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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
AMONG
XXXXXXXXXX.XXX, INC.
ENVISION DEVELOPMENT CORPORATION
AND
EDC SUB, INC.
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated February 8,
2000 is made and entered into by and among xxxxxxxxxx.xxx, inc., a Florida
corporation (the "Company"), Envision Development Corporation, a Florida
corporation and a wholly-owned subsidiary of the Company ("HoldingCo"), and EDC
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 1.
THE MERGER; EFFECTIVE TIME
1.1 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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1.2 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 10, 2000 (the "Effective Time").
ARTICLE II.
ARTICLES OF INCORPORATION AND BYLAWS OF THE SURVIVING
CORPORATION
2.1 Articles of Incorporation. The amended and restated articles of
incorporation of the Company in effect immediately prior to the Effective Time
shall be the articles of incorporation of the Surviving Corporation, except they
shall be amended as provided herein (as amended the "Articles of
Incorporation"), until duly amended as provided therein or by applicable law,
and the following amendment thereto shall become effective as of the Effective
Time:
A new Article IX 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 Envision
Development Corporation, a Florida corporation which is the parent
corporation of this Corporation, or the successor by merger of Envision
Development Corporation, by the same vote as is required under the
Florida Business Corporation Act or these Articles of Incorporation.
2.2 The Bylaws. The bylaws of the Company in effect at the Effective
Time shall be the bylaws of the Surviving Corporation (the "Bylaws"), until
thereafter amended as provided therein or otherwise in accordance with
applicable law.
ARTICLE III.
OFFICERS AND DIRECTORS OF THE SURVIVING CORPORATION AND
HOLDINGCO AFTER THE EFFECTIVE TIME
3.1 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.
3.2 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 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.
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ARTICLE IV.
EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES
4.1 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 1999 Incentive Stock Option Plan (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 Option 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 V.
ACTIONS TO BE TAKEN IN CONNECTION WITH THE MERGER
5.1 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.
5.2 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 Bylaws of HoldingCo. At the Effective
Time, the Articles of Incorporation and Bylaws of HoldingCo shall be in the form
of the Articles of Incorporation and Bylaws 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 American Stock
Exchange, or the HoldingCo shall have determined that approval for listing is
not required.
(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 VI.
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 American Stock Exchange, unless the HoldingCo has determined that approval
for listing is not required.
ARTICLE VII.
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 VIII.
MISCELLANEOUS AND GENERAL
8.1 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.
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8.2 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.
8.3 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.
8.4 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.
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.
XXXXXXXXXX.XXX, INC.
By: /s/ XXXXXXX X. PATCH
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Xxxxxxx X. Patch, President and
Chief Operating Officer
EDC SUB, INC.
By: /s/ XXXXXXX X. PATCH
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Xxxxxxx X. Patch, President and
Chief Operating Officer
ENVISION DEVELOPMENT CORPORATION
By: /s/ XXXXXXX X. PATCH
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Xxxxxxx X. Patch, President and
Chief Operating Officer
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