Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Merger Agreement"), is entered into as
of August 1, 2001, by and between FINANCIAL PERFORMANCE GROUP, a New York
corporation ("FPCX"), and BrandPartners Group, Inc., a Delaware corporation
("BPGI") and wholly owned subsidiary of FPCX.
W I T N E S S E T H:
WHEREAS, FPCX is a corporation, originally incorporated under the name
Performance Services Group, duly organized and existing under the laws of the
State of New York having at the date hereof authorized capital stock of
50,000,000 shares of common stock, par value $.01 per share ("New York Common
Stock"), and 10,000,000 shares of preferred stock, par value $.01 per share
("New York Preferred Stock") of which 14,798,540 shares of New York Common Stock
and no shares of New York Preferred Stock are issued and outstanding; and
WHEREAS, BPGI is a corporation duly organized and existing under the laws
of the State of Delaware having at the date hereof authorized capital stock of
100,000,000 shares of common stock, par value $.01 per share ("Delaware Common
Stock"), and 20,000,000 shares of preferred stock, par value $.01 per share
("Delaware Preferred Stock") of which 1,000 shares of Delaware Common Stock are
issued and outstanding and held by FPCX and no shares of Delaware Preferred
Stock are issued outstanding; and
WHEREAS, FPCX desires to reincorporate into the State of Delaware by
merging with and into BPGI with BPGI continuing as the surviving corporation in
such merger, upon the terms and subject to the conditions herein set forth and
in accordance with the laws of the State of Delaware.
NOW, THEREFORE, in consideration of the premises and mutual agreements,
provisions and covenants contained herein, and subject to the terms and
conditions hereof, the parties hereto do hereby agree as follows:
1. Merger of FPCX into BPGI. At the Effective Time (as defined in
Section 2 hereof), FPCX shall merge with and into BPGI in accordance with the
New York Business Corporation Law (the "NYBCL") and the General Corporation Law
of the State of Delaware (the "DGCL"). The separate existence of FPCX shall
thereupon cease and BPGI shall be the surviving corporation (hereinafter
sometimes referred to as the "Surviving Corporation") and shall possess all the
rights, privileges, powers and franchises of a public as well as of a private
nature, and be subject to all the restrictions, disabilities and duties of each
of FPCX and BPGI (together sometimes referred to as the "Constituent
Corporations"); and all and singular, the rights, privileges, powers and
franchises of each of the Constituent Corporations, and all
property, real, personal and mixed, and all debts due to either of the
Constituent Corporations, on whatever account, as well as for stock
subscriptions as all other things in action or belonging to
each of the Constituent Corporations, 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 had been of the several and respective
Constituent Corporations, and the title to any real estate vested by deed or
otherwise, under the laws of the State of Delaware, in either of such
Constituent Corporations shall not revert or be in any way impaired by reason of
the DGCL; but all rights of creditors and all liens upon any property of any of
the Constituent Corporations shall be preserved unimpaired, and all debts,
liabilities and duties of the respective Constituent Corporations shall
thenceforth attach to the Surviving Corporation and may be enforced against it
to the same extent as if said debts, liabilities and duties had been incurred or
contracted by it. All corporate acts, plans, policies, agreements, arrangements,
approvals and authorizations of FPCX, 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
acts, plans, policies, agreements, arrangements, approvals and authorizations of
BPGI and shall be as effective and binding thereon as the same were with respect
to FPCX. The employees and agents of FPCX shall become the employees and agents
of BPGI and continue to be entitled to the same rights and benefits which they
enjoyed as employees and agents of FPCX. The requirements of any plans or
agreements of FPCX involving the issuance or purchase by FPCX of certain shares
of its capital stock shall be satisfied by the issuance or purchase of a like
number of shares of BPGI. The subsidiaries of FPCX shall become the subsidiaries
of BPGI.
2. Effective Time. The Merger shall become effective upon the date the
Certificate of Merger is filed by the Surviving Corporation with the Department
of State of the State of New York pursuant to Section 907(e)(2) of the NYBCL, or
the date a Certificate of Ownership and Merger is filed by the Surviving
Corporation with the Secretary of State of the State of Delaware pursuant to
Section 253 of the DGCL, whichever filing occurs last (the "Effective Time").
3. Effects of the Merger. At the Effective Time, the Merger shall have
the effects specified in the NYBCL, the DGCL and this Merger Agreement.
4. Certificate of Incorporation and Bylaws. At the Effective Time, the
Certificate of Incorporation and Bylaws of BPGI as in effect immediately prior
to the Effective Time shall continue to be the Certificate of Incorporation and
Bylaws of the Surviving Corporation.
5. Directors and Officers. At the Effective Time, the directors and
officers of FPCX in office at the Effective Time shall retain their positions as
the directors and officers, respectively, of the Surviving Corporation, each of
such directors and officers to hold office, subject to the applicable provisions
of the Certificate of Incorporation and Bylaws of the Surviving Corporation and
the DGCL, until his or her successor is duly elected or appointed and shall
qualify, or until his or her earlier death, incompetency or removal; provided,
however, that, in accordance with the Certificate of Incorporation of BPGI, the
Board of Directors of BPGI shall be divided into three classes, denominated
Class I, Class II and Class III, each with a term expiring at the annual meeting
of stockholders of BPGI in the indicated year, as follows:
2
Class I Directors Class II Directors Class III Directors
(term expiring 2002) (term expiring 2003) (term expiring 2004)
-------------------- -------------------- --------------------
Xxxxxxx Xxxx J. Xxxxxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxx Xxxx Xxxxxxx Xxxxxx III Xxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
6. Conversion.
(a) Shares. At the Effective Time, each share of New York Common
Stock issued and outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into and become one share of Delaware Common Stock, and each share
of New York Preferred Stock issued and outstanding immediately prior to the
Effective Time, if any, shall, by virtue of the Merger and without any action on
the part of the holder thereof, be converted into and become one share of
Delaware Preferred Stock.
(b) Options, Rights and Warrants. At the Effective Time, options,
rights and warrants to acquire shares of New York Common Stock outstanding
immediately prior to the Effective Time shall be automatically converted into
options, rights and warrants to acquire an equal number of shares of Delaware
Common Stock at the same price and upon the same terms and subject to the same
conditions as in effect at the Effective Time. The same number of shares of
Delaware Common Stock shall be reserved for purposes of exercise of options
under any stock option or similar plans as is equal to the shares of New York
Common Stock so reserved as of the Effective Time. BPGI hereby assumes the
outstanding and unexercised portion of such options, rights and warrants and the
obligations of FPCX to issue shares upon exercise thereof.
7. Cancellation. At the Effective Time, each share of Delaware Common
Stock issued and outstanding immediately prior to the Effective Time of the
Merger and held by FPCX shall be canceled without any consideration being issued
or paid therefor.
8. Exchange of Certificates. At any time on or after the Effective Time
of the Merger, the holders of New York Common Stock will be entitled, upon
surrender of such certificates to the Surviving Corporation, to receive in
exchange therefor one or more new stock certificates evidencing ownership of the
same number of shares of Delaware Common Stock. If any certificate representing
shares of Delaware Common Stock is to be issued in a name other than that in
which the certificate surrendered in exchange therefor is registered, it shall
be a condition of the issuance thereof that the certificate or other writing so
surrendered shall be properly endorsed and otherwise in proper form for transfer
and that the person requesting such exchange shall pay to the Surviving
Corporation or its transfer agent any transfer or other taxes required by reason
of the issuance of a certificate representing shares of Delaware Common Stock in
any name other than that of the registered holder of the certificate
surrendered, or otherwise required, or shall establish to the satisfaction of
the transfer agent that such tax has been paid or is not payable.
3
9. Conditions. Consummation of the Merger is subject to the
satisfaction at or prior to the Effective Time of the following conditions:
(a) Approval. This Merger Agreement and the Merger shall have been
adopted and approved by FPCX in the manner provided in Section 905 of the NYBCL
and by BPGI in the manner provided in Section 253 of the DGCL; and
(b) Third Party Consents. The parties shall have received all
required consents to and approvals of the Merger.
10. Amendment. This Merger Agreement may be amended, modified or
supplemented, in whole or in part, at any time prior to the Effective Time with
the mutual consent of the Board of Directors of FPCX and the Board of Directors
of BPGI to the full extent permitted under applicable law.
11. Abandonment; Postponement. At any time prior to the Effective Time
this Merger Agreement may be terminated and the Merger may be abandoned by the
Board of Directors of FPCX or BPGI or both, or the consummation of the Merger
may be postponed for a reasonable period of time, without any action of the
stockholders of FPCX or BPGI, notwithstanding the approval of this Merger
Agreement by the stockholders or Boards of Directors of either FPCX or BPGI.
12. Further Assurances. If at any time after the Effective Time of the
Merger, the Surviving Corporation shall consider that any assignments,
transfers, deeds or other assurances in law are necessary or desirable to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation, title
to any property or rights of FPCX, FPCX and its directors and officers at the
Effective Time shall execute and deliver such documents and do all things
necessary and proper to vest, perfect or confirm title to such property or
rights in the Surviving Corporation, and the officers and directors of the
Surviving Corporation are fully authorized in the name of FPCX or otherwise to
take any and all such action.
13. Counterparts. This Merger Agreement may be executed in any number of
counterparts, all of which shall be considered to be an original instrument.
14. Governing Law. This Merger Agreement shall be construed in
accordance with the laws of the State of Delaware.
4
IN WITNESS WHEREOF, the parties to this Merger Agreement have executed
this Merger Agreement on and as of the day first written above.
FINANCIAL PERFORMANCE CORPORATION,
a New York corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
BRANDPARTNERS GROUP, INC.,
a Delaware corporation
By:/s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Chairman and Chief Executive Officer
5
