Exhibit 2.01
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made and
entered into on April 1, 2002, pursuant to Section 607.1107 of the Florida
Business Corporation Act (the "FBCA") and Section 252 of the General Corporation
Law of the State of Delaware (the "DGCL") by and between BankEngine
Technologies, Inc., a Florida corporation (the "Florida Corporation"), and
BankEngine Technologies, Inc., a Delaware corporation (the "Delaware
Corporation"), being sometimes referred to herein individually as a "Constituent
Corporation" and collectively as the "Constituent Corporations."
W I T N E S S E T H:
WHEREAS, the Florida Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida
with an authorized capital stock consisting of 50,000,000 shares of common
stock, $.001 par value per share (the "Common Shares"), 18,915,893 of which are
issued and outstanding on the date hereof;
WHEREAS, there are issued and outstanding no options to purchase Common
Shares (the "Florida Options") and warrants to purchase 10,000,000 Common Shares
at $0.30 per such share (the "Florida Warrants");
WHEREAS, the Delaware Corporation is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware
with an authorized capital stock consisting of 50,000,000 shares of common
stock, $.001 par value per share (the "Common Stock"), one share of which is
issued and outstanding on the date hereof and held by Xxxxxx Xxxxx, the
President of the Delaware Corporation, and 2,000,000 shares of preferred stock,
$.001 par value per share (the "Preferred Stock"), none of which is issued and
outstanding;
WHEREAS, the Delaware Corporation has no options (the "Delaware
Options") or warrants (the "Delaware Warrants") issued and outstanding;
WHEREAS, the respective Boards of Directors of the Constituent
Corporations have authorized and approved the merger of the Florida Corporation
with and into the Delaware Corporation subject to and upon the terms and
conditions of this Merger Agreement (the "Merger") and Section 607.1107 of the
FBCA and Section 252 of the DGCL, and have approved this Merger Agreement and
directed that it be executed by the undersigned officers and that it be
submitted to the shareholders of each of the Constituent Corporations for their
approval; and
WHEREAS, it is the intention of the Constituent Corporations that the
Merger shall be a tax-free reorganization within the meaning of Section 368
(a)(1)(F) of the Internal Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE in consideration of the premises, which are hereby
incorporated into the terms hereof, and the mutual covenants and agreements
herein contained, and for the purpose of stating the terms and conditions of the
merger, the mode of effectuating the same, and other details and provisions that
are deemed desirable, the parties have agreed and do hereby agree, subject to
the terms and conditions set forth as follows:
ARTICLE I
TERMS OF MERGER
1.1 MERGER. On the Effective Date of the Merger (as hereinafter
defined), in accordance with the provisions of the FBCA and the DGCL, the
Florida Corporation shall be merged with and into the Delaware Corporation (at
times referred to herein as the "Surviving Corporation") upon the terms and
conditions set forth in the subsequent provisions of this Merger Agreement.
1.2 APPROVAL OF SHAREHOLDERS. This Merger Agreement shall be submitted
as promptly as practicable to the respective shareholders of the Florida
Corporation and the Delaware Corporation as provided by the FBCA and the DGCL.
After adoption and approval of this Merger Agreement and all the transactions
and developments contemplated hereby by the respective shareholders of the
Florida Corporation and the Delaware Corporation, and provided this Merger
Agreement is not terminated and abandoned pursuant to the provisions hereof,
Articles of Merger shall be filed in accordance with the applicable provisions
of the FBCA and a Certificate of Merger shall be filed in accordance with the
applicable provisions of the DGCL.
1.3 FILINGS AND EFFECTIVENESS. As soon as practicable following the
date of execution hereof, the Florida Corporation and the Delaware Corporation
will, subject to the approval by the shareholders of each of the Constituent
Corporations, cause (i) the Articles of Merger along with any other required
document to be filed with the Secretary of State of the State of Florida
pursuant to Sections 607.1105 and 607.1107 of the FBCA, and (ii) the Certificate
of Merger along with any other required document to be filed with the Office of
the Secretary of the State of Delaware pursuant to Section 252 of the DGCL. The
Merger shall become effective upon the occurrence of each of the following
actions:
(a) All of the conditions precedent to the consummation of the Merger
specified in this Merger Agreement shall have been satisfied or duly waived;
(b) An executed Articles of Merger meeting the requirements of the FBCA
shall have been filed with the Secretary of State of the State of Florida and
said Secretary of State shall have accepted such Articles of Merger, and the
surviving corporation shall have performed all other requirements of Sections
607.1107 and 607.1107 of the FBCA; and
(c) An executed Certificate of Merger meeting the requirements of the
DGCL shall have been accepted by the Secretary of the State of Delaware and said
Secretary of State shall have issued a Certificate of Merger.
The date and time when the Merger shall become effective, as aforesaid,
is herein called the "Effective Date" and "Effective Time," respectively.
1.4 EFFECT OF MERGER - SECURITIES.
As of the Effective Time, by virtue of the Merger and without any
action on the part of the holder of any shares of Common Shares or holders of
Florida Warrants:
(a) Conversion of Common Shares. The presently issued and outstanding
Common Shares shall be converted on a one-for-one basis into shares of Common
Stock.
(b) Conversion of Florida Warrants. The number of shares underlying the
Florida Warrants as well as the exercise price, date of grant, vesting,
exercisability and expiration date thereof are set forth in the respective
warrant agreement applicable thereto. All rights under the Florida Warrants
shall be treated as provided herein, and to the extent the terms of any such
warrant agreement is inconsistent with the treatment to be accorded to the
Florida Warrants as provided herein, then the Florida Corporation shall cause
the such warrant agreements to be amended, and all required third party,
governmental and regulatory body consents or approvals to such amendments to be
procured, such that all such inconsistencies shall be eliminated by the
Effective Time.
At the Effective Time, notwithstanding any contrary provision of the
warrant agreements, the Florida Warrants shall, at and after the Effective Time,
evidence warrants (the "Delaware Warrants") to purchase a like number of shares
of Common Stock on the same terms and conditions as stated in the respective
warrant agreement.
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1.5 EFFECT OF MERGER - GENERAL
At and after the Effective Time, the Merger shall be effective as
provided in the applicable provisions of the DGCL and the FBCA. The corporate
existence of the Delaware Corporation, as the Surviving Corporation, with all of
its purposes and powers, shall continue unaffected and unimpaired by the Merger,
and, as the Surviving Corporation, it shall be governed by the DGCL and succeed
to all rights, assets, liabilities and obligations of the Florida Corporation in
accordance with the DGCL. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time, except as otherwise provided herein, all
the property, rights, privileges, powers and franchises of the Delaware
Corporation and the Florida Corporation shall vest in the Surviving Corporation,
and all debts, liabilities and duties of the Delaware Corporation and the
Florida Corporation shall become the debts, liabilities and duties of the
Surviving Corporation. The separate existence and corporate organization of the
Florida Corporation shall cease at the Effective Time, with the Delaware
Corporation continuing as the Surviving Corporation of the Merger.
1.6 CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION. The
Certificate of Incorporation of the Delaware Corporation as in effect
immediately prior to the Effective Date of the Merger shall continue in full
force and effect as the Certificate of Incorporation of the Surviving
Corporation until duly amended in accordance with the provisions thereof and
applicable law.
1.7 BY-LAWS OF SURVIVING CORPORATION. The By-Laws of the Delaware
Corporation as in effect immediately prior to the Effective Date of the Merger
shall continue in full force and effect as the By-Laws of the Surviving
Corporation until altered, amended or repealed as provided in the By-Laws or as
provided by applicable law.
1.8 DIRECTORS OF SURVIVING CORPORATION. The directors of the Florida
Corporation as of the Effective Date of the Merger shall be and become the
directors of the Surviving Corporation.
1.9 OFFICERS OF SURVIVING COMPANY. The officers of the Florida
Corporation as of the Effective Date of the Merger shall be and become the
officers of the Surviving Corporation.
ARTICLE II
CONDITIONS TO MERGER
The obligations of the Constituent Corporations to consummate the
Merger are subject to satisfaction of the following conditions:
2.1 AUTHORIZATION. The holders of at least a majority of the
outstanding Common Shares shall have approved this Merger Agreement and the
Merger. All necessary action shall have been taken to authorize the execution,
delivery and performance of this Merger Agreement by each of the Constituent
Corporations.
ARTICLE III
GENERAL PROVISIONS
3.1 BINDING AGREEMENT. This Merger Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
assigns; provided, however, that this Merger Agreement may not be assigned by
any party without the written consent of the other party.
3.2 AMENDMENTS. The Boards of Directors of the Florida Corporation and
the Delaware Corporation may amend this Merger Agreement at any time prior to
the filing of this Merger Agreement (or a certificate in lieu thereof) with the
Secretary of State of Delaware, provided that an amendment made subsequent to
the adoption of this Merger Agreement by the shareholders of either the Florida
Corporation or the Delaware Corporation shall not: (i) alter or change the
amount or kind of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of the shares of any
class or series thereof of the Florida Corporation or the Delaware Corporation,
(ii) alter or change any term of the Certificate of Incorporation of the
Surviving Corporation, or (iii) alter or change any of the terms and conditions
of this Merger Agreement if such alteration or change would adversely affect the
holders of any class or series of capital stock of either the Florida
Corporation or the Delaware Corporation.
3.3 FURTHER ASSURANCES. From time to time, as and when required by the
Delaware Corporation or by its successors or assigns, there shall be executed
and delivered on behalf of the Florida Corporation such deeds and other
instruments, and there shall be taken or caused to be taken by the Florida
Corporation such further and other actions as shall be appropriate or necessary
in order to vest or perfect in or confirm of record or otherwise by the Delaware
Corporation the title to and possession of all the property, rights, privileges,
powers, franchises, assets, immunities and authority of the Florida Corporation
and otherwise to carry out the purposes of this Merger Agreement. The officers
and directors of the Delaware Corporation are fully authorized in the name and
on behalf of the Florida Corporation or otherwise to take any and all such
action and to execute and deliver any and all such deeds or other instruments.
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3.4 ABANDONMENT. At any time before the Effective Date of the Merger,
this Merger Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either the Florida Corporation or
the Delaware Corporation, or by both, by the adoption of appropriate resolutions
and written notification thereof to the other party to the Merger,
notwithstanding the approval of this Merger Agreement by the shareholders of the
Florida Corporation or the Delaware Corporation, or by both. In the event of the
termination of this Merger Agreement and the abandonment of the Merger pursuant
to the provisions of this section, this Merger Agreement shall become void and
have no effect, without any liability on the part of either of the Constituent
Corporations or their respective officers, directors or shareholders in respect
thereof.
3.5 GOVERNING LAW. This Merger Agreement shall be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the FBCA.
[Signatures on following page]
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IN WITNESS WHEREOF, each of the undersigned corporations has caused
this Merger Agreement to be signed in its corporate name by its duly authorized
officer as of the date first written above.
BANKENGINE TECHNOLOGIES, INC.
a Florida corporation
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx Xxxxx,
President
BANKENGINE TECHNOLOGIES, INC.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx Xxxxx,
President
