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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
NEWMARK HOMES CORP.,
A DELAWARE CORPORATION,
AND
NEWMARK HOMES CORP.,
A NEVADA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated effective as of February 12,
2001 (the "Agreement") is entered into by and between Newmark Homes Corp., a
Delaware corporation ("Newmark-Delaware") with its principal address at 0000
Xxxxxxxx Xxxxx Xxxxx, Xxxxx Xxxx, Xxxxx 00000, and Newmark Homes Corp., a Nevada
corporation ("Newmark-Nevada") with its principal address at 0000 Xxxxxxxx Xxxxx
Xxxxx, Xxxxx Xxxx, Xxxxx 00000. Newmark-Delaware and Newmark-Nevada are
sometimes referred to herein as the "Constituent Corporations."
RECITALS
X. Xxxxxxx-Delaware is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capital of 30,000,000
shares, $0.01 par value, of common stock and 3,000,000 shares, $0.01 par value
of preferred stock. As of the date hereof, 100 shares of Newmark-Delaware common
stock are issued and outstanding, all of which are held by Newmark-Nevada and no
shares of preferred stock are issued and outstanding.
X. Xxxxxxx-Nevada is a corporation duly organized and existing under
the laws of the State of Nevada and has an authorized capital of 30,000,000
shares, $0.01 par value, of common stock and 3,000,000 shares, $0.01 par value
of preferred stock. As of the date hereof, 11,500,000 shares of Newmark-Nevada
common stock are issued and outstanding and no shares of preferred stock are
issued and outstanding.
C. The Board of Directors of Newmark-Nevada has determined that, for
the purpose of effecting the reincorporation of Newmark-Nevada in the State of
Delaware, it is advisable and in the best interests of Newmark-Nevada and its
stockholders that Newmark-Nevada merge with and into Newmark-Delaware upon the
terms and conditions herein provided.
D. The respective Boards of Directors and stockholders of
Newmark-Delaware and Newmark-Nevada have approved this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Newmark-Delaware and Newmark-Nevada hereby agree, subject to
the terms and conditions hereinafter set forth, as follows:
I. MERGER
1.1 MERGER. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the Nevada Private Corporation Law,
Newmark-Nevada shall be
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merged with and into Newmark-Delaware (the "Reincorporation Merger"), the
separate existence of Newmark-Nevada shall cease and Newmark-Delaware shall
survive the Reincorporation Merger and shall continue to be governed by the laws
of the State of Delaware, and Newmark-Delaware shall be, and is herein sometimes
referred to as, the "Surviving Corporation," and the name of the Surviving
Corporation shall be "Newmark Homes Corp."
1.2 FILING AND EFFECTIVENESS. The Reincorporation Merger shall become
effective when the following actions shall have been completed:
(a) This Agreement and the Reincorporation Merger shall have been
adopted and approved by the stockholders of each Constituent Corporation in
accordance with the requirements of the Delaware General Corporation Law and the
Nevada Private Corporation Law;
(b) All of the conditions precedent to the consummation of the
Reincorporation Merger specified in this Agreement shall have been satisfied or
duly waived by the party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed, acknowledged and
certified counterpart of this Agreement meeting the requirements of the Delaware
General Corporation Law shall have been filed with the Secretary of State of the
State of Delaware; and
(d) An executed Articles of Merger or an executed counterpart of this
Agreement meeting the requirements of the Nevada Private Corporation Law shall
have been filed with the Secretary of State of the State of Nevada.
The date and time when the Reincorporation Merger shall become
effective, as aforesaid, is herein called the "Effective Date of the Merger."
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the
separate existence of Newmark-Nevada shall cease and Newmark-Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger, (ii) shall be subject to all actions previously taken by its and
Newmark-Nevada's Boards of Directors, (iii) shall succeed, without other
transfer, to all of the assets, rights, powers and property of Newmark-Nevada in
the manner as more fully set forth in Section 259 of the Delaware General
Corporation Law, (iv) shall continue to be subject to all of its debts,
liabilities and obligations as constituted immediately prior to the Effective
Date of the Merger, and (v) shall succeed, without other transfer, to all of the
debts, liabilities and obligations of Newmark-Nevada in the same manner as if
Newmark-Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the Nevada
Private Corporation Law.
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II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
Newmark-Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2 BYLAWS. The Bylaws of Newmark-Delaware as in effect immediately
prior to the Effective Date of the Merger shall continue in full force and
effect as the Bylaws of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of
Newmark-Nevada immediately prior to the Effective Date of the Merger shall be
the directors and officers of the Surviving Corporation until their respective
successors shall have been duly elected and qualified or until as otherwise
provided by law, or the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 NEWMARK-NEVADA COMMON STOCK. Upon the Effective Date of the Merger,
each share of Newmark-Nevada common stock, $0.01 par value, issued and
outstanding immediately prior thereto shall, by virtue of the Reincorporation
Merger and without any action by the Constituent Corporations, the holder of
such shares or any other person, be changed and converted into and exchanged for
one fully paid and nonassessable share of common stock, $0.01 par value, of the
Surviving Corporation.
3.2 NEWMARK-NEVADA BENEFIT PLANS. Upon the Effective Date of the
Merger, the Surviving Corporation shall assume and continue all employee benefit
plans of Newmark-Nevada. The execution of this Agreement shall constitute an
amendment to each of the employee benefit plans to reflect the Surviving
Corporation as the corporation referenced in such employee benefit plans
notwithstanding the actual references therein to Newmark-Nevada.
3.3 NEWMARK-DELAWARE COMMON STOCK. Upon the Effective Date of the
Merger, each share of common stock, $0.01 par value, of Newmark-Delaware issued
and outstanding immediately prior thereto shall, by virtue of the
Reincorporation Merger and without any action by Newmark-Delaware, the holder of
such shares or any other person, be canceled and returned to the status of
authorized but unissued shares.
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of Newmark-Nevada
common stock may be asked to surrender the same for cancellation to an exchange
agent, whose name will be delivered to such holders prior to any requested
exchange (the "Exchange Agent"), and each such holder shall be entitled to
receive in exchange therefor a certificate or certificates representing the
number of shares of the Surviving Corporation's common stock into which such
holders' shares of Newmark-Nevada common stock were converted as herein
provided. Unless and until so surrendered, each outstanding certificate
theretofore representing shares of Newmark-Nevada common stock shall be deemed
for all purposes to represent the number of
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whole shares of the Surviving Corporation's common stock into which such shares
of Newmark-Nevada common stock were converted in the Reincorporation Merger.
The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any shares of stock represented by such
outstanding certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to the
Surviving Corporation or the Exchange Agent, have and be entitled to exercise
any voting and other rights with respect to and to receive dividends and other
distributions upon the shares of common stock of the Surviving Corporation
represented by such outstanding certificate as provided above.
Each certificate representing common stock of the Surviving Corporation
so issued in the Reincorporation Merger shall bear the same legends, if any,
with respect to the restrictions on transferability as the certificates of
Newmark-Nevada so converted and given in exchange therefor, unless otherwise
determined by the Board of Directors of the Surviving Corporation in compliance
with applicable laws.
If any certificate for shares of Newmark-Delaware common stock is to be
issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer, that such transfer otherwise be proper and that the
person requesting such transfer pay to Newmark-Delaware or the Exchange Agent
any transfer or other taxes payable by reason of the issuance of such new
certificate in a name other than that of the registered holder of the
certificate surrendered or establish to the satisfaction of Newmark-Delaware
that such tax has been paid or is not payable.
IV. GENERAL
4.1 FURTHER ASSURANCES. From time to time, as and when required by
Newmark-Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Newmark-Nevada such deeds and other instruments, and
there shall be taken or caused to be taken by Newmark-Delaware and
Newmark-Nevada such further and other actions, as shall be appropriate or
necessary in order to vest or perfect in or conform of record or otherwise by
Newmark-Delaware the title to and possession of all the property, interests,
assets, rights, privileges, immunities, powers, franchises and authority of
Newmark-Nevada and otherwise to carry out the purposes of this Agreement, and
the officers and directors of Newmark-Delaware are fully authorized in the name
and on behalf of Newmark-Nevada or otherwise to take any and all such action and
to execute and deliver any and all such deeds and other instruments.
4.2 COVENANTS OF NEWMARK-DELAWARE. Newmark-Delaware covenants and
agrees that it will, on or before the Effective Date of the Merger, take such
other actions as may be required by Delaware law or Nevada law to accomplish the
Reincorporation Merger, including appointing an agent for service of process in
the State of Nevada if and to the extent required under provisions of Nevada
law.
4.3 ABANDONMENT. At any time before the filing of a Certificate of
Merger with the Secretary of State of the State of Delaware and Articles of
Merger with the Secretary of State
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of the State of Nevada, this Agreement may be terminated and the Reincorporation
Merger may be abandoned for any reason whatsoever by the Board of Directors of
either Newmark-Nevada or Newmark-Delaware, or both, notwithstanding the approval
of this Agreement by the stockholders of Newmark-Nevada or by the sole
stockholder of Newmark-Delaware, or by both.
4.4 AMENDMENT. The Boards of Directors of the Constituent Corporations
may amend this Agreement at any time prior to the filing of Articles of Merger
and a Certificate of Merger with the Secretaries of State of the States of
Nevada and Delaware, respectively, provided that an amendment made subsequent to
the adoption and approval of this Agreement and the Reincorporation Merger by
the stockholders of either Constituent Corporation shall not: (1) alter or
change the amount or kind of shares, securities, cash, property and/or rights to
be received in exchange for or on conversion of all or any of the shares of any
class or series thereof of such Constituent Corporation, (2) alter or change any
term of the Certificate of Incorporation of the Surviving Corporation to be
effected by the Reincorporation Merger, or (3) alter or change any of the terms
and conditions of this Agreement, if in the case of clause (2) or (3) such
alteration or change would adversely affect the holders of any class of shares
or series thereof of such Constituent Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving
Corporation in the State of Delaware is located at Corporation Trust Center,
0000 Xxxxxx Xxxxxx, in the City of Xxxxxxxxxx, Xxxxxxxx 00000, County of New
Castle, and The Corporation Trust Company is the registered agent of the
Surviving Corporation at such address.
4.6 AGREEMENT. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 0000 Xxxxxxxx Xxxxx
Xxxxx, Xxxxx Xxxx, Xxxxx 00000, and copies thereof will be furnished to any
stockholder and to any creditor of either Constituent Corporation, upon request
and without cost.
4.7 GOVERNING LAW. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the Nevada
Private Corporation Law.
4.8 COUNTERPARTS. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement is hereby executed on behalf of each
of such two corporations and attested by their respective officers thereunto
duly authorized.
NEWMARK HOMES CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, President
ATTEST:
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Secretary
NEWMARK HOMES CORP.,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, President
ATTEST:
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Secretary
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