EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is made as of April 20,
2004, by and between Formula Footwear, Inc., a Utah corporation ("Formula") and
VSUS Technologies Incorporated, a Delaware corporation ("VSUS") (Formula and
VSUS shall sometimes be referred to herein collectively as the "Constituent
Corporations").
BACKGROUND
WHEREAS, Formula is a corporation duly organized and existing under the
laws of the State of Utah, and VSUS is a corporation duly organized and existing
under the laws of the State of Delaware.
WHEREAS, the authorized capital stock of Formula consists of 50,000,000
shares of common stock, $.001 par value per share (the "Formula Common Stock"),
of which 11,893,896 shares are issued and outstanding; and
WHEREAS, the authorized capital stock of VSUS consists of: (i)
100,000,000 shares of common stock, $.001 par value ("VSUS Common Stock"), of
which 11,836,012 shares are issued and outstanding and held by Formula, and (ii)
20,000,000 shares of preferred stock, $.001 par value ("VSUS Preferred Stock"),
of which no shares are issued or outstanding; and
WHEREAS, the respective boards of directors of the Constituent
Corporations deem it advisable and in the best interests of their respective
corporations and stockholders that Formula be merged with and into VSUS pursuant
to the terms and conditions set forth in this Agreement (the "Merger"); and
WHEREAS, the respective Boards of Directors of the Constituent
Corporations have approved this Agreement by resolutions duly adopted by them in
accordance with the laws of their respective jurisdictions of incorporation; and
WHEREAS, the Constituent Corporations wish to effect the Merger as a
plan of reorganization in accordance with the provisions of Section 368(a)(1)(F)
of the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, and in accordance with applicable law, the parties hereto do
hereby adopt the plan of reorganization encompassed by this Agreement, and do
hereby agree that Formula shall merge with and into VSUS in accordance with the
following terms and conditions:
1. MERGER
1.1 Merger; Surviving Corporation.
(a) The effective time of the Merger (the "Effective Time")
will occur at the latest of: (i) the time and date that the stockholders of each
of Formula and VSUS have approved this Agreement and the Merger, (ii) the time
and date that a Certificate of Merger is duly filed with the Secretary of State
of Delaware with respect to the Merger, or such later date and time as is set
forth therein, and (iii) the time and date that Articles of Merger are duly
filed with the Utah Division of Corporations and Commercial Code with respect to
the Merger, or such later date and time as is set forth therein.
(b) At the Effective Time, Formula will be merged with and
into VSUS, with VSUS being the surviving corporation of the Merger (the
"Surviving Corporation"). At the Effective Time, the corporate existence of
Formula will cease, and the Surviving Corporation will succeed to all of the
business, properties, assets, and liabilities of the Constituent Corporations.
1.2 Certificate Of Incorporation and Bylaws.
(a) From and after the Effective Time, the Certificate of
Incorporation of VSUS, as in effect immediately prior to the Effective Time,
will be the Certificate of Incorporation of the Surviving Corporation, until
altered, amended, or repealed in accordance with the laws of the State of
Delaware.
(b) From and after the Effective Time, the Bylaws of VSUS, as
in effect immediately prior to the Effective Time, will be the Bylaws of the
Surviving Corporation, until altered, amended, or repealed in accordance with
the laws of the State of Delaware.
1.3 Directors And Officers.
(a) The number of directors of VSUS immediately prior to the
Effective Time will be the number of directors of the Surviving Corporation from
and after the Effective Time, until such number is altered in accordance with
the laws of the State of Delaware. The directors of VSUS immediately prior to
the Effective Time will be the directors of the Surviving Corporation from and
after the Effective Time and will hold office from and after the Effective Time
in accordance with the Bylaws of the Surviving Corporation until their
respective successors are duly appointed or elected and qualified.
(b) The officers of VSUS immediately prior to the Effective
Time will be the officers of the Surviving Corporation from and after the
Effective Time and will hold the same offices from and after the Effective Time
in accordance with the By-laws of the Surviving Corporation until their
respective successors are duly appointed or elected and qualified.
1.4 Terms Of Merger.
(a) At the Effective Time, the shares of capital stock of
Formula will be converted into shares of capital stock of VSUS as follows:
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(i) each share of Formula Common Stock issued and
outstanding immediately before the Effective Time will, automatically and
without further act of Formula, VSUS, or any holder thereof, be extinguished and
converted into one issued and outstanding and fully paid and non-assessable
share of VSUS Common Stock subject to the same terms, conditions, and
restrictions, if any, as existed immediately before the Effective Time; and
(ii) any share of Formula Common Stock held in the
treasury immediately before the Effective Time will, automatically and without
further act of Formula or VSUS, be extinguished and converted into one fully
paid and nonassessable share of VSUS Common Stock to be held in the treasury of
VSUS subject to the same terms, conditions, and restrictions, if any, as existed
immediately before the Effective Time.
(b) Each person who, as a result of the Merger, holds one or
more certificates representing one or more shares of Formula Common Stock may
surrender any such certificate to VSUS, and, upon such surrender, VSUS will,
within a reasonable time, deliver to such person, in substitution and exchange
therefor, one or more certificates evidencing the number of shares of VSUS
Common Stock, that such person is entitled to receive in accordance with the
terms of this Agreement, in substitution for the number of shares of Formula
Common Stock represented by each certificate so surrendered; provided, however,
that no such holder will be required to surrender any such certificate until
such certificate otherwise would be surrendered for transfer on the books of the
issuing corporation in the ordinary course of business.
(c) At the Effective Time, all of the shares of capital stock
of VSUS issued or outstanding immediately before the Effective Time will,
automatically and without further act of Formula, VSUS, or any holder thereof,
be cancelled and cease to exist, without any consideration being payable
therefor.
(d) At the Effective Time, the Surviving Corporation shall
assume all obligations of Formula under any employee benefit plan in effect as
of such date, with respect to which employee rights or accrued benefits are
outstanding as of such date. Each option, warrant or other right to purchase
shares of Formula Common Stock outstanding immediately before the Effective Time
will, automatically and without further act of Formula, VSUS, or any holder
thereof, become an option, warrant or other right (as applicable) to purchase
shares of VSUS Common Stock, subject to the same terms and conditions and at the
same option price applicable to such option, warrant or other right immediately
before the Effective Time.
2. MISCELLANEOUS
2.1 Consent To Service Of Process. VSUS hereby consents and agrees,
effective as of the Effective Time, to be sued and served with process in the
State of Utah in any proceeding for the enforcement of any obligations of
Formula and in any proceeding for the enforcement of the rights, if any, of a
dissenting stockholder of Formula against VSUS. VSUS hereby irrevocably appoints
the Utah Division of Corporations and Commercial Code as its agent to accept
service of process in any such proceeding from and after the Effective Time.
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2.2 Accounting Matters. Except as herein provided with respect to the
cancellation of the outstanding shares of Formula, the assets, liabilities,
reserves, and accounts of Formula and VSUS will be taken up or continued on the
books of VSUS in the respective amounts at which such assets, liabilities,
reserves, and accounts have been carried on the books of Formula and VSUS
immediately before the Effective Time, subject to such adjustments, and such
elimination of intercompany items, as may be appropriate to give effect to the
Merger.
2.3 Expenses Of Merger. From and after the Effective Time, VSUS will
pay all unpaid expenses of carrying this Agreement into effect and accomplishing
the Merger.
2.4 Further Assurances. If, at any time from and after the Effective
Time, VSUS believes or is advised that any further assignment or assurance in
law is necessary or desirable to vest in VSUS the title to any property or
rights of Formula, the proper officers of VSUS are hereby authorized, in the
name of Formula or otherwise, to execute and make all such proper assignments
and assurances in law, and to do all other things necessary or proper to vest
such property or rights in VSUS and otherwise to carry out the purposes of this
Agreement.
2.5 Approval. This Agreement will be submitted for approval by the
holders of Formula Common Stock at an annual or special meeting of stockholders,
or Formula will acquire the necessary shareholder consents pursuant to
applicable law. The execution of this Agreement constitutes the approval hereof,
and of the transactions contemplated hereby, by written consent of Formula in
its capacity as sole stockholder of VSUS.
2.6 Termination and Abandonment. At any time before the Effective Time
and for any reason, this Agreement may be terminated and abandoned by the board
of directors of either party, notwithstanding approval of this Agreement by the
stockholders of Formula and VSUS. Upon any such termination, this Agreement will
become null and void and have no force or effect, without any liability to any
person on the part of Formula or VSUS or their respective stockholders,
directors, or officers.
2.7 Amendment. At any time before the Effective Time and for any
reason, this Agreement may be amended, notwithstanding approval of this
agreement by the stockholders of Formula or VSUS, by an agreement in writing
executed in the same manner as this Agreement; provided, however, that after
approval of this Agreement by the stockholders of Formula, this Agreement may
not be amended, without such further approval as is required by law, to the
extent that such amendment would: (i) alter or change the amount or kind of
shares to be received by the stockholders of VSUS or Formula in the Merger, (ii)
alter or change any term of the Certificate of Incorporation of VSUS, or (iii)
effect any alteration or change that would adversely affect the stockholders of
Formula or VSUS.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
FORMULA FOOTWEAR, INC.,
a Utah corporation
By: /s/ Xxxxxx Xxxx
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Name: Xxxxxx Xxxx
Title: Chief Executive Officer
VSUS TECHNOLOGIES INCORPORATED,
a Delaware corporation
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
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