EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made and
entered into on December 30, 2002, pursuant to Section 14A:10-1 of the New
Jersey Business Corporation Act (the "BCA") and Section 252 of the General
Corporation Law of the State of Delaware (the "DGCL") by and between KC
Acquisition Corporation, Inc., a New Jersey corporation (the "New Jersey
Corporation"), and KC Alarm Services Group, Inc., a Delaware corporation (the
"Delaware Corporation"), being sometimes referred to herein individually as a
"Constituent Corporation" and collectively as the "Constituent Corporations."
W I T N E S S E T H:
WHEREAS, the New Jersey Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of New Jersey
with an authorized capital stock consisting of 235.29 shares of common stock
without par value (the "Common Shares"), all of which are issued and outstanding
on the date hereof, and which represents all of the issued and outstanding
securities of the New Jersey Corporation;
WHEREAS, the Delaware Corporation is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware
with an authorized capital stock consisting of 100,000,000 shares of common
stock, $.001 par value per share (the "Common Stock"), one share of which is
issued and outstanding on the date hereof and held by Xxxxxx X. Few, the
President of the Delaware Corporation, and 3,000,000 shares of preferred stock,
$.001 par value per share (the "Preferred Stock"), none of which is issued and
outstanding;
WHEREAS, the respective Boards of Directors of the Constituent
Corporations have authorized and approved the merger of the New Jersey
Corporation with and into the Delaware Corporation subject to and upon the terms
and conditions of this Merger Agreement (the "Merger") and Section 14A:10-1of
the BCA and Section 252 of the DGCL, and have approved this Merger Agreement and
directed that it be executed by the undersigned officers and that it be
submitted to the shareholders of each of the Constituent Corporations for their
approval; and
WHEREAS, it is the intention of the Constituent Corporations that the
Merger shall be a tax-free reorganization within the meaning of Section 368
(a)(1)(F) of the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE in consideration of the premises, which are hereby
incorporated into the terms hereof, and the mutual covenants and agreements
herein contained, and for the purpose of stating the terms and conditions of the
merger, the mode of effectuating the same, and other details and provisions that
are deemed desirable, the parties have agreed and do hereby agree, subject to
the terms and conditions set forth as follows:
ARTICLE I
TERMS OF MERGER
1.1 MERGER. On the Effective Date of the Merger (as hereinafter
defined), in accordance with the provisions of the BCA and the DGCL, the New
Jersey Corporation shall be merged with and into the Delaware Corporation (at
times referred to herein as the "Surviving Corporation") upon the terms and
conditions set forth in the subsequent provisions of this Merger Agreement.
1.2 APPROVAL OF SHAREHOLDERS. This Merger Agreement shall be submitted
as promptly as practicable to the respective shareholders of the New Jersey
Corporation and the Delaware Corporation as provided by the BCA and the DGCL.
After adoption and approval of this Merger Agreement and all the transactions
and developments contemplated hereby by the respective shareholders of the New
Jersey Corporation and the Delaware Corporation, and provided this Merger
Agreement is not terminated and abandoned pursuant to the provisions hereof,
Certificate of Merger shall be filed in accordance with the applicable
provisions of the BCA and a Certificate of Merger shall be filed in accordance
with the applicable provisions of the DGCL.
1.3 FILINGS AND EFFECTIVENESS. As soon as practicable following the
date of execution hereof, the New Jersey Corporation and the Delaware
Corporation will, subject to the approval by the shareholders of each of the
Constituent Corporations, cause (i) the Certificate of Merger along with any
other required document to be filed with the Secretary of State of the State of
New Jersey pursuant to Section 14A:10-4.1 of the BCA, and (ii) the Certificate
of Merger along with any other required document to be filed with the Office of
the Secretary of the State of Delaware pursuant to Section 252 of the DGCL. The
Merger shall become effective upon the occurrence of each of the following
actions:
(a) All of the conditions precedent to the consummation of the Merger
specified in this Merger Agreement shall have been satisfied or duly waived;
(b) An executed Certificate of Merger meeting the requirements of the
BCA shall have been filed with the Secretary of State of the State of New Jersey
and said Secretary of State shall have accepted such Certificate of Merger, and
the surviving corporation shall have performed all other requirements of
Sections 14A:10-1 and Section 14A:10-4.1 of the BCA; and
(c) An executed Certificate of Merger meeting the requirements of the
DGCL shall have been accepted by the Secretary of the State of Delaware and said
Secretary of State shall have issued a Certificate of Merger.
The date and time when the Merger shall become effective, as aforesaid,
is herein called the "Effective Date" and "Effective Time," respectively.
1.4 EFFECT OF MERGER - SECURITIES.
As of the Effective Time, by virtue of the Merger and without any
action on the part of the holder of any shares of Common Shares, the presently
issued and outstanding Common Shares shall be converted on a one-for-one basis
into shares of Common Stock.
1.5 EFFECT OF MERGER - GENERAL
At and after the Effective Time, the Merger shall be effective as
provided in the applicable provisions of the DGCL and the BCA. The corporate
existence of the Delaware Corporation, as the Surviving Corporation, with all of
its purposes and powers, shall continue unaffected and unimpaired by the Merger,
and, as the Surviving Corporation, it shall be governed by the DGCL and succeed
to all rights, assets, liabilities and obligations of the New Jersey Corporation
in accordance with the DGCL. Without limiting the generality of the foregoing,
and subject thereto, at the Effective Time, except as otherwise provided herein,
all the property, rights, privileges, powers and franchises of the Delaware
Corporation and the New Jersey Corporation shall vest in the Surviving
Corporation, and all debts, liabilities and duties of the Delaware Corporation
and the New Jersey Corporation shall become the debts, liabilities and duties of
the Surviving Corporation. The separate existence and corporate organization of
the New Jersey Corporation shall cease at the Effective Time, with the Delaware
Corporation continuing as the Surviving Corporation of the Merger.
1.6 CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION. The
Certificate of Incorporation of the Delaware Corporation 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.
1.7 BY-LAWS OF SURVIVING CORPORATION. The By-Laws of the Delaware
Corporation as in effect immediately prior to the Effective Date of the Merger
shall continue in full force and effect as the By-Laws of the Surviving
Corporation until altered, amended or repealed as provided in the By-Laws or as
provided by applicable law.
1.8 DIRECTORS OF SURVIVING CORPORATION. The directors of the New Jersey
Corporation as of the Effective Date of the Merger shall be and become the
directors of the Surviving Corporation.
1.9 OFFICERS OF SURVIVING COMPANY. The officers of the New Jersey
Corporation as of the Effective Date of the Merger shall be and become the
officers of the Surviving Corporation.
2
ARTICLE II
CONDITIONS TO MERGER
The obligations of the Constituent Corporations to consummate the
Merger are subject to satisfaction of the following conditions:
2.1 AUTHORIZATION. The holders of at least a majority of the
outstanding Common Shares shall have approved this Merger Agreement and the
Merger. All necessary action shall have been taken to authorize the execution,
delivery and performance of this Merger Agreement by each of the Constituent
Corporations.
ARTICLE III
GENERAL PROVISIONS
3.1 BINDING AGREEMENT. This Merger Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
assigns; provided, however, that this Merger Agreement may not be assigned by
any party without the written consent of the other party.
3.2 AMENDMENTS. The Boards of Directors of the New Jersey Corporation
and the Delaware Corporation may amend this Merger Agreement at any time prior
to the filing of this Merger Agreement (or a certificate in lieu thereof) with
the Secretary of State of Delaware, provided that an amendment made subsequent
to the adoption of this Merger Agreement by the shareholders of either the New
Jersey Corporation or the Delaware Corporation shall not: (i) 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 the New Jersey Corporation or the Delaware
Corporation, (ii) alter or change any term of the Certificate of Incorporation
of the Surviving Corporation, or (iii) alter or change any of the terms and
conditions of this Merger Agreement if such alteration or change would adversely
affect the holders of any class or series of capital stock of either the New
Jersey Corporation or the Delaware Corporation.
3.3 FURTHER ASSURANCES. From time to time, as and when required by the
Delaware Corporation or by its successors or assigns, there shall be executed
and delivered on behalf of the New Jersey Corporation such deeds and other
instruments, and there shall be taken or caused to be taken by the New Jersey
Corporation such further and other actions as shall be appropriate or necessary
in order to vest or perfect in or confirm of record or otherwise by the Delaware
Corporation the title to and possession of all the property, rights, privileges,
powers, franchises, assets, immunities and authority of the New Jersey
Corporation and otherwise to carry out the purposes of this Merger Agreement.
The officers and directors of the Delaware Corporation are fully authorized in
the name and on behalf of the New Jersey Corporation or otherwise to take any
and all such action and to execute and deliver any and all such deeds or other
instruments.
3.4 ABANDONMENT. At any time before the Effective Date of the Merger,
this Merger Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either the New Jersey Corporation
or the Delaware Corporation, or by both, by the adoption of appropriate
resolutions and written notification thereof to the other party to the Merger,
notwithstanding the approval of this Merger Agreement by the shareholders of the
New Jersey Corporation or the Delaware Corporation, or by both. In the event of
the termination of this Merger Agreement and the abandonment of the Merger
pursuant to the provisions of this section, this Merger Agreement shall become
void and have no effect, without any liability on the part of either of the
Constituent Corporations or their respective officers, directors or shareholders
in respect thereof.
3.5 GOVERNING LAW. This Merger Agreement shall 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 BCA.
[Signatures on following page]
3
IN WITNESS WHEREOF, each of the undersigned corporations has caused
this Merger Agreement to be signed in its corporate name by its duly authorized
officer as of the date first written above.
KC ACQUISITION CORPORATION
a New Jersey corporation
By: /s/ Xxxxxx X. Few
---------------------------
Xxxxxx X. Few,
President
KC ALARM SERVICES GROUP, INC.
a Delaware corporation
By: /s/ Xxxxxx X. Few
---------------------------
Xxxxxx X. Few,
President
4
