AGREEMENT AND PLAN OF MERGER (the "Agreement"), dated as of October18,
1996, by and between COMPU-XXXX, INC., a Delaware corporation ("Compu-Xxxx"),
and COASTAL COMPUTER SYSTEMS, INC., a New York corporation ("Coastal").
Compu-Xxxx is a corporation duly organized and existing under
the laws of the State of Delaware and has an authorized capitalization of
20,000,000 shares of Common Stock, par value $.01 per share, 10 shares of which
are outstanding and are held by Coastal, and 1,000,000 shares of Preferred
Stock, par value $.01 per share, none of which are outstanding.
Coastal is a corporation duly organized and existing under the
laws of the State of New York and has an authorized capitalization of 4,000
shares of Common Stock, without par value.
The respective Boards of Directors of Compu-Xxxx and Coastal
have determined that, for the purpose of effecting the reincorporation of
Coastal in the State of Delaware under the name "Compu-Xxxx, Inc.", it is
advisable and to the advantage of such two corporations that Coastal merge with
and into Compu-Xxxx upon the terms and conditions herein provided.
The respective Boards of Directors of Compu-Xxxx and Coastal
have approved this Agreement and the Boards of Directors of Compu-Xxxx and
Coastal have directed that this Agreement be submitted to a vote of their
respective stockholders.
NOW THEREFORE, in consideration of the mutual agreements and
covenants set forth herein, Compu-Xxxx and Coastal, subject to the terms and
conditions hereinafter set forth, hereby agree, as follows:
I
MERGER
1.1 Merger. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law ("Delaware Law") and the New York Business
Corporation Law ("New York Law"), Coastal shall be merged with and into
Compu-Xxxx (the "Merger"). Compu-Xxxx shall be and is hereinafter sometimes
referred to as the "Surviving Corporation." Compu-Xxxx and Coastal are sometimes
hereinafter referred to as the "Constituent Corporations."
1.2 Filing and Effectiveness. The Merger shall become effective (the
"Effective Date of the Merger") for all purposes, including, without limitation,
accounting and operational purposes, except for purposes of the State of New
York, when the following actions shall have been completed:
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(a) The Agreement and the Merger shall have been adopted and
approved by the stockholders of each Constituent Corporation in accordance with
the requirements of Delaware Law and New York Law; and
(b) An executed Certificate of Ownership and Merger meeting
the requirements of Delaware Law, shall have been filed with the Secretary of
State of the State of Delaware in accordance with the applicable laws of such
State; and
1.3 New York Filing. An executed Certificate of Merger meeting the
requirements of New York Law, shall be filed with the Secretary of State of the
State of New York in accordance with the applicable laws of such State,
contemporaneously with the filing of the Certificate of Ownership and Merger
with the Secretary of State of the State of Delaware described in Section
1.2(b).
1.4 By-laws. The By-laws of Compu-Xxxx as in effect on the Effective
Date of the Merger shall continue in full force and effect as the By-laws of the
Surviving Corporation.
1.5 Directors and Officers. The directors and officers of Compu-Xxxx
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their successors shall have been
elected and shall qualify or until otherwise provided by law, the Certificate of
Incorporation of the Surviving Corporation and the By-laws of the Surviving
Corporation.
1.6 Effect of Merger. Upon the Effective Date of the Merger, the
separate existence of Coastal shall cease and Compu-Xxxx, as the Surviving
Corporation, (i) shall continue to possess all of its rights and property as
constituted immediately prior to the Effective Date of the Merger and shall
succeed, without other transfer, to all of the rights and property of Coastal,
and (ii) shall continue to be subject to all of its debts and liabilities as
constituted immediately prior to the Effective Date of the Merger and shall
succeed, without other transfer, to all of the debts and liabilities of Coastal
in the same manner as if Compu-Xxxx had itself incurred them, pursuant to
Delaware Law and New York Law.
II
MANNER OF CONVERSION OF STOCK
2.1 Coastal Capital Stock. The Common Shares of Coastal issued and
outstanding on the Effective Date of the Merger shall, by virtue of the Merger
and without any action by the holder of such shares or the Surviving
Corporation, be converted into fully paid and nonassessable shares of Common
Stock, par value $.01 per share, of the Surviving Corporation, on the basis of
three hundred and twenty-five (325) shares of Common Stock of the Surviving
Corporation for each one (1) share of Common Stock of Coastal.
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2.2 Fractional Shares. No fractional shares of Common Stock of the
Surviving Corporation or cash in lieu thereof shall be issued or paid in
connection with the conversion pursuant to Section 2.1. If fractional shares
would otherwise result from such conversion, stockholders who would be entitled
to receive such fractional shares if they were to be issued shall instead
receive a full share.
2.3 Coastal Rights and Options. On the Effective Date of the Merger,
each outstanding right and option to acquire shares of Common Stock of Coastal
shall become, respectively, rights and options to acquire shares of the
Surviving Corporation's Common Stock on the basis of three hundred and
twenty-five (325) shares of the Surviving Corporation's Common Stock for each
one (1) share of Common Stock of Coastal issuable pursuant to any such right or
option, as the case may be, at a price per share equal to the purchase (or
conversion) price under such Coastal right or option prevailing at the Effective
Date of the Merger divided by three hundred twenty-five (325).
2.4 Compu-Xxxx Capital Stock. Any then outstanding shares of Common
Stock of Compu-Xxxx which are owned by Coastal immediately prior to the Merger
shall be canceled at the Effective Date of the Merger.
III
MISCELLANEOUS
3.1 Compu-Xxxx Certificate of Incorporation. Annexed hereto as Exhibit
A is the Certificate of Incorporation of Compu-Xxxx.
3.2 Abandonment. At any time before the Effective Date of the Merger,
the Agreement may be terminated and the Merger may be abandoned for any reason
whosoever by the Board of Directors of either Coastal or Compu-Xxxx or both,
notwithstanding approval of the Agreement by the stockholders of Coastal, the
stockholders of Compu-Xxxx or both.
3.3 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware is located at 00 Xxxx Xxxxx Xxxxxx, Xxxxx,
Xxxxxxxx, and United Corporate Services, Inc. is the registered agent of the
Surviving Corporation at such address.
3.4 Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 000 Xxxx Xxxx
Xxxxxx, Xxxx Xxxxx, Xxx Xxxx, and copies thereof will be furnished to the
stockholders of each Constituent Corporation upon request and without cost.
3.5 Governing Law. The Agreement shall in all respects 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 New York
Law.
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3.6 Counterparts. The Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, this Agreement, having been first approved by
resolutions of the Board of Directors of Coastal and Compu-Xxxx, is hereby
executed on behalf of each of such two corporations by their respective officers
thereunto duly authorized.
COMPU-XXXX, INC.
By:/s/ Xxxx X. Xxx
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Xxxx X. Xxx, President
COASTAL COMPUTER SYSTEMS, INC.,
By:/s/ Xxxx X. Xxx
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Xxxx X. Xxx, President
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