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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This Agreement and Plan of Merger and Reorganization (the "Agreement") is
entered into as of February 20, 2001 between Calavo Growers of California
("Calavo"), a nonprofit cooperative association that is organized under the
California Food and Agricultural Code, and Calavo Growers, Inc. ("New Calavo"),
a corporation that is organized under the California General Corporation Law
(the "California Corporation Law").
RECITALS
A. Calavo's Board of Directors has determined that it is in the best
interests of Calavo and its shareholders to convert Calavo into a corporation
that is organized under and governed by the California Corporation Law. New
Calavo is a wholly owned subsidiary of Calavo, and Calavo has approved this
Agreement as the sole shareholder of New Calavo.
B. The Boards of Directors of Calavo and New Calavo have approved this
Agreement and intend that this Agreement shall constitute a plan of
reorganization within the meaning of Section 368(a) of the Internal Revenue Code
of 1968, as amended. Pursuant to this Agreement, Calavo shall be merged into New
Calavo, and New Calavo shall continue as the surviving corporation.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, Calavo and New Calavo hereby agree as follows:
1. The Merger. At the Effective Time (as defined below), Calavo shall be
merged into New Calavo (the "Merger") upon the terms and conditions described in
this Agreement and in accordance with the California Corporation Law. The Merger
shall become effective on such date and at such time (jointly referred to herein
as the "Effective Time") as a short-form agreement of merger substantially in
the form of Exhibit A attached hereto and incorporated herein, together with all
officers' certificates that are required under the California Corporation Law,
are filed by Calavo and New Calavo with the California Secretary of State
pursuant to the California Corporation Law as promptly as practicable after the
satisfaction or waiver (where permissible) of the closing conditions that are
described below in Section 6.
2. Effect of the Merger. At the Effective Time, the separate existence of
Calavo shall terminate, and New Calavo shall continue as the surviving
corporation. The Merger shall have the effect prescribed by the California
Corporation Law. Without limiting the generality of the preceding sentence, at
the Effective Time New Calavo automatically shall succeed to all of the rights
and properties of Calavo and shall be subject to all of the debts and
liabilities of Calavo in the same manner as if New Calavo had itself incurred
them.
3. Articles of Incorporation and Bylaws of New Calavo. The Articles of
Incorporation and Bylaws of New Calavo that are in effect immediately prior to
the Effective Time shall remain in effect after the Merger unless and until they
are subsequently amended as provided by applicable law.
4. Officers and Directors. Each officer and director of New Calavo shall
continue to hold office after the Merger until his or her successor is duly
elected or until his or her earlier death, resignation or removal.
5. Conversion of Shares. At the Effective Time:
(a) Each share of the preferred stock and common stock of Calavo that
is outstanding immediately prior to the Effective Time automatically shall
be converted into one share of the common stock of New Calavo without the
necessity for further action on the part of the holder of such share; and
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(b) Each share of the common stock of New Calavo that is outstanding
immediately prior to the Effective Time shall be cancelled without payment
of any consideration therefor.
6. Closing Conditions. The Merger shall occur as promptly as practicable
after the satisfaction of each of the following conditions, provided, however,
that any of the following conditions may be waived by a writing executed by
Calavo and New Calavo if and to the extent that such waiver is permitted by
applicable law:
(a) This Agreement and the transactions contemplated hereby shall have
been approved by Calavo's shareholders;
(b) The Registration Statement on Form S-4 that has been filed with
the Securities and Exchange Commission regarding the shares of common stock
that New Calavo will issue in the Merger shall have become effective and
shall not be subject to any stop order suspending its effectiveness or to
any proceeding seeking a stop order;
(c) All permits, consents and approvals that are required from the
California Department of Corporations and other applicable state securities
regulatory authorities regarding the offer and sale of New Calavo common
stock in the Merger shall have been obtained;
(d) Calavo shall have obtained all necessary consents to the Merger
from its lenders and any other parties whose consents are required under
contracts to which Calavo is a party; and
(e) There shall not be in effect any judgment, regulation, order or
injunction of any court or governmental authority that prohibits the
Merger.
7. Further Assurances. Calavo and New Calavo shall take such further
actions and execute such further documents as may be necessary or advisable in
order to carry out the terms of this Agreement.
8. Amendment and Termination. This Agreement (including Exhibit A hereto)
may be amended by a writing executed by Calavo and New Calavo at any time prior
to the Effective Time. However, after the approval of Calavo's shareholders has
been obtained, no amendment of this Agreement that changes its principal terms
may be made without the further approval of such shareholders. This Agreement
may be terminated by action of the Board of Directors of Calavo at any time
prior to the Effective Time, whether before or after shareholder approval has
been obtained.
9. Counterparts. This Agreement may be executed in two counterparts, each
of which shall be deemed an original but both of which shall constitute one and
the same instrument.
10. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of California without giving
effect to the conflict of law principles of such state.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
CALAVO GROWERS OF CALIFORNIA
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Chairman, Chief Executive Officer
and President
By: /s/ XXXXXX XXXXXXX, XX.
------------------------------------
Xxxxxx Xxxxxxx, Xx.
Vice President, Finance and
Corporate Secretary
CALAVO GROWERS, INC.
By: /s/ XXXXX X. XXXX
------------------------------------
Xxxxx X. Xxxx
Chairman, Chief Executive Officer
and President
By: /s/ XXXXXX XXXXXXX, XX.
------------------------------------
Xxxxxx Xxxxxxx, Xx.
Vice President, Finance and
Corporate Secretary
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EXHIBIT A
AGREEMENT OF MERGER
This Agreement of Merger (the "Agreement") is entered into as of February
20, 2001 between Calavo Growers of California, a nonprofit cooperative
association that is organized under the California Food and Agricultural Code
(the "Merging Corporation"), and Calavo Growers, Inc., a corporation that is
organized under the California General Corporation Law (the "Surviving
Corporation").
1. The Merging Corporation shall be merged into the Surviving Corporation.
The effect of the merger and the effective time of the merger are as prescribed
by applicable law.
2. At the effective time of the merger, (i) each outstanding share of the
preferred stock and common stock of the Merging Corporation shall be converted
into one share of the common stock of the Surviving Corporation, and (ii) each
outstanding share of the stock of the Surviving Corporation shall be cancelled
without payment of any consideration therefor.
3. The Articles of Incorporation and Bylaws of the Surviving Corporation
that are in effect immediately prior to the effective time of the merger shall
remain in effect after the merger unless and until they are subsequently amended
as provided by applicable law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CALAVO GROWERS OF CALIFORNIA
By: /s/ XXXXX X. XXXX
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Xxxxx X. Xxxx
Chairman, Chief Executive Officer
and President
By: /s/ XXXXXX XXXXXXX, XX.
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Xxxxxx Xxxxxxx, Xx.
Secretary
CALAVO GROWERS, INC.
By: /s/ XXXXX X. XXXX
------------------------------------
Xxxxx X. Xxxx
Chairman, Chief Executive Officer
and President
By: /s/ XXXXXX XXXXXXX, XX.
------------------------------------
Xxxxxx Xxxxxxx, Xx.
Secretary
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