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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is dated
as of December 16, 1996 by and between BRIM, INC., an Oregon corporation
("Brim"), and CARRYCO, INC. an Oregon corporation ("Carryco").
RECITALS
1. Carryco was formed by certain shareholders of Brim to
facilitate a recapitalization of Brim in connection with consummating a series
of transactions described in that certain Investment Agreement by and between
Brim and Golder, Thoma, Xxxxxx, Xxxxxx Fund IV, L.P. (the "Investment
Agreement").
2. The Investment Agreement contemplates that Carryco will
merge with and into Brim in accordance with the terms of this Agreement (the
"Merger").
3. Pursuant to the Merger, Carryco will he merged with and
into Brim and the separate existence of Carryco will cease.
4. Pursuant to the Merger, each share of outstanding Common
Stock of Brim ("Brim Common") except Common Stock owned by Carryco prior to the
Merger (which will become treasury stock of Brim pursuant to the Merger and will
be cancelled), will be converted into one share of Junior Redeemable Preferred
Stock of Brim ("Junior Redeemable Preferred"); each option to purchase shares of
Brim Common will be converted into an option to purchase the same number of
shares of Junior Redeemable Preferred; and each share of outstanding Common
Stock of Carryco ("Carryco Common") will be converted into shares of Brim Common
and shares of Junior Preferred Stock of Brim ("Junior Preferred") as set forth
in this Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereby agree as follows:
SECTION 1 THE MERGER.
1.1 THE MERGER. Subject to the terms and conditions of this Agreement,
Carryco will merge with and into Brim. At the Effective Time, as defined in
Section 1.2, the separate existence of Carryco shall cease and Brim shall
continue as the surviving corporation of the Merger.
1.2 EFFECTIVE TIME. The Merger will become effective when a duly
executed and certified copy of the Articles of Merger, substantially in the form
of EXHIBIT A, is filed with the Secretary of State of the State of Oregon (the
"Effective Time").
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1.3 EFFECT OF THE MERGER. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of the Oregon Business
Corporation Act (the "Act"). Without limiting the generality of the foregoing,
at the Effective Time Brim shall possess all the rights, privileges, immunities
and franchises, of a public as well as a private nature, of Carryco, and all
property, real, personal, intangible and mixed, and all debts, contingent or
otherwise, and all other choses in action, and all other interests of Carryco
shall be deemed vested in Brim without further act or deed. After the Effective
Time, Brim shall be responsible and liable for all the liabilities and
obligations of Carryco.
1.4 CANCELLATION AND CONVERSION OF SHARES. At the Effective Time, by
virtue of the Merger and without any action on the part of the holder of any
stock or securities of Brim or Carryco:
1.4.1 Each share of Brim Common then issued and outstanding
shall be cancelled and changed into one share of Junior Redeemable Preferred,
except for Common Stock owned by Carryco prior to the Merger (which will become
treasury stock of Brim pursuant to the Merger and will be cancelled).
1.4.2 All issued and outstanding options for the purchase of
shares of Brim Common shall, when vested in accordance with the applicable
option agreement, be exercisable for the identical number of shares of Junior
Redeemable Preferred, subject to the terms and conditions of the applicable
option agreement, pursuant to the Brim, Inc. 1992 Non-Statutory Stock Option
Plan and the Brim, Inc. 1993 Stock Incentive Plan.
1.4.3 Each share of Carryco Common then issued and outstanding
shall be cancelled and changed into 5.18795 shares of Brim Common and 0.05188
shares of Junior Preferred.
1.4.4 The shares of Preferred Stock of Brim issued and
outstanding prior to the Effective Time shall remain issued and outstanding and
the rights and obligations of the holder thereof shall not be affected by the
Merger.
1.5 NO FURTHER RIGHTS. From and after the Effective Time, except as
otherwise provided by law, (i) holders of stock certificates formerly evidencing
the Brim Common shall cease to have any rights as holders Brim Common, except
for the right to receive shares of Junior Redeemable Preferred; and (ii) holders
of Carryco Common shall cease to have any rights as holders of stock of Carryco,
except for the right to receive Brim Common and Junior Preferred as provided in
Section 1.4.3.
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1.6 ISSUANCE OF NEW CERTIFICATES.
1.6.1 Certificates representing shares of Brim Common
immediately prior to the Effective Time shall be deemed for all purposes to
represent shares of Junior Redeemable Preferred and, the Brim Board of Directors
may elect not to issue new certificates representing shares of Junior Redeemable
Preferred.
1.6.2 Brim shall, promptly after the Effective Date, issue to
holders of shares of Carryco Common, certificates representing shares of Brim
Common and Junior Preferred, in such amounts as is provided in Section 1.4.3
hereof.
1.7 DISSENTING SHARES. Holders of Brim Common or Carryco Common who
dissent from the Merger ("Dissenting Shares") shall be entitled to dissenters'
rights only to the extent provided for by the Act.
1.8 ARTICLES OF INCORPORATION; DIRECTORS.
1.8.1 Subject to Section 1.1, at the Effective Time, the
Articles of Incorporation of Brim, as amended, shall be the Articles of
Incorporation of the surviving corporation of the Merger.
1.8.2 The directors of Brim immediately prior to the Effective
Time shall remain the directors of Brim until their successors are duly elected
and qualified or until their earlier resignation.
1.9 CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at such time and location as Brim and
Carryco may mutually select (the "Closing Date"). Immediately after the Closing,
the Certificate of Merger will be filed as provided in Section 1.2. The Merger
and other actions contemplated in Section 1 are referred to as the
"Transactions."
1.10 TAX CONSEQUENCES. It is intended that the Merger shall constitute
a reorganization within the meaning of Section 368(a) (1) (A) of the Internal
Revenue Code of 1986, as amended (the "Code"), and that this Agreement shall
constitute or be a part of a "plan of reorganization" for the purposes of
Section 368 of the Code.
1.11 TERMINATION. Notwithstanding the approval of this Agreement by the
shareholders of Brim or Carryco, this Agreement may be unilaterally terminated,
at any time prior to the Effective Time, by the Board of Directors of Brim or
Carryco.
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SECTION 2 MISCELLANEOUS PROVISIONS.
2.1 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the state of Oregon,
without regard to the principles of conflicts of laws.
2.2 PARTIAL INVALIDITY. If any one or more of the provisions contained
herein shall be held, for any reason, to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision were not contained in this
Agreement.
2.3 SUCCESSORS AND ASSIGNS, PARTIES IN INTEREST. This Agreement shall
not be assignable by any party hereto without the prior written consent of the
other parties. This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the parties hereto and their respective successors and
permitted assigns.
2.4 NO THIRD-PARTY BENEFICIARY RIGHTS. Nothing in this Agreement,
expressed or implied, is intended or shall be construed to confer upon any
person or entity other than the parties and their successors and permitted
assigns, any right, remedy or claim under or by reason of this Agreement.
2.5 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be considered an original
counterpart, and shall become a binding agreement when each party shall have
executed one counterpart.
2.6 EXHIBIT. EXHIBIT A referred to in this Agreement shall be construed
as an integral part of this Agreement to the same extent as if the same had been
set forth verbatim herein.
2.7 FURTHER ACTIONS. Each of the parties hereto agrees that, subject to
its legal obligations, it will use its best efforts to fulfill all conditions
precedent specified herein, to the extent that such conditions are within its
control, and to do all things reasonably necessary to consummate the
Transactions.
2.8 ENTIRE AGREEMENT. This Agreement, including the Exhibits, contains
the entire understanding of the parties hereto with respect to the Transactions
and supersedes all other prior agreements and understandings, oral and written,
between the parties hereto with respect to the Transactions.
2.9 AMENDMENT. This Agreement may not be amended except in
writing executed by the parties hereto; provided that after this Agreement has
been adopted by the shareholders of Brim and Carryco, no such amendment shall
reduce the amount or change the form of the Merger consideration to be paid
pursuant to this
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Agreement or alter or change any of the terms or conditions of this Agreement
if such alteration or change would adversely affect the shareholders of Brim or
Carryco.
IN WITNESS WHEREOF, Brim and Carryco each have caused this
Agreement to be executed as of the date first above written.
BRIM, INC.
Attest:
/s/ K. Xxxxx XxXxxxxxxx
--------------------------- By /s/ X. X. Xxxx
Secretary or -----------------------------
Assistant Secretary Its President
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CARRYCO, INC.
Attest:
/s/ K. Xxxxx XxXxxxxxxx
--------------------------- By [Signature illegible]
Secretary or ----------------------------
Assistant Secretary Its President
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