EXHIBIT 2.3
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER is entered into as of June 11, 2002 by
CENTIV, INC., a Georgia corporation ("Centiv-Georgia"), and CENTIV, INC., a
Delaware corporation and a wholly owned subsidiary of Centiv-Georgia
("Centiv-Delaware" and, together with Centiv-Georgia, the "Constituent
Corporations").
WHEREAS, Centiv-Georgia has authorized capital stock consisting of
35,000,000 shares of Class A Common Stock, par value $.001 per share, and
5,000,000 shares of Preferred Stock, par value $.001 per share, of which
4,956,535 shares of Class A Common Stock and 1,000,000 shares of Series A
Convertible Preferred Stock are issued and outstanding as of the
date hereof; and
WHEREAS, Centiv-Delaware has authorized capital stock consisting of
35,000,000 shares of Common Stock, par value $.001 per share, and 5,000,000
shares of Preferred Stock, par value $.001 per share, of which 1,000 shares of
Common Stock are issued and outstanding as of the date hereof and 1,000,000
shares of Preferred Stock have been designated as Series A Convertible Preferred
Stock pursuant to a Certificate of Designations, Preferences and Rights; and
WHEREAS, the Boards of Directors of the respective Constituent Corporations
have determined that it is advisable that Centiv-Georgia be merged with and into
Centiv-Delaware and that Centiv-Delaware shall continue as the surviving
corporation on the terms and conditions hereinafter set forth in accordance with
the applicable provisions of the laws of the
States of Georgia and Delaware;
NOW, THEREFORE, the parties to this Agreement agree as follows:
1. THE MERGER
Centiv-Georgia and Centiv-Delaware shall be merged into a single
corporation in accordance with the applicable provisions of the laws of the
State of Georgia and the State of Delaware by Centiv-Georgia merging with and
into Centiv-Delaware, and Centiv-Delaware shall continue as the surviving
corporation under the name Centiv, Inc. (the "Surviving Corporation").
2. EFFECT OF THE MERGER
2.1 The merger shall become effective as provided in the applicable
laws of the State of Georgia and the State of Delaware (the time when the merger
shall become effective being sometimes referred to herein as the "Effective
Time").
2.2 At the Effective Time:
(a) Centiv-Delaware shall be the Surviving Corporation, and the
separate existence of Centiv-Georgia shall cease, except to the extent provided
by the laws of the State of Georgia in the case of a corporation after its
merger with and into another corporation;
(b) The Surviving Corporation shall, without further transfer or
other action on the part of the Constituent Corporation, succeed to and
thereafter possess and enjoy all of the rights, privileges, immunities, powers
and franchises, of a public as well as of a private nature, of each of the
Constituent Corporations, and be subject to all of the restrictions,
disabilities and duties of each of the Constituent Corporations, and all
property, real, personal and mixed, of and all debts due to each of the
Constituent Corporations on whatever account, and all things in actions, and all
and every other interest of, or belonging or due to, each of the Constituent
Corporations shall be taken and deemed to be transferred to and vested in the
Surviving Corporation; and the title to any real estate, or any interest
therein, vested by deed or otherwise in either of the Constituent Corporations
shall not revert or be in any way impaired by reason of this merger. Without
limiting the generality of the foregoing, the Surviving Corporation shall assume
and continue all employee profit sharing or benefit plans of Centiv-Georgia, and
said plans shall not be terminated as a result of the merger.
(c) All rights of creditors and all liens, if any, upon the
property of either of the Constituent Corporations shall be preserved unimpaired
by the merger, and all debts, liabilities, obligations and duties of either of
the Constituent Corporations shall become the responsibility and liability of
the Surviving Corporation, and may be enforced against it
to the same extent as if such debts, liabilities, obligations and duties had
been incurred or contracted by it.
(d) All corporate acts, plans, policies, arrangements, approvals
and authorizations of Centiv-Georgia, its shareholders, Board of Directors,
officers and agents, which were valid and effective immediately prior to the
Effective Time, shall be taken for all purposes as the acts, plans, policies,
arrangements, approvals and authorizations of the Surviving Corporation and
shall be effective and binding thereon as the same were with respect to
Centiv-Georgia.
3. CERTIFICATE OF INCORPORATION
The Certificate of Incorporation including the Certificate of Designations,
Preferences and Rights of Centiv-Delaware shall constitute the Certificate of
Incorporation of the Surviving Corporation, subject always to the right of the
Surviving Corporation to amend its Certificate of Incorporation or Certificate
of Designations, Preferences and Rights in accordance with the laws of the State
of Delaware and the provisions of the Certificate of Incorporation or the
Certificate of Designations, Preferences and Rights and the Bylaws of the
Surviving Corporation.
4. BYLAWS
The Bylaws of Centiv-Delaware in effect at the Effective Time shall
constitute the Bylaws of the Surviving Corporation until altered, amended or
repealed in accordance with the provisions of the laws of the State of Delaware
and the Certificate of Incorporation and Bylaws of the Surviving Corporation.
5. DIRECTORS AND OFFICERS
The directors of the Surviving Corporation shall be comprised of: Xxxxxx X.
Xxxxxxxxx (Class I), Xxx Xxxx (Class I), Xxxxxx X. Xxxxx (Class II), Xxxxx
Xxxxxx (Class II), Xxxxxx Xxxxx (Class III) and Xxxxxxx X. Xxxxxx (Class III)
each to hold office for his or her elected or appointed term and until his or
her successor shall have been elected and shall have qualified
or until his earlier resignation or removal as provided for in the Certificate
of Incorporation and Bylaws of the Surviving Corporation. The officers of
Centiv-Georgia in office at the Effective Time shall continue in office as the
officers of the Surviving Corporation, each to hold office for his or her
elected or appointed term and until his or her successor shall have been elected
and shall have qualified or until his earlier resignation or removal as provided
for in the Certificate of
Incorporation and Bylaws of the Surviving Corporation.
6. CONVERSION OF SHARES
The manner and basis of converting the shares of Centiv-Georgia into shares
of the Surviving Corporation, and the cancellation and retirement of shares of
Centiv-Delaware shall be as follows:
6.1 The 1,000 shares of Common Stock, par value $.001 per share, of
Centiv-Delaware (all of which are owned of record and beneficially by
Centiv-Georgia) shall be cancelled.
6.2 Each share of Class A Common Stock, par value $.001 per share, of
Centiv-Georgia issued and outstanding or held in its treasury at the Effective
Time shall forthwith and without the surrender of stock certificates or any
other action, be converted into one fully paid and nonassessable share of Common
Stock, par value $.001 per share, of the Surviving Corporation. Outstanding
certificates representing shares of Centiv-Georgia Class A Common Stock shall
thereafter represent the same number of shares of Common Stock of the Surviving
Corporation.
6.3 After the Effective Time, each holder of a certificate representing
shares of outstanding Centiv-Georgia Class A Common Stock may, but shall not be
required to, surrender the same to American Stock Transfer and Trust Company, or
its successor, as transfer agent for the Centiv-Georgia Class A Common Stock and
the Common Stock of the Surviving Corporation, and upon such surrender such
holder shall be entitled to receive a certificate or certificates issued by the
Surviving Corporation for the number of shares of Common Stock represented by
the surrendered certificate. The Surviving Corporation shall be entitled to rely
upon the stock records of Centiv-Georgia as to the ownership of shares of its
Class A Common Stock at the Effective Time. If any stockholder of the Surviving
Corporation cannot produce the certificate or certificates theretofore
evidencing the ownership of shares of Centiv-Georgia, he shall be required to
proceed in regard thereto as he would have had to do were he under like
circumstances applying for the issuance of a new certificate of Centiv-Delaware.
6.4 Each share of Series A Convertible Preferred Stock, par value $.001
per share, of Centiv-Georgia issued and outstanding or held in its treasury at
the Effective Time shall forthwith and without the surrender of stock
certificates or any other action, be converted into one fully paid and
nonassessable share of Series A Convertible Preferred Stock, par value $.001 per
share, of the Surviving Corporation. Outstanding certificates representing
shares of Centiv-Georgia Series A Convertible Preferred Stock shall thereafter
represent the same number of shares of Series A Convertible Preferred Stock of
the Surviving Corporation.
6.5 After the Effective Time, each holder of a certificate representing
shares of outstanding Centiv-Georgia Series A Convertible Preferred Stock may,
but shall not be required to, surrender the same to the Surviving Corporation,
or, if the Surviving Corporation so designates, to American Stock Transfer and
Trust Company, or its successor, as transfer agent for the Centiv-Georgia Class
A Common Stock and the Common Stock of the Surviving Corporation, and upon such
surrender such holder shall be entitled to receive a certificate or certificates
issued by the Surviving Corporation for the number of shares of Series A
Convertible Preferred Stock represented by the surrendered certificate. The
Surviving Corporation shall be entitled to rely upon the stock records of
Centiv-Georgia as to the ownership of shares of its Series A Convertible
Preferred Stock at the Effective Time. If any stockholder of the Surviving
Corporation cannot produce the certificate or certificates theretofore
evidencing the ownership of shares of Centiv-Georgia, he shall be required to
proceed in regard thereto as he would have had to do were he under like
circumstances applying for the issuance of a new certificate of Centiv-Delaware.
6.6 To the extent an outstanding warrant provides for the issuance or
purchase of, or otherwise relates to, Centiv-Georgia Class A Common Stock or
Series A Convertible Preferred Stock after the Effective Time, such warrant
shall be assumed by the Surviving Corporation and deemed to provide for the
issuance or purchase of, or otherwise relate to, Common Stock or Series A
Convertible Preferred Stock, as applicable, of the Surviving Corporation.
References in any warrant to Centiv-Georgia shall be deemed to refer to the
Surviving Corporation. As of the Effective Time, the Surviving Corporation shall
reserve shares of its authorized and unissued Common Stock and Series A
Convertible Preferred Stock that may be issued for purposes of the warrants in
numbers equal to the number of shares of Centiv-Georgia Class A Common Stock and
Series A Convertible Preferred Stock that were reserved by Centiv-Georgia for
purposes of the warrants immediately prior to the Effective Time.
6.7 Centiv-Georgia shall not make any transfers on its stock books
after the Effective Time.
7. EMPLOYEE BENEFIT PLANS
At the Effective Time, each employee stock option, stock appreciation
right, incentive, savings and investment, profit sharing and pension plan to
which Centiv-Georgia is then a party (the "Plans") shall be assumed by, and
continue to be the Plans of, the Surviving Corporation. To the extent any Plan
provides for the issuance or purchase of, or otherwise relates to,
Centiv-Georgia Class A Common Stock after the Effective Time, such Plan shall be
deemed to provide for the issuance or purchase of, or otherwise relate to,
Common Stock of the Surviving Corporation. References in any Plan to
Centiv-Georgia shall be deemed to refer to the Surviving Corporation. As of the
Effective Time, the Surviving Corporation shall reserve shares of its authorized
and unissued Common Stock that may be issued for purposes of the Plans in
numbers equal to the number of shares of Centiv-Georgia Class A Common Stock
that were reserved by Centiv-Georgia for purposes of the Plans immediately prior
to the Effective Time.
8. EXPENSES OF MERGER
The Surviving Corporation shall pay all unpaid expenses of carrying this
Agreement into effect and accomplishing the merger provided for herein.
9. FURTHER ASSURANCES
If at any time the Surviving Corporation shall consider or be advised that
any further assignment or assurance in law is necessary or desirable to vest in
the Surviving Corporation the title to any property or rights Centiv-Georgia,
the proper officers and directors of Centiv-Georgia shall, and will, execute and
make all such proper assignments and assurances in law and otherwise to carry
out the purposes of this Agreement, and the proper officers and directors of the
Surviving Corporation are fully authorized in the name of Centiv-Georgia, or
otherwise, to take any and all such actions.
10. APPROVAL BY SHAREHOLDERS; AMENDMENT; TERMINATION
10.1 This Agreement shall be submitted to the shareholders of each of the
Constituent Corporations, as provided by law, and it shall take effect and be
deemed to be taken to be the Agreement and Plan of Merger of the Constituent
Corporations upon the approval or adoption thereof by the shareholders of each
of the Constituent Corporations, in accordance with the requirements of the laws
of the State of Georgia and the State of Delaware, and upon the execution,
filing and recording of such documents and the doing of such other acts and
things as shall be required for accomplishing the merger under the provisions of
the applicable statutes of the State of Georgia and the State of Delaware.
10.2 This Agreement may be amended prior to the Effective Time by action of
the respective Boards of Directors of the Constituent Corporations without
action by the shareholders of either Constituent Corporation, except that the
holders of a majority of the Centiv-Georgia Class A Common Stock must approve
any amendment (i) to Sections 6.1 or 6.2 of this Agreement, (ii) changing the
terms, rights, powers or preferences of Centiv-Delaware Common Stock or (iii)
altering any terms of this Agreement, if such alteration would affect the
holders of the Class A Common Stock of Centiv-Georgia, and the holders of a
majority of the Centiv-Georgia Series A Convertible Preferred Stock must approve
any amendment (i) to Section 6.4 of this Agreement, (ii) changing the terms,
rights, powers or preferences of Centiv-Delaware Series A Convertible Preferred
Stock or (iii) altering any terms of this Agreement, if such alteration would
affect the holders of the Series A Convertible Preferred Stock of Centiv-
Georgia.
10.3 At any time prior to the Effective Time, this Agreement may be
terminated and abandoned by Centiv-Georgia by appropriate resolution of its
Board of Directors, notwithstanding the approval of this Agreement by the
shareholders thereof. In the event of termination and abandonment, this
Agreement shall become void and have no effect, without any liability on the
part of either of the Constituent Corporations, or its
shareholders, directors or officers in respect thereof.
11. CERTAIN AGREEMENTS OF CENTIV-DELAWARE
11.1 Centiv-Delaware, as the Surviving Corporation, hereby agrees that
it may be served with process in the State of Georgia in any proceeding for the
enforcement of any obligation of Centiv-Georgia or of the rights of a dissenting
shareholder of Centiv-Georgia.
11.2 Centiv-Delaware, as the Surviving Corporation, hereby irrevocably
appoints the Secretary of the State of Georgia as its agent to accept service of
process in any proceeding described in Section 11.1.
11.3 Centiv-Delaware, as the Surviving Corporation, hereby agrees that
it will promptly pay to dissenting shareholders, if any, of Centiv-Georgia the
amount, if any, to which they shall be entitled pursuant to the laws of the
State of Georgia.
12. MISCELLANEOUS
12.1 This Agreement may be executed in any number of counterparts, each of
which shall be an original, but such counterparts shall together constitute but
one and the same instrument.
12.2 The Board of Directors and the proper officers of Centiv-Georgia and
Centiv-Delaware are hereby authorized, empowered and directed to do any and all
acts and things, and to make, execute, deliver, file and record any and all
instruments, papers and documents that shall be or become necessary, proper or
convenient to carry out or put into effect any
of the provisions of this Agreement or of the merger.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each of the Constituent Corporations, has caused this
Agreement to be executed on its behalf by its officers thereunto duly
authorized, all as of the day and year first above written.
CENTIV, INC., A GEORGIA
CORPORATION
/s/ Xxxxxxx X. Xxxxxx
------------------------
By: Xxxxxxx X. Xxxxxx
Its: President
CENTIV, INC., A DELAWARE
CORPORATION
/s/ Xxxxxxx X. Xxxxxx
------------------------
By: Xxxxxxx X. Xxxxxx
Its: President
