EXHIBIT 2.1
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER, dated August 28, 1997 (the "Agreement"),
is entered into between XXXXXXX REINCORPORATION, INC., a Florida corporation
("Florida") and XXXXXXX EDUCATION GROUP, INC., a New Jersey corporation
("Xxxxxxx").
RECITALS
X. Xxxxxxx is a corporation duly organized and existing under the laws of
the State of New Jersey.
B. Florida is a corporation duly organized and existing under the laws of
the State of Florida.
X. Xxxxxxx has an aggregate authorized capital of 100,000,000 shares of
Common Stock, no par value per share (the "Xxxxxxx Common Stock"), of which
12,678,882 shares were duly issued and outstanding as of the date hereof.
D. Florida has an aggregate authorized capital stock of 100,000,000 shares
of Common Stock, no par value (the "Florida Common Stock"), of which 100 shares
were duly issued and outstanding as of the date hereof.
E. The respective Boards of Directors of Xxxxxxx and Florida have
determined that it is advisable and in the best interest of each such
corporation that Xxxxxxx merge with and into Florida upon the terms and subject
to the conditions of this Plan and Agreement of Merger for the purposes of
effecting the reincorporation of Xxxxxxx in the State of Florida.
F. The respective Boards of Directors of Xxxxxxx and Florida have, by
resolutions duly adopted, approved and adopted this Plan and Agreement of
Merger. Xxxxxxx has adopted this Plan and Agreement of Merger as the sole
stockholder of Florida and the Board of Directors of Xxxxxxx has directed that
this Plan and Agreement of Merger be submitted to a vote of its shareholders.
The affirmative vote of the holders of two-thirds of the shares of the Company's
Common Stock not held by Frost-Nevada, Limited Partnership must approve this
Plan and Agreement of Merger before it may become effective.
G. The parties intend that this Plan and Agreement of Merger effect a
"reorganization" under Section 368 of the Internal Revenue Code of 1986, as
amended.
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AGREEMENT
In consideration of the Recitals and of the mutual agreements contained in
this Agreement, the parties hereto agree as set forth below.
1. MERGER. Xxxxxxx shall be merged with and into Florida (the "Merger").
2. EFFECTIVE DATE. The Merger shall become effective immediately upon the
later of the filing of this Agreement or a certificate of merger with the
Secretary of State of New Jersey in accordance with the New Jersey Business
Corporation Act and the filing of articles of merger with the Secretary of State
of Florida in accordance with the Florida Business Corporation Act. The time of
such effectiveness is hereinafter called the "Effective Time."
3. SURVIVING CORPORATION. Florida shall be the surviving corporation of the
Merger and shall continue to be governed by the laws of the State of Florida. On
the Effective Time, the separate corporate existence of Xxxxxxx shall cease.
4. NAME OF SURVIVING CORPORATION. On the Effective Time, the Articles of
Incorporation of Florida shall be amended to change the name of Florida to
"Xxxxxxx Education Group, Inc."
5. CERTIFICATE OF INCORPORATION. Except as provided in Section 4, the
Articles of Incorporation of Florida as it exists on the Effective Time shall be
the Articles of Incorporation of Florida following the Effective Time, unless
and until the same shall thereafter be amended or repealed in accordance with
the laws of the State of Florida.
6. BYLAWS. The Bylaws of Florida as they exist on the Effective Time shall
be the Bylaws of Florida following the Effective Time, unless and until the same
shall be amended or repealed in accordance with the provisions thereof and the
laws of the State of Florida.
7. BOARD OF DIRECTORS AND OFFICERS. The members of the Board of Directors
and the officers of Xxxxxxx immediately prior to the Effective Time shall be the
members of the Board of Directors and the officers, respectively, of Florida
following the Effective Time, and such persons shall serve in such offices for
the terms provided by law or in the Bylaws, or until their respective successors
are elected and qualified.
8. SUCCESSION. At the Effective Time, the separate corporate existence of
Xxxxxxx shall cease, and Florida, as the surviving corporation, shall possess
all the rights, privileges, powers and franchises of a public or private nature
and shall be subject to all the restrictions, disabilities and duties of Xxxxxxx
and all the rights, privileges, powers and franchises of Xxxxxxx, and all
property, real, personal and mixed and all debts due to Xxxxxxx on whatever
account, as well as for share subscriptions and all of the things in action,
shall be vested in Florida as the surviving corporation; and all property,
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rights, privileges, powers and franchises, and all and every other interest
shall be thereafter the property of Florida as the same were of Xxxxxxx, and the
title to any real estate vested by deed or otherwise shall not revert or be in
any way impaired by reason of the Merger, but all rights of creditors and liens
upon any property of Xxxxxxx shall be preserved unimpaired, and all debts,
liabilities and duties of Xxxxxxx shall thenceforth attach to Florida, as the
surviving corporation of the Merger, and may be enforced against it to the same
extent as if such debts, liabilities and duties had been incurred or contracted
by it; provided, however, that such liens upon property of Xxxxxxx shall be
limited to the property affected thereby immediately prior to the Merger. All
corporate acts, plans, policies, agreements, arrangements, approvals and
authorizations of Xxxxxxx, its shareholders, Board of Directors and committees
thereof, officers and agents which were valid and effective immediately prior to
the Effective Time, shall be taken for all purposes as the acts, plans,
policies, agreements, arrangements, approvals and authorizations of Florida, its
shareholders, Board of Directors and committees thereof, respectively, and shall
be effective and binding thereon as the same with respect to Xxxxxxx; and
Florida shall indemnify and hold harmless the officers and directors of each of
the parties hereto against all such debts, liabilities and duties and against
all claims and demands arising out of the Merger.
9. CONVERSION OF SHARES. At the Effective Time, by virtue of the Merger and
without any action on the part of the holder thereof:
(a) each share of Xxxxxxx Common Stock
outstanding immediately prior to the
Effective Time shall be converted into, and
shall become, one fully paid and
nonassessable share of Florida Common Stock;
(b) the 100 shares of Florida Common Stock
issued and outstanding in the name of
Xxxxxxx shall be canceled and retired, and
no payment shall be made with respect
thereto, and such shares shall resume the
status of unauthorized and unissued shares
of Florida Common Stock.
10. STOCK CERTIFICATES. At and after the Effective Time, all of the
outstanding certificates which immediately prior to the Effective Time represent
shares of Xxxxxxx Common Stock shall be deemed for all purposes to evidence
ownership of, and to represent shares of, Florida Common Stock into which the
shares of Xxxxxxx Common Stock formerly represented by such certificates have
been converted as herein provided. The registered owner on the books and records
of Xxxxxxx or its transfer agent of any such outstanding stock certificates
shall, until such certificate shall have been surrendered for transfer or
otherwise accounted for to Florida, as the surviving corporation, or its
transfer agent, have and shall be entitled to exercise any voting or other
rights with respect to and to receive any dividends and other distributions upon
shares of Florida Common Stock evidenced by such outstanding certificate as
above provided. Nothing herein contained shall be deemed to require the holder
of any shares of Xxxxxxx Common Stock to surrender the certificate or
certificates representing such shares in exchange for a certificate or
certificates representing shares of Florida Common Stock.
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11. STOCK OPTIONS, WARRANTS AND OTHER RIGHTS. Forthwith upon the Effective
Time, each stock option, stock warrant, convertible debt instrument and other
right to subscribe for or purchase shares of Xxxxxxx Common Stock shall be
converted into a stock option, stock warrant or other right to subscribe for or
purchase the same number of shares of Florida Common Stock, and each
certificate, agreement, note or other document representing such stock option,
stock warrant or other right to subscribe for or purchase shares of Xxxxxxx
Common Stock shall for all purposes be deemed to evidence the ownership of a
stock option, stock warrant or other right to subscribe for or purchase shares
of Florida Common Stock. As of the Effective Time, Florida hereby assumes the
Company's 1996 Stock Option Plan and, if same shall be approved by the
shareholders of Xxxxxxx, Xxxxxxx'x Employee Stock purchase Plan, and all
obligations of Xxxxxxx under such plans including the outstanding rights or
options or portions thereof granted pursuant to the plans and otherwise.
12. OTHER EMPLOYEE BENEFIT PLANS. As of the Effective Time, Florida, as the
surviving corporation of the Merger, hereby assumes all obligations of Xxxxxxx
under any and all employee benefit plans in effect as of the Effective Time or
with respect to which employee rights or accrued benefits are outstanding as of
the Effective Time.
13. CONDITIONS. The consummation of the Merger is subject to satisfaction
of the following conditions prior to the Effective Time:
(a) the Merger shall have received the requisite
approval of the holders of Xxxxxxx Common
Stock and all necessary actions shall have
been taken to authorize the execution,
delivery and performance of this Plan and
Agreement of Merger by Xxxxxxx and Florida;
(b) all approvals and consents necessary or
desirable, if any, in connection with the
consummation of the Merger shall have been
obtained;
(c) no suit, action, proceeding or other
litigation shall have been commenced or
threatened to be commenced which, in the
opinion of Xxxxxxx or Florida, would pose a
material restriction on or impair
consummation of the Merger, performance of
this Plan and Agreement of Merger or the
conduct of the business of Florida after the
Effective Time, or create a risk of subjecting
Xxxxxxx or Florida, or their respective
shareholders, officers or directors, to material
damages, costs, liability and other relief in
connection with the Merger or this Plan and
Agreement of Merger; and
(d) the shares of Florida Common Stock to be
issued or reserved for issuance shall, if
required, have been approved for listing on
the American Stock Exchange upon official
notice of issuance.
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14. DEFERRAL OR ABANDONMENT. At any time prior to the Effective Time, this
Plan and Agreement of Merger may be terminated and the Merger may be abandoned
or the time of consummation of the Merger may be deferred for a reasonable time
by the Board of Directors of either Xxxxxxx or Florida or both, notwithstanding
approval of this Plan and Agreement of Merger by the shareholders of Xxxxxxx or
the stockholders of Florida, or both, if circumstances arise which, in the
opinion of the Board of Directors of Xxxxxxx or Florida, make the Merger
inadvisable or such deferral of the time of the consummation thereof advisable.
15. AMENDMENT. The Board of Directors of the parties hereto may amend this
Agreement at any time prior to the Effective Time; provided that an amendment
made subsequent to the approval of this Agreement by the stockholders of either
of the parties hereto shall not:
(a) change the amount or kind of shares, securities,
cash, property or rights to be received in
exchange for or on conversion of all or any of
the shares of the parties hereto,
(b) change any term of the Articles of Incorporation
of Florida, or
(c) change any other terms or conditions of this
Agreement if such change would adversely
affect the holder of any capital stock of
either party hereto.
16. REGISTERED OFFICE. The registered office of Florida in the State of
Florida is located at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000, and Xxxxxxx
X. Xxxxxxx is the registered agent of Florida at such address.
17. INSPECTION OF AGREEMENT. Executed copies of this Agreement will be on
file at the principal place of business of Florida at 0000 Xxxxxxxx Xxxxxxxxx,
Xxxxx, Xxxxxxx 00000. A copy of this Agreement shall be furnished by Florida, on
request and without cost, to any stockholder of either Xxxxxxx or Florida.
18. 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 Florida.
19. SERVICE OF PROCESS. On and after the Effective Time, Florida agrees
that it may be served with process in Florida in any proceeding for enforcement
of any obligation of Xxxxxxx or Florida arising from the Merger.
20. DESIGNATION OF NEW JERSEY SECRETARY OF STATE AS AGENT FOR SERVE OF
PROCESS. On and after the Effective Time, Florida irrevocably appoints the
Secretary of State of the State of New Jersey as its agent to accept service of
process in any suit or other proceeding to enforce the rights of any
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stockholders of Xxxxxxx or Florida arising from the Merger. The New Jersey
Secretary of State is requested to mail a copy of such process to Florida at
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxxx.
21. COUNTERPARTS. This Plan and Agreement of Merger may be executed in any
number of counterparts, each of which when taken alone shall constitute an
original instrument and when taken together shall constitute one and the same
Agreement.
IN WITNESS WHEREOF, each of the parties hereto, pursuant to authority duly
granted by their respective Board of Directors, has caused this Plan and
Agreement of Merger to be executed, respectively, by its President and attested
by its Secretary.
ATTEST: XXXXXXX REINCORPORATION, INC.,
A FLORIDA CORPORATION
/S/ BY: /S/ XXXXXXX X. XXXXXXXXX, XX.
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SECRETARY XXXXXXX X. XXXXXXXXX, XX.
CHIEF EXECUTIVE OFFICER
ATTEST: XXXXXXX EDUCATION GROUP, INC.,
A NEW JERSEY CORPORATION
/S/ BY: /S/ XXXXXXX X. XXXXXXXXX, XX.
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SECRETARY XXXXXXX X. XXXXXXXXX, XX.
CHIEF EXECUTIVE OFFICER
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