EXHIBIT 1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is made and entered into as of this
17th day of November, 1997, by and among XXXXX NURSERY FARMS, INC., a Florida
corporation ("Xxxxx Farms"), and XXXXX TRANSITION CORP., a Puerto Rico
corporation ("Transition" or the "Surviving Corporation"). Xxxxx Farms and
Transition are hereinafter collectively referred to as the "Constituent
Corporations".
WITNESSETH:
WHEREAS, Xxxxx Farms is a Florida corporation with its principal place
of business in the Commonwealth of Puerto Rico;
WHEREAS, Transition is a wholly-owned subsidiary of Xxxxx
Farms;
WHEREAS, Transition was created to accomplish the reincorporation of
Xxxxx Farms as a Puerto Rico corporation pursuant to the merger of the
Constituent Corporations;
WHEREAS, the Constituent Corporations recognize that the
reincorporation of Xxxxx Farms as a Puerto Rico corporation will generally
provide for greater administrative and operational flexibility and more
efficient tax planning;
WHEREAS, the Constituent Corporations recognize that the
reincorporation may be effected through a merger in accordance with Section
607.1104 of the Florida Business Corporation Act (the "FBCA") and Article 10.02
of the Puerto Rico General Corporation Law of 1995 (the "PRGCL") with Transition
as the surviving corporation, but with said corporation changing its name to
Xxxxx Nursery Farms, Inc. and conducting the business presently conducted by
Xxxxx Farms.
NOW THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the parties hereto hereby agree as follows:
1. MERGER. Xxxxx Farms shall merge with and into Transition in
accordance with the terms and conditions of this Agreement and the provisions of
Sections 607.1104 and 607.1105 of the FBCA and Article 10.02 of PRGCC (the
"Merger"). Transition shall be the surviving corporation and shall continue its
corporate existence under its current articles of incorporation filed under the
Puerto Rico General Corporation Law of 1995. Upon the Effective Date (as
hereinafter defined), the separate existence of Xxxxx Farms shall cease.
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2. EFFECTIVE DATE. The Merger shall become effective at 11:59 p.m. on
December 31, 1997 (the "Effective Date").
3. CHANGE OF NAME. The Surviving Corporation shall change its name to
Xxxxx Nursery Farms, Inc.
4. EFFECT OF MERGER. Upon the Effective Date:
(a) Xxxxx Farms and Transition shall become a single corporation and
the separate corporate existence of Xxxxx Farms shall cease;
(b) The Surviving Corporation shall succeed to and possess all of the
rights, privileges, powers and immunities of Xxxxx Farms which,
together with all of the assets, properties, business, patents,
trademarks, and goodwill of Xxxxx Farms, of every type and description
wherever located, shall vest in the Surviving Corporation without
further act or deed and the title to any real property or other
property vested by deed or otherwise in Xxxxx Farms shall not revert or
in any way be impaired by reason of the Merger;
(c) all rights of creditors and all liens upon any property of the
Constituent Corporations shall be unimpaired; The Surviving Corporation
shall be subject to all of the contractual restrictions, disabilities
and duties of the Constituent Corporations; and all debts, liabilities
and obligations of the respective Constituent Corporations shall
thereafter attach to the Surviving Corporation and may be enforced
against it to the same extent as if said debts, liabilities and
obligations had been incurred or contracted by it, provided, however,
that nothing herein is intended to or shall extend or enlarge any
obligation or the lien of any indenture, agreement or other instrument
executed or assumed by the Constituent Corporations; and
(d) without limitation of the foregoing provisions of this Section 4,
all corporate acts, plans, policies, contracts, approvals and
authorizations of the Constituent Corporations, their shareholders,
Boards of Directors, committees elected or appointed by the Boards of
Directors, officers and agents, which were valid and effective and
which did not have terms expressly requiring termination by virtue of
the Merger, shall be taken for all purposes as the acts, plans,
policies, contracts, approvals and authorizations of the Surviving
Corporation as they were with respect to the Constituent Corporations.
5. CERTIFICATE OF INCORPORATION; BY-LAWS. At the Effective Date, the
Certificate of Incorporation and By-laws of Transition as in effect immediately
prior to the Effective Date shall be the
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Certificate of Incorporation and By-laws of the Surviving Corporation. The
Certificate of Incorporation of the Surviving Corporation is attached hereto as
Annex A.
6. DIRECTORS AND OFFICERS. At the Effective Date, the directors and
officers of Xxxxx Farms immediately prior to the Effective Date, shall be the
directors and offices of the Surviving Corporation until their respective
successors shall have been duly elected or appointed.
7. CONVERSION OF SHARES AND STOCK OPTIONS. At the Effective Date, each
of the following transactions shall be deemed to occur simultaneously:
(a) Each share of common stock of Xxxxx Farms, $.001 par value ("Xxxxx
Farms Common Stock"), authorized and issued immediately prior to the
Effective Date shall, by virtue of the Merger and without any action on
the part of the holder thereof, be converted into and become one fully
paid and nonassessable share of common stock, $.001 par value, of the
Surviving Corporation ("Transition Common Stock");
(b) Each share of Transition Common Stock issued and outstanding
immediately prior to the Effective Date, all of which are owned by
Xxxxx Farms, shall, by virtue of the Merger and without any action on
the part of the holder thereof, automatically be canceled.
(c) Upon the Effective Date, each option or other right to acquire
Xxxxx Farms Common Stock which is issued and outstanding immediately
prior to the Effective Date, shall be converted, without any action on
the part of the holder thereof, into the right to acquire an equivalent
number of the shares of Transition Common Stock, on the same terms and
conditions under which such holder could have acquired the shares of
Xxxxx Farms Common Stock.
8. EXCHANGE OF SECURITIES.
(a) After the Effective Date, each certificate theretofore representing
authorized and issued shares of Xxxxx Farms Common Stock shall
represent the same number of shares of Common Stock of the Surviving
Corporation.
(b) At any time on or after the Effective Date, each holder of
certificates theretofore evidencing ownership of shares of Xxxxx Farms
Common Stock will be entitled, upon surrender of such certificates to
the transfer agent of the Surviving Corporation, to receive in exchange
therefor one or more new stock certificates evidencing ownership of the
number of shares of Transition Common Stock into which such Xxxxx Farms
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Common Stock shall have been converted in the Merger. If any
certificate representing shares of Transition Common Stock is to be
issued in a name other than that in which the certificate so
surrendered in exchange therefor is registered, it shall be a condition
of the issuance thereof that the certificate so surrendered shall be
properly endorsed and otherwise in proper form for transfer and the
person requesting such exchange shall pay to the transfer agent any
transfer or other taxes required by reason of the issuance of a
certificate representing shares of Transition Common Stock in any name
other than that of the registered holder of the certificate
surrendered, or otherwise required, or shall establish to the
satisfaction of the transfer agent that such tax has been paid or is
not payable.
(c) On the Effective Date, the stock transfer books of Xxxxx Farms
shall be deemed closed and no transfer of shares of Xxxxx Farms Common
Stock then outstanding shall thereafter be made or consummated.
9. ASSUMPTION OF STOCK OPTION PLAN AND STOCK OPTION AGREEMENTS. On the
Effective Date, Transition shall: (a) assume all of the rights and obligations
of Xxxxx Farms under the 1988 Stock Benefits Plan (the "1988 Plan") of Xxxxx
Farms, including, but not limited to, the Employee Stock Option Plan and
Employee Stock Benefits Plan adopted pursuant to the 1988 Plan; (b) assume all
of the rights and obligations of Xxxxx Farms under any outstanding stock option
agreements; and (c) reserve a sufficient number of shares of Transition Common
Stock to fulfill its obligations under the 1988 Plan and any outstanding stock
options.
10. ARTICLES OF MERGER. Upon the execution of this Agreement, the
parties shall promptly execute the appropriate Articles of Merger and
Certificates of Merger as required by the FBCA and the PRGCL attached and file
the same with the Secretaries of State of the State of Florida and the
Commonwealth of Puerto Rico.
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties with respect to the Merger, and supersedes all prior
agreements, written or oral, with respect thereto.
12. FURTHER ACTIONS. All necessary action shall be taken to transfer
information, contracts, assets, or any other property so that this Agreement be
effected pursuant to the provisions included herein.
13. AUTHORIZATION. The appropriate officers of the Constituent
Corporations are authorized for and on behalf of and in the name of the
Constituent Corporations to take or cause to be
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taken all such actions and to execute or cause to be executed such certificates
and other documents as may be deemed necessary by them or desirable in order to
effectuate this Agreement and to change the name of Transition to Xxxxx Nursery
Farms, Inc.
14. BENEFITS. This Agreement shall be binding upon and inure to benefit
the parties, their personal representatives, estates, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
XXXXX NURSERY FARMS, INC. XXXXX TRANSITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
Chairman of the Board, President
Chief Executive Officer
and President
ANNEX A
CERTIFICATE OF INCORPORATION
OF
XXXXX TRANSITION CORP.
The undersigned, for the purpose of organizing a corporation under the
General Corporation Law of 1995 of the Commonwealth of Puerto Rico (the "General
Corporation Law") does execute this Certificate of Incorporation and does hereby
certify as follows:
FIRST: NAME OF CORPORATION. The name of this Corporation is Xxxxx
Transition Corp. (hereinafter referred to as the "Corporation").
SECOND: DURATION. This Corporation shall have perpetual existence.
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THIRD: PURPOSE. The Corporation is organized for the purpose of
transacting any and all lawful business and engaging in any lawful act or
activity for which corporations may be organized under the General Corporation
Law.
FOURTH: CAPITAL STOCK:
(a) The Corporation is authorized to issue 10,000,000 shares of one
cent ($0.01) par value common stock, which shall be designated "Common Stock."
Except as provided in this article or otherwise by law, the entire voting power
for the election of directors and for all other purposes shall be vested
exclusively in the holders of the Common Stock.
(b) The Corporation is authorized to issue 250,000 additional shares of
one cent ($.01) par value series preferred stock, which shall be designated
"Preferred Stock." The Board of Directors is authorized to amend this
Certificate of Incorporation from time to time to divide the Preferred Stock
into series and to determine the number of shares of each such series and the
relative rights, preferences and limitations of the shares of each such series.
Whenever the Board of Directors acts under the preceding sentence, it shall
adopt a resolution setting forth its actions and stating the designations and
number of shares, and the relative rights, preference and limitations of the
shares of each series thereby created
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or with respect to which it has made a determination or change, which rights,
preference and limitations may differ with respect to the various series, and
shall execute and file in the office of the Secretary of State a Certificate of
Designation to the Certificate of Incorporation, as provided by law, with
respect to such actions. Without limiting the foregoing, the Board of Directors
is expressly authorized to so fix and determine, with respect to each series:
1. The number of shares which shall constitute that
series and the name or designation of the series;
2. The rate and times at which dividends on that series shall
be paid, and whether and the extent to which such dividends shall be cumulative
or non-cumulative;
3. The right or rights, if any, of the holders of shares of
that series to receive dividends payable on a parity with or in preference to
the dividends payable on shares of any other class or series;
4. The preferential rights of the holders of shares of
that series upon the liquidation of, or upon any distribution of
the assets of, the Corporation;
5. The terms, if any, upon which the holders of the shares of
that series may convert such shares into shares of any class or classes or of
any series;
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6. The terms and conditions, if any, on which shares of that
series may be redeemed, including the redemption price or prices and the period
or periods of such redemption;
7. The terms or amount of any sinking fund or purchase fund
for the purchase or redemption of shares of that series;
8. Voting rights, if any, of the shares of that series;
and
9. Any other rights and preferences of such shares, to the
full extent now or hereafter permitted by the laws of the Commonwealth of Puerto
Rico.
FIFTH: REGISTERED OFFICE AND RESIDENT AGENT. The physical and mailing
address of its designated office in the Commonwealth of Puerto Rico is: Road
690, Xxxxxxxxx 0.0, Xxxx Xxxx, Xxxxxx Xxxx, 00000. The resident agent at said
office is Xxxxxxx X. Xxxxxxx.
SIXTH: INCORPORATOR. The name and address of the sole incorporator, who
will exercise no further authority following the filing of this Certificate of
Incorporation in the Department of State of the Commonwealth of Puerto Rico, is
as follows:
Xxxxxxx Xxxxxx
Suite 1901
Popular Center
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx Xxxx 00000
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SEVENTH: BOARD OF DIRECTORS. The Corporation shall have five (5)
directors. The number of directors may be increased or diminished from time to
time by the by-laws but shall never be less than one (1). The names and
addresses of the initial directors who shall act until their successors are duly
elected and qualified are set forth below:
Xxxxxxx X. Xxxxxxx
Xxxx 000, Xxxxxxxxx 5.8
Xxxx Xxxx, Xxxxxx Xxxx 00000
Xxxxxxxxx Xxxx
00 Xxxxxxxxx Xxxxx, Xxx. 00X
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx X. Xxxxx
0000 XX 000xx Xx.
Xxxxx, Xxxxxxx
Xxxxxxxx X. Xxxxxxx
Xxxx 000, Xxxxxxxxx 5.8,
Xxxx Xxxx, Puerto Rico 0762
Xxxx X. Ferrauioli
Banco Popular Center, Suite 1822
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx Xxxx 00000
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EIGHT: BY-LAWS. The By-Laws of this Corporation may be adopted,
altered, amended or repealed by either the stockholders or directors.
NINTH: LIABILITY OF DIRECTORS. A director of this Corporation shall not
be personally liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except to the extent such exemption
from liability or limitation thereof is not permitted under the General
Corporation Law, as the same exists or may hereafter be amended. Any amendment,
modification or repeal of the foregoing sentence shall not adversely affect any
right or protection of a director of the Corporation existing hereunder with
respect to any act or omission occurring prior to or at the time of such
amendment, modification or repeal.
TENTH: INDEMNIFICATION. The Corporation shall indemnify any officer or
director, or any former officer or director, to the full extent permitted by
law.
ELEVENTH: AMENDMENT. The Corporation reserves the right to amend or
repeal any provisions contained in this Certificate of Incorporation, in
accordance with the provisions of the General Corporation Law.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Incorporation this 10th day of November, 1997.
By:/s/ XXXXXXX X. XXXXXX
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XXXXXXX X. XXXXXX
