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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AMONG
PERFUMANIA, INC.
E COM VENTURES, INC.
AND
E COM SUB, INC.
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated
January 28, 2000 is made and entered into by and among Perfumania, Inc., a
Florida corporation (the "Company"), E Com Ventures, Inc., a Florida corporation
and a wholly-owned subsidiary of the Company ("HoldingCo"), and E Com Sub, Inc.,
a Florida corporation and a wholly-owned subsidiary of HoldingCo ("MergerSub").
RECITALS:
The respective boards of directors of each of HoldingCo,
MergerSub and the Company have approved the merger of MergerSub with and into
the Company (the "Merger"), further approved the terms and conditions of the
Merger set forth in this Agreement and approved this Agreement. HoldingCo and
MergerSub are newly formed corporations organized for the purpose of
participating in the transactions contemplated by this Agreement. The purpose of
the Merger is to implement a new holding company organizational structure for
the Company under which HoldingCo will become the holding company and the
Company will become a direct wholly-owned subsidiary of HoldingCo. After the
Effective Time (as defined herein), the shareholders of the Company will own
equity interests in HoldingCo by consummating the Merger and converting each
outstanding Share (as defined herein) into one share of HoldingCo Common Stock
(as defined herein), all in accordance with the terms of this Agreement.
Pursuant to Section 607.11045 of the Florida Business Corporation Act ("FBCA"),
it is not necessary to submit this Agreement to a vote of the shareholders of
the Company. The sole shareholder of HoldingCo and the sole shareholder of
MergerSub have each approved this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE IV.
THE MERGER; EFFECTIVE TIME
4.1 THE MERGER. Upon the terms and subject to the conditions set forth
in this Agreement and the FBCA, at the Effective Time (as defined in Section
1.2), MergerSub shall be merged with and into the Company and the separate
corporate existence of MergerSub shall thereupon cease. The Company shall be the
surviving corporation in the Merger (the "Surviving Corporation"), and except as
provided herein, the separate corporate existence of the Company with all its
rights, privileges, immunities, powers and franchises shall continue unaffected
by the Merger. The Merger shall have the effects specified in the FBCA.
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4.2 EFFECTIVE TIME. The Company and MergerSub will cause Articles of
Merger (the "Articles of Merger") to be executed as provided in Section 607.1105
of the FBCA and delivered to the Department of State of the State of Florida.
The Merger shall be effective on February 1, 2000 (the "Effective Time").
ARTICLE V.
ARTICLES OF INCORPORATION AND BY-LAWS OF THE SURVIVING CORPORATION
5.1 ARTICLES OF INCORPORATION. The amended and restated articles of
incorporation of the Company, as amended as provided herein, in effect
immediately prior to the Effective Time shall be the articles of incorporation
of the Surviving Corporation (the "Articles of Incorporation"), until duly
amended as provided therein or by applicable law, and the following amendments
thereto shall become effective as of the Effective Time:
A new Article VI shall be added as follows:
Pursuant to the provisions of Section 607.11045,
Florida Statutes, any act or transaction by or involving this
Corporation which requires for its adoption under the Florida
Business Corporation Act or under these Articles of
Incorporation the approval of the shareholders of this
Corporation must also be approved by the shareholders of E Com
Ventures, Inc., a Florida corporation which is the parent
corporation of this Corporation, or the successor by merger of
E Com Ventures, Inc., by the same vote as is required under
the Florida Business Corporation Act or these Articles of
Incorporation.
5.2 THE BY-LAWS. The by-laws of the Company in effect at the Effective
Time shall be the by-laws of the Surviving Corporation (the "By-Laws"), until
thereafter amended as provided therein or otherwise in accordance with
applicable law.
ARTICLE VI.
OFFICERS AND DIRECTORS OF THE SURVIVING CORPORATION AND
HOLDINGCO AFTER THE EFFECTIVE TIME
6.1 OFFICERS. The officers of the Company at the Effective Time shall,
from and after the Effective Time, be the officers of the Surviving Corporation,
to serve at the pleasure of the Board of Directors of the Surviving Corporation.
The officers of the Company at the Effective Time shall, from and after the
Effective Time, be the officers of HoldingCo, to serve at the pleasure of the
Board of Directors of HoldingCo.
6.2 DIRECTORS. The directors of the Company at the Effective Time
shall, from and after the Effective Time, be the directors of the Surviving
Corporation until their successors have been duly elected and qualified or until
their earlier death, resignation or removal in accordance with the Articles of
Incorporation or Bylaws of the Surviving Corporation or as otherwise
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provided by law. The directors of the Company at the Effective Time shall, from
and after the Effective Time, be the directors of HoldingCo until their
successors have been duly elected and qualified or until their earlier death,
resignation or removal in accordance with the Articles of Incorporation or
Bylaws of HoldingCo or as otherwise provided by law.
ARTICLE VII.
EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES
7.1 EFFECT ON CAPITAL STOCK. At the Effective Time, as a result of the
Merger and without any action on the part of HoldingCo, the Company, MergerSub
or the holder of any capital stock of the Company:
(a) MERGER CONSIDERATION. Each share of the Common Stock, par
value $.01 per share, of the Company (a "Share" or "Company Common Stock" or,
collectively, the "Shares") issued and outstanding immediately prior to the
Effective Time, shall be converted into one share of Common Stock, par value
$.01 per share, of HoldingCo ("HoldingCo Common Stock").
(b) CANCELLATION OF SHARES. Each share of HoldingCo Common
Stock owned by the Company immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the Company, cease to
be outstanding, shall be canceled and retired without payment of any
consideration therefor and shall cease to exist.
(c) MERGERSUB. At the Effective Time, each share of Common
Stock, par value $.01 per share, of MergerSub issued and outstanding immediately
prior to the Effective Time shall be converted into one share of Common Stock,
par value $.01 per share, of the Surviving Corporation.
(d) BENEFIT PLANS. At the Effective Time, (i) each option or
right to purchase (each, a "Company Option") Shares pursuant to any of the
Company's incentive plans or employee benefit plans, including but not limited
to the Company's 1991 Stock Option Plan, as amended, and the 1992 Directors'
Stock Option Plan, as amended (the "Option Plans") shall become an option or
right to purchase shares of HoldingCo Common Stock on the same terms as an
option or right to purchase Shares under an Option Plan at an exercise price
equal to the exercise price per share of such Company Option under an Option
Plan, and (ii) the definition of "Company" under the Options Plans and the name
of each such Option Plan shall be amended to reflect the fact that HoldingCo
will, as of the Effective Time, be considered the "Company" and the plan sponsor
for all purposes of such Option Plans.
(e) EXCHANGE OF CERTIFICATES. At or prior to the Effective
Time, the Company shall deposit with Continental Transfer & Trust Company (the
"Exchange Agent") certificates representing the HoldingCo Common Stock. Promptly
after the Effective Time, the Company shall cause the Exchange Agent to mail to
each of its Shareholders: (i) a letter of transmittal and (ii) instructions for
use in effecting the surrender of the Company Common Stock certificates in
exchange for the HoldingCo Common Stock certificates. After the Effective Time,
each
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shareholder of the Company as of the Effective Time shall surrender the
certificate or certificates representing the shares of Company Common Stock
owned by such person, duly endorsed as the Exchange Agent may require, together
with the transmittal materials properly and duly executed, to the Exchange
Agent, and shall promptly receive in exchange therefor a certificate
representing an equal number of shares of HoldingCo Common Stock. The Company
Common Stock certificates so surrendered shall forthwith be canceled. The
Company shall not be obligated to deliver the certificates representing the
HoldingCo Common Stock to any of its shareholders until they surrender their
certificate or certificates representing shares of Company Common Stock for
exchange as provided herein. Until surrendered for exchange in accordance with
this Agreement, each certificate representing shares of Company Common Stock
shall from and after the Effective Time represent for all purposes only the
right to receive an equal number of shares of HoldingCo Common Stock. Whenever a
dividend or other distribution is declared by the Company, the record date for
which is at or after the Effective Time, the declaration shall include dividends
or other distributions on all shares issuable pursuant to this Agreement, but no
dividend or other distribution payable to the holders of record of Company
Common Stock at or subsequent to the Effective Time shall be delivered to the
holder of any certificate representing shares of Company Common Stock issued and
outstanding at the Effective Time until such holder physically surrenders such
certificate for exchange as provided in this Agreement, promptly after which
time all such dividends or distributions shall be paid (without any interest
thereon).
ARTICLE VIII.
ACTIONS TO BE TAKEN IN CONNECTION WITH THE MERGER
8.1 ASSUMPTION OF PLANS AND AGREEMENTS. HoldingCo and the Company
hereby agree that they shall, at or prior to the Effective Time, execute,
acknowledge and deliver an assumption agreement pursuant to which HoldingCo
will, from and after the Effective Time, be substituted for, assume and agree to
perform, or cause the Company to perform, all obligations of the Company
existing immediately prior to the Effective Time pursuant to the Option Plans
and other agreements pertaining to the Company Common Stock as shall be deemed
appropriate by the officers of the Company. In connection with such assumption
and without further action by the shareholders of HoldingCo or the Company, the
Option Plans shall be amended such that all references to the Company and the
Shares shall become references to HoldingCo and HoldingCo Common Stock,
respectively.
8.2 COMPLIANCE WITH THE FBCA. Prior to the Effective Time, the parties
hereto will take all steps necessary to comply with Section 607.11045 of the
FBCA, including without limitation, the following:
(a) ARTICLES OF INCORPORATION AND BY-LAWS OF HOLDINGCO. At the
Effective Time, the Articles of Incorporation and By-Laws of HoldingCo shall be
in the form of the Articles of Incorporation and By-Laws of the Company, as in
effect immediately prior to the Effective Time, subject to the exceptions
permitted by Section 607.11045.
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(b) DIRECTORS AND OFFICERS OF HOLDINGCO. At the Effective
Time, the directors and officers of the Company immediately prior to the
Effective Time shall become the directors and officers of HoldingCo, in the case
of directors, until their successors are elected and qualified and, in the case
of officers, to serve at the pleasure of the Board of Directors of HoldingCo.
(c) LISTING OF HOLDINGCO COMMON STOCK. The HoldingCo Common
Stock to be issued and initially reserved for issuance pursuant to the
transactions contemplated herein shall have been approved for listing by the
Nasdaq Stock Market.
(d) FILINGS. Prior to the Effective Time, the Surviving
Corporation shall cause this Agreement to be executed and filed with the Florida
Secretary of State. Prior to the Effective Time, to the extent necessary to
effectuate the amendments to the Articles of Incorporation of the Surviving
Corporation contemplated by this Agreement, the Surviving Corporation shall
cause to be filed with the Florida Secretary of State such certificates or
documents required to give effect thereto.
ARTICLE IX.
CONDITIONS
The respective obligation of each party to effect the Merger is
subject to the satisfaction or waiver at or prior to the Effective Time of the
following condition: the shares of HoldingCo Common Stock issuable to the
shareholders of the Company pursuant to this Agreement shall have been
authorized for listing on the Nasdaq Stock Market.
ARTICLE X.
TERMINATION
This Agreement may be terminated and the Merger may be abandoned
at any time prior to the Effective Time by mutual written consent of the Company
and HoldingCo by action of their respective Boards of Directors.
ARTICLE XI.
MISCELLANEOUS AND GENERAL
11.1 MODIFICATION OR AMENDMENT. Subject to the provisions of applicable
law, at any time prior to the Effective Time, the parties hereto may modify or
amend this Agreement by written agreement approved by the respective parties'
Boards of Directors and executed and delivered by duly authorized officers of
the respective parties, except that no amendment shall alter or change the
amount or kind of shares to be received by shareholders of the Company or
otherwise alter or change any of the terms and conditions of this Agreement so
as to adversely affect the Company's shareholders.
11.2 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
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11.3 GOVERNING LAW. This Agreement shall be deemed to be made in and in
all respect shall be interpreted, construed and governed by and in accordance
with the laws of the State of Florida, without regard to the conflict of law
principles thereof.
11.4 SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or any
circumstance, is invalid or unenforceable, (a) a suitable and equitable
provision shall be substituted therefor in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the duly authorized officer of the parties hereto as of the date
first written above.
E COM VENTURES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇, Chairman of the Board and
Chief Executive Officer
PERFUMANIA, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇, Chairman of the Board and
Chief Executive Officer
E COM SUB, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇, Chairman of the Board and
Chief Executive Officer
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