Exhibit 2.1
FORM OF
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "MERGER AGREEMENT"), dated as
of _______ __, 1998, is entered into by and between Genesis Media Group, Inc., a
Florida corporation ("GMG-FLORIDA"), and Genesis Media Group, Inc., a Delaware
corporation ("GMG-DELAWARE").
RECITALS
1. GMG-Florida is a corporation duly organized and existing under the
laws of the State of Florida.
2. GMG-Delaware is a corporation duly organized and existing under the
laws of the State of Delaware.
3. On the date of this Merger Agreement, GMG-Florida's authorized
capital consists of 30,000,000 shares, consisting of 25,000,000 shares of
Common Stock, par value $.001 per share (the "GMG-FLORIDA COMMON STOCK"), of
which 4,060,000 shares are issued and outstanding; and 5,000,000 shares of
Preferred Stock, par value $.001 per share (the "GMG-FLORIDA PREFERRED
STOCK"), of which none are issued and outstanding.
4. On the date of this Merger Agreement, GMG-Delaware's authorized
capital consists of 30,000,000 shares, consisting of 25,000,000 shares of
Common Stock, par value $.001 per share (the "GMG-DELAWARE COMMON STOCK"), of
which one share is issued and outstanding; and 5,000,000 shares of Preferred
Stock, par value $.001 per share (the "GMG-DELAWARE PREFERRED STOCK"), of
which none are issued and outstanding.
5. The respective Boards of Directors of GMG-Florida and GMG-Delaware
have determined that it is advisable and in the best interests of each such
corporation that GMG-Florida merge with and into GMG-Delaware upon the terms
and subject to the conditions of this Merger Agreement for the purpose of
effecting the reincorporation of GMG-Florida in the State of Delaware (the
"MERGER").
6. The respective Boards of Directors of GMG-Florida and GMG-Delaware
have, by resolutions duly adopted, approved this Merger Agreement. The
holders of a majority of the shares of GMG-Florida Common Stock outstanding
and all of the shares of GMG-Florida Common Stock outstanding have adopted
and approved this Merger Agreement, and GMG-Florida has adopted and approved
this Merger Agreement as the sole stockholder of GMG-Delaware.
7. The parties intend by this Merger Agreement to effect a
"reorganization" under Section 368 of the Internal Revenue Code of 1986, as
amended.
TERMS AND PROVISIONS OF REINCORPORATION
In consideration of the foregoing Recitals and of the following terms
and provisions, and subject to the following conditions, it is agreed:
1. MERGER. The effective time of the Merger (the "EFFECTIVE TIME")
shall occur at the latest of (a) the time and date that shareholders of
GMG-Florida approve this Merger Agreement and the Merger, (b) 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 (c) the time and date that the
certificate of merger is duly filed with the Florida Department of State with
respect to the Merger. As of the Effective Time, GMG-Florida shall be merged
with and into GMG-Delaware, GMG-Delaware shall be the surviving corporation of
the Merger (hereinafter sometimes referred to as the "SURVIVING CORPORATION"),
and the separate corporate existence of GMG-Florida shall cease.
2. GOVERNING DOCUMENTS.
a. The Certificate of Incorporation of GMG-Delaware, as it may be
amended or restated subject to applicable law, and as in effect immediately
prior to the Effective Time, shall constitute the Certificate of
Incorporation of the Surviving Corporation without further change or
amendment until thereafter amended in accordance with the provisions thereof
and applicable law.
b. The Bylaws of GMG-Delaware as in effect immediately prior to
the Effective Time shall constitute the Bylaws of the Surviving Corporation
without change or amendment until thereafter amended in accordance with the
provisions thereof and applicable law.
3. OFFICERS AND DIRECTORS. The persons who are officers and
directors of GMG-Florida immediately prior to the Effective Time shall, after
the Effective Time, be the officers and directors of the Surviving Corporation,
without change until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the Surviving Corporation's Certificate of Incorporation and Bylaws and
applicable law. The directors of GMG-Florida are as follows: Ramy El-Batrawi,
Xxxxxxx X. Xxxxxxxx, Xxx X. Xxxxxxx and Xxxxx Xx Xxxxx.
4. NAME. The name of the Surviving Corporation shall continue to be
Genesis Media Group, Inc.
5. SUCCESSION. At the Effective Time, the separate corporate
existence of GMG-Florida shall cease, and the Surviving Corporation shall
possess all the rights, privileges, powers and franchises of a public or private
nature and be subject to all the restrictions, disabilities and duties of
GMG-Florida; and all property, real, personal and mixed, and all debts due to
GMG-Florida on whatever account, as well as for share subscriptions and all
other things in action, shall be vested in the Surviving Corporation; and all
property, rights, privileges, powers and franchises, and all and every other
interest shall be thereafter as effectually the property of the Surviving
Corporation as they were of GMG-Florida, and the title to any real estate vested
by deed or otherwise shall not revert or be in any way impaired by reason of the
Merger; but all rights of creditors and liens upon any property of GMG-Florida
shall be preserved unimpaired, and all debts, liabilities and duties of
GMG-Florida shall thenceforth attach to the Surviving Corporation and may be
enforced against it to the same extent as if such debts, liabilities and duties
had been incurred or contracted by it; PROVIDED, HOWEVER, that such liens upon
property of GMG-Florida will be limited to the property affected thereby
immediately prior to the Merger. All corporate acts, plans, policies,
agreements, arrangements, approvals and authorizations of GMG-Florida, its
shareholders, Board of Directors and committees thereof, officers and agents
which were valid and effective immediately prior to the Effective Time, shall be
taken for all purposes as the acts, plans, policies, agreements, arrangements,
approvals and authorizations of the Surviving Corporation and shall be as
effective and binding thereon as the same were with respect to GMG-Florida.
6. FURTHER ASSURANCES. From time to time, as and when required or
requested by the Surviving Corporation or by its successors and assigns, there
shall be executed and delivered on behalf of GMG-Florida such deeds, assignments
and other instruments, and there shall be taken or caused to be taken by it all
such further and other action, as shall be appropriate or necessary in order to
vest,
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perfect or confirm, of record or otherwise, in the Surviving Corporation the
title to and possession of all property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of GMG-Florida and
otherwise to carry out the purposes of this Merger Agreement, and the
officers and directors of the Surviving Corporation are fully authorized in
the name and on behalf of GMG-Florida or otherwise, to take any and all such
action and to execute and deliver any and all such deeds, assignments and
other instruments.
7. CONVERSION OF SHARES. At the Effective Time, by virtue of the
Merger and without any action on the part of the holder thereof:
a. Each share of GMG-Florida Common Stock outstanding immediately
prior to the Effective Time shall be converted into, and shall become, one
fully paid and nonassessable share of GMG-Delaware Common Stock.
b. The one share of GMG-Delaware Common Stock issued and
outstanding in the name of GMG-Florida shall be cancelled and retired, and no
payment shall be made with respect thereto, and such share shall resume the
status of an authorized and unissued share of GMG-Delaware Common Stock.
8. STOCK CERTIFICATES. At and after the Effective Time, any
outstanding certificates which immediately prior to the Effective Time
represented shares of GMG-Florida Common Stock shall be deemed for all
purposes to evidence ownership of, and to represent shares of, GMG-Delaware
Common Stock, into which such shares of GMG-Florida formerly represented by
such certificates have been converted as herein provided. The registered
owner on the books and records of GMG-Florida or its transfer agent of any
such outstanding stock whether certificated or not shall have and be entitled
to exercise any voting or other rights with respect to and to receive any
dividends and other distributions upon the shares of GMG-Delaware Common
Stock evidenced by such outstanding shares as above provided.
9. OPTIONS; STOCK GRANTS. Each right in or to, or option to purchase,
shares of GMG-Florida Common Stock , which are outstanding immediately prior
to the Effective Time (collectively, the "OPTIONS"), and any shares of
GMG-Florida Common Stock granted under the Genesis Media Group, Inc. 1998
Stock Incentive Program (the "STOCK PROGRAM") which, as of the Effective
Time, have not yet vested (the "UNVESTED SHARES"), shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and/or become a right in or to, or an option to purchase at the same
option price per share, as the case may be, the same number of shares of
GMG-Delaware Common Stock, upon the same terms and subject to the same
conditions as set forth in their respective option agreements or in the Stock
Program as in effect at the Effective Time. A number of shares of
GMG-Delaware Common Stock shall be reserved for purposes of the option
agreements that is equal to the number of shares of GMG-Florida Common Stock
that could have been purchased pursuant to the Options (assuming all Options
were exercised) as of the Effective Time. A number of shares of GMG-Delaware
Common Stock shall be reserved for purposes of the Stock Program that is
equal to the number of Unvested Shares as of the Effective Time. As of the
Effective Time, the Surviving Corporation hereby assumes each of the option
agreements and the Stock Program and all obligations of GMG-Florida
thereunder including the outstanding rights or options or portions thereof
granted pursuant to the option agreements or the Stock Program.
10. OTHER EMPLOYEE BENEFIT PLANS. As of the Effective Time, the
Surviving Corporation hereby assumes all obligations of GMG-Florida under any
and all employee benefit plans in effect as of the Effective Time or with
respect to which employee rights or accrued benefits are outstanding as of the
Effective Time.
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11. CONDITION. The consummation of the Merger and related transactions
are subject to satisfaction of the following conditions prior to the
Effective Time:
a. All necessary action shall have been taken to authorize the
execution, delivery and performance of the Merger Agreement by GMG-Florida
and GMG-Delaware.
b. All regulatory approvals necessary or desirable in connection
with the consummation of the Merger and the transaction contemplated thereby
shall have been obtained.
c. No suit, action, proceeding or other litigation shall have
been commenced or threatened to be commenced which, in the opinion of
GMG-Florida or GMG-Delaware would pose a material restriction on or impair
consummation of the Merger, performance of this Merger Agreement or the
conduct of the business of GMG-Delaware after the Effective Time, or create a
risk of subjecting GMG-Florida or GMG-Delaware, or their respective
shareholders, officers or directors, to material damages, costs, liability or
other relief in connection with the Merger or this Merger Agreement.
12. ACCOUNTING MATTERS. GMG-Delaware agrees that upon the Effective
Time, the assets, liabilities, reserves and accounts of GMG-Florida and
GMG-Delaware shall be taken up or continued on the books of GMG-Delaware in the
amounts at which such assets, liabilities, reserves and accounts shall have been
carried on the books of GMG-Florida and GMG-Delaware immediately prior to the
Effective Time, subject to such adjustments, and such elimination of
intercompany items, as may be appropriate to give effect to the Merger.
13. GOVERNING LAW. This Merger Agreement shall be governed by and
construed in accordance with the laws of the State of Florida applicable to
contracts entered into and to be performed wholly within the State of Delaware,
except to the extent that the laws of the State of Florida are mandatorily
applicable to the Merger.
14. AMENDMENT. Subject to applicable law and subject to the rights of
GMG-Florida's shareholders further to approve any amendment which would have
a material adverse effect on such shareholders, this Merger Agreement may be
amended, modified or supplemented by written agreement of the parties hereto
at any time prior to the Effective Time with respect to any of the terms
contained herein.
15. DEFERRAL OR ABANDONMENT. At any time prior to the Effective Time,
this Merger Agreement may be terminated and the Merger may be abandoned or
the time of consummation of the Merger may be deferred for a reasonable time
by the Board of Directors of either GMG-Florida or GMG-Delaware, or both,
notwithstanding approval of this Merger Agreement by the shareholders of
GMG-Florida or the shareholders of GMG-Delaware, or both, if circumstances
arise which, in the opinion of the Board of Directors of GMG-Florida or
GMG-Delaware, make the Merger inadvisable or such deferral of the time of
consummation advisable.
16. COUNTERPARTS. This Merger Agreement may be executed in any number
of counterparts each of which when taken alone shall constitute an original
instrument and when taken together shall constitute one and the same
Agreement.
17. ASSURANCE. GMG-Florida and GMG-Delaware agree to execute any and
all documents, and to perform such other acts, which may be necessary or
expedient to further the purposes of this Merger Agreement.
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IN WITNESS WHEREOF, GMG-Florida and GMG-Delaware have caused this Merger
Agreement to be signed by their respective duly authorized officers and
delivered this ____ day of October , 1998.
GENESIS MEDIA GROUP, INC.,
a Florida corporation
By:
-----------------------------
Name: Ramy El-Batrawi
Title: Chairman of the Board and
President
ATTEST:
By:
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
GENESIS MEDIA GRUP, INC.,
a Delaware corporation
By:
-----------------------------
Name: Ramy El-Batrawi
Title: Chairman of the Board
and President
ATTEST:
By:
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
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