Exhibit 2.4
PLAN OF MERGER
This Plan of Merger ("Plan of Merger") is entered into as of March
1, 2000, by and among NelNet, Inc., a Nevada corporation ("Subsidiary"), and
National Education Loan Network, Inc., a Nevada corporation ("Company"), and
joined in by UNIPAC Service Corporation, a Nebraska corporation and parent
corporation of Subsidiary ("Parent"), for certain limited purposes.
WITNESSETH:
A. WHEREAS, the authorized capital stock of Company consists solely of
1,000 shares of Class A voting common stock, $0.10 par value per share, 124,593
shares of Class B nonvoting common stock, $0.10 par value per share, and 17,000
shares of Preferred stock, $0.50 par value per share (collectively, the "Company
Stock"), of which 142,593 shares ("Shares") are issued and outstanding on the
date hereof.
B. WHEREAS, the authorized capital stock of Subsidiary consists of 1,000
shares of common stock, $1.00 par value per share ("Subsidiary Common Stock"),
of which 100 shares are issued and outstanding on the date hereof and all of
which shares are owned of record and beneficially by Parent.
C. WHEREAS, concurrently with the execution and delivery of this Plan of
Merger, Parent, Subsidiary and Company have entered into an Agreement and Plan
of Reorganization (the "Agreement" and, together with this Plan of Merger, the
"Merger Agreements") that contemplates the merger of Company with and into
Subsidiary ("Merger") upon the terms and conditions provided in the Merger
Agreements and pursuant to Chapter 92A of the Nevada General Corporation Law.
D. WHEREAS, the Boards of Directors of Subsidiary and Company have deemed
it in the best interests of their respective corporations and shareholders that
Company be merged with and into Subsidiary, with Subsidiary being the surviving
corporation, and each such Board of Directors has approved this Plan of Merger,
has authorized its execution and delivery and has directed that this Plan of
Merger and the Merger be submitted to its respective shareholders for approval.
E. WHEREAS, the Board of Directors of Parent has authorized the execution
and delivery of the Plan of Merger and is causing Parent to issue shares of its
common stock (the "Parent Common Stock"), pursuant to the terms of the Merger
Agreements.
NOW, THEREFORE, in consideration of the premises and the agreements herein
contained, the parties hereto adopt and agree to the following agreements, terms
and conditions relating to the Merger and the mode of carrying the same into
effect:
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ARTICLE I
THE MERGER
1.01 The Merger. Subject to the terms and conditions of the Merger
Agreements, Company shall be merged with and into Subsidiary in accordance with
Chapter 92A of the Nevada General Corporation Law. The constituent entities are
as follows: National Education Loan Network, Inc., a corporation organized and
governed by the laws of the State of Nevada, 000 X. 00xx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxx Xxxx; and NelNet, Inc., a corporation
organized under and governed by the laws of the State of Nevada, 000 X. 00xx
Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxx Xxxx. The surviving
entity is NelNet, Inc.
1.02 Effective Time of the Merger. Subject to the provisions of the Merger
Agreements, Articles of Merger ("Articles of Merger") shall be duly prepared and
executed by Subsidiary and Company and thereafter delivered to the Secretary of
State of the State of Nevada for filing as provided in Chapter 92A of the Nevada
General Corporation Law as soon as practicable on or after the Closing Date (as
defined in the Agreement). The Merger shall become effective upon the filing and
recording of the Articles of Merger with the Secretary of State of the State of
Nevada ("Effective Time").
1.03 Effects of the Merger.
(a) At the Effective Time, (i) the separate existence of Company
shall cease and Company shall be merged with and into Subsidiary as
provided in the Nevada General Corporation Law (Subsidiary and Company are
sometimes referred to herein as the "Constituent Corporations" and
Subsidiary after the Merger is sometimes referred to herein as the
"Surviving Corporation"); (ii) the Articles of Incorporation of Subsidiary
in effect as of the Effective Time shall be the Articles of Incorporation
of the Surviving Corporation; and (iii) the By-laws of Subsidiary in
effect as of the Effective Time shall be the By-laws of the Surviving
Corporation.
(b) In accordance with the Nevada General Corporation Law, at and
after the Effective Time, the Surviving Corporation shall possess all the
rights, privileges, powers and franchises of a public as well as of a
private nature, and be subject to all the restrictions, disabilities and
duties of each of the Constituent Corporations; and all singular rights,
privileges, powers and franchises of each of the Constituent Corporation,
and all property, real, personal and mixed, and all debts due to either of
the Constituent Corporations on whatever account, as well as for stock
subscriptions and all other things in action or belonging to each of the
Constituent Corporations, shall be vested in the Surviving Corporation;
and all property, rights, privileges, powers and franchises, and all and
every other interest shall be thereafter as effectually the property of
the Surviving Corporation as they were of the Constituent Corporations,
and the title to any real estate vested, by deed or otherwise, in either
of the Constituent Corporations shall not revert or be
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in any way impaired; but all rights of creditors and all liens upon any
property of either of the Constituent Corporations shall be preserved
unimpaired, and all debts, liabilities and duties of the Constituent
Corporations shall thenceforth attach to the Surviving Corporation, and
may be enforced against it to the same extent as if said debts and
liabilities had been incurred by it. Any action or proceeding, whether
civil, criminal or administrative, pending by or against either
Constituent Corporation shall be prosecuted as if the Merger had not taken
place, and the Surviving corporation may be substituted as a party in such
action or proceeding in place of any Constituent Corporation.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS
2.01 Effect on Company Stock. As of the Effective Time, by virtue of the
Merger and without any action on the part of the Constituent Corporations or the
holders of any shares of Company Stock:
(a) Each then outstanding share of Class B nonvoting common stock,
par value of $0.10 per share, and Preferred stock, par value of $0.50 per
share, of Company Stock (other than those shares of Class B Company Stock
held by Xxxxxxx X. Xxxxxxxxxxx and/or Xxxxxxx X. Xxxxxx, other than those
shares of Company Stock held in the treasury of Company, and other than
shares of Company Stock the holders of which have perfected any
dissenter's rights that they may have under the Nevada General Corporation
Law and which have not withdrawn or lost such rights ("Dissenting
Shares")) will be converted into a right to receive one (1) share of Class
B nonvoting common stock, par value $0.10 per share, of Parent. Each then
outstanding share of Class B nonvoting common stock, par value $0.10 per
share of Company Stock, held by Xxxxxxx X. Xxxxxxxxxxx, will be converted
into a right to receive 0.9809 of a share of Class B nonvoting common
stock, par value $0.10 per share, of Parent. Each then outstanding share
of Class B nonvoting common stock, par value $0.10 per share of Company
Stock, held by Xxxxxxx X. Xxxxxx, will be converted into a right to
receive 0.9875 of a share of Class B nonvoting common stock, par value
$0.10 per share, of Parent. Each then outstanding share of Class A voting
common stock, par value $0.10 per share of Company Stock (other than those
shares of Company Stock held in the Treasury of Company, and other than
Dissenting Shares) will be converted into a right to receive 1.86 shares
of Class A voting common stock, $0.10 par value, of Parent.
(b) Each then outstanding share of Company Stock owned by Parent,
Subsidiary or any other direct or indirect subsidiary of Parent will be
canceled and retired, and each share of Company Stock issued and held in
Company's treasury will be canceled and retired.
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2.02 Exchange of Certificates.
(a) As of the Effective Time, each holder of an outstanding
certificate which immediately prior to the Effective Time represented
shares of Company Stock and which was surrendered to Parent in accordance
with Section 2.02(b) hereof shall be entitled to receive in exchange
therefor, a certificate or certificates theretofore representing the
number of whole shares of Parent Common Stock, to which such holder is
entitled pursuant to Section 2.01. If any certificate for shares of Parent
Common stock is to be issued in a name other than that in which the
certificate for shares of Company Stock surrendered in exchange therefor
is registered, it shall be a condition of such exchange that the person
requesting such exchange shall pay any transfer or other taxes required by
reason of the issuance of certificates for such shares of Parent common
stock in a name other than that of the registered holder of the
certificate surrendered, or shall establish to the satisfaction of Parent
that such tax has been paid or is not applicable.
(b) Within ten (10) days after approval of the Merger Agreements and
the Merger by the requisite number of shareholders of Company in
accordance with Chapter 92A of the Nevada General Corporation Law, Parent
shall mail to each holder of record of a certificate or certificates that
as of the date of such approval, represented outstanding shares of Company
Stock (the "Company Certificates"): (i) a form letter of transmittal
(which shall specify that deliver shall be effected, and risk of loss and
title to Company Certificates shall pass, only upon actual delivery of
Company Certificates to Parent); and (ii) instructions for use in
effecting the surrender of Company Certificates in exchange for
certificates representing shares of Parent Common Stock. Such instructions
shall instruct such holder to deliver to Parent their respective Company
Certificates within twenty (20) days from the date such holder receives
the form letter of transmittal, together with a duly executed and
completed letter of transmittal and such other documents as the Parent
shall reasonably require. Thereafter, at and after the Effective Time,
each holder of shares of Company Stock, upon delivery of their respective
Company Certificates, together with a duly executed letter of transmittal,
shall be entitled to receive in exchange therefor the consideration to
which such holder is entitled pursuant to Section 2.01, and Company
Certificates so surrendered shall forthwith be canceled. Notwithstanding
the foregoing, no party hereto shall be liable to a holder of shares of
Company Stock for any shares of Parent Common Stock or dividends or
distributions thereon delivered to a public official pursuant to
applicable abandoned property, escheat or similar laws.
(c) Notwithstanding any provision of this Agreement to the contrary,
Dissenting Shares shall not be converted into or represent a right to
receive the consideration to which other shares of Company Stock other
than Dissenting Shares are entitled pursuant to this Article II, but the
holder of Dissenting Shares shall only be entitled to such rights as are
granted by Chapter 92A of the Nevada General Corporation Law. If a holder
of shares of Company Stock who pursues dissenters' rights with respect to
those shares under Chapter 92A of the Nevada
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General Corporation Law shall effectively withdraw or lose (through
failure to perfect or otherwise) the right to dissent, then, as of the
Effective Time or the occurrence of such event, whichever last occurs,
those shares of Company Stock shall be converted into and represent only
the right to receive the consideration as provided in Article 2, without
interest, upon the surrender of Company Certificate or Company
Certificates representing those shares of Company Stock. Company shall
give Parent prompt notice of any written demands made pursuant to the
Nevada General Corporation Law received by Company relating to a
shareholder's rights to dissent. Company shall not, except with the prior
written consent of Parent, voluntarily make any payment with respect to
any demands made pursuant to such dissenters' rights with respect to any
shares of Company Stock, offer to settle or settle any such demands or
approve any withdrawal of any such demands. Parent shall contribute to
Company or the Surviving Corporation, as the case may be, sufficient funds
to enable Company or the Surviving Corporation to make, or shall itself
directly make, any payments required to be made to holders of Dissenting
Shares.
(d) Anything to the contrary notwithstanding in this Section 2.02,
if this Agreement is terminated pursuant to Article III, any Company
Certificate or Company Certificates which have been surrendered to Parent
shall be promptly returned to the persons submitting the same.
(e) Until surrendered and exchanged in accordance with this Section
2.02, each Company Certificate shall, after the Effective Time, represent
solely the right to receive the Parent Common Stock, to which the holder
of such Company Certificate is entitled to hereunder, and shall have no
other rights. At the Effective Time, the stock transfer books of Company
will be closed and no transfer of shares of Company Stock will thereafter
be made.
ARTICLE III
CONDITIONS; TERMINATION; AMENDMENT
3.01 Conditions of the Merger. Consummation of the Merger is conditional
upon the fulfillment or waiver of the conditions precedent set forth in the
Agreement.
3.02 Termination. This Plan of Merger may be terminated and the Merger
abandoned by mutual consent of the respective Boards of Directors of Company and
Subsidiary at any time prior to the Effective Time. If the Agreement is so
terminated, then this Plan of Merger will terminate simultaneously and the
Merger will be abandoned without further action by Company of Subsidiary.
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3.03 Amendment. Subject to the next following sentence, this Plan of
Merger may be amended by the parties hereto by action taken or authorized by
their respective Boards of Directors at any time before or after approval of the
matters presented in connection with the Merger by the shareholders of Company,
but after any such approval, no amendment shall be made which changes in a
manner adverse to such shareholders the consideration to be provided to such
shareholders pursuant to the Merger Agreements. This Plan of Merger may not be
amended except by an instrument in writing signed on behalf of all of the
parties hereto. Notwithstanding the foregoing, amendments to this Plan of Merger
which are required by the Secretary of State of the State of Nevada, and which
amendments do not materially and adversely affect the rights, benefits and
obligations of any party hereto, may be made unilaterally (without a writing
signed by all parties) by the party filing the Merger Agreements with such
Secretary of State, and need not be further authorized by the Board of Directors
of any party.
3.04 Extension; Waiver. At any time prior to the Effective Time, Parent
and Subsidiary, on the one hand, and Company, on the other hand, by action taken
or authorized by their respect Board of Directors, may, to the extent legally
allowed, (i) extend the time for the performance of any of the obligations or
other acts of the other party hereto and (ii) waive compliance by the other
party with any of the agreements or conditions contained herein. For purposes of
the foregoing sentence, Parent and Subsidiary shall be considered one party. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in a written instrument on behalf of such party.
ARTICLE IV
MISCELLANEOUS
4.01 Notice. All notices, requests, demands and other communication
hereunder shall be given in writing and shall be: (a) personally delivered; (b)
sent by telecopier, facsimile transmission or other electronic means of
transmitting written documents; or (c) sent to the parties at their respective
addresses indicated herein by registered or certified United States mail, return
receipt requested and postage prepaid, or by private overnight mail courier
service. The respective addresses to be used for all such notices, demands or
requests are as follows:
(a) If to Parent or Subsidiary, to:
UNIPAC Service Corporation
Attention: K. Xxx Xxxx, President
0000 X. Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Facsimile: 303/696-5640
or to such other person or address as Parent or Subsidiary shall furnish to
Company in writing.
(b) If to Company, to:
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National Education Loan Network, Inc.
Attention: Xxx Xxxx, President
000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: 402/458-2399
If personally delivered, such communication shall be deemed delivered upon
actual receipt; if electronically transmitted pursuant tot his Section, such
communication shall be deemed delivered the next business day after transmission
(and sender shall bear the burden of proof of delivery); if sent by overnight
courier pursuant to this Section, such communication shall be deemed delivered
upon receipt; and if sent by United States mail pursuant to this Section, such
communication shall be deemed delivered as of the date of delivery indicated on
the receipt issued by the relevant postal service, or, if the addressee fails or
refuses to accept delivery, as of the date of such failure or refusal. Any party
to this Plan of Merger may change its address for the purposes of this Plan of
Merger by giving notice thereof in accordance with this Section.
4.02 Counterparts. This Plan of Merger may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
4.03 Headings. The headings in this Plan of Merger are inserted for
convenience only and shall not constitute a part hereof.
4.04 Waiver of Mailing Requirement. Parent, as sole shareholder of the
Company Stock, hereby waives the requirement of mailing the Articles of Merger
pursuant to Section 92A.180 Nevada Revised Statutes.
IN WITNESS WHEREOF, the parties have executed this Plan of Merger as of
the date and year first above written.
National Education Loan Network, Inc. UNIPAC Service Corporation
("Company") ("Parent")
By: /s/ Xxx Xxxx By: /s/ K. Xxx Xxxx
----------------------------- -----------------------------
Xxx Xxxx, President K. Xxx Xxxx, President
NelNet, Inc.
("Subsidiary")
By: /s/ Xxx Xxxx
-----------------------------
Xxx Xxxx, President
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