Exhibit 2.3
ANNEX B
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("PLAN OF MERGER") dated June 28, 2000,
pursuant to Section 251 of the Delaware General Corporation Law, as amended (the
"DGCL"), is among iExalt, Inc., a Nevada corporation ("iEXALT"), PBH Combination
Corp., a Delaware corporation ("MERGER SUB"), and Premier Behavioral Healthcare,
Inc., a Delaware corporation ("PBH" or the "SURVIVING CORPORATION"). Merger Sub
and PBH are hereinafter together referred to as the "MERGING CORPORATIONS".
W I T N E S S E T H:
WHEREAS, iExalt is a corporation duly organized and validly existing under
the laws of the State of Nevada, and has authorized capital stock consisting of
(i) 100 million shares of common stock, $.001 par value per share ("iEXALT
COMMON STOCK"), of which 27,390,409 shares are issued and outstanding, and (ii)
20 million shares of Preferred Stock, $.001 par value per share, none of which
are issued or outstanding;
WHEREAS, Merger Sub is a corporation duly organized and validly existing
under the laws of the State of Delaware, and has authorized capital stock
consisting of 1,000 shares of common stock, $.01 par value per share ("MERGER
SUB COMMON STOCK"), of which 1,000 shares are issued and outstanding and owned
and held by iExalt;
WHEREAS, PBH is a corporation duly organized and validly existing under
the laws of the State of Delaware, and has authorized capital stock consisting
of 10,000 shares of common stock, $1.00 par value per share ("PBH COMMON
STOCK"), of which 778 shares are issued and outstanding and 272 shares are
issued and held in treasury;
WHEREAS, the respective Boards of Directors of the Merging Corporations
deem it advisable and in the best interests of the respective Merging
Corporations and their respective stockholders that Merger Sub be merged with
and into PBH (the "MERGER"), with PBH to be the surviving corporation of the
Merger and to continue in existence after the Merger as authorized by the laws
of the State of Delaware, under and pursuant to the terms and conditions set
forth in this Plan of Merger, and the Board of Directors of each of the Merging
Corporations has duly approved this Plan of Merger and recommended its approval
to the respective stockholders of the Merging Corporations; and
WHEREAS, simultaneously with the execution of this Plan of Merger, iExalt,
Merger Sub, PBH and the stockholders of PBH have entered into an Agreement and
Plan of Reorganization of even date herewith (the "REORGANIZATION AGREEMENT"),
which provides for, among other things, the execution of this Plan of Merger by
iExalt, Merger Sub and PBH;
NOW, THEREFORE, for the purpose of setting forth the terms and conditions
of the Merger, the mode of carrying the Merger into effect, and such other
details and provisions concerning the Merger as are deemed necessary or
desirable, the parties to this Plan of Merger
hereby agree, subject to the approval of this Plan of Merger by the requisite
consent of the stockholders of each of the Merging Corporations, and subject to
the conditions hereinafter set forth, as follows:
1. MERGER. At the Effective Time, Merger Sub shall be merged with and into
PBH, with PBH to be the surviving corporation which after the Effective Time
shall continue its corporate existence as a Delaware corporation to be governed
by the laws of the State of Delaware.
2. TERMS AND CONDITIONS OF MERGER. At the Effective Time:
(i) the Merging Corporations shall be a single corporation, which
shall be PBH, the corporation designated in this Plan of Merger as the
surviving corporation;
(ii) the separate corporate existence of Merger Sub shall cease; and
(iii) the Merger shall have the effects stated in Sections 259, 260
and 261 of the DGCL.
3. EFFECT OF THE MERGER ON CAPITAL STOCK. As of the Effective Time, as a
result of the Merger and without any action on the part of any holder thereof:
(i) each holder of PBH Common Stock which is issued and outstanding
immediately prior to the Effective Time shall automatically be entitled to
receive that number of shares of iExalt Common Stock set forth opposite
their respective names on SCHEDULE 3(I) attached hereto, for a total of
273,932 fully paid and nonassessable shares of issued and outstanding
iExalt Common Stock, plus the right to receive, if earned the Contingent
Shares described in paragraph (iv) below, and each holder's shares of PBH
Common Stock issued and outstanding immediately prior to the Effective
Time shall automatically cease to be outstanding and to exist, and shall
be canceled and retired;
(ii) each share of PBH Common Stock held in the treasury of PBH
shall be canceled and retired;
(iii) each share of Merger Sub Common Stock issued and outstanding
immediately prior to the Effective Time will be converted into one share
of Common Stock, par value $1.00 per share, of the Surviving Corporation,
and the shares of Common Stock of the Surviving Corporation resulting from
such conversion will constitute all of the issued and outstanding shares
of capital stock of the Surviving Corporation; and
(iv) in addition to the iExalt Common Stock issuable under Section
3(i) above, the holders of PBH Common Stock immediately prior to the
Effective Time shall be entitled to receive up to an additional 284,076
shares of iExalt Common Stock ("CONTINGENT SHARES") upon PremierCare,
L.L.C. (i) collecting certain accounts receivable within six months after
the Effective Time and (ii) achieving certain EBITDA levels during the
two-year period after
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the Effective Time, as is more fully described in Section 2.3 of the
Reorganization Agreement.
Upon and after the Effective Time, no transfer of shares of PBH Common
Stock issued and outstanding immediately before the Effective Time shall be made
on the stock transfer books of the Surviving Corporation.
Each holder of a certificate representing shares of PBH Common Stock
immediately before the Effective Time will, as of the Effective Time and
thereafter, cease to have any rights respecting those shares other than the
right to receive, without interest, the shares of iExalt Common Stock into which
his shares of PBH Common Stock shall have been converted as a result of the
Merger.
4. DELIVERY, EXCHANGE AND PAYMENT.
(A) SURRENDER OF CERTIFICATES. At or after the Effective Time: (i) each
holder of an outstanding certificate or certificates previously representing
shares of PBH Common Stock ("PBH STOCKHOLDER"), will, on surrender of his
certificate to iExalt, receive a certificate representing the number of shares
of iExalt Common Stock into which such shares of PBH Common Stock shall have
been converted as a result of the Merger, and (ii) until any certificate
representing PBH Common Stock is surrendered pursuant to this Section 4, that
certificate will, for all purposes, be deemed to evidence ownership of the
number of whole shares of iExalt Common Stock issuable in respect of that
certificate under Sections 3 and 5. All shares of iExalt Common Stock issuable
in the Merger will be deemed for all purposes to have been issued by iExalt at
the Effective Time.
(B) CERTAIN TRANSFERS. In the event of a transfer of ownership of shares
of PBH Common Stock that is not registered in the transfer records of PBH, the
certificate representing shares of iExalt Common Stock issuable in respect of
such shares of PBH Common Stock may be issued to a transferee if the certificate
representing such shares of PBH Common Stock is presented to iExalt's transfer
agent, accompanied by all documents required to evidence and effect such
transfer and by evidence satisfactory to iExalt and its transfer agent that any
applicable stock transfer taxes have been paid.
(C) LOST CERTIFICATES. If any certificate representing shares of PBH
Common Stock shall have been lost, stolen or destroyed, upon receipt of (i) an
affidavit of that fact from the PBH Stockholder claiming the certificate to be
lost, stolen or destroyed, (ii) such bond, security or indemnity as iExalt or
its transfer agent may reasonably require, and (iii) any other documentation
necessary to evidence and effect the bona fide exchange thereof, iExalt shall
cause its transfer agent to issue to such PBH Stockholder a certificate
representing the shares of iExalt Common Stock into which the shares of PBH
Common Stock represented by the lost, stolen or destroyed certificate would have
been exchanged.
(D) DIVIDENDS AND DISTRIBUTIONS. No dividends (or interest) or other
distributions declared or earned after the Effective Time with respect to iExalt
Common Stock and payable to the holders of record thereof after the Effective
Time will be paid to the holder of any unsurrendered
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certificate representing shares of PBH Common Stock for which shares of iExalt
Common Stock have been issued in the Merger until the unsurrendered certificates
are surrendered as provided herein, but (i) on such surrender, iExalt will cause
to be paid, to the person in whose name the certificate representing such shares
of iExalt Common Stock shall then be issued, the amount of dividends or other
distributions previously paid with respect to such whole shares of iExalt Common
Stock with a record date, or which have accrued, subsequent to the Effective
Time, but prior to surrender, and (ii) at the appropriate payment date or as
soon as practicable thereafter, iExalt will cause to be paid to that person the
amount of dividends or other distributions with a record date, or which have
been accrued, subsequent to the Effective Time, but which are not payable until
a date subsequent to surrender, which are payable with respect to such number of
whole shares of iExalt Common Stock, subject in all cases to any applicable
escheat laws. No interest will be payable with respect to the payment of such
dividends or other distributions on surrender of outstanding certificates.
5. NO FRACTIONAL SHARES. Notwithstanding any other provision of this Plan
of Merger, no certificates for fractional share interests of iExalt Common Stock
will be issued.
6. CERTIFICATE OF INCORPORATION, BYLAWS, DIRECTORS, COMMITTEES AND
OFFICERS.
(A) CERTIFICATE OF INCORPORATION. At the Effective Time, Article Fourth of
the Certificate of Incorporation of PBH shall be amended to read in its entirety
as follows:
"FOURTH: The total number of shares of all classes of stock which the
corporation shall have authority to issue is ten thousand (10,000) shares of
Common Stock of the par value of $.01 per share."
From and after the Effective Time, the Articles of Incorporation of PBH,
as existing immediately before the Effective Time and as so amended by this Plan
of Merger, shall be the Certificate of Incorporation of the Surviving
Corporation, subject to the right of the Surviving Corporation to amend its
Certificate of Incorporation after the Effective Time in accordance with such
Certificate of Incorporation and the DGCL.
(B) BYLAWS. From and after the Effective Time of the Merger, the bylaws of
PBH, as in effect immediately prior to the Effective Time of the Merger, shall
be the bylaws of the Surviving Corporation, until changed or amended as provided
therein.
(C) DIRECTORS. From and after the Effective Time, the directors of the
Surviving Corporation shall be Jack I. Tompkins, Kirwin L. Drouet, James W.
Carroll and Donald W. Sapaugh. If before the Effective Time, any one or more of
such persons dies or refuses or becomes unable to serve as a director, then the
remaining named persons shall be the directors of the Surviving Corporation from
and after the Effective Time. The directors of the Surviving Corporation shall
hold office subject to the provisions of the DGCL and the Certificate of
Incorporation and bylaws of the Surviving Corporation.
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(D) COMMITTEES. From and after the Effective Time, all committees of the
Board of Directors of the Surviving Corporation shall be as from time to time
established and appointed by the Board of Directors of the Surviving Corporation
after the Effective Time, subject to the provisions of the DGCL and the bylaws
of the Surviving Corporation.
(E) OFFICERS. From and after the Effective Time, the officers of the
Surviving Corporation shall be as set forth below:
Chief Executive Officer and President Jack I. Tompkins
Chief Operating Officer, Executive
Vice President and Assistant Secretary Kirwin L. Drouet
Chief Financial Officer, Vice
President and Secretary James W. Carroll
All other officers of the Surviving Corporation shall be as elected by its
Board of Directors at its first meeting following the Effective Time. From and
after the Effective Time, the officers of the Surviving Corporation shall hold
office subject to the provisions of the DGCL and the bylaws of the Surviving
Corporation.
7. APPROVAL AND EFFECTIVE TIME OF MERGER. This Plan of Merger shall be
submitted to the stockholders of each of the Merging Corporations as provided by
the DGCL. After the approval of this Plan of Merger by the stockholders of each
Merging Corporation in accordance with the requirements of the DGCL, all
required documents shall be executed, filed and recorded and all required acts
shall be done in order to accomplish the Merger under the provisions of the DGCL
and this Plan of Merger. The Merger shall become effective as of the Effective
Time set forth in the certificate of merger filed by the Surviving Corporation
with the Secretary of State of the State of Delaware (the "EFFECTIVE TIME").
8. OTHER PROVISIONS.
(A) FURTHER ASSURANCES. If at any time PBH shall consider or be advised
that any further assignment or assurance in law or other action is necessary or
desirable to vest, perfect or confirm, or record or otherwise, in PBH the title
to any property or rights of Merger Sub acquired or to be acquired by or as a
result of the Merger, the proper officers and directors of the Merging
Corporations, respectively, shall be, and they hereby are, severally and fully
authorized to execute and deliver such deeds, assignments and assurances in law
and take such other action as may be necessary or proper in the name of PBH or
Merger Sub to vest, perfect or confirm title to such property or rights in PBH
and otherwise carry out the purposes of this Plan of Merger.
(B) TERMINATION. This Plan of Merger may be terminated at any time before
the Effective Time of the Merger, whether before or after action thereon by the
stockholders of the Merging
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Corporations (if such stockholder approval is required), by mutual consent of
the Merging Corporations, expressed by action of their respective Boards of
Directors. This Plan of Merger shall be automatically abandoned upon the valid
termination of the Reorganization Agreement, in accordance with the terms
thereof, prior to the filing of the certificate of merger referred to in Section
7 of this Plan of Merger with the Secretary of State of the State of Delaware.
(C) COUNTERPARTS. For the convenience of the parties and to facilitate the
filing and recording of this Plan of Merger, any number of counterparts hereof
may be executed, and each such counterpart shall be deemed to be an original
instrument.
(D) AMENDMENTS. The Merging Corporations, by mutual consent of their
respective Boards of Directors, and to the extent permitted by law, may amend,
modify, supplement and interpret this Plan of Merger in such manner as may be
mutually agreed upon by them in writing at any time before or after adoption
thereof by their respective stockholders, and, in the case of an interpretation,
the actions of such Boards shall be binding.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Plan of Merger to
be executed as of the date first above written.
iEXALT, INC.
By: /s/ JACK I. TOMPKINS
Jack I. Tompkins,
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
PBH COMBINATION CORP.
By: /s/ JACK I. TOMPKINS
Jack I. Tompkins,
PRESIDENT
PREMIER BEHAVIORAL HEALTHCARE, INC.
By: /s/ DONALD W. SAPAUGH
Name: Donald W. Sapaugh
Title: CHAIRMAN
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