EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Plan" or "Merger Agreement") dated
as of July __, 1997, between HAVENWOOD ACQUISITION CORP., a Texas corporation
("Newco"), and IWC SERVICES, INC., a Texas corporation ("IWC"). Newco and IWC
are hereinafter collectively referred to as the "Constituent Corporations."
W I T N E S S E T H:
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WHEREAS, Newco is a corporation duly organized and existing under the
laws of the State of Texas, having filed its Articles of Incorporation in the
office of the Secretary of State of Texas on July __, 1997, and having total
authorized capital stock of 1,000 shares of common stock, $0.01 par value
("Newco Stock"), of which 1,000 shares are issued and outstanding and owned by
HAVENWOOD VENTURES, INC., a Delaware corporation ("Havenwood"); and
WHEREAS, IWC is a corporation duly organized and existing under the
laws of the State of Texas, having filed its Articles of Incorporation in the
office of the Secretary of State of Texas on May ___,1995 and having an
authorized structure that includes (i) 50,000,000 shares of common stock, $0.01
par value ("IWC Common"), of which 6,740,000 shares are issued and outstanding;
(ii) 5,000,000 shares of Preferred Stock, $0.01 par value ("IWC Preferred") of
which no shares are issued and outstanding; warrants to purchase a presently
indeterminate number of shares of IWC Common having an aggregate value of
$3,000,000 based on a conversion price equal to one-half of the average closing
bid price of the IWC Common during the 60-day period commencing 30 days after
the completion of a public stock offering or business combination transaction
that results in the creation of a public market for the IWC Common ("IWC
Warrants"); and options to purchase 850,000 shares of IWC Common at a price of
$1.00 per share ("IWC Options"). The IWC Common; IWC Preferred, IWC Warrants and
IWC Options are referred to herein, collectively, as the "IWC Securities").
WHEREAS, the respective Boards of Directors of the Constituent
Corporations deem it advisable and in the best interests of the Constituent
Corporations and their shareholders that Newco be merged with and into IWC,
which shall be the surviving corporation, as authorized by the statutes of the
State of Texas and pursuant to the terms and conditions hereinafter set forth,
and each such Board has duly approved this Agreement and Plan of Merger;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for the purpose of setting forth
the terms of the merger (the "Merger") provided by this Merger Agreement, the
mode of carrying the same into effect and such other details and provisions as
are deemed necessary or desirable, the parties hereto have agreed and do hereby
agree, subject to the approval or adoption of this Merger Agreement by the
requisite vote of the shareholders of each Constituent Corporation, and subject
to the conditions hereinafter set forth, as follows:
ARTICLE I
THE MERGER
SECTION 1.01. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with Texas Law, at the
Effective Time (as defined in Section 1.02), Newco shall be merged with and into
IWC. As a result of the Merger, the separate corporate existence of Newco shall
cease and IWC shall continue as the surviving corporation in the Merger (the
"Surviving Corporation"). The name of the Surviving Corporation shall remain
"IWC SERVICES, Inc."
SECTION 1.02. Effective Time. As promptly as practicable after the
approval hereof by the shareholders of each Constituent Corporation and the
execution and delivery of this Agreement by each of the parties hereto, the
parties hereto shall cause the Merger to be consummated by filing of articles of
merger (the "Articles of Merger") with the Secretary of State of the State of
Texas, in such form as required by, and executed in accordance with the relevant
provisions of, Texas Law (the date and time of such filing being the "Effective
Time").
SECTION 1.03. Effect of the Merger. At the Effective Time, the
effect of the Merger shall be as provided in the applicable provisions of Texas
Law. 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 Newco and IWC shall vest in the
Surviving Corporation, and all debts, liabilities and duties of Newco and IWC
shall become the debts, liabilities and duties of the Surviving Corporation.
SECTION 1.04. Articles of Incorporation; By-Laws. At the Effective
Time, the Articles of Incorporation and the By-laws of IWC, as in effect
immediately prior to the Effective Time, shall be the Articles of Incorporation
and the By-Laws of the Surviving Corporation; provided that Article IV of the
Articles of Incorporation of IWC shall be amended as follows to reflect that
after the Merger the capitalization of IWC shall be 1,000 shares of Common Stock
issued to and outstanding in the name of Havenwood:
"The total number of shares of all classes of stock which the
corporation shall be authorized to issue is one thousand (1,000) shares of
common stock, $0.01 par value per share."
SECTION 1.05. Directors and Officers. The directors of IWC
immediately prior to the Effective Time shall be the directors of the Surviving
Corporation, each to hold office in accordance with the Articles of
Incorporation and By-Laws of the Surviving Corporation, and the officers of IWC
immediately prior to the Effective Time shall be the officers of the Surviving
Corporation, in each case until their respective successors are duly elected or
appointed and qualified.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
SECTION 2.01. Conversion of Securities. At the Effective Time, by
virtue of the Merger and without any action on the part of Newco, IWC or the
holders of any of the following securities:
(a) Each share of IWC Common issued and outstanding immediately prior
to the Effective Time, excluding any treasury shares held by IWC, shares held by
Havenwood and Dissenting Shares (as defined in Section 2.04), if any, shall be
converted into the right to receive 2.3 shares (the "Common Stock Exchange
Ratio") of fully paid, nonassessable shares of Havenwood Common.
(b) Each IWC Warrant issued and outstanding immediately prior to the
Effective Time shall be converted into a substantially identical warrant to
purchase shares of Havenwood Common ("Havenwood Warrant") so that the holders of
the IWC Warrants, as a group, shall have the right to purchase $3,000,000 of
Havenwood Common valued at one-half of the average closing bid price of the
Havenwood Common during the 60-day period commencing 30 days after the effective
time.
(c) Each IWC Option outstanding immediately prior to the Effective
Time shall be converted into an option to purchase Havenwood Common ("Havenwood
Option") exercisable for that number of shares of Havenwood Common equal to the
product of the number of shares of IWC Common covered by IWC Warrants
immediately prior to the Effective Time multiplied by the Common Stock Exchange
Ratio rounded up to the nearest whole number of shares of Havenwood Common, and
the per share exercise price for the shares of Havenwood Common issuable upon
the exercise of such Havenwood Warrant shall be equal to the quotient determined
by dividing the exercise price per share of IWC Common specified for such IWC
Warrant under the applicable option agreement immediately prior to the Effective
Time by the Common Stock Exchange Ratio rounding the resulting exercise price
down to the nearest whole cent. The date of grant of a Havenwood Option issued
in exchange for an IWC Option shall be deemed to be the date on which such IWC
Warrant was originally granted. Havenwood Options issued in exchange for IWC
Options pursuant hereto shall have the same schedule of vesting (or
acceleration) as applies to such IWC Options.
(d) All IWC Securities shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each
certificate previously evidencing any such IWC Securities shall thereafter
represent the right to receive the Merger Consideration (as defined in Section
2.02(b) below). The holders of certificates previously evidencing IWC
Securities outstanding immediately prior to the Effective Time shall cease to
have any rights with respect to such IWC Securities, except as otherwise
provided herein or by law. Such certificates previously evidencing IWC
Securities shall be exchanged for certificates evidencing shares of Havenwood
Common, Havenwood Warrants or Havenwood Options (collectively, the "Havenwood
Securities"), as appropriate, issued in consideration therefor in accordance
with the allocation procedures of this Section 2.01 and upon the surrender of
such certificates in accordance with the provisions of Section 2.02.
(e) All IWC Securities held in the treasury of IWC and all IWC
Securities owned by Havenwood or any direct or indirect wholly owned subsidiary
of Havenwood or of IWC immediately prior to the Effective Time shall be canceled
and extinguished without any conversion thereof and no payment shall be made
with respect thereto.
SECTION 2.02. Exchange of Certificates. (a) Exchange Agent. As of
the date hereof, Newco has deposited, or caused to be deposited, with
_______________________ (the "Exchange Agent"), for the benefit of the holders
of IWC Securities, for exchange in accordance with this Article II through the
Exchange Agent (i) certificates evidencing such number of shares of Havenwood
Common equal to the Common Stock Exchange Ratio multiplied by the number of
shares of IWC Common; (ii) certificates representing Havenwood Warrants that are
equivalent in all material respects to the outstanding IWC Warrants; and (iii)
Havenwood Options evidencing the right to purchase such number of shares of
Havenwood Common equal to the Common Stock Exchange Ratio multiplied by the
number of shares of IWC Common represented by IWC Options at an exercise price
determined in accordance with Section 2.01(c). The Exchange Agent shall,
pursuant to irrevocable instructions, deliver the Havenwood Securities to the
holders of IWC Securities.
(b) Exchange Procedures. As soon as reasonably practicable after the
Effective Time, IWC will instruct the Exchange Agent to mail to each holder of
record of IWC Securities (other than Dissenting Shares) (all stock certificates,
warrants and other documents evidencing IWC Options being collectively, the
"Certificates"), (i) a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates shall pass,
only upon proper delivery of the Certificates to the Exchange Agent and shall be
in such form and have such other provisions as IWC may reasonably specify) and
(ii) instructions for use in effecting the surrender of the Certificates in
exchange for certificates evidencing Havenwood Securities. Upon surrender of a
Certificate for cancellation to the Exchange Agent together with such letter of
transmittal, duly executed, and such other customary documents as may be
required pursuant to such instructions, the holder of such Certificate shall be
entitled to receive in exchange therefor (i) certificates evidencing that number
of shares of Havenwood Common which such holder has the right to receive in
respect of the shares of IWC Common; (ii) Havenwood Warrants evidencing the
right to purchase that number of shares of Havenwood Common which such holder
has the right to receive in respect of IWC Warrants; and (iii) Havenwood Options
evidencing the right to purchase that number of shares of Havenwood Common which
such holder has the right to receive in respect of IWC Options. in each case in
accordance with Section 2.01 (such Havenwood Common, Havenwood Warrants and
Havenwood Options being collectively, the "Merger Consideration") and the
Certificates so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of shares of IWC Securities, an IWC Warrant or an IWC
Option which transfer is not registered in the transfer records of IWC, a
certificate evidencing the proper number of shares of Havenwood Common, a
Havenwood Warrant or a Havenwood Option, as appropriate, may be issued in
accordance with this Article II to a transferee if the Certificate evidencing
such IWC Common, IWC Warrant or IWC Option is presented to the Exchange Agent,
accompanied by all documents required to evidence and effect such transfer and
by evidence that any applicable stock transfer taxes have been paid. Until
surrendered as contemplated in this Section 2.02, each Certificate shall be
deemed at any time after the Effective Time to evidence only the right to
receive, upon such surrender, the Merger Consideration.
(c) No Further Rights in IWC Common, IWC Warrants or IWC Options. All
Havenwood Common, Havenwood Warrants and Havenwood Options issued upon
conversion of IWC Common, IWC Warrants or IWC Options in accordance with the
terms hereof shall be deemed to have been issued or paid in full satisfaction of
all rights pertaining to the previously issued and outstanding IWC Common, IWC
Warrants and IWC Options.
SECTION 2.03. Stock Transfer Books. At the Effective Time, the stock
transfer books of IWC shall be closed and there shall be no further registration
of transfers of shares of IWC Securities thereafter on the records of IWC. On
or after the Effective Time, any Certificates presented to the Exchange Agent
for any reason shall be converted into the Merger Consideration.
SECTION 2.04. Dissenting Shares. If required under Texas Law,
notwithstanding any other provisions of this Agreement to the contrary, IWC
Securities that are outstanding immediately prior to the Effective Time and
which are held by stockholders who shall have not voted in favor of the Merger
or consented thereto in writing and who shall have demanded properly in writing
appraisal for such shares in accordance with Texas Law (collectively, the
"Dissenting Shares") shall not be converted into or represent the right to
receive the Merger Consideration. Such stockholders shall be entitled to receive
payment of the appraised value of the IWC Securities held by them in accordance
with the provisions of such sections of Texas Law, except that all Dissenting
Shares held by stockholders who shall have failed to perfect or who effectively
shall have withdrawn or lost their rights to appraisal of such IWC Securities
under such sections of Texas Law shall thereupon be deemed to have been
converted into and to have become exchangeable, as of the Effective Time, for
the right to receive Havenwood Securities, upon surrender, in the manner
provided in Section 2.02, of the certificate or certificates that formerly
evidenced such IWC Securities.
ARTICLE III
APPROVAL AND EFFECTIVE TIME OF THE MERGER
The Merger shall become effective when certified, executed and acknowledged
in accordance with the Texas Corporations Law and appropriate Articles of Merger
shall be filed and recorded in the office of the Secretary of State of the State
of Texas.
ARTICLE IV
MISCELLANEOUS PROVISIONS
(a) For the convenience of the parties, any number of counterparts
hereof may be executed, and each such counterpart shall be deemed to be an
original instrument.
(b) It is the intention of the parties that the internal laws, and
not the laws of conflicts, of the State of Texas shall govern the enforceability
and validity of this Merger Agreement, the construction of its terms and the
interpretation of the rights and duties of the parties; provided, however, that
with respect to matters of law concerning the internal affairs of any entity
that is a party to or the subject of this Merger Agreement the law of the
jurisdiction of organization of such entity shall govern.
(c) This Merger Agreement may not be altered or amended except
pursuant to an instrument in writing signed on behalf of the parties hereto.
IN WITNESS WHEREOF, IWC has caused this Merger Agreement to be signed
by its President and attested by its Secretary and its corporate seal to be
affixed hereto pursuant to authorization contained in a resolution adopted by
its Board of Directors approving this Merger Agreement, and Newco has caused
this Merger Agreement to be signed by its President and attested by its
Secretary and its corporate seal to be affixed hereto pursuant to authorization
contained in a resolution adopted by its Board of Directors approving this
Merger Agreement, all on the date first above written.
HAVENWOOD ACQUISITION CORP.
/s/ XXXX X. XXXXXXXX
By: ________________________________
Xxxx X. Xxxxxxxx
Name: ______________________________
President
Title: _____________________________
Attest:_______________________
___________________, Secretary
IWC SERVICES, INC.
/s/ XXXXX XXXXXX
By: ________________________________
Xxxxx Xxxxxx
Name: ______________________________
President
Title: _____________________________
Attest:_______________________
___________________, Secretary
IN WITNESS WHEREOF, the undersigned Vice-President of the Disappearing
Corporation, executes these Articles of Merger and verify that the statements
contained herein are true and complete and are the act and deed of the
constituent corporations this the ____ day of July, 1997.
HAVENWOOD ACQUISITION CORP.
/s/ XXXXXXX X. XXXXXXXX
By: ________________________________
Xxxxxxx X. Xxxxxxxx
Name: ______________________________
Vice President
Title: _____________________________
/s/ XXXXXXX XXXXXX
Attest: ________________________
_____________________, Secretary
STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
On this ____ day of July, 1997, before me, XXXXX XXXXXXXX, the undersigned
officer, personally appeared Xxxxxxx Xxxxxxxx, known personally to me to be the
Vice-President of Havenwood Acquisition Corp. and that he, as such officer,
being authorized to do so, executed the foregoing instrument for the purposes
therein contained, by signing the name of the corporation as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ XXXXX XXXXXXXX
____________________________________
Notary Public in and for the
State of T E X A S
ARTICLES OF MERGER
OF
HAVENWOOD ACQUISITION CORP. AND
IWC SERVICES, INC.
The undersigned officer of the Surviving Corporation to a Plan of Merger
submits the following Articles of Merger pursuant to the provisions of Article
5.04 of the Texas Business Corporations Act ("TBCA").
ARTICLE I
NAME
The name and place of incorporation of each constituent corporation is:
A. HAVENWOOD ACQUISITION CORP., a Texas corporation (the "Disappearing
Corporation");
B. IWC SERVICES, INC., a Texas corporation (the "Surviving Corporation").
ARTICLE II
ADOPTION OF THE PLAN OF MERGER
The respective Boards of Directors of the Surviving Corporation and the
Disappearing Corporation have duly and validly adopted the Plan of Merger,
containing the information required by Article 5.02 of the TBCA has been adopted
by the board of directors of each corporation that is a party to the merger.
ARTICLE III
OUTSTANDING STOCK
On the date of notice of the special meeting called to consider the Plan of
Merger, there were outstanding shares of stock in the constituent corporations
the numbers and designations of which are as follows:
A. The Surviving Corporation had six million, one hundred seventy-eight
thousand, nine hundred forty-seven (6,740,000) outstanding shares of common
stock, par value $0.01 per share, each share being entitled to one (1) vote for
a total six million, one hundred seventy-eight thousand, nine hundred forty-
seven (6,740,000) votes entitled to be cast for or against the Plan of Merger;
B. The Disappearing Corporation had One Thousand (1,000) outstanding
shares of common stock, par value $0.01 per share, each share being entitled to
one (1) vote for a total of One Thousand (1,000) votes entitled to be cast for
or against the Plan of Merger.
ARTICLE IV
STOCKHOLDER APPROVAL
The Plan of Merger was duly submitted to the stockholders of the Surviving
Corporation, in accordance with the laws of the State of Texas, and the
stockholders of the Disappearing Corporation in accordance with the laws of the
State of Texas, and approved thereby. The stockholders of the Surviving
Corporation cast six million, one hundred seventy-eight thousand, nine hundred
forty-seven (6,740,000) in favor and no (0) votes against the Plan of Merger and
the stockholders of the Disappearing Corporation cast One Thousand (1,000) votes
in favor and no (0) votes against the Plan of Merger which votes cast in favor
thereof are of a sufficient number for the approval of the Plan of Merger by the
constituent corporations.
ARTICLE V
AMENDMENTS TO THE ARTICLES OF INCORPORATION
OF THE SURVIVING CORPORATION
The Articles of Incorporation of the Surviving Corporation shall continue
as the Articles of Incorporation of the Surviving Corporation in all respects;
except, that on the effective date of the Merger, Article IV of the Articles of
Incorporation of the Surviving Corporation shall be amended to read as follows:
"The total number of shares of all classes of stock which the corporation
shall be authorized to issue is one thousand (1,000) shares of common
stock, $0.01 par value per share."
ARTICLE VI
PLAN OF MERGER
A. A copy of the Plan of Merger is attached hereto as "Exhibit A" and
incorporated herein by this reference.
IN WITNESS WHEREOF, the undersigned President and Secretary of the
Surviving Corporation, execute these Articles of Merger and verify that the
statements contained herein are true and complete and are the act and deed of
the constituent corporations this the ____ day of July, 1997.
IWC SERVICES, INC.
/s/ XXXXX XXXXXX
By: ________________________________
Xxxxx Xxxxxx
Name: ______________________________
President
Title: _____________________________
/s/ XXXXXXXX XXXX
Attest:_______________________
___________________, Secretary
STATE OF TEXAS (S)
(S)
COUNTY OF XXXXXX (S)
On this 25th day of July, 1997, before me, XXXXXXX XXXXXX, the undersigned
officer, personally appeared ___________ and XXXXXXXX XXXX, known personally to
me to be the President and Secretary, respectively, of IWC SERVICES, INC., and
that they, as such officers, being authorized to do so, executed the foregoing
instrument for the purposes therein contained, by signing the name of the
corporation by themselves as such officers.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
/s/ XXXXXXX XXXXXX
________________________________________________________________________________
Notary Public in and for the
State of T E X A S
