Merger"),
and WHI 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 Delaware in
accordance with the DGCL (the "Effective Time").
2. Certificate of Incorporation of the Surviving Corporation.
At the Effective Time, the Certificate of Incorporation of WHI, as
amended and 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 DGCL.
(a) Article FOURTH shall be amended to read in its
entirety as follows:
"FOURTH. 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 $.10 per share."
(b) Article TWELFTH shall be added and will read as
follows:
"TWELFTH. Any act or transaction by or involving the
Corporation that requires for its adoption under the Delaware
General Corporation Law or under this Certificate of Incorporation
the approval of the Corporation's stockholders shall, pursuant to
Section 251(g) of the Delaware General Corporation Law, require, in
addition, the approval of the stockholders of the Corporation's
holding company, Environmental Energy Services, Inc., or any
successor by merger, by the same vote as is required by the Delaware
General Corporation Law and/or by the Certificate of Incorporation
of the Corporation."
3. Succession. At the Effective Time, the separate corporate
existence of WMI shall cease, and WHI shall succeed to all of the assets
and property (whether real, personal or mixed), rights, privileges,
franchises, immunities and powers of WMI, and WHI shall assume and be
subject to all of the duties, liabilities, obligations and restrictions
of every kind and description of WMI, including, without limitation, all
outstanding indebtedness of WMI, all in the manner and as more fully set
forth in Section 259 of the DGCL.
4. Directors. The directors of WMI immediately prior to the
Effective Time shall be the directors of the Surviving Corporation and
EEI at and after the Effective Time to serve until the expiration of
their respective terms and until their successors are duly elected and
qualified.
5. Officers. The officers of WMI immediately preceding the
Effective Time shall be the officers of the Surviving Corporation and EEI
at and after the Effective Time until their successors are duly elected
and qualified.
6. Conversion of Securities. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder thereof:
(a) each share of WMI 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 EEI Common
Stock;
(b) each share of WMI 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 EEI Preferred
Stock;
(c) each share of WMI Capital Stock held in the treasury of WMI
immediately prior to the Effective Time shall be cancelled and retired;
(d) each option, warrant, purchase right, unit or other security of
WMI convertible into shares of WMI Capital Stock shall become convertible
into the same number of shares of EEI Capital Stock as such security
would have received if the security had been converted into shares of WMI
Capital Stock immediately prior to the Effective Time, and EEI shall
reserve for purposes of the exercise of such options, warrants, purchase
rights, units or other securities an equal number of shares of EEI
Capital Stock as WMI had reserved; and
(e) each share of EEI Capital Stock issued and outstanding in the
name of WMI immediately prior to the Effective Time shall be cancelled
and retired and resume the status of authorized and unissued shares of
EEI Capital Stock.
7. Other Agreements. At the Effective Time, EEI shall assume
any obligation of WMI to deliver or make available shares of WMI Common
Stock under any agreement or employee benefit plan not referred to in
Paragraph 6 herein to which WMI is a party. Any reference to WMI Common
Stock under any such agreement or employee benefit plan shall be deemed
to be a reference to EEI Common Stock and one share of EEI Common Stock
shall be issuable in lieu of each share of WMI 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.
8. 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 WMI 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 WMI, 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 WMI or
otherwise, to take any and all such action and to execute and deliver any
and all such deeds and other instruments.
9. Certificates. At and after the Effective Time, all of the
outstanding certificates which immediately prior thereto represented
shares of WMI Capital Stock shall be deemed for all purposes to evidence
ownership of and to represent the shares of EEI Capital Stock, as the
case may be, into which the shares of WMI Capital Stock represented by
such certificates have been converted as herein provided and shall be so
registered on the books and records of EEI 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 EEI 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 EEI Capital Stock,
as the case may be, evidenced by such outstanding certificate, as above
provided.
10. 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.
11. Compliance with Section 251(g) of the DGCL. Prior to the
Effective Time, the parties hereto will take all steps necessary to
comply with Section 251(g) of the DGCL, including without limitation, the
following:
(a) Certificate of Incorporation and By-Laws of EEI. At the
Effective Time, the Certificate of Incorporation and By-Laws of EEI shall
be in the form of the Certificate of Incorporation and By-Laws of WMI, as
in effect immediately prior to the Effective Time.
(b) Directors and Officers of EEI. At the Effective Time, the
directors and officers of WMI immediately prior to the Effective Time
shall be the directors and officers of EEI, 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 EEI.
(c) Filings. Prior to the Effective Time, the Surviving
Corporation shall cause a certified copy of this Agreement to be executed
and filed with the Delaware 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 EEI
contemplated by this Agreement, each of the Surviving Corporation and EEI
shall cause to be filed with the Delaware Secretary of State such
certificates or documents required to give effect thereto.
12. 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 WMI, EEI and WHI ,
by action of the board of directors of WMI 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 WMI and its
stockholders.
13. 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.
14. 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.
15. Governing Law. This Merger Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, WMI, EEI and WHI have caused this Merger
Agreement to be executed and delivered as of the date first above
written.
WASTEMASTERS, INC., a Delaware
corporation
/s/ A. Xxxx Xxxxxx
Name: A. Xxxx Xxxxxx
Title: President
WASTEMASTERS HOLDINGS, INC., a
Delaware corporation
/s/ A. Xxxx Xxxxxx
Name: A. Xxxx Xxxxxx
Title: President
ENVIRONMENTAL ENERGY SERVICES,
INC., a Delaware corporation
/s/ A. Xxxx Xxxxxx
Name: A. Xxxx Xxxxxx
Title: President
CERTIFICATION
STATE OF OKLAHOMA
OUNTY OF CANADIAN
Before me, a Notary Public in and for said County, personally
appeared Xxxx Xxxxxxx, the Secretary of WasteMasters, Inc., on the 21ST
day of June, 2001, who certified that the foregoing Agreement and Plan of
Merger was adopted by the board of directors of WasteMasters, Inc.
pursuant to Section 251(g) of the Delaware General Corporation Law, and
that the conditions in the first sentence of Section 251(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/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
Sworn to and subscribed before me
the 21 day of June, 2001.
/s/ Xxxxxxx Xxxx
Commission Expires: 6-19-04
