REINCORPORATION AGREEMENT AND PLAN OF MERGER
Exhibit
2.1
This
REINCORPORATION AGREEMENT AND PLAN OF MERGER (this “AGREEMENT”),
dated as of
March 30,
2007,
is
entered into between APPLIED DIGITAL SOLUTIONS,
INC., a Missouri corporation (“APPLIED MISSOURI”) and APPLIED DIGITAL
SOLUTIONS,
INC., a Delaware corporation and a wholly-owned subsidiary of Applied Missouri
(“APPLIED DELAWARE”).
RECITALS
WHEREAS,
following approval by the Board of Directors of each of Applied Missouri
and
Applied Delaware, upon the terms and subject to the conditions herein stated,
Applied Missouri shall be merged with and into Applied Delaware, and that
Applied Delaware be the surviving corporation (the “REINCORPORATION
MERGER”);
WHEREAS,
Applied Delaware is the wholly-owned subsidiary corporation of Applied
Missouri;
WHEREAS,
the Reincorporation Merger is effected pursuant to Section 351.447 of the
Missouri
General and Business Corporations Law (RSMo. § 351.447) and Section 253 of the
Delaware General Corporation Law (8 Del. C. § 253);
WHEREAS,
the Reincorporation Merger is intended to qualify as a corporate reorganization
pursuant to Section 368(a)(l)(F) of the Internal Revenue Code of 1986, as
amended
(“Code”); and
WHEREAS,
it is intended that as of the Effective Time of the REINCORPORATION MERGER,
Applied Delaware shall have substantially the same capitalization, officers
and
directors as Applied Missouri immediately prior to the Effective Time of the
REINCORPORATION MERGER.
NOW,
THEREFORE, with the intent to be legally bound, the parties hereto agree
as follows:
ARTICLE
I
REINCORPORATION
MERGER; EFFECTIVE TIME
1.1 Reincorporation
Merger. Upon
the
terms and subject to the conditions set forth in
this
Agreement, at the Effective Time (as defined in Section 1.2), Applied Missouri
shall be merged with and into Applied Delaware whereupon the separate existence
of Applied Missouri shall
cease. Applied Delaware shall be the surviving corporation (sometimes
hereinafter referred to as the “SURVIVING CORPORATION”) in the Reincorporation
Merger and shall continue to be
governed by the laws of the State of Delaware. The Reincorporation Merger shall
have the effects specified in the General Corporation Law of the State of
Delaware, as amended (the “DGCL”) and in the General and Business Corporation
Law of the State of Missouri, as amended
(the “MGBCL”) and the Surviving Corporation shall succeed, without other
transfer, to
1
all
of
the assets and property (whether real, personal or mixed), rights, privileges,
franchises, immunities
and powers of Applied Missouri, and shall assume and be subject to all of
the
duties, liabilities,
obligations and restrictions of every kind and description of Applied Missouri,
including, without limitation, all outstanding indebtedness of Applied
Missouri.
1.2 Effective
Time. Provided
that the condition set forth in Section 5.1 has been fulfilled
or waived in accordance with this Agreement and that this Agreement has not
been
terminated or abandoned pursuant to Section 6.1, on the date of the closing
of
the Reincorporation Merger, Applied Missouri and Applied Delaware shall cause
this Agreement or a certificate of merger to be executed and filed with the
Delaware Secretary of State (the “DELAWARE
CERTIFICATE OF MERGER"), and the Delaware-certified certificate of merger
together
with articles of merger shall then be filed with the Missouri Secretary of
State
(the “MISSOURI
CERTIFICATE OF MERGER”). The Reincoiporation Merger shall become effective
upon the date and time specified in the Delaware Certificate of Merger and
the
Missouri Articles of Merger (the “EFFECTIVE TIME”).
ARTICLE
II
CHARTER
AND BYLAWS OF THE SURVIVING CORPORATION
2.1 Certificate
of Incorporation. The
certificate of incorporation of Applied Delaware
in effect at the Effective Time shall be the certificate of incorporation of
the
Surviving Corporation, until amended in accordance with the provisions provided
therein or applicable law.
2.2 Bylaws. The
bylaws of Applied Delaware in effect at the Effective Time shall be the bylaws
of the Surviving Corporation, until amended in accordance with the provisions
provided therein or applicable law.
ARTICLE
III
OFFICERS
AND DIRECTORS OF THE SURVIVING CORPORATION
3.1 Officers. The
officers of Applied Delaware at the Effective Time (which are the identical
officers of Applied Missouri prior to the REINCORPORATION MERGER) shall, from
and
after
the Effective Time, be the officers of the Surviving Corporation, until their
successors have been duly elected or appointed and qualified, or until their
earlier death, resignation or removal.
3.2 Directors. The
directors and the members of the various committees of the Board of Directors
of
Applied Delaware at the Effective Time (which are the identical directors and
board committee members of Applied Missouri prior to the REINCORPORATION MERGER)
shall,
from and after the Effective Time, be the directors and members of such
committees of the Surviving
Corporation, until their successors have been duly elected or appointed and
qualified, or until their earlier death, resignation or removal.
ARTICLE
IV
EFFECT
OF MERGER ON CAPITAL STOCK
2
4.1 Effect
of Merger on Capital Stock. At
the
Effective Time, as a result of the Rcincorporation Merger and without any action
on the part of Applied Missouri, Applied Delaware or the shareholders of Applied
Missouri:
(a) Each
share of common stock, par value $0.01 per share, of Applied Missouri
(“MISSOURI COMMON STOCK”) issued and outstanding immediately prior to
the
Effective Time shall be converted (without the surrender of stock certificates
or any other action) into one fully paid and non-assessable share of common
stock, par value
$0.01 per share, of Applied Delaware (“DELAWARE COMMON STOCK”), with
the
same
rights, powers and privileges as the shares so converted and all shares of
Missouri Common Stock shall be cancelled and retired and shall cease to
exist.
(b) Each
share of preferred stock, par value $10 per share, of Applied Missouri
(“MISSOURI PREFERRED STOCK”) issued and outstanding, if any, immediately prior
to the Effective Time shall be converted (without the surrender of stock
certificates or any other action) into one fully paid and non-assessable share
of preferred stock, par value $10 per share, of Applied Delaware (“DELAWARE
PREFERRED STOCK”), with the same rights, powers and privileges as the shares so
converted
and all shares of Missouri Preferred Stock shall be cancelled and retired and
shall cease to exist.
(c) Each
option, warrant, purchase right, unit or other security of Applied Missouri
issued and outstanding immediately prior to the Effective Time shall be
converted
into and shall be an identical security of Applied Delaware, convertible into
the right
to
acquire the same number of shares of Delaware Preferred Stock as the number
of
shares of Missouri Preferred Stock that were acquirable pursuant to such option,
warrant, purchase right, unit or other security. The same number of shares
of
Delaware Preferred Stock shall be reserved for purposes of the exercise of
such
options, warrants, purchase rights, units or other securities as is equal to
the
number of shares of the Missouri Preferred Stock so reserved as of the Effective
Time.
(d) Each
option, warrant, purchase right, unit or other security of Applied Missouri
issued and outstanding immediately prior to the Effective Time shall be
converted
into and shall be an identical security of Applied Delaware, convertible into
the right to acquire the same number of shares of Delaware Common Stock as
the
number of shares of Missouri Common Stock that were acquirable pursuant to
such
option, warrant, purchase
right, unit or other security. The same number of shares of Delaware Common
Stock shall be reserved for purposes of the exercise of such options, warrants,
purchase rights, units or other securities as is equal to the number of shares
of the Missouri Common Stock so reserved as of the Effective Time.
(e) Each
share of Delaware Common Stock owned by Applied Missouri shall no
longer
be outstanding and shall be cancelled and retired and shall cease to
exist.
4.2 Certificates. At
and
after the Effective Time, all of the outstanding certificates which immediately
prior thereto represented shares of Missouri Common Stock, Missouri
3
Preferred
Stock, or options, warrants, purchase rights, units or other securities of
Applied Missouri, shall be deemed for all purposes to evidence ownership
of and
to represent shares of Delaware
Common Stock, Delaware Preferred Stock, or options, warrants, purchase rights,
units or
other
securities of Applied Delaware, as the case may be, into which the shares
of
Missouri Common Stock, Missouri Preferred Stock, or options, warrants, purchase
rights, units or other securities of Applied Missouri, as the case may be,
represented by such certificates have been converted
as herein provided and shall be so registered on the books and records of
the
Surviving Corporation
or 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 the Surviving
Corporation 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 Delaware
Common Stock, Delaware Preferred Stock, or options, warrants, purchase rights,
units or
other
securities of Applied Delaware, as the case may be, evidenced by such
outstanding certificate, as above provided.
ARTICLE
V
CONDITION
5.1 Condition
to Each Party's Obligation to Effect the Reincorporation
Merger. The
respective obligation of each party hereto to effect the Reincorporation Merger
is subject to receipt
prior to the Effective Time of the requisite approval of this Agreement and
the
transactions contemplated hereby by the Board of Directors of each of Applied
Missouri and Applied
Delaware pursuant to Section 351.447 of the MGBCL and Section 253 of the DGCL
on
or before April 30, 2007.
ARTICLE
VI
TERMINATION
6.1 Termination. This
Agreement may be terminated, and the Reincorporation Merger
may be abandoned by the Board of Directors of Applied Missouri, at any time
prior to the
Effective Time, whether before or after approval of this Agreement by the Board
of Directors of Applied Missouri, if the Board of Directors of Applied Missouri
determines for any reason, in its sole judgment and discretion, that the
consummation of the Reincorporation Merger would be inadvisable
or not in the best interests of Applied Missouri and its shareholders. In the
event of the
termination and abandonment of this Agreement pursuant to this Section 6.1,
this
Agreement shall become null and void and have no effect, without any liability
on the part of either Applied Missouri
or Applied Delaware, or any of their respective shareholders, directors or
officers.
ARTICLE
VII
MISCELLANEOUS
AND GENERAL
7.1 Modification
or Amendment. Subject
to the provisions of applicable law, at any time
prior to the Effective Time, the parties hereto may modify or amend this
Agreement; provided, however, that an amendment made subsequent to the approval
of this Agreement by the Board of Directors of Applied Missouri shall not (i)
alter or change the amount or kind of
4
shares
and/or rights to be received in exchange for or on conversion of all or any
of
the shares or any class or series thereof of such corporation, (ii) alter or
change any provision of the certificate of
incorporation of the Surviving Corporation to be effected by the Reincorporation
Merger, or (iii)
alter or change any of the terms or conditions of this Agreement if such
alteration or change would
adversely affect the holders of any class or series of capital stock of any
of
the parties hereto.
7.2 Counterparts. This
Agreement may be executed in any number of counterparts, each
such
counterpart being deemed to be an original instrument, and all such counterparts
shall together
constitute the same agreement.
7.3 Governing
Law. This
Agreement shall be deemed to be made in and in all respects
shall be interpreted, construed and governed by and in accordance with the
laws
of the State
of
Delaware without regard to the conflict of law principles thereof.
7.4 Entire
Agreement. This
Agreement constitutes the entire agreement, and supercedes
all other prior agreements, understandings, representations and warranties
both
written
and oral, among the parties, with respect to the subject matter
hereof.
7.5 No
Third
Party Beneficiaries. This
Agreement is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
7.6 Scvcrability. The
provisions of this Agreement shall be deemed severable and the
invalidity or unenforceability of any provision shall not affect the validity
or
enforceability of the
other
provisions hereof. If any provision of this Agreement, or the application
thereof to any person or any circumstance, is determined by any court or other
authority of competent jurisdiction to be invalid or unenforceable, (a) a
suitable and equitable provision shall be substituted therefor in order to
carry
out, so far as may be valid and enforceable, the intent and purpose of such
invalid or unenforceable provision and (b) the remainder of this Agreement
and
the application of such provision to other persons or circumstances shall not
be
affected by such invalidity or unenforceability, nor shall such invalidity
or
unenforceability affect the validity or enforceability of such provision, or
the
application thereof, in any other jurisdiction.
7.7 Headings. The
headings therein are for convenience of reference only, do not constitute
part of this Agreement and shall not be deemed to limit or otherwise affect
any
of the provisions hereof.
[SIGNATURE
PAGE FOLLOWS]
5
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
duly
authorized officers of the parties hereto as of the date first written
above.
APPLIED
DIGITAL SOLUTIONS, INC.,
a
Missouri corporation
|
By:
|
/s/
Xxxxxxx Xxxxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxxxx
|
|
|
Title:
|
Pres
& CEO
|
APPLIED
DIGITAL SOLUTIONS, INC.,
a
Delaware corporation
|
By:
|
/s/
Xxxxxxx Xxxxxxx
|
|
|
Name:
|
Xxxxxxx
Xxxxxxx
|
|
|
Title:
|
Pres
& CEO
|
[SIGNATURE
PAGE TO AGREEMENT AND PLAN OF MERGER]
6
