Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
(Sometimes referred to as "Public Transaction Agreement")
THIS AGREEMENT AND PLAN OF MERGER (this "Merger Agreement" is made as
of December 7, 2005 by and between General Devices, Inc., Delaware corporation
("GDI"), GD MergerSub, Inc., a Delaware corporation ("MergerSub") and Aduromed
Corporation, a Delaware corporation ("Aduromed"). GDI, MergerSub and Aduromed
are hereinafter sometimes collectively referred to as the "Constituent
Corporations."
RECITALS
A. GDI was incorporated in New Jersey in 1953 and was reorganized as a
Delaware corporation in September, 2000. Its current authorized capital stock
consists of (1) 100,000,000 shares of Common Stock (par value $0.0001 per share;
the "Common Stock") and (2) 40,000,000 shares of Preferred Stock (par value
$0.0001 per share), of which 1,259,585 shares of its Common Stock are issued and
outstanding after the application of a one-for-five reverse split of the GDI
common stock, and no shares of its Preferred Stock are issued and outstanding.
B. MergerSub was incorporated in the State of Delaware in December
2001. Its authorized capital consists of 1,000 shares with a par value of $0.01
per share, of which 100 shares are issued and outstanding, all of which are
owned by GDI.
C. Aduromed was formed as a limited liability company in 1997 and was
reorganized as a Delaware corporation in August, 2002. Its authorized capital
stock consists of (1) 50,000,000 shares of Common Stock (par value $0.01 per
share; "Aduromed Common Stock") and (2) 20,000,000 shares of Preferred Stock
(par value $0.01 per share), of which 10,585,600 shares of Common Stock are
issued and outstanding and 3,489,527 shares of a designated Series A Preferred
Stock ("Aduromed Series A Preferred") are issued and outstanding.
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D. The Board of Directors of GDI seeks the acquisition of an operating
business through merger or similar business combination so as to maximize its
shareholder value; and the Board of Directors of Aduromed now seeks a public
company with which to merge in connection with its being financed by a group of
investors pursuant to a Securities Purchase Agreement with such investors, dated
as of September 30, 2005.
E. The respective Boards of Directors of the Constituent Corporations
deem a merger of Aduromed with MergerSub to be advantageous to their respective
shareholders, upon the terms and subject to the conditions set forth in this
Merger Agreement; and
F. The Board of Directors of each of the Constituent Corporations has
approved this Merger Agreement.
G. The sole stockholder of MergerSub has approved this Merger
Agreement, and no approval by the stockholders of GDI is required to approve
this Merger Agreement.
H. A majority of the holders of shares of Aduromed Common Stock and a
majority of the holders of shares of Aduromed Series A Preferred shall have
approved the Merger prior to the Effective Time.
NOW THEREFORE, the parties do hereby adopt the plan of reorganization
set forth in this Merger Agreement and do hereby agree that Aduromed shall merge
with MergerSub in the manner, upon the terms and subject to the conditions set
forth below:
1. MERGER AND EFFECTIVE TIME. At the Effective Time (as defined below),
MergerSub shall be merged with and into Aduromed (the "Merger") and Aduromed
shall be the surviving corporation of the Merger (the "Surviving Corporation").
The Merger shall become effective upon the close of business on the later of (i)
the date which shall be ten (10) days after the filing with the SEC and mailing
to the stockholders of GDI of a definitive information statement pursuant to SEC
Rule 14(f) describing the change in control of the Board of Directors of GDI
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(the Information Statement") and (ii) the date when the Certificate of Merger
shall have been executed in accordance with ss. 103 of the Delaware General
Corporation Law ("DGCL") and filed with the Department of State, Division of
Corporations of the office of the Delaware Secretary of State pursuant to ss.251
of the DGCL reflecting the Merger (the "Effective Time").
2. EFFECT OF MERGER. At the Effective Time the separate corporate
existence of MergerSub shall cease; the corporate identity, existence, powers,
rights and immunities of Aduromed as the Surviving Corporation shall continue
unimpaired by the Merger; and Aduromed shall succeed to and shall possess all
the assets, properties, rights, privileges, powers, franchises, immunities and
purposes of MergerSub, and be subject to, and deemed to have assumed, all the
debts, liabilities, obligations, restrictions and duties of MergerSub, all
without further act of deed.
3. GOVERNING DOCUMENTS. (a) Certificate of Merger. At the Effective
Time a Certificate of Merger in form attached as Exhibit A hereto shall be filed
with the Department of State, Division of Corporations of the office of the
Delaware Secretary of State.
(b) By-Laws. At the Effective Time the By-Laws of Aduromed shall remain
as the bylaws of the Surviving Corporation.
(c) Designations of Series A and Series B Preferred Stock. Prior to the
Effective Time GDI shall have executed and filed in accordance with ss. 103 of
the DGCL with the Department of State, Division of Corporations of the office of
the Delaware Secretary of State (i) a Certificate of Designations setting forth
resolutions of its Board of Directors establishing a class Series A Preferred
Stock (par value $0.0001 per share; the "Series A Preferred") in substantially
the form attached as Exhibit B hereto and (ii) a Certificate of Designations
setting forth resolutions of its Board of Directors establishing a class of
Series B Preferred Stock (par value $0.0001 per share; the "Series B Preferred")
in substantially the form attached as Exhibit C hereto.
4. DIRECTORS AND OFFICERS. At the Effective Time, the directors and
officers of Aduromed shall remain as the officers and directors of the Surviving
Corporation. The officers and directors of GDI shall be as set forth in the
Information Statement.
5. CONVERSION OF SHARES. Subject to the terms and conditions of this
Agreement, as at the Effective Time, (i) each share of Aduromed Common Stock
immediately prior thereto shall be automatically changed and converted into
1.795 fully-paid and nonassessable, issued and outstanding shares of the Common
Stock of GDI; (ii) each share of Aduromed Series A Preferred immediately prior
thereto shall be automatically changed and converted into 1.795 fully-paid and
nonassessable, issued and outstanding shares of Series A Preferred of GDI; and
all outstanding shares common stock of MergerSub shall be automatically changed
and converted into 100 shares of the common stock of Aduromed. All fractional
shares issuable as to both the shares of Common and Series A Preferred of GDI
shall be "rounded up" to a full share.
6. CANCELLATION OF SHARES OF ADUROMED. At the Effective Time all of the
previously issued and outstanding shares of both the Aduromed Common Stock and
the Aduromed Series A Preferred immediately prior to the Effective Time shall be
automatically retired and cancelled.
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7. STOCK CERTIFICATES. At and after the Effective Time all of the
outstanding certificates that, prior to that date, represented shares of
Aduromed Common Stock shall be deemed for all purposes to evidence ownership of
and to represent the number of shares of GDI into which such shares of Aduromed
Common Stock are to be converted as provided herein; and all outstanding
certificates that, prior to that date, represented shares of MergerSub common
stock shall be deemed for all purposes to evidence ownership of and to represent
the same number of shares of the Common Stock of Aduromed. At and after the
Effective Time all of the outstanding certificates that, prior to that date,
represented shares of Aduromed Series A Preferred shall be deemed for all
purposes to evidence ownership of and to represent the number of shares of the
series of GDI's into which such shares are to be converted as provided herein.
The registered owner on the books and records of Aduromed of any such
outstanding share certificates for Aduromed Common or Series A Preferred shall,
until such certificate shall have been surrendered for transfer or otherwise
accounted for to GDI, as the Surviving Corporation, or to its transfer agent,
shall be entitled to exercise any voting and other rights with respect to, and
to receive any dividend and other distribution upon, the shares of the Surviving
Corporation's Common Stock and Series A Preferred, evidenced by such outstanding
certificate as above provided.
8. CONVERSION OF OPTIONS AND WARRANTS. (a) At the Effective Time, all
outstanding and unexercised portions of all options and warrants to purchase a
share of Common Stock of Aduromed shall become options and warrants,
respectively, to purchase 1.795 shares of Common Stock of GDI, as the Surviving
Corporation; all outstanding and unexercised portions of all options and
warrants to purchase a share of Aduromed Series A Preferred, if any, shall
become options and warrants to purchase 1.795 shares of the Preferred Stock of
the same series; and such resulting options and warrants shall be, except as to
fractional shares (referred to in paragraph 8(b) below) and exercise prices
(which shall be reduced by a factor of 1.795 per share), be upon the same terms
and conditions as to vesting (with credit for time of employment with Aduromed),
exercisability and all other material terms and conditions as the options and
warrants originally granted or issued.
(b) Fractional Shares. Upon the exercise of any option or warrant
assumed by the Surviving Corporation as provided paragraph 8(a) above, cash
shall be paid by the Surviving Corporation for any fractional share issuable
upon exercise of the option or warrant equal in each instance to the fair market
value per share upon exercise thereof multiplied by the applicable fraction less
the unpaid exercise price per share for such fraction.
9. FURTHER ASSURANCES. From time to time, as and when required by the
Surviving Corporation or by its Successors or assigns, GDI shall execute and
deliver on behalf of MergerSub, and MergerSub shall execute and deliver, such
deeds, assignments and other instruments, and shall take or cause to be taken
all such further action as shall be appropriate, advisable or necessary in order
to vest, 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 Aduromed, and
otherwise to carry out the purposes of this Merger Agreement. The officers and
directors of the Surviving Corporation are fully authorized in the name of and
on behalf of GDI, MergerSub, or otherwise, to take any and all such actions and
to execute and deliver any and all such deeds and other instruments as may be
necessary or appropriate to accomplish the foregoing.
10. CONDITION. The consummation of the Merger is subject to (i) the
approval of this Merger Agreement and the Merger contemplated hereby, by (A) a
majority of the holders of the Aduromed shares of common stock and a majority of
the holders of its series A preferred shares and (B) the holder of the shares of
common stock of MergerSub prior to the Effective Time and (ii) compliance with
all federal securities law requirements.
11. ABANDONMENT. At any time before the Effective Time, this Merger
Agreement may be terminated by mutual agreement of the respective Boards of
Directors of the Constituent Corporations, notwithstanding approval of this
Merger Agreement by the Boards of Directors and shareholders of the Constituent
Corporations.
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12. AMENDMENT. At any time prior to the Effective Time, this Merger
Agreement may be amended, modified or supplemented by unanimous agreement of the
respective Boards of Directors of the Constituent Corporations, notwithstanding
approval of this Merger Agreement by the their shareholders; provided, however,
that such amendment, modification or supplement 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 upon conversion of any share of any class or series
of stock of Aduromed; (ii) alter or change any of the terms of the Certificate
of Incorporation of the Surviving Corporation to be effected by the Merger; 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 share of
any class or series of either of the Constituent Corporations.
13. TAX-FREE REORGANIZATION. The Merger is intended to be a tax-free
plan of reorganization within the meaning of Section 368(a)(1)(A) of the
Internal Revenue Code, as presently amended.
14. GOVERNING LAW. This Agreement shall be governed by and construed
under the internal laws of the State of Delaware without reference to the
principles of conflicts of law or choice of laws.
15. COUNTERPARTS FACSIMILE SIGNATURES. In order to facilitate the
filing and recording of this Merger Agreement, it may be executed in any number
of counterparts, each of which shall be deemed to be an original. The execution
of this Agreement may be effected by means of facsimile signatures on
counterpart copies exchanged between counsel to the parties with the original
documents to follow via overnight delivery.
***SIGNATURES FOLLOW***
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IN WITNESS WHEREOF, this Merger Agreement is hereby executed on behalf
of each of the Constituent Corporations and attested by their respective officer
hereunto duly authorized.
ADUROMED CORPORATION GENERAL DEVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, President Xxxxx Xxxxxx, Xx., President
GD MERGERSUB, INC.
By: /s/ Xxxxx Xxxxxx, Xx.
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Xxxxx Xxxxxx, Xx., President
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