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EXHIBIT 2.1
MERGER AGREEMENT
AMONG
SUPERIOR CONSULTANT COMPANY, INC.,
AND
SUPERIOR ACQUISITION, INC.
AND
SUPERIOR CONSULTANT HOLDINGS CORPORATION
__________________, 1996
This Agreement is entered into as of _____________, 1996, by and among
SUPERIOR CONSULTATNT HOLDINGS CORPORATION, a Delaware corporation ("ACQUIROR"),
SUPERIOR ACQUISITION, INC. a Michigan corporation and a wholly-owned Subsidiary
of the Acquiror ("TRANSITORY SUBSIDIARY"), and SUPERIOR CONSULTANT COMPANY,
INC., a Michigan corporation ("TARGET".) Acquiror, Transitory Subsidiary,
and Target are referred to collectively herein as the "PARTIES".
This Agreement contemplates a transaction in which the Acquiror will
acquire all of the outstanding capital stock of Target through a reverse
subsidiary merger of Transitory Subsidiary with and into Target. The
Shareholders of Target will receive captail stock of Acquiror in exchange for
their captail stock in Target. Immediately after the mergers, the Target
Shareholders shall be the sole shareholders of Acquiror. It is intended that
the merger qualify as a tax-free reorganization pursuant to Code Sections
368(a)(1)(A) and 368(a)(2)(E).
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
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1. Definitions.
"ACQUIROR" has the meaning set forth in the preface above.
"CERTIFICATE OF MERGER" has the meaning set forth in Section 2(c) below.
"CLOSING" has the meaning set forth in Section 2(b) below.
"CLOSING DATE" has the meaning set forth in Section 2(b) below.
"MICHIGAN BUSINESS CORPORATION ACT" means the Michigan Business
Corporation Act, as amended.
"MERGER" has the meaning set forth in Section 2(a)(i) below.
"MERGER EFFECTIVE TIME" has the meaning set forth in Section 2(d)(i)
below.
"PARTY" has the meaning set forth in the preface above.
"PERSON" means an individual, a partnership, a limited liability company,
a corporation, an association, a joint stock company, a trust, a joint venture,
an unincorporated organization, or a governmental entity (or any department,
agency, or political subdivision thereof).
"SUBSIDIARY" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"TARGET" has the meaning set forth in the preface above.
"TARGET SHARE" means any share of the Common Stock, $__ par value per
share, of Target.
"TARGET SHAREHOLDER" means any Person who or which holds any Target
Shares.
"TRANSITORY SUBSIDIARY" has the meaning set forth in the preface above.
2. Basic Transaction.
(a) The Merger. On and subject to the terms and conditions of this
Agreement, Transitory Subsidiary will merge with and into Target
("MERGER") at the Merger Effective Time. Target shall be the corporation
surviving the Merger.
(b) The Closing. The closing of the transactions contemplated by
this Agreement (the "CLOSING") shall take place at the offices of
Acquiror in
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Southfield, Michigan, commencing at 9:00 a.m. local time on such date as the
Parties may mutually determine (the "CLOSING DATE").
(c) Actions at the Closing. At the Closing Target and Transitory
Subsidiary will file with the Secretary of State of the State of Michigan a
Certificate of Merger in the form attached hereto as Exhibit A.
(d) Effect of Merger.
(i) General. The Merger shall become effective at the time
Certificate of Merger is filed with the Secretary of State of the State
of Michigan (the "MERGER EFFECTIVE TIME"). The Merger shall have the
effect set forth in the Michigan Business Corporation Act. The surviving
corporation of the Merger may, at any time after the Merger Effective
Time, take any action (including executing and delivering any document)
in the name and on behalf of either Target on Transitory Subsidiary in
order to carry out and effectuate the transactions contemplated by this
Agreement.
(ii) Conversion of Shares. At and as of the Merger
Effective Time, each Target Share shall be converted into the right to
receive 1.06668376 Acquiror Shares. After the Effective Time, no Target
Share shall be deemed to be outstanding or to have any rights other
than those set forth above in this Section 2(d)(ii) and in 2(d)(vii).
(iii) Conversion of Capital Stock of the Transitory
Subsidiary. At and as of the Merger Effective Time, each share of
Common Stock, no par value, of Transitory Subsidiary shall be converted
into one share of Common Stock, $.01 par value per share, of the
surviving corporation.
(iv) Articles of Incorporation. The Articles of
Incorporation of Target in effect at and as of the Merger Effective
Time will remain in effect as the Articles of Incorporation of the
surviving corporation of Merger without any modification or amendment
in Merger.
(v) Bylaws. The Bylaws of Target in effect at and as of
the Merger Effective Time will remain the Bylaws of the surviving
corporation of Merger without any modification or amendment in Merger.
(vi) Directors and Officers. The directors and officers of
Target in office at and as of the Merger Effective Time will remain the
directors and officers of the surviving corporation of Merger
(retaining their respective positions and terms of office).
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(vii) Exchange of Certificates. At the Closing, each Target
Shareholder shall surrender to Acquiror for exchange a certificate
or certificates, duly endorsed in blank or accompanied by duly
executed stock powers, representing all of the Target Shares held
by the Target Shareholder. In exchange therefor, Acquiror shall
issue to the Target Shareholder a certificate or certificates
representing the shares of Acquiror Shares to be issued pursuant
to Section 2(d)(ii). Surrendered certificates shall forthwith be
canceled. Acquiror shall not be obligated to deliver the Acquiror
Shares to which the Target Shareholder is entitled as a result of
Merger until such holder surrenders his certificate or
certificates representing shares of Target Shares for exchange as
provided in this Section 2(d)(vii). Until so surrendered and
exchanged, each such certificate shall represent solely the right
to receive the certificate representing Acquiror Shares to be
issued pursuant to Section 2(d)(ii) into which the shares it
theretofore represented shall have been converted pursuant to
Section 2(d)(ii), and Acquiror shall not be required to issue the
Acquiror Shares to which the Target Shareholder otherwise would be
entitled; provided that procedures allowing for payment against
lost or destroyed certificates upon receipt of customary and
appropriate certifications and indemnities shall be provided.
(viii) Rights of the Target Shareholders. From and after the
Merger Effective Time, the Target Shareholders shall have no
rights with respect to his shares of Target Shares other than the
right to surrender the certificate or certificates representing
such shares for exchange pursuant to Section 2(d)(vii)
3. Termination of Agreement. This Agreement shall terminate if the
Certificate of Merger is not filed on or before December 31, 1996.
4. Miscellaneous.
(a) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any person other than the Parties and their respective
successors and permitted assigns; provided, however, that the provisions in
Section 2 above concerning payment of the merger consideration are intended for
the benefit of Target.
(b) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they related in any way to the
subject matter hereof.
(c) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and
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permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior
written approval of the other Parties.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(e) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF MICHIGAN WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE
OF MICHIGAN OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF MICHIGAN.
(g) Amendments and Waivers. The Parties may mutually amend any provision
of this Agreement at any time prior to the Effective Time with the prior
authorization of their respective boards of directors; provided, however, that
any amendment effected subsequent to shareholder approval will be subject to
the restrictions contained in the Michigan Business Corporation Act. No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by all of the Parties. No waiver by any Party of
any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or
subsequent default, misrepresentation, or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
(h) Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(i) Construction. Any reference to any federal, state, local, or foreign
statute or law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context otherwise requires. The word
"including" shall mean including without limitation.
(j) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
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IN WITNESS WHEREOF, the Parties hereto have executed this Merger Agreement
as of the date first above written.
SUPERIOR CONSULTANT HOLDINGS SUPERIOR ACQUISITION, INC., a Michigan
CORPORATION, a Delaware corporation corporation
By:________________________________ By:________________________________
Its:________________________________ Its:________________________________
SUPERIOR CONSULTANT COMPANY, INC., a
Michigan corporation
By:________________________________
Its:________________________________
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