EXHIBIT 2.8
AGREEMENT AND PLAN OF MERGER
OF SVI SOLUTIONS, INC.,
A DELAWARE CORPORATION,
AND
SVI HOLDINGS, INC.,
A NEVADA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of February 20, 2001 (the
"Agreement") is between SVI Solutions Inc., a Delaware corporation ("SVI
Delaware"), and SVI Holdings, Inc., a Nevada corporation ("SVI Nevada"). SVI
Delaware and SVI Nevada are sometimes referred to herein as the "Constituent
Corporations."
RECITALS
A. SVI Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 105,000,000
shares, $0.0001 par value, of which 100,000,000 shares are designated "Common
Stock," and 5,000,000 shares are designated "Preferred Stock." The Preferred
Stock of SVI Delaware is undesignated as to series, rights, preferences,
privileges or restrictions. As of February 20, 2001, 100 shares of Common Stock
were issued and outstanding, all of which are held by SVI Nevada, and no shares
of Preferred Stock were issued and outstanding.
B. SVI Nevada is a corporation duly organized and existing under the
laws of the State of Nevada and has an authorized capital of 55,000,000 shares,
$0.0001 par value, of which 50,000,000 are designated "Common Stock," and
5,000,000 shares are designated "Preferred Stock." As of February 14, 2001,
37,306,699 shares of Common Stock were issued and outstanding, and no shares of
Preferred Stock were issued and outstanding.
C. The Board of Directors of SVI Nevada has determined that, for the
purpose of effecting the reincorporation of SVI Nevada in the State of Delaware,
it is advisable and in the best interests of SVI Nevada and its shareholders
that SVI Nevada merge with and into SVI Delaware upon the terms and conditions
herein provided.
D. The respective Boards of Directors of SVI Delaware and SVI Nevada
have approved this Agreement and have directed that this Agreement be submitted
to a vote of their respective shareholders and executed by the undersigned
officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, SVI Delaware and SVI Nevada hereby agree, subject to the terms
and conditions hereinafter set forth, as follows:
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I. MERGER
1.1 MERGER. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the Nevada Corporation Law, SVI Nevada
shall be merged with and into SVI Delaware (the "Merger"), the separate
existence of SVI Nevada shall cease and SVI Delaware shall survive the Merger
and shall continue to be governed by the laws of the State of Delaware, and SVI
Delaware shall be, and is herein sometimes referred to as, the "Surviving
Corporation," and the name of the Surviving Corporation shall be SVI Solutions,
Inc.
1.2 FILING AND EFFECTIVENESS. The Merger shall become effective when
the following actions shall have been completed:
(a) This Agreement and the Merger shall have been adopted and approved
by the shareholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the Nevada Corporation
Law;
(b) All of the conditions precedent to the consummation of the Merger
specified in this Agreement shall have been satisfied or duly waived by the
party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed, acknowledged and
certified counterpart of this Agreement meeting the requirements of the Delaware
General Corporation Law shall have been filed with the Secretary of State of the
State of Delaware; and
(d) An executed Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the Nevada Corporation Law shall have
been filed with the Secretary of State of the State of Nevada.
The date and time when the Merger shall become effective, as aforesaid,
is herein called the "Effective Date of the Merger."
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the
separate existence of SVI Nevada shall cease and SVI Delaware, as the Surviving
Corporation, (i) shall continue to possess all of its assets, rights, powers and
property as constituted immediately prior to the Effective Date of the Merger,
(ii) shall be subject to all actions previously taken by its and SVI Nevada's
Boards of Directors, (iii) shall succeed, without other transfer, to all of the
assets, rights, powers and property of SVI Nevada in the manner as more fully
set forth in Section 259 of the Delaware General Corporation Law, (iv) shall
continue to be subject to all of its debts, liabilities and obligations as
constituted immediately prior to the Effective Date of the Merger, and (v) shall
succeed, without other transfer, to all of the debts, liabilities and
obligations of SVI Nevada in the same manner as if SVI Delaware had itself
incurred them, all as more fully provided under the applicable provisions of the
Delaware General Corporation Law and the Nevada General Corporation Law.
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II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Restated Certificate of
Incorporation of SVI Delaware as in effect immediately prior to the Effective
Date of the Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2 BYLAWS. The Restated Bylaws of SVI Delaware as in effect
immediately prior to the Effective Date of the Merger shall continue in full
force and effect as the Bylaws of the Surviving Corporation until duly amended
in accordance with the provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of SVI Nevada
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their respective successors shall
have been duly elected and qualified or until as otherwise provided by law, or
the Certificate of Incorporation of the Surviving Corporation or the Bylaws of
the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 SVI NEVADA COMMON STOCK. Upon the Effective Date of the Merger,
each share of SVI Nevada Common Stock, $0.0001 par value, issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by the Constituent Corporations, the holder of such shares or any other person,
be changed and converted into and exchanged for one fully paid and nonassessable
share of Common Stock, $0.0001 par value, of the Surviving Corporation.
3.2 SVI NEVADA PREFERRED STOCK. Upon the Effective Date of the Merger,
each share of SVI Nevada Preferred Stock issued and outstanding immediately
prior thereto shall, by virtue of the Merger and without any action by the
Constituent Corporations, the holder of such shares or any other person, be
changed and converted into and exchanged for one fully paid and non-assessable
share of Preferred Stock of the Surviving Corporation, of the same series and
with the same relative rights, preferences and limitations as the SVI Nevada
Preferred Stock so converted. If required by the Delaware General Corporation
Law, the Surviving Corporation shall file a certificate of designation with the
Secretary of State of Delaware upon the Effective Date of the Merger to reflect
the relative rights, preferences and limitations of the Preferred Stock of the
Surviving Corporation so issued.
3.3 SVI NEVADA OPTIONS AND STOCK PURCHASE RIGHTS. Upon the Effective
Date of the Merger, the Surviving Corporation shall assume and continue the
stock option plans (including without limitation the Incentive Stock Option Plan
and the 1998 Incentive Stock Plan) and all other employee benefit plans
(including without limitation the 401(k) Plan) of SVI Nevada. Each outstanding
and unexercised option or other right to purchase or security convertible into
SVI Nevada Common Stock shall become an option or right to purchase or a
security convertible into the Surviving Corporation's Common Stock on the basis
of one share of the Surviving Corporation's Common Stock for each share of SVI
Nevada Common Stock issuable pursuant to any such option, stock purchase right
or convertible security, on the same terms and conditions and at an exercise
price per share equal to the exercise price applicable to any such SVI Nevada
option, stock purchase right or convertible security at the Effective Date of
the Merger. There are no options, purchase rights for or securities convertible
into Preferred Stock of SVI Nevada.
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A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options, stock purchase rights or
convertible securities equal to the number of shares of SVI Nevada Common Stock
so reserved immediately prior to the Effective Date of the Merger.
3.4 SVI DELAWARE COMMON STOCK. Upon the Effective Date of the Merger,
each share of Common Stock, $0.0001 par value, of SVI Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by SVI Delaware, the holder of such shares or any other person, be
canceled and returned to the status of authorized but unissued shares.
3.5 EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of SVI Nevada
Common Stock or Preferred Stock may be asked to surrender the same for
cancellation to an exchange agent, whose name will be delivered to such holders
prior to any requested exchange (the "Exchange Agent"), and each such holder
shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of the Surviving Corporation's Common Stock or
Preferred Stock, as the case may be, into which such holders' shares of SVI
Nevada Common Stock or Preferred Stock were converted as herein provided. Unless
and until so surrendered, each outstanding certificate theretofore representing
shares of SVI Nevada Common Stock or Preferred Stock shall be deemed for all
purposes to represent the number of whole shares of the Surviving Corporation's
Common Stock or Preferred Stock, as the case may be, into which such shares of
SVI Nevada Common Stock or Preferred Stock were converted in the Merger.
The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any shares of stock represented by such
outstanding certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to the
Surviving Corporation or the Exchange Agent, have and be entitled to exercise
any voting and other rights with respect to and to receive dividends and other
distributions upon the shares of Common Stock or Preferred Stock of the
Surviving Corporation represented by such outstanding certificate as provided
above.
Each certificate representing Common Stock or Preferred Stock of the
Surviving Corporation so issued in the Merger shall bear the same legends, if
any, with respect to the restrictions on transferability as the certificates of
SVI Nevada so converted and given in exchange therefor, unless otherwise
determined by the Board of Directors of the Surviving Corporation in compliance
with applicable laws.
If any certificate for shares of SVI Delaware 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 issuance thereof that the certificate
so surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and that the person requesting
such transfer pay to SVI Delaware or the Exchange Agent any transfer or other
taxes payable by reason of the issuance of such new certificate in a name other
than that of the registered holder of the certificate surrendered or establish
to the satisfaction of SVI Delaware that such tax has been paid or is not
payable.
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IV. GENERAL
4.1 COVENANTS OF SVI DELAWARE. SVI Delaware covenants and agrees that
it will, on or before the Effective Date of the Merger:
(a) Qualify to do business as a foreign corporation in the State of
California and in connection therewith irrevocably appoint an agent for service
of process as required under the provisions of Section 2105 of the California
General Corporation Law;
(b) File any and all documents with the California Franchise Tax Board
necessary for the assumption by SVI Delaware of all of the franchise tax
liabilities of SVI Nevada; and
(c) Take such other actions as may be required by the California
General Corporation Law or the Nevada Corporation Law.
4.2 FURTHER ASSURANCES. From time to time, as and when required by SVI
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of SVI Nevada such deeds and other instruments, and there shall be
taken or caused to be taken by SVI Delaware and SVI Nevada such further and
other actions, as shall be appropriate or necessary in order to vest or perfect
in or conform of record or otherwise by SVI Delaware the title to and possession
of all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of SVI Nevada and otherwise to carry out the purposes
of this Agreement, and the officers and directors of SVI Delaware are fully
authorized in the name and on behalf of SVI Nevada or otherwise to take any and
all such action and to execute and deliver any and all such deeds and other
instruments.
4.3 ABANDONMENT. At any time before the filing of this Agreement with
the Secretary of State of the State of Delaware, this Agreement may be
terminated and the Merger may be abandoned for any reason whatsoever by the
Board of Directors of either SVI Nevada or SVI Delaware, or both,
notwithstanding the approval of this Agreement by the shareholders of SVI Nevada
or by the sole stockholder of SVI Delaware, or by both.
4.4 AMENDMENT. The Boards of Directors of the Constituent Corporations
may amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretaries of State of the States of
Nevada and Delaware, provided that an amendment made subsequent to the adoption
and approval of this Agreement and the Merger by the shareholders of either
Constituent Corporation shall not: (1) alter or change the amount or kind of
shares, securities, cash, property and/or rights to be received in exchange for
or on conversion of all or any of the shares of any class or series thereof of
such Constituent Corporation, (2) alter or change any term of the Certificate of
Incorporation of the Surviving Corporation to be effected by the Merger, or (3)
alter or change any of the terms and conditions of this Agreement, if in the
case of clause (2) or (3) such alteration or change would adversely affect the
holders of any class of shares or series thereof of such Constituent
Corporation.
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4.5 REGISTERED OFFICE. The registered office of the Surviving
Corporation in the State of Delaware is located at Corporation Trust Center,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, in the City of ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, County of New
Castle, and The Corporation Trust Company is the registered agent of the
Surviving Corporation at such address.
4.6 AGREEMENT. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and copies thereof will be
furnished to any shareholder of either Constituent Corporation, upon request and
without cost.
4.7 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 Delaware and, so far as applicable, the merger provisions of the Nevada
General Corporation Law.
4.8 COUNTERPARTS. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of SVI Delaware and SVI Nevada, is hereby
executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
SVI SOLUTIONS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
ATTEST:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
SVI HOLDINGS, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chairman of the Board of Directors
ATTEST:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
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