EXHIBIT 2.11
AGREEMENT AND PLAN OF MERGER
THIS PLAN AND AGREEMENT OF MERGER, dated as of October 29, 1998 (the
"Agreement"), is entered into between TRAVEL SERVICES GROUP, INC., a Florida
corporation ("FLORIDA"), and TRAVEL SERVICES INTERNATIONAL, INC., a Delaware
corporation ("DELAWARE").
A. DELAWARE has an aggregate authorized capital of 51,000,000 shares of
capital stock, consisting of (i) 50,000,000 shares of common stock, $0.01 par
value (the "Delaware Common Stock") of which 2,484,501 shares have been
designated as Restricted Voting Common Stock (the "Delaware Restricted Common
Stock") and 47,515,499 remain undesignated (the "Delaware Non-restricted Common
Stock"), and (ii) 1,000,000 shares of preferred stock, par value $0.01 per share
(the "Delaware Preferred Stock").
B. FLORIDA has an aggregate authorized capital of 51,000,000 shares of
capital stock, consisting of (i) 50,000,000 shares of common stock, $0.01 par
value (the "Florida Common Stock") of which 1,900,331 shares have been
designated as Restricted Voting Common Stock (the "Florida Restricted Common
Stock") and 48,099,669 remain undesignated (the "Florida Non-restricted Common
Stock"), and (ii) 1,000,000 shares of preferred stock, par value $0.01 per share
(the "Florida Preferred Stock").
C. The respective Boards of Directors of FLORIDA and DELAWARE believe
that it is in the best interests of FLORIDA and DELAWARE and their respective
shareholders to merge DELAWARE with and into FLORIDA under and pursuant to the
provisions of this Agreement, the Delaware General Corporation Law and the
Florida Business Corporation Act.
AGREEMENT
In consideration of the Recitals and of the mutual agreements contained
in this Agreement, the parties hereto agree as set forth below.
1. MERGER. DELAWARE shall be merged with and into FLORIDA (the
"Merger").
2. EFFECTIVE DATE. The Merger shall become effective immediately upon
the later of the filing of this Agreement or a certificate of merger with the
Secretary of State of Delaware in accordance with the Delaware General
Corporation Law and the filing of articles of merger with the Secretary of State
of Florida in accordance with the Florida Business Corporation Act (the
"Articles of Merger"). The time of such effectiveness is hereinafter called the
"Effective Date."
3. SURVIVING CORPORATION. FLORIDA shall be the surviving corporation of
the Merger and shall continue to be governed by the laws of the State of
Florida. On the Effective Date, the separate corporate existence of DELAWARE
shall cease.
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4. ARTICLES OF INCORPORATION. The Articles of Incorporation of FLORIDA
as it exists on the Effective Date shall be the Articles of Incorporation of
FLORIDA following the Effective Date, unless and until the same shall thereafter
be amended or repealed in accordance with the laws of the State of Florida;
provided, however, that pursuant to and upon the filing of the Articles of
Merger the name of FLORIDA shall be changed to "Travel Services International,
Inc."
5. BYLAWS. The Bylaws of FLORIDA as they exist on the Effective Date
shall be the Bylaws of FLORIDA following the Effective Date, unless and until
the same shall be amended or repealed in accordance with the provisions thereof
and the laws of the State of Florida.
6. BOARD OF DIRECTORS AND OFFICERS. The members of the Board of
Directors and the officers of DELAWARE immediately prior to the Effective Date
shall be the members of the Board of Directors and the officers of FLORIDA
following the Effective Date, and such persons shall serve in such offices for
the terms provided by law or in Florida's Articles of Incorporation and Bylaws,
or until their respective successors are elected and qualified.
7. RETIREMENT OF OUTSTANDING FLORIDA STOCK. Upon the Effective Date,
each of the 100 shares of the FLORIDA Common Stock presently issued and
outstanding shall be retired, and no shares of FLORIDA Common Stock or other
securities of FLORIDA shall be issued in respect thereof.
8. CONVERSION OF OUTSTANDING DELAWARE STOCK. Upon the Effective Date,
each issued and outstanding share of Delaware Restricted Common Stock and all
rights in respect thereof shall be converted into one fully-paid and
nonassessable share of Florida Restricted Common Stock, and each certificate
representing shares of Delaware Restricted Common Stock shall for all purposes
be deemed to evidence the ownership of the same number of shares of Florida
Restricted Common Stock as are set forth in such certificate. After the
Effective Date, each holder of an outstanding certificate representing shares of
Delaware Restricted Common Stock may, at such shareholder's option, surrender
the same to Florida's registrar and transfer agent for cancellation, and each
such holder shall be entitled to receive in exchange therefor a certificate
evidencing the ownership of the same number of shares of Florida Restricted
Common Stock as are represented by the DELAWARE certificate surrendered to
Florida's registrar and transfer agent.
Upon the Effective Date, each issued and outstanding share of Delaware
Non-restricted Common Stock and all rights in respect thereof shall be converted
into one fully-paid and nonassessable share of Florida Non-restricted Common
Stock, and each certificate representing shares of Delaware Non-restricted
Common Stock shall for all purposes be deemed to evidence the ownership of the
same number of shares of Florida Non-restricted Common Stock as are set forth in
such certificate. After the Effective Date, each holder of an outstanding
certificate representing shares of Delaware Non-restricted Common Stock may, at
such shareholder's option, surrender the same to Florida's registrar and
transfer agent for cancellation, and each such holder shall be entitled to
receive in exchange therefor a certificate evidencing the ownership of
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the same number of shares of Florida Non-restricted Common Stock as are
represented by the DELAWARE certificate surrendered to Florida's registrar and
transfer agent.
9. CONDITIONS TO CONSUMMATION OF THE MERGER. Consummation of the Merger
is subject to the satisfaction prior to the Effective Date of the following
conditions: (a) This Agreement and the Merger shall have been adopted and
approved by the affirmative vote of the holders of a majority of the votes
represented by the shares of Delaware Common Stock outstanding on the record
date fixed for determining the shareholders of DELAWARE entitled to vote
thereon; (b) DELAWARE and FLORIDA shall have received all consents, orders and
approvals and satisfaction of all other requirements prescribed by law that are
necessary for the consummation of the Merger; and (c) The Nasdaq Stock Market
shall have authorized the listing, upon official notice of issuance, of the
shares of Florida Common Stock to be issued or delivered in connection with the
Merger and such authorization shall be in full force and effect on such date.
10. STOCK OPTIONS. Upon the Effective Date, each stock option and other
right to subscribe for or purchase shares of Delaware Common Stock shall be
converted into a stock option or other right to subscribe for or purchase the
same number of shares of Florida Common Stock and each certificate, agreement,
note or other document representing such stock option or other right to
subscribe for or purchase shares of Delaware Common Stock shall for all purposes
be deemed to evidence the ownership of a stock option or other right to
subscribe for or purchase shares of Florida Common Stock.
11. RIGHTS AND LIABILITIES OF FLORIDA. At and after the Effective Date,
and all in the manner of and as more fully set forth in Section 607.1106 of the
Florida Business Corporation Act and Section 259 of the Delaware General
Corporation Law, the title to all real estate and other property, or any
interest therein, owned by each of DELAWARE and FLORIDA shall be vested in
FLORIDA without reversion or impairment; FLORIDA shall succeed to and possess,
without further act or deed, all estates, rights, privileges, powers and
franchises, both public and private, and all of the property, real, personal and
mixed, of each of DELAWARE and FLORIDA without reversion or impairment; FLORIDA
shall thenceforth be responsible and liable for all the liabilities and
obligations of each of DELAWARE and FLORIDA; any claim existing or action or
proceeding pending by or against DELAWARE or FLORIDA may be continued as if the
Merger did not occur or FLORIDA may be substituted for DELAWARE in the
proceeding; neither the rights of creditors nor any liens upon the property of
DELAWARE or FLORIDA shall be impaired by the Merger, and FLORIDA shall indemnify
and hold harmless the officers and directors of each of the parties hereto
against all such debts, liabilities and duties and against all claims and
demands arising out of the Merger.
12. TERMINATION. This Agreement may be terminated and abandoned by
action of the respective Board of Directors of DELAWARE or FLORIDA at any time
prior to the Effective Date, whether before or after approval by the
shareholders of either or both of the parties hereto.
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13. AMENDMENT. The Boards of Directors of the parties hereto may amend
this Agreement at any time prior to the Effective Date; provided, that an
amendment made subsequent to the approval of this Agreement by the shareholders
of either of the parties hereto shall not: (a) change the amount or kind of
shares, securities, cash, property or rights to be received in exchange for or
on conversion of all or any of the shares of the parties hereto, (b) change any
term of the Articles of Incorporation of FLORIDA or (c) change any other terms
or conditions of this Agreement if such change would adversely affect the
holders of any capital stock of either party hereto.
14. INSPECTION OF AGREEMENT. Executed copies of this Agreement will be
on file at the principal place of business of FLORIDA at 000 Xxxxxxxx Xxxx
Xxxxx, Xxxxxx Xxxxx, Xxxxxxx 00000. A copy of this Agreement shall be furnished
by FLORIDA, on request and without cost, to any shareholder of either DELAWARE
or FLORIDA.
15. GOVERNING LAW. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Florida.
16. SERVICE OF PROCESS. On and after the Effective Date, FLORIDA agrees
that it may be served with process in Delaware in any proceeding for enforcement
of any obligation of DELAWARE or FLORIDA arising from the Merger.
17. DESIGNATION OF DELAWARE SECRETARY OF STATE AS AGENT FOR SERVICE OF
PROCESS. On and after the Effective Date, FLORIDA irrevocably appoints the
Secretary of State of Delaware as its agent to accept service of process in any
suit or other proceeding to enforce the rights of any shareholders of DELAWARE
or FLORIDA arising from the Merger. The Delaware Secretary of State is requested
to mail a copy of any such process to FLORIDA at 000 Xxxxxxxx Xxxx Xxxxx, Xxxxxx
Xxxxx, Xxxxxxx 00000, Attention: President.
18. REMEDIES. Any rights and remedies belonging to DELAWARE or FLORIDA
and arising in connection with the actions contemplated by this Agreement shall
be pursued solely against DELAWARE or FLORIDA, and not against their respective
officers, directors or employees. In the event that any officer, director or
employee of DELAWARE or FLORIDA becomes involved in any capacity in any action,
proceeding or investigation in connection with the Merger or this Agreement,
DELAWARE and/or FLORIDA may advance to such person(s) all reasonable legal and
other expenses incurred in connection therewith and shall also indemnify such
person(s) against any losses, claims, damages or liabilities to which such
person(s) may become subject in connection with the Merger or this Agreement,
except to the extent that such indemnification is prohibited by law.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement and Plan of Merger to be executed on its behalf by its officers duly
authorized, all as of the date first above written.
TRAVEL SERVICES GROUP, INC., a Florida
corporation
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: XXXXXX X. XXXXXXXX
Title: CHIEF EXECUTIVE OFFICER
TRAVEL SERVICES INTERNATIONAL, INC., a
Delaware corporation
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: XXXXXX X. XXXXXXXX
Title: CHIEF EXECUTIVE OFFICER
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