EXHIBIT 2.1
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AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is made and
entered into as of August 6, 2004 by and between Portrait Corporation of
America, Inc., a Delaware corporation ("PCA Delaware"), and PCA International,
Inc., a North Carolina corporation ("PCA North Carolina").
WHEREAS, the respective Boards of Directors each of PCA Delaware and
PCA North Carolina and the shareholders of PCA North Carolina have determined
that it is advisable and in the best interests of such corporations that PCA
North Carolina merge with and into PCA Delaware upon the terms and conditions
provided herein (the "Merger"), and have approved this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual agreements herein contained and of the mutual benefits provided hereby,
the parties hereto hereby agree as follows:
1. MERGER. On the Effective Date (as defined below), PCA North
Carolina shall be merged with and into PCA Delaware and the separate existence
of PCA North Carolina shall thereupon cease. PCA Delaware shall be the surviving
entity and shall be governed by the laws of the State of Delaware. The effective
date of the Merger shall mean the later of (i) the date of the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware and
(ii) the date of the filing of the Articles of Merger with the Secretary of
State of the State of North Carolina (the "Effective Date").
2. NAME. The name of the surviving entity (the "Surviving
Corporation") shall be "Portrait Corporation of America, Inc."
3. CERTIFICATE OF INCORPORATION AND BYLAWS. On the Effective Date,
the Certificate of Incorporation and Bylaws of PCA Delaware shall be the
Certificate of Incorporation and Bylaws, respectively, of the Surviving
Corporation until changed, altered or amended in the manner prescribed by the
provisions of the General Corporation Law of the State of Delaware.
4. DIRECTORS AND OFFICERS. The persons who are directors and
officers of PCA Delaware immediately prior to the Effective Date shall become
the directors and officers, respectively, of the Surviving Corporation on and
after the Effective Date, and shall hold office until their successors are duly
elected and qualified in accordance with the General Corporation Law of the
State of Delaware.
5. CONVERSION OF SHARES. On the Effective Date, by virtue of the
Merger and without any action on the part of any holder thereof, each share of
common stock, par value of $.20 per share (the "PCA Xxxxx Xxxxxxxx Xxxxxx
Xxxxx"), xx XXX Xxxxx Xxxxxxxx outstanding immediately prior thereto shall be
converted into and shall thereafter represent, with respect to each such share,
one validly issued, fully paid and nonassessable share of the common stock, par
value $0.01 per share (the "PCA Delaware Common Stock"), of the Surviving
Corporation; each share of Series A Convertible
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Preferred Stock, par value $10 per share (the "PCA North Carolina Series A
Preferred Stock"), of PCA North Carolina outstanding immediately prior thereto
shall automatically be changed and converted into and shall thereafter
represent, with respect to each such share, one validly issued, fully paid and
nonassessable share of Series A Redeemable Convertible Preferred Stock, par
value $0.01 per share (the "PCA Delaware Series A Preferred Stock"), of the
Surviving Corporation.
6. SUBSEQUENT ACTION. If at any time after the Effective Date it
shall be necessary or desirable to take any action or execute, deliver or file
any instrument or document in order to vest, perfect or confirm of record in PCA
Delaware the title to any property or any rights of PCA North Carolina which are
to become property or rights of PCA Delaware pursuant to Section 10, or
otherwise to carry out the provisions of this Agreement, the directors and
officers of PCA North Carolina are hereby authorized and empowered on behalf of
PCA North Carolina and its name to take such action and execute, deliver and
file such instruments and documents.
7. UNDERSTANDING TO FURNISH COPIES OF AGREEMENT AND PLAN OF
MERGER. PCA Delaware shall furnish a copy of this Agreement to any of its
stockholders or to any person who was a shareholder of PCA North Carolina upon
written request and without charge.
8. AMENDMENT. At any time prior to the Effective Date, the
respective Boards of Directors of PCA North Carolina and of PCA Delaware may
amend this Agreement in any manner, provided that any amendment to Sections 3 or
5 hereof or to any of the other principal terms contained herein shall not be
effective until such amendment is approved by the stockholders of PCA North
Carolina.
9. RIGHTS AND DUTIES OF PCA DELAWARE. On the Effective Date, the
Surviving Corporation shall thereupon and thereafter possess all rights,
privileges, immunities, licenses, and permits (whether of a public or private
nature) of PCA North Carolina; and all property (real, personal and mixed), all
debts due on whatever account, all choses in action, and all and every other
interest of or belonging to or due to PCA North Carolina shall continue and be
taken and deemed to be transferred to and vested in the Surviving Corporation,
without further act or deed; and the Surviving Corporation shall thenceforth be
responsible and liable for all the liabilities and obligations of PCA North
Carolina.
10. OPTIONS AND WARRANTS. On the Effective Date, each outstanding
option or warrant to purchase one share of PCA North Carolina Common Stock or
PCA North Carolina Series A Preferred Stock (each an "Option") shall, by virtue
of the merger and without any action on the part of any holder thereof,
constitute an option or warrant, as the case may be, to purchase one share of
PCA Delaware Common Stock or PCA Delaware Series A Preferred Stock,
respectively, and the exercise price of such Option shall be the same.
11. FILINGS. PCA North Carolina and PCA Delaware agree that they
will cause to be executed and filed or recorded any document or documents
prescribed by the laws of the State of North Carolina or the State of Delaware,
and they will cause to be performed all necessary acts with the State of North
Carolina, the State of Delaware and elsewhere to effectuate the Merger.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by a duly authorized officer of each party hereto as of the date first written
above.
PORTRAIT CORPORATION OF AMERICA, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President
PCA INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President
SECRETARY'S CERTIFICATE
I, J. Xxxxxx Xxxx, Xx., the duly appointed and currently acting
Secretary of Portrait Corporation of America, Inc., a Delaware corporation,
hereby certify that the foregoing Agreement and Plan of Merger was duly approved
and adopted on August 6, 2004 pursuant to Section 251(f) of the Delaware General
Corporation Law and that no shares of stock of Portrait Corporation of America,
Inc. were issued prior to the adoption by the board of directors of the
resolutions approving the Agreement and Plan of Merger.
/s/ J. Xxxxxx Xxxx, Xx.
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J. Xxxxxx Xxxx, Xx.
Secretary
