EXHIBIT 2.1
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER ("Agreement"), dated as of the ________
day of _______, 1996, is made and entered into by and between Westmark Group
Holdings, Inc., a Colorado corporation (the "Company"), and Westmark Group
Holdings, Inc.-Delaware, a Delaware corporation ("Westmark-Delaware").
W I T N E S S E T H:
WHEREAS, the Company is a corporation organized and existing under the
laws of the State of Colorado, having been incorporated on first day of
December, 1986; and
WHEREAS, Westmark-Delaware is a wholly-owned subsidiary corporation of the
Company, having been incorporated on the _____ day of ______, 1996; and
WHEREAS, the respective Boards of Directors of the Company and
WestmarkDelaware determined that it is desirable to merge the Company into
Westmark-Delaware ("Merger").
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that the
Company shall be merged into Westmark-Delaware upon the terms and conditions
hereinafter set forth.
ARTICLE I
MERGER
On the effective date of the Merger ("Effective Date") as provided herein,
the Company shall be merged into Westmark-Delaware, the separate existence of
the Company shall cease, and Westmark-Delaware ("Surviving Corporation") shall
continue to exist under the name of Westmark Group Holdings, Inc. by virtue of,
and shall be governed by, the laws of the State of Delaware. The filing of this
Agreement with the Delaware Secretary of State shall effect the name change of
Westmark Group Holdings, Inc.-Delaware to Westmark Group Holdings, Inc., and
this shall be in lieu of filing an amendment to the WestmarkDelaware Certificate
of Incorporation. The address of The Prentice-Hall Corporation System, Inc., the
registered office of the Surviving Corporation in the State of Delaware, is 32
Loockerman Square, Suite L100, Dover, Kent County, Delaware 19901. The Company
appoints the Colorado Secretary of State to be the Company's registered agent in
the State of Colorado.
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ARTICLE II
ARTICLES OF INCORPORATION OF SURVIVING CORPORATION
The Articles of Incorporation of the Surviving Corporation shall be the
Certificate of Incorporation of Westmark-Delaware ("Delaware Charter") as in
effect on the date hereof without change unless and until amended in accordance
with applicable law.
ARTICLE III
BYLAWS OF THE SURVIVING CORPORATION
The Bylaws of the Surviving Corporation shall be the Bylaws of
Westmark-Delaware ("Delaware Bylaws") as in effect on the date hereof without
change unless and until amended in accordance with applicable law.
ARTICLE IV
EFFECT OF MERGER ON STOCK OF CONSTITUENT CORPORATIONS
4.01. On the Effective Date, each outstanding share of common stock of the
Company, no par value ("Common Stock"), shall be converted into one share of
WestmarkDelaware common stock, par value .001 ("Delaware Common Stock"), except
for those shares with respect to which the holders thereto duly exercise their
dissenters' rights pursuant to Title 7, Article 113 of the Colorado Revised
Statutes Annotated ("CRSA"), and each outstanding share of Delaware Common Stock
held by the Company shall be retired and cancelled.
4.02. On the Effective Date, each outstanding share of preferred stock of
the Company ("Preferred Stock") shall be converted into one share of Delaware
preferred stock, par value .001 ("Delaware Preferred Stock"), except for those
shares with respect to which the holders thereto duly exercise their dissenters'
rights pursuant to Title 7, Article 113 of the CRSA, and each outstanding share
of Delaware Preferred Stock held by the Company shall be retired and cancelled.
4.03. After the Effective Date, certificates representing shares of the
Common Stock will represent shares of Delaware Common Stock. Each holder of a
certificate or certificates representing one or more shares of Common Stock,
upon surrender of the same to the transfer agent or the Company, shall be
entitled to receive in exchange therefor a certificate or certificates
representing one or more shares of Delaware Common Stock.
4.04. After the Effective Date, certificates representing shares of the
Preferred Stock will represent shares of Delaware Preferred Stock. Each holder
of a certificate or certificates representing one or more shares of Preferred
Stock, upon surrender of the same to the transfer agent or the Company, shall be
entitled to receive in exchange therefor a certificate or certificates
representing one or more shares of Delaware Preferred Stock.
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ARTICLE V
CORPORATE EXISTENCE, POWERS AND
LIABILITIES OF SURVIVING CORPORATIONS
5.01. On the Effective Date, the separate existence of the Company shall
cease. The Company shall be merged with and into Westmark-Delaware, the
Surviving Corporation, in accordance with the provisions of this Agreement.
Thereafter, WestmarkDelaware shall possess all the rights, privileges, powers,
and franchises of a public as well as of a private nature, and shall be subject
to all the restrictions, disabilities, and duties of each of the parties to this
Agreement; and all and singular, the rights, privileges, powers, and franchises
of the Company and Westmark-Delaware, and all property, real, personal, and
mixed, and all debts due to each of them on whatever account, shall be vested in
WestmarkDelaware; and all property, rights, privileges, powers, and franchises,
and all and every other interest shall be thereafter as effectually the property
of Westmark-Delaware, the Surviving Corporation, as they were of the respective
constituent entities, and the title to any real estate, whether by deed or
otherwise, vested in the Company and Westmark-Delaware or either of them, shall
not revert or be in any way impaired by reason of the Merger; but all rights of
creditors and all liens upon the property of the parties hereto, shall be
preserved unimpaired, and all debts, liabilities and duties of the Company,
shall thenceforth attach to Westmark-Delaware, and may be enforced against it to
the same extent as if said debts, liabilities, and duties had been incurred or
contracted by it.
5.02. The Company agrees that 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 in order to vest in and confirm to the Surviving Corporation
title to and possession of all the property, rights, privileges, immunities,
powers, purposes and franchises, and all and every other interest, of the
Company and otherwise to carry out the intent and purposes of this Agreement.
ARTICLE VI
OFFICERS AND DIRECTORS OF SURVIVING CORPORATION
6.01. Upon the Effective Date, the officers and/or directors of the
Surviving Corporation shall be the officers and/or directors of
Westmark-Delaware in office at such date, and such persons shall hold office in
accordance with the Delaware Bylaws until their respective successors shall have
been appointed or elected.
6.02. If, upon the Effective Date, a vacancy shall exist in the Board of
Directors of the Surviving Corporation, such vacancy shall be filled in the
manner provided by the Delaware Bylaws.
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ARTICLE VII
APPROVAL BY SHAREHOLDERS; EFFECTIVE DATE;
CONDUCT OF BUSINESS PRIOR TO EFFECTIVE DATE
7.01. Soon after the approval of this Agreement by the requisite number of
shareholders of the Company, the respective Boards of Directors of the Company
and Westmark-Delaware will cause their duly authorized officers to make and
execute Articles of Merger effecting this Agreement and shall cause the same to
be filed with the Secretaries of State of Colorado and Delaware, respectively,
in accordance with the CRSA and Delaware General Corporation Law ("DGCL"). The
Effective Date shall be the date on which the Merger becomes effective under the
DGCL.
7.02. The Boards of Directors of the Company and Westmark-Delaware may
amend this Agreement and the Delaware Charter at any time prior to the Effective
Date, provided that an amendment made subsequent to the approval of the Merger
by the shareholders of the Company may not (i) change the amount or type of
shares to be received in exchange for or on conversion of the shares of the
capital stock, (ii) change any term of the Delaware Charter, or (iii) change any
of the terms and conditions of this Agreement if such change would adversely
affect the holders on the capital stock.
ARTICLE VIII
TERMINATION OF MERGER
This Agreement may be terminated and the Merger abandoned at any time
prior to the Effective Date, whether before or after shareholder approval of
this Agreement, by the consent of the Board of Directors of the Company and
Westmark-Delaware.
ARTICLE IX
MISCELLANEOUS
In order to facilitate the filing and recording of this Agreement, this
Agreement may be executed in counterparts, each of which when so executed shall
be deemed to be an original and all such counterparts shall together constitute
one and the same instrument.
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IN WITNESS WHEREOF, (i) Westmark-Delaware has caused this Agreement to be
signed by the President of Westmark-Delaware and attested by the Secretary of
WestmarkDelaware pursuant to authorization contained in a resolution adopted by
the Board of Directors of Westmark-Delaware approving this Agreement and (ii)
the Company has caused this Agreement to be signed by the President of the
Company and attested by the Secretary of the Company pursuant to authorization
contained in a resolution adopted by the Board of Directors of the Company
approving this Agreement.
WESTMARK GROUP HOLDINGS, INC.-
DELAWARE, a Delaware corporation
ATTEST: By__________________________________________
________________, President
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_______________, Secretary
WESTMARK GROUP HOLDINGS, INC.,
a Colorado corporation
ATTEST: By__________________________________________
_________________, President
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_______________, Secretary
The undersigned, Dawn Drella, as Secretary of Westmark Group Holdings,
Inc.Delaware, a Delaware corporation, hereby certifies (i) that the foregoing
Merger was duly approved by the affirmative vote of the sole holder of all
outstanding shares of Delaware Common Stock (ii) that the Delaware Common Stock
was the only classes of shares of said corporation outstanding at the time of
such approval.
WITNESS my hand this the _______ day of __________________________, 1996.
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Secretary
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The undersigned, __________________, as Secretary of Westmark Group
Holdings, Inc., a Colorado corporation, hereby certifies (i) that the foregoing
Merger was duly adopted by _______% of the holders of all outstanding shares of
Common Stock and (ii) that the Common Stock was the only class of voting shares
of said corporation's capital stock outstanding at the time of such adoption.
WITNESS my hand this the _________ day of __________________________,
1996.
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Secretary
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