EXHIBIT 2.2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of the 30th day of June, 2001,
pursuant to Section 253 of the Delaware General Corporation Law (the "DGCL") and
Section 607.1104 of the Florida Business Corporation Act (the "FBCA"), between
MSU Corporation, a Florida corporation having its principal place of business at
0000 X. Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxx 00000 (the "Company"), and MSU
Acquisition Corporation, a Delaware corporation having its principal place of
business at 0000 X. Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxx 00000 (the "MSU
Subco").
W I T N E S S E T H :
WHEREAS, the Company is a corporation duly organized and existing under
the laws of the State of Florida with total authorized capital stock of Fifty
Million (50,000,000) shares of common stock, $.01 par value per share (the
"Company Common Stock").
WHEREAS, MSU Subco is a corporation duly organized and existing under
the laws of the State of Delaware and will have, effective at the Effective Date
(as defined below) total authorized capital stock of One Hundred Twenty Million
(120,000,000) shares of common stock, $.01 par value per share (the "Surviving
Company Common Stock") and Five Million (5,000,000) shares of preferred stock,
$.01 par value per share.
WHEREAS, the Board of Directors of the Company has adopted resolutions
approving this Agreement and Plan of Merger.
WHEREAS, the Company is the only stockholder of MSU Subco.
NOW THEREFORE, in consideration of the foregoing and the undertakings
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. MERGER. The Company shall be merged with and into MSU Subco pursuant
to Section 253 of the DGCL and Section 607.1104 of the FBCA. Upon the Effective
Date the surviving company shall survive the merger herein contemplated with the
name "MSU Devices Inc." and shall continue to be governed by the laws of the
State of Delaware (the "Surviving Company"). The separate corporate existence of
the Company and MSU Subco shall cease forthwith upon the Effective Date. The
merger of the Company with and into MSU Subco resulting in the Surviving Company
shall hereinafter be referred to as the "Merger."
2. EFFECTIVE DATE. The Merger shall be effective upon (i) the filing of
an appropriate certificate of merger with the Secretary of State of the State of
Delaware in accordance with the DGCL; and (ii) the filing of appropriate
articles of merger with the Secretary of State of the State of Florida in
accordance with the FBCA, which filings shall be
made as soon as practicable after all required stockholder approvals have been
obtained. The time of such effectiveness shall hereinafter be referred to as the
"Effective Date."
3. COMMON STOCK OF THE COMPANY. On the Effective Date, by virtue of the
Merger and without any action on the part of the holders thereof, each share of
Company Common Stock shall cease to exist and shall be changed and converted
into one fully paid and non-assessable share of the Surviving Company Common
Stock.
4. STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of Company
Common Stock shall be deemed for all purposes to evidence ownership of and to
represent the shares of the Surviving Company Common Stock into which the shares
of the Company represented by such certificates have been converted as herein
provided. The registered owner on the books and records of the Surviving Company
or its transfer agent of any such outstanding stock certificate shall, until
such Certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Company or its transfer agent, have and
be entitled to exercise any voting and other rights with respect to and to
receive any dividend and other distributions upon the shares of the Surviving
Company evidenced by such outstanding certificate as above provided. On request,
the Surviving Company will issue new certificates to anyone who holds stock
certificates of the Company. Any request for new certificates will be subject to
normal stock transfer requirements including proper endorsement, signature
guarantee, if required, and payment of applicable taxes.
5. SUCCESSION. On the Effective Date, the Surviving Company shall
succeed to all of the rights, privileges, debts, liabilities, powers and
property of the Company in the manner of and as more fully set forth in Section
259 of the DGCL. Without limiting the foregoing, upon the Effective Date, all
property, rights, privileges, franchises, patents, trademarks, licenses,
registrations, and other assets of every kind and description of the company
shall be transferred to, vested in and devolved upon the Surviving Company
without further act or deed and all property, rights, and every other interest
of the Company and the Surviving Company shall be as effectively the property of
the Surviving Company as they were of the Company and the Surviving Company,
respectively. All rights of creditors of the Company and all liens upon any
property of the Company shall be preserved unimpaired, and all debts,
liabilities and duties of the Company shall attach to the Surviving Company and
may be enforced against it to the same extent as if said debts, liabilities and
duties had been incurred or contracted by it.
6. CERTIFICATE OF INCORPORATION AND BYLAWS. From and after the
Effective Date, the Certificate of Incorporation, in the form of Exhibit A
hereto, and Bylaws, in the form of Exhibit B hereto, of MSU Subco shall continue
in full force and effect as to the Surviving Company until further amended in
accordance with the provisions thereof and applicable law.
7. DIRECTORS AND OFFICERS. The members of the Board of Directors and
the officers of the Surviving Company on the Effective Date shall continue in
office until the expiration of their respective terms of office and until their
successors have been elected and qualified.
8. FURTHER ASSURANCES. From time to time, as and when required by the
Surviving Company or by its successors and assigns, there shall be executed and
delivered on behalf of the Company such deeds and other instruments, and there
shall be taken or caused to be taken by it such further and other action as
shall be appropriate or necessary in order to best or perfect in or to confirm
of record or otherwise in the Surviving Company the title to and possession of
all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of the Company, and otherwise to carry out the purposes
of this Agreement and Plan of Merger, and the officers and directors of the
Company are fully authorized in the name and on behalf of the Company or
otherwise to take any and all such action and to execute and deliver any and all
such deeds and other instruments.
9. ABANDONMENT. Notwithstanding the approval of this Agreement and Plan
of Merger by the stockholders of the Company or by the sole stockholder of the
Surviving Company, at any time before the Effective Date, (a) this Agreement and
Plan of Merger may be terminated and the Merger may be abandoned by the Board of
Directors of either the Company or the Surviving Company or both, including by
reason of a determination, in the sole discretion of either Board of Directors,
that holders of an unacceptable number of shares intend to exercise their
statutory appraisal rights pursuant to Section 607.1320 of the FBCA, or (b) the
consummation of the Merger may be deferred for a reasonable period of time if,
in the opinion of the Board of Directors of the Company and the Surviving
Company, such action would be in the best interests of such corporation. In the
event of termination of this Agreement and Plan of Merger, this Agreement and
Plan of Merger shall become void and of no effect and there shall be no
liability on the part of either corporation or their respective Board of
Directors or stockholders with respect thereto, except that the Company shall
pay all expenses incurred in connection with the Merger or in respect of this
Agreement and Plan of Merger or relating thereto.
10. CONDITIONS TO MERGER. The obligation of the corporations to effect
the transactions contemplated hereby is subject to satisfaction of the following
conditions (any or all of which may be waived by either of the corporations in
its sole discretion to the extent permitted by law):
(a) the Merger shall have been approved by the stockholders of the
Company in accordance with applicable provisions of the FBCA;
(b) the Company, as sole stockholder of the MSU Subco, shall have
approved the Merger in accordance with the DGCL provisions
governing mergers between a subsidiary and a parent, when the
parent owns 90% of the shares of the subsidiary, and the
stockholders of the Company shall have approved the Merger in
accordance with the FBCA; and
(c) any and all consents, permits, authorizations, approvals, and
orders deemed in the sole discretion of the Company to be
material to the consummation of the Merger shall have been
obtained.
11. AMENDMENT. This Agreement and Plan of Merger may be amended by the
Board of Directors of the Company and the Surviving Company at any time prior to
the Effective Date, provided that an amendment made subsequent to the approval
of this Agreement and Plan of Merger by either the stockholders of the Company
or the sole stockholder of the Surviving Company 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 corporation, (2) alter or change any term of the
Certificate of Incorporation of the Surviving Company to be effected by the
Merger or (3) alter or change any of the terms and conditions of this Agreement
and Plan of Merger if such alteration or change would adversely affect the
holders of any class or series of the stock of such corporation.
12. GOVERNING LAW. This Agreement and Plan of Merger and the legal
relations between the parties shall be governed by and construed in accordance
with the internal laws of the State of Delaware ("Delaware Law"). Where the
provisions this Agreement would be inconsistent with Delaware Law, such
provisions shall be governed by and construed in accordance with the internal
laws of the State of Florida.
13. DISSENTERS' RIGHTS. Stockholders of the Company who dissent from
the Merger pursuant to Section 607.1320 of the FBCA may be entitled, if they
comply with the provisions of the FBCA regarding the rights of dissenting
stockholders, to be paid the fair value of their shares.
14. COUNTERPARTS. In order to facilitate the filing and recording of
this Agreement and Plan of Merger, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original.
* * *
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
hereunto duly authorized, as of the date first above written.
MSU CORPORATION
a Florida corporation
By: /s/ D. Xxxxx Xxxxxx
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Name: D. Xxxxx Xxxxxx
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Title: President/ Chief Executive Officer
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MSU ACQUISITION CORPORATION
a Delaware corporation
By: /s/ D. Xxxxx Xxxxxx
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Name: D. Xxxxx Xxxxxx
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Title: President
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