Exhibit 2.1
Open Port Technology, Inc.
AGREEMENT AND PLAN OF MERGER
(Pursuant to Section 252 of the
Delaware General Corporation Law)
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THIS AGREEMENT AND PLAN OF MERGER (the "Plan of Merger") is made and
entered into as of ________ __, 2000 by and between Open Port Technology, Inc.,
a Delaware corporation (hereinafter referred to as the "Surviving Corporation")
and Open Port Technology, Inc., an Illinois corporation (hereinafter referred to
as the "Merging Corporation"), the holder of one hundred percent (100%) of the
issued and outstanding capital stock of the Surviving Corporation. The Surviving
Corporation and the Merging Corporation are sometimes hereinafter referred to
collectively as the "Constituent Corporations;"
WHEREAS, the respective Boards of Directors of the Merging Corporation and
the Surviving Corporation deem it advisable and in the best interest of each of
their respective Constituent Corporations that the Merging Corporation merge
with and into the Surviving Corporation for the sole purpose of effecting a
change in the state of incorporation of the Merging Corporation from Illinois to
Delaware (the "Reincorporation Merger"), and have approved such Reincorporation
Merger and this Plan of Merger, each by unanimous written consent and in
accordance with the applicable provisions of the General Corporation Law of the
State of Delaware (the "Delaware Act") and the Illinois Business Corporation Act
(the "Illinois Act");
WHEREAS, approval by the respective Stockholders of each of the Constituent
Corporations is required by the Delaware Act and the Illinois Act; and
WHEREAS, the respective Stockholders and Directors of each of the
Constituent Corporations have, by consent, approved their respective Constituent
Corporations' performance under the Plan of Merger, and have approved the form
and substance of the Plan of Merger and authorized its execution and delivery.
NOW THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants and agreements contained in this Plan of
Merger, and other good and valuable consideration, the receipt, adequacy and
sufficiency which are hereby acknowledged, each of the Constituent Corporations
agrees to the following terms and provisions in furtherance of effecting the
Reincorporation Merger more fully discussed herein.
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ARTICLE I
THE REINCORPORATION MERGER
1.01 Reincorporation Merger. At the Effective Time (as that term is
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defined in Section 1.03 hereof), subject to the terms and conditions of this
Plan of Merger, the Merging Corporation shall be merged into the Surviving
Corporation, with the Surviving Corporation being the survivor, all in
accordance with the applicable provisions of each of the Delaware Act and the
Illinois Act.
1.02 Effects of the Reincorporation Merger. At the Effective Time, the
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Merging Corporation shall be merged into the Surviving Corporation and the
separate existence of the Merging Corporation shall thereupon cease and the
Surviving Corporation shall possess all the rights, privileges, powers,
immunities, purposes and franchises, both public and private of the Merging
Corporation. The Reincorporation Merger shall in all respects have the effect
provided for in the applicable provisions of each of the Delaware Act and the
Illinois Act, including, without limitation, the following:
(i) All property, real, personal and mixed, and all debts due on whatever
account, including subscriptions to shares, and all other choses in action,
all and every other interest, of or belonging to or due to the Merging
Corporation shall be taken and considered transferred to and vested in the
Surviving Corporation without further act or deed; and the title to any
real estate, or any interest therein, vested in such corporation shall not
revert or be in any way impaired by reason of such Reincorporation Merger;
and
(ii) The Surviving Corporation shall be liable for all the obligations and
liabilities of the Merging Corporation; and any claim existing or action or
proceeding pending by or against the Merging Corporation may be enforced as
if such Reincorporation Merger had not taken place and the Surviving
Corporation may be substituted in its place. Neither the rights of
creditors nor any liens upon, or security interests in, the property of any
of the Constituent Corporations shall be impaired by the Reincorporation
Merger.
Prior to, and from and after the Effective Time, the Merging Corporation and the
Surviving Corporation hereby agree to take all such action or actions as shall
be deemed necessary or appropriate in order to duly effectuate the
Reincorporation Merger. In case at any time after the Effective Time, the
Surviving Corporation shall consider or be advised that any further assignments,
conveyances or assurances in law are necessary or desirable to carry out the
provisions hereof, the proper officers of the Constituent Corporations are
hereby granted the due and proper authority to execute and deliver any and all
proper deeds, assignments, and assurances in law and to do all things necessary
or proper to carry out the provisions of this Plan of Merger.
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1.03 Actions to Be Taken to Effect the Reincorporation Merger.
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Simultaneously with, and contingent upon, the consummation by the Surviving
Corporation of a Qualified Public Offering (as defined in the Merging
Corporation's Amended and Restated Articles of Incorporation), the parties
hereto shall cause to be executed in the manner required by the Delaware Act and
the Illinois Act such documents as shall effect the Reincorporation Merger under
the laws of Delaware and Illinois, and the parties shall cause to be performed
all necessary acts within the State of Delaware and Illinois and elsewhere to
effect the Reincorporation Merger. The Board of Directors and the appropriate
officers of each of the Constituent Corporations have been duly authorized,
empowered and directed to take any and all actions and to make, execute,
deliver, file and record any and all instruments, papers and documents that
shall be or become necessary, proper or convenient, including but not limited to
the respective Certificate of Merger and Articles of Merger in the forms
prescribed and called for under each of the Delaware Act and Illinois Act
(hereinafter sometimes collectively referred to as the "Merger Certificates"),
to carry out or put into effect the Reincorporation Merger or any of the
provisions of this Plan of Merger. The Reincorporation Merger shall be
effective on that date on which the Certificate of Merger is filed in the State
of Delaware and the Articles of Merger is filed in the State of Illinois (the
"Effective Time".)
ARTICLE II
THE SURVIVING CORPORATION
2.01 Certificate of Incorporation. The Amended and Restated Certificate
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of Incorporation of the Surviving Corporation in effect immediately prior to the
Effective Time, shall remain in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until amended as provided therein or
as otherwise provided by law.
2.02 By-Laws. The Amended and Restated By-Laws of the Surviving
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Corporation in effect immediately prior to the Effective Time, shall remain in
full force and effect as the By-Laws of the Surviving Corporation until amended
as provided therein.
2.03 Directors. The members of the Board of Directors of the Surviving
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Corporation shall be as follows, which Directors are to serve until the next
Annual Meeting of the Stockholders in the year indicated below, or until their
respective successors shall have been duly elected and qualified and which
Directors are to serve on such committees of the Board of Directors as indicated
below:
Committee
Expiration of Appointment, if
Name of Director Term any
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Xxxxx Xxxxxxx 0000 Xxxx
Xxxxxx X. Xxxxxxx 2001 Audit
Xxxxxx X. Xxxxxx 2002 Audit
Xxxxx X. Xxxxxx 2002 Compensation
Xxxxxx Xxxxxx 2002 Compensation
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Committee
Expiration of Appointment, if
Name of Director Term any
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Xxxxx X. Xxxxxx 2003 None
Xxxxxxxx X. Xxxxxxx 2003 None
Xxxx X. Major 2003 Audit
2.04 Officers. The officers of the Merging Corporation, as in effect
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immediately prior to the Effective Time, shall be the corresponding officers in
the Surviving Corporation and shall remain the officers of the Surviving
Corporation until their respective successors shall have been duly elected and
qualified.
2.05 Corporate Name. The name of the Surviving Corporation is, and after
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the Effective Time, shall continue to be, "Open Port Technology, Inc."
ARTICLE III
CONVERSION AND CANCELLATION OF SHARES
3.01 Effect of Reincorporation Merger on Surviving Corporation Shares.
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As of the Effective Time, each of the issued and outstanding shares of capital
stock of the Surviving Corporation shall be automatically canceled and
extinguished by virtue of the Reincorporation Merger without any action by the
holder thereof, and no cash or securities or other property shall be payable in
respect thereof.
3.02 Effect of Reincorporation Merger on Merging Corporation's Shares.
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Each share of Common Stock, $.001 par value per share of the Merging Corporation
issued and outstanding at the Effective Time shall be converted into and
exchanged for one (1) share of the Common Stock, $.001 par value per share of
the Surviving Corporation, and upon issuance each such share issued as a result
of the Reincorporation Merger shall be deemed duly authorized, validly issued,
fully paid and non-assessable shares of the Surviving Corporation (the
"Conversion Shares").
3.03 Exchange of Certificates for Stockholders of Merging Corporation.
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At any time after the Effective Time, each Stockholder of the Merging
Corporation may present and surrender such holder's outstanding certificate or
certificates to the Surviving Corporation, and such stockholder of the Merging
Corporation shall be entitled, upon presentation and surrender, to receive from
the Surviving Corporation in exchange therefor and without charge, a certificate
or certificates representing the Conversion Shares. Such new certificates shall
bear appropriate legends referencing any and all restrictions on the transfer of
the shares represented thereby, as determined by the Board of Directors of the
Surviving Corporation, in addition to any other legends required by applicable
law or otherwise.
Until so presented and surrendered, each such outstanding certificate held
by a Stockholder of the Merging Corporation prior to the Effective Time of the
Reincorporation
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Merger, shall be deemed for all purposes, after the Effective Time, to evidence
such Stockholder's Exchange Shares.
ARTICLE IV
MISCELLANEOUS
4.01 Service of Process. The Surviving Corporation hereby agrees that it
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may be served with process in the State of Illinois in any proceeding for the
enforcement of any obligation of the Surviving Corporation and hereby
irrevocably appoints the Secretary of State of Illinois as its agent to accept
service of process in any such proceeding and will file with the Secretary of
State of Illinois any documents necessary to effect the foregoing.
The address to which a copy of such process shall be mailed by the
Secretary of State of Illinois is: Open Port Technology, Inc., 000 Xxxxx Xx.
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attn: Chief Executive Officer, until
the Surviving Corporation shall thereafter designate in writing to the Secretary
of State a different address for such purpose.
4.02 Dissenting Stockholders. The Surviving Corporation hereby agrees to
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promptly pay to any Stockholders of the Merging Corporation, the amount, if any,
to which such Stockholder shall be entitled under the applicable provisions of
the Illinois Act with respect to the rights of dissenting Stockholders.
4.03 Amendment. Prior to the filing of the Merger Certificates, this
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Plan of Merger may be amended, modified or supplemented, as agreed in writing by
the Constituent Corporations, any time before or after approval or adoption of
this Plan of Merger by the respective Boards of Directors of the Constituent
Corporations.
4.04 Termination. Notwithstanding anything contained herein to the
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contrary, this Plan of Merger may be terminated and the proposed Reincorporation
Merger may be abandoned by the respective Boards of Directors of the Constituent
Corporations at any time prior to the filing of the Merger Certificates.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the undersigned, pursuant to the authority and
approval duly granted by resolutions approved and adopted by each of the
Constituent Corporations' respective Boards of Directors, and the Stockholders
entitled to vote therein, as applicable, has caused this Agreement and Plan of
Merger to be executed as of ________ __, 2000.
The Merging Corporation: The Surviving Corporation:
Open Port Technology, Inc., Open Port Technology, Inc.,
an Illinois corporation a Delaware corporation
By:____________________________ By:_________________________________
Xxxxx X. Xxxxxx, Chief Xxxxx X. Xxxxxx, Chief Executive
Executive Officer Officer
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Signature Page
