Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and entered
into as of the 1st day of April, 1999, by and among LITCHFIELD FINANCIAL
CORPORATION, a Massachusetts corporation ("Litchfield"), STAMFORD BUSINESS
CREDIT CORPORATION, a Delaware corporation and a wholly-owned subsidiary of
Litchfield ("Stamford"), and LAND FINANCE CORPORATION., a Georgia corporation
("Land"). Stamford and Land are hereinafter sometimes referred to
individually as a "Merging Corporation" and collectively as the "Merging
Corporations."
W I T N E S S E T H:
WHEREAS, the Boards of Directors of Litchfield and Land have approved
the acquisition of Land by Litchfield; and
WHEREAS, the Boards of Directors of Litchfield, Stamford and Land have
approved the merger of Land into Stamford (the "Merger"), pursuant to the
provisions set forth in this Agreement and the transactions contemplated
hereby, in accordance with the applicable provisions of the statutes of the
States of Delaware and Georgia, which permit such Merger; and
WHEREAS, for federal income tax purposes, it is intended that the Merger
shall qualify as a reorganization within the meaning of Sections 368(a)(1)(A)
and 368(a)(2)(D) of the Internal Revenue Code of 1986, as amended (the
"Code"); and
WHEREAS, each of the parties to this Agreement desires to make certain
representations, warranties and agreements in connection with the Merger and
also to describe various conditions.
NOW, THEREFORE, for and in consideration of the mutual agreements,
promises and covenants contained herein, the Merging Corporations do hereby
agree, subject to the approval and adoption of the Agreement by the
respective shareholders of all of the Merging Corporations, as hereinafter
provided.
I.
NAMES OF MERGING AND
SURVIVING CORPORATIONS
The names of the corporations proposing to merge are Stamford Business
Credit Corporation, a Delaware corporation, and Land Finance Corporation, a
Georgia corporation. Stamford shall be the Surviving Corporation. Upon the
Effective Date of Merger (as hereinafter defined), the name of the Surviving
Corporation shall be "Stamford Business Credit Corporation."
II.
TERMS AND CONDITIONS
OF PROPOSED MERGER
A. The acts and things required to be done by the Georgia Business
Corporation Code ("GBCC") in order to make the Agreement effective,
including, but not limited to, the submission of this Agreement for the
consent of the shareholders of Stamford and Land to the adoption and approval
of this Agreement, the execution of a Certificate of Merger, the filing of
the Certificate of Merger and the publication of the notice of such merger in
the manner provided under the GBCC, shall be attended to and done by the
proper officers of the Merging Corporations.
B. This merger of Land into Stamford shall be effective on the later
of April 1, 1999 or the filing of the Certificate of Merger with the
Secretary of State of Georgia ("Effective Date of Merger").
C. This Agreement may be terminated by the mutual consent of the
Boards of Directors of both of the Merging Corporations at any time prior to
the issuance of a Certificate of Merger by the Secretary of State of Georgia.
III.
ARTICLES OF INCORPORATION, DIRECTORS
AND OFFICERS OF SURVIVING CORPORATION
The Articles of Incorporation of the Surviving Corporation shall not be
changed in any manner as a result of this merger. The By-Laws of the
Surviving Corporation shall not be changed in any manner as a result of this
merger. From and after the Effective Date of Merger, the directors and
officers of Stamford shall be the directors and officers of the Surviving
Corporation
IV.
MANNER AND BASIS OF CONVERSION
OF SHARES OF STOCK
A. Upon the Effective Date of Merger, by virtue of the Merger and
without any action on the part of any holder of any capital stock of Land,
the manner and basis of converting the shares of stock of Land into shares of
stock of Stamford shall be as follows:
(1) all shares of Common Stock, no par value per share, of Land
("Land Common Stock") owned by Litchfield or any subsidiary of
Litchfield or Land shall be canceled and shall cease to exist from and
after the Effective Date of Merger; and
(2) the remaining 16,020 issued and outstanding shares of Land
Common Stock, shall be converted into, and become exchangeable for,
9,092 shares of validly issued, fully paid and nonassessable common
stock, without par value, of Litchfield owned by Stamford ("Litchfield
Common Stock"). Each owner of Land Common Stock will receive Litchfield
Common Stock in proportion to his or her current ownership of Land
Common Stock, or .5675 shares of Litchfield Common Stock for each share
of Land Common Stock. The consideration referred to in this Section A
is hereinafter referred to as the "Merger Consideration."
B. At the Effective Date of Merger, by virtue of the Merger and
without any action on the part of any holder of any capital stock of
Stamford, each issued and outstanding share of common stock of Stamford shall
continue unchanged and remain outstanding as a share of common stock of the
Surviving Corporation.
C. The exchange of capital stock certificates shall take place as
follows:
(1) As soon as practical after the Effective Date of Merger,
Litchfield shall make available to the Exchange Agent the certificates
representing shares of Litchfield Common Stock required to effect the
exchange referred to in Section C(2) of this Article IV. Shares of
Litchfield Common Stock into which shares of Land Common Stock shall be
converted in the Merger shall be deemed to have been issued at the
Effective Date of Merger.
(2) As soon as practical after the Effective Date of Merger, each
holder of a certificate of Land Common Stock, shall receive in exchange
therefor, upon surrender thereof to Lawler & Tanner, P.C. (the "Exchange
Agent"), a certificate or certificates representing the number of shares
of Litchfield Common Stock into which such holder's shares of Land
Common Stock were converted pursuant to Section A hereof. Until so
surrendered, each such outstanding certificate of Land Common Stock
shall be deemed for all corporate purposes to evidence the applicable
ownership interest of the number of shares of Litchfield Common Stock.
D. From and after the Effective Date of Merger, the stock transfer
books of Land shall be closed and no transfer of shares of Land Common Stock
shall thereafter be made. If, after the Effective Date of Merger, Land
Certificates are presented to Litchfield, they shall be canceled and
exchanged for the Merger Consideration in accordance with the procedures set
forth in this Article IV.
IV.
CONTINUITY OF INTEREST
A. The holders of Land Common Stock represent and warrant that they,
individually, have, and as of the Effective Date of Merger will have, no
present plan, intention or arrangement to sell, transfer or otherwise dispose
of a number of shares of Litchfield Common Stock to be received in the Merger
that would reduce former Land's shareholders' ownership of Litchfield Common
Stock to a number of shares having a value, as of the date of the Merger, of
less than fifty percent (50%) of the value of all of the issued and
outstanding capital stock of Land immediately prior to the Effective Date of
Merger.
B. Each holder of Land Common Stock agrees that prior to the Effective
Date of Merger, he or she will not sell, transfer, or otherwise dispose of
any Land Common Stock without the consent of all the other holders of Land
Common Stock.
C. Each Land shareholder agrees that, for a period of one year after
the Effective Date of Merger (the "Post-Merger Continuity Period"), he or she
will not sell, transfer or otherwise dispose of any Litchfield Common Stock
without the consent of all the other pre-merger holders of Land.
V.
REPRESENTATIONS AND WARRANTIES
A. Representations and Warranties of Litchfield and Stamford.
Litchfield and Stamford make the following warranties and representations to
Land, its successors and assigns, each of which is true and correct as of the
date of this Agreement and on and as of the Effective Date of Merger, with
the understanding that all of the warranties and representations contained
herein shall survive the Effective Date of Merger:
(1) Litchfield and Stamford are duly organized, validly existing
and in good standing under the laws of the jurisdictions of
incorporation or organization; Litchfield and Stamford have the full
corporate power, authority and legal right to execute and deliver this
Agreement and all other documents and instruments contemplated hereby,
to perform their respective obligations and to comply with the terms and
conditions hereunder and thereunder; this Agreement and all documents
and instruments contemplated hereby have been duly executed and
delivered and constitute the valid, legal, binding and enforceable
obligations of Litchfield and Stamford, regardless of whether such
enforcement is sought in a proceeding in equity or at law; and all
requisite corporate action has been taken by Litchfield and Stamford to
make this Agreement and all other documents and instruments contemplated
hereby valid and binding upon Litchfield and Stamford in accordance with
their terms;
(2) The consummation of the Merger contemplated by this Agreement
will not conflict with or result in a breach of any of the terms,
conditions or provisions of Litchfield's or Stamford's organizational
documents or any legal restriction or any agreement or instrument to
which Litchfield and Stamford is now a party or by which each is bound,
or constitute a default or result in an acceleration under any of the
foregoing, or result in the violation of any law, rule, regulation,
order, judgment or decree to which Litchfield, Stamford or any of their
property is subject;
(3) No consent of any other party and no consent, approval,
authorization or order of, or registration or filing with, or notice to
any court or governmental agency or body is required for the
consummation of the Merger by Litchfield or Stamford, or if required,
such approval has been obtained;
(4) Both Litchfield and Stamford have made all requisite filings
with the Securities and Exchange Commission ("SEC Filings"); and such
filings contain true and accurate information in all material respects;
and
(5) Litchfield and Stamford understand and agree that Land,
without independent investigation, is relying upon the above
representations and warranties in contemplating the Merger. Litchfield
and Stamford further agree that the foregoing representations and
warranties shall be continuing in nature and shall remain in full force
and effect after the Merger.
B. Representations and Warranties of Land. Land makes the following
warranties and representations to Litchfield and Stamford, their successors
and assigns, each of which is true and correct as of the date of this
Agreement and on and as of the Effective Date of Merger, with the
understanding that all of the warranties and representations contained herein
shall survive the Effective Date of Merger:
(1) Land is duly organized and validly existing under the laws of
the jurisdiction of incorporation or organization; Land has the full
corporate power, authority and legal right to execute and deliver this
Agreement and all other documents and instruments contemplated hereby,
to perform its obligations and to comply with the terms and conditions
hereunder and thereunder; this Agreement and all documents and
instruments contemplated hereby have been duly executed and delivered
and constitute the valid, legal, binding and enforceable obligations of
Land, regardless of whether such enforcement is sought in a proceeding
in equity or at law; and all requisite corporate action has been taken
by Land to make this Agreement and all other documents and instruments
contemplated hereby valid and binding upon Land in accordance with their
terms;
(2) The consummation of the Merger contemplated by this Agreement
will not conflict with or result in a breach of any of the terms,
conditions or provisions of Land's organizational documents or any legal
restriction or any agreement or instrument to which Land is now a party
or by which it is bound, or constitute a default or result in an
acceleration under any of the foregoing, or result in the violation of
any law, rule, regulation, order, judgment or decree to which Land or
any of its property is subject;
(3) No consent of any other party and no consent, approval,
authorization or order of, or registration or filing with, or notice to
any court or governmental agency or body is required for the
consummation of the Merger by Land, or if required, such approval has
been obtained;
(4) The authorized capital stock of Land Finance consists solely
of one hundred thousand (100,000) shares of Land Finance Common Stock,
of which twenty-two thousand three hundred fifty-three and one-third
(22,353 1/3) shares are outstanding. All of the issued and outstanding
shares of Land Finance Common Stock are duly authorized and validly
issued, and are fully paid, non-assessable and free of preemptive
rights; and
(5) Land Finance has no subsidiaries.
VI.
EFFECT OF MERGER
Upon the Effective Date of Merger:
A. The separate existence of Land shall cease.
B. The Surviving Corporation shall possess all the rights, privileges,
immunities and powers and shall be subject to all of the duties and
liabilities of a corporation organized under the laws of the State of
Delaware.
C. The Surviving Corporation shall possess all the rights, privileges,
immunities and franchises, whether of a public or a private nature, of all of
the Merging Corporations.
D. All property, real, personal and mixed, and all debts due on
whatever account, including subscriptions to shares, and all other choses in
action, and all and every other interest of or belonging to or due to all of
the Merging Corporations shall be taken and deemed to be transferred to and
vested in the Surviving Corporation without further act or deed.
E. The title to any real estate, or any interest therein, vested in
any of the Merging Corporations, shall not revert or be in any way impaired
by reason of the merger.
F. The Surviving Corporation shall thenceforth be responsible and
liable for all the liabilities and obligations of all of the Merging
Corporations.
G. Any claims existing or actions or proceedings pending by or against
any of the Merging Corporations may be prosecuted as if the merger had not
taken place, or the Surviving Corporation may be substituted in its place.
H. Neither the rights of creditors nor any liens upon the property of
any of the Merging Corporations shall be impaired by the Merger.
VII.
SERVICE OF PROCESS
The Surviving Corporation may be served with process in the State of
Georgia in any proceeding of enforcement of any obligation of Land, as well
as for enforcement of any obligation of the Surviving Corporation arising
from the merger.
VIII.
PLAN OF REORGANIZATION
The Merging Corporations hereby adopt a plan of reorganization pursuant
to the provisions of Sections 368(a)(1)(A) and 368(a)(2)(D) of the Internal
Revenue Code of 1986, as amended, to be effectuated in the manner herein set
forth.
IX.
GENERAL PROVISIONS
A. Land agrees that from time to time, as and when requested by
Stamford or by its successors or assigns, it will execute and deliver, or
cause to be executed and delivered, all such deeds and other instruments, and
will take or cause to be taken such further or other action, as the Surviving
Corporation may deem necessary or desirable, in order more fully to vest in
and confirm to the Surviving Corporation title to and possession of all
property, rights, privileges, powers and franchises of Land and otherwise to
carry out the intent and purposes of this Agreement.
B. Any number of counterparts of this Agreement may be signed and
delivered and each shall be considered an original and together they shall
constitute one agreement.
C. This Agreement shall be construed and performed in accordance with
the laws of the State of Georgia. The rights and liabilities of the parties
shall bind and inure to the benefit of their respective successors and
assigns.
D. This Agreement constitutes the entire agreement among the parties
pertaining to its subject matter and supersedes all prior agreements and
understandings of the parties in connection therewith. This Agreement cannot
be changed or terminated orally, nor shall any change, termination or
attempted waiver of any of the provisions of this Agreement be binding on any
Merging Corporation unless in writing signed by its President.
[the remainder of this page is intentionally left blank]
IN WITNESS WHEREOF, all of the Merging Corporations have caused this
Agreement and Plan of Merger to be executed on their behalf and their
respective corporate seals affixed and the foregoing attested, all by their
dully authorized officers on the day and year first above specified.
LITCHFIELD FINANCIAL CORPORATION, a
Massachusetts corporation
By:/s/ Joseph S. Weingarten
Name: Joseph S. Weingarten
Title: Executive Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
STAMFORD BUSINESS CREDIT CORPORATION, a
Delaware corporation
By:/s/ Joseph S. Weingarten
Name: Joseph S. Weingarten
Title: Executive Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]