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Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of February 28, 1999 (the
"Merger Agreement") by and between WattMonitor, Inc., a Texas corporation
("WattMonitor"), and Healthbridge, Inc., a Delaware corporation
("Healthbridge"). WattMonitor and Healthbridge are hereinafter sometimes
collectively referred to as the "Constituent Corporations."
WHEREAS, the Board of Directors of each of WattMonitor and Healthbridge
approved the merger of Healthbridge with and into WattMonitor, with WattMonitor
being the surviving corporation (the "Merger") pursuant to the terms and subject
to the conditions of this Merger Agreement whereby (i) each of the issued and
outstanding shares of common stock, $.001 par value per share, of Healthbridge
will be converted into the right to receive the Merger Consideration set forth
in Section 5 hereof, and (ii) WattMonitor will be the Surviving Corporation; and
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify as a statutory merger under the provisions of Section
368(a)(1)(A) of the Internal Revenue Code, as amended (the "Code").
NOW THEREFORE, the parties agree as follows:
THE MERGER
Section 1. The Merger. Upon the terms and subject to the conditions
hereof, at the Effective Time (as hereinafter defined), HealthBridge shall be
merged with and into WattMonitor in accordance with Section 5.01 of the Texas
Business Corporation Act and the separate existence of Healthbridge shall
thereupon cease, and WattMonitor, as the surviving corporation in the Merger
(the "Surviving Corporation"), shall continue its existence under the laws of
the State of Texas under the name "Healthbridge, Inc."
Section 2. Articles of Incorporation. The Articles of Incorporation of
WattMonitor, a copy of which is attached hereto as Exhibit A, as amended in
connection with the Merger, shall be the Articles of Incorporation of the
Surviving Corporation, until such Articles of Incorporation are further changed
or amended as provided therein or by law.
Section 3. Bylaws. The Bylaws of WattMonitor as in effect immediately
prior to the Effective Time shall be the Bylaws of the Surviving Corporation
until thereafter changed or amended as provided therein or as otherwise
permitted or required by law or by the Surviving Corporation's Articles of
Incorporation.
Section 4. Board of Director and Officers. The directors of the
Surviving Corporation shall be Xxxx Xxxxxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxxxx,
Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxx, and an additional director nominated by Xxxxxxx
Xxxxxxx and mutually acceptable to the other directors. The foregoing directors
shall serve until their respective successors are duly
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elected or appointed and qualify in the manner provided in the Articles of
Incorporation and Bylaws of the Surviving Corporation or as otherwise provided
by law. The officers of the Surviving Corporation shall be Xxxxxx Xxxxx as
President/CEO and Xxxxxx Xxxxxxx as Secretary/Treasurer. The foregoing officers
shall serve until their successors are duly elected or appointed and qualify in
the manner provided in the Articles of Incorporation and Bylaws of the Surviving
Corporation or as otherwise provided by law.
Section 5. Conversion of Shares. At the Effective Time, by virtue of
the Merger and without any action on the part of the holder thereof each then
issued and outstanding share of HealthBridge common stock, par value $.001, (the
"Healthbridge Common Stock") shall be, by virtue of the Merger, and without any
action on the part of the holder thereof, cancelled and converted solely into
the right to receive, upon the surrender of the certificate formerly
representing such Healthbridge Common Stock, one (1) share of the Surviving
Corporation's common stock, par value $.0001 (the "Surviving Corporation Common
Stock").
The shares of Surviving Corporation Common Stock to be issued in the
Merger in exchange for certificates that immediately prior to the Effective Time
represented Healthbridge Common Stock are referred to herein as the "Merger
Consideration."
Section 6. Effective Time of Merger. Healthbridge will be merged with
and into WattMonitor, effective at the later of the date when a Certificate of
Merger is issued by the Secretary of State of the State of Texas or the date
when a Certificate of Merger is filed with the Secretary of State of the State
of Delaware (the "Effective Time").
Section 7. Certain Rights. Upon the Merger becoming effective, all the
property, rights, privileges, franchises, patents, trademarks, licenses,
registrations, and other assets of every kind and description of Healthbridge
shall be transferred to and vested in the Surviving Corporation without further
act or deed and all property, rights, and every other interest of Healthbridge
shall be as effectively the property rights and interests of the Surviving
Corporation as they were of Healthbridge. Healthbridge hereby agrees from time
to time, as and when requested by the Surviving Corporation or by its successors
or assigns, to execute and deliver or cause to be executed and delivered all
such deeds and instruments and to take or cause to be taken such further or
other action as the Surviving Corporation may deem necessary or desirable in
order to vest in and confirm to the Surviving Corporation title to and
possession of any property rights and interests of Healthbridge acquired or to
be acquired by reason of or as a result of the Merger herein provided for and
otherwise to carry out the intent and purposes hereof and the proper officers
and directors of the Surviving Corporation are fully authorized in the name of
Healthbridge or otherwise to take any and all such action.
Section 8. Representations and Warranties of WattMonitor. WattMonitor
represents and warrants to Healthbridge as follows:
a. Organization and Good Standing. WattMonitor is a duly incorporated
and validly existing corporation in good standing under the laws of
the state of Texas, with all requisite corporate power and authority
to own its properties and conduct its business, and is duly
qualified and in good
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standing as a foreign corporation authorized to do business in each
of the jurisdictions in which the character of the properties owned
or leased by it or the nature of the business transacted by it makes
such qualification necessary, except where the failure to be so
qualified would not in the aggregate have a material adverse effect
on the business, assets, properties, financial condition or results
of operation of WattMonitor and its subsidiaries taken as a whole
(in respect of WattMonitor and its subsidiaries taken as a whole, as
the case may be, a "Material Adverse Effect"). WattMonitor has
heretofore delivered to Healthbridge true and correct copies of its
Articles of Incorporation and Bylaws as currently in effect.
b. Authorization; Binding Agreement. WattMonitor has all requisite
corporate power and authority to execute and deliver this Merger
Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Merger Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by WattMonitor's Board of Directors, no other
corporate proceedings on the part of WattMonitor are necessary to
authorize this Merger Agreement and the transactions contemplated
hereby. This Merger Agreement has been duly and validly executed and
delivered by WattMonitor, and constitutes a legal, valid and binding
agreement of WattMonitor, enforceable against WattMonitor in
accordance with its terms (except as enforceability may be limited
by bankruptcy, insolvency, moratorium or other similar laws
affecting creditors' rights generally or by the principles governing
the availability of equitable remedies).
c. Capitalization. As of the date hereof, the authorized capital stock
of WattMonitor consists of 50,000,000 shares of common stock. As of
the date hereof, 3,050,000 shares of WattMonitor Common Stock are
issued and outstanding, all of which are validly issued, fully paid
and nonassessable. There is not now, and at the Effective Time there
will not be, any existing option, warrant, subscription or other
rights, agreement or commitment to which WattMonitor is a party
which either obligates WattMonitor or any of its subsidiaries to
issue, sell or transfer any shares of its capital stock or restricts
the transfer of or otherwise relates to the capital stock of
WattMonitor.
d. Litigation. As of the date hereof there are no claims, actions,
proceedings or investigations pending or, to the best knowledge of
WattMonitor, threatened, involving or affecting WattMonitor or any
of its properties or assets or, to the best of WattMonitor's
knowledge, any employee, consultant, director or officer in his or
her capacity as such, of WattMonitor or any of its subsidiaries
before any court or governmental or regulatory authority or body
which, if adversely decided, could have a Material Adverse Effect.
As of the date hereof, neither WattMonitor nor
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any of its property or assets is subject to any order, judgment,
injunction or decree that singly or in the aggregate has a Material
Adverse Effect.
e. Governmental Approvals and Compliance with Law. No consent, license,
approval, qualification or form of exemption from or authorization
of or declaration, registration or filing with any government entity
on the part of WattMonitor which has not been made is required in
connection with the execution or delivery by WattMonitor of this
Merger Agreement, the consummation by WattMonitor of the
transactions contemplated hereby or the performance by WattMonitor
of its obligations hereunder other than the filing of Articles of
Merger with the Secretary of State of Texas and the filing of a
Certificate of Merger with the Secretary of State of Delaware.
f. Absence of Breach. The execution and delivery by WattMonitor of this
Merger Agreement, the consummation of the transactions contemplated
hereby and the performance by WattMonitor of its obligations
hereunder, will not, subject to obtaining the required approval of
WattMonitor's shareholders, (a) conflict with or result in a breach
of any of the provisions of its Articles of Incorporation or Bylaws,
(b) contravene any law, rule or regulation of any state or of the
United States or any political subdivision thereof or therein, or
any order, writ, judgment, injunction, decree, determination or
award currently in effect, or (c) require any consent, approval or
notice under or result in a violation or breach of or constitute
(with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation, or
acceleration) under any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, license, agreement or other
instrument to which WattMonitor or any of its subsidiaries is a
party or by which any of their assets are bound, the failure of
which to obtain, in each such case, would have a Material Adverse
Effect.
Section 9. Representations and Warranties of Healthbridge. Healthbridge
represents and warrants to WattMonitor as follows:
a. Organization and Good Standing. Healthbridge is a duly incorporated
and validly existing corporation in good standing under the laws of
the state of Delaware, with all requisite corporate power and
authority to own its properties and conduct its business, and is
duly qualified and in good standing as a foreign corporation
authorized to do business in each of the jurisdictions in which the
character of the properties owned or leased by it or the nature of
the business transacted by it makes such qualification necessary,
except where the failure to be so qualified would not in the
aggregate have a material adverse effect on the business, assets,
properties, financial condition or results of operation of
Healthbridge and its subsidiaries taken as a whole (in respect of
Healthbridge and its
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subsidiaries taken as a whole, as the case may be, a "Material
Adverse Effect"). Healthbridge has heretofore delivered to
WattMonitor true and correct copies of its Certificate of
Incorporation and Bylaws as currently in effect.
b. Authorization; Binding Agreement. Healthbridge has all requisite
corporate power and authority to execute and deliver this Merger
Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Merger Agreement and the
consummation of the transactions contemplated hereby have been duly
and validly authorized by Healthbridge's Board of Directors, no
other corporate proceedings on the part of Healthbridge are
necessary to authorize this Merger Agreement and the transactions
contemplated hereby. This Merger Agreement has been duly and validly
executed and delivered by Healthbridge, and constitutes a legal,
valid and binding agreement of Healthbridge, enforceable against
Healthbridge in accordance with its terms (except as enforceability
may be limited by bankruptcy, insolvency, moratorium or other
similar laws affecting creditors' rights generally or by the
principles governing the availability of equitable remedies).
c. Capitalization. As of the date hereof, the authorized capital stock
of Healthbridge consists of 10,000,000 shares of common stock. As of
the date hereof, 8,814,284 shares of Healthbridge Common Stock are
issued and outstanding, all of which are fully paid and
nonassessable. There is not now, and at the Effective Time there
will not be, any existing option, warrant, subscription or other
rights, agreement or commitment to which Healthbridge is a party
which either obligates Healthbridge or any of its subsidiaries to
issue, sell or transfer any shares of its capital stock or restricts
the transfer of or otherwise relates to the capital stock of
Healthbridge.
d. Litigation. As of the date hereof there are no claims, actions,
proceedings or investigations pending or, to the best knowledge of
Healthbridge, threatened, involving or affecting Healthbridge or any
of its properties or assets or, to the best of Healthbridge's
knowledge, any employee, consultant, director or officer in his or
her capacity as such, of Healthbridge or any of its subsidiaries
before any court or governmental or regulatory authority or body
which, if adversely decided, could have a Material Adverse Effect.
As of the date hereof, neither Healthbridge nor any of its property
or assets is subject to any order, judgment, injunction or decree
that singly or in the aggregate has a Material Adverse Effect.
e. Governmental Approvals and Compliance with Law. No consent, license,
approval, qualification or form of exemption from or authorization
of or declaration, registration or filing with any government entity
on the part of Healthbridge which has not been made is required in
connection with the
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execution or delivery by Healthbridge of this Merger Agreement, the
consummation by Healthbridge of the transactions contemplated hereby
or the performance by Healthbridge of its obligations hereunder
other than the filing of Articles of Merger with the Secretary of
State of Texas and the filing of a Certificate of Merger with the
Secretary of State of Delaware.
f. Absence of Breach. The execution and delivery by Healthbridge of
this Merger Agreement, the consummation of the transactions
contemplated hereby and the performance by Healthbridge of its
obligations hereunder, will not, subject to obtaining the required
approval of Healthbridge's shareholders, (a) conflict with or result
in a breach of any of the provisions of its Certificate of
Incorporation or Bylaws, (b) contravene any law, rule or regulation
of any state or of the United States or any political subdivision
thereof or therein, or any order, writ, judgment, injunction,
decree, determination or award currently in effect, or (c) require
any consent, approval or notice under or result in a violation or
breach of or constitute (with or without due notice or lapse of time
or both) a default (or give rise to any right of termination,
cancellation, or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license,
agreement or other instrument to which Healthbridge or any of its
subsidiaries is a party or by which any of their assets are bound,
the failure of which to obtain, in each such case, would have a
Material Adverse Effect.
Section 10. Termination. Anything herein or elsewhere to the contrary
notwithstanding, this Merger Agreement may be terminated and abandoned by the
Board of Directors of any Constituent Corporation at any time prior to the
Effective Time. This Merger Agreement may be amended by the Boards of Directors
of the Constituent Corporations at any time prior to the Effective Time,
provided that an amendment made subsequent to the adoption of this Merger
Agreement by the stockholders of any Constituent Corporation shall not without
approval of the affected stockholders: (i) alter or change the amount or kind of
shares, obligations, 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
such Constituent Corporation, (ii) alter or change any term of the Articles of
Incorporation of the Surviving Corporation to be effected by the Merger, 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 shares of such Constituent Corporation.
Section 11. Miscellaneous.
a. Governing Law. This Merger Agreement shall be governed by
and construed in accordance with the laws of the State of Texas, regardless of
the laws that might otherwise govern under the applicable principles of
conflicts of law of the State of Texas.
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b. Headings. Headings included herein are for convenience only
and shall not be used to interpret or construe this Merger Agreement.
c. Copies of Plan of Merger. A copy of the executed Plan of
Merger is on file at the principal place of business of the Surviving
Corporation at: 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxx X0X0X0; attention: Xxxxxx Xxxxxxx, Secretary. A copy of the
Plan of Merger will be furnished by the Surviving Corporation, on written
request and without cost, to any shareholder of the Constituent Corporations and
to any creditor of the Constituent Corporations.
d. Entire Agreement; Amendment. This Merger Agreement
constitutes the entire and exclusive agreement between the parties relating to
the subject matter hereof, and all other prior negotiations, representations,
understandings and agreements are expressly superseded hereby. No agreements
amending or supplementing the terms hereof shall be effective except by means of
a written document signed by the duly authorized representatives of both
parties.
e. Counterparts; Facsimile Signature. This Merger Agreement
may be executed by facsimile and in one or more counterparts, each of which
shall be deemed an original.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties to this Merger Agreement, pursuant to
the approval and authority duly given by resolution adopted by their respective
Boards of Directors, have caused these presents to be executed by the duly
authorized officers of each party hereto as the respective act, deed and
agreement of each of said corporations, as of the date first referenced above.
WATTMONITOR, INC., a Texas corporation
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
President
HEALTHBRIDGE, INC., a Delaware corporation
By: /s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
President
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