Exhibit 2.1
PLAN AND AGREEMENT OF MERGER
OF
MAGLIO, INC.
(a Florida corporation)
AND
MAGLIO-ACCUFACTS PRE-EMPLOYMENT SCREENING, INC.
(a Delaware corporation)
This PLAN AND AGREEMENT OF MERGER (this "Agreement") entered into on
October 11, 1999 by AccuFacts Pre-Employment Screening, Inc., a Delaware
corporation ("Parent"), and approved by its Board of Directors on said date,
entered into October 11, 1999 by Maglio-AccuFacts Pre-Employment Screening,
Inc., a Delaware corporation qualified to do business in the State of Florida
and a wholly-owned subsidiary of Parent ("Subsidiary"), and approved by its
Board of Directors on said date, and entered into on October 11, 1999 by Maglio,
Inc., a Florida corporation (the "Company"), and approved by resolution adopted
by its Board of Directors on said date. The Subsidiary is sometimes hereinafter
referred to as the "surviving corporation."
WHEREAS, the Company is a Florida corporation with its principal office
therein located at 2180 SR 434 W., Suite 32779, Longwood, FL 32779;
WHEREAS, the total number of shares of stock which the Company has
authority to issue is one thousand (1,000), one hundred (100) of which are
issued and outstanding as common stock with a par value of $.10 per share (the
"Company Common Stock");
WHEREAS, the sole stockholder of the Company Common Stock is Richard J.
Maglio, Trustee of the Richard J. Maglio Revocable Living Trust dated September
5, 1990;
WHEREAS, Subsidiary is a Delaware corporation with its registered office
therein located at c/o Prentice Hall Corporation System, Inc., 1013 Centre Road,
Wilmington, DE 19805, in the county of New Castle;
WHEREAS, Parent is a Delaware corporation with its registered office
therein located at c/o Prentice Hall Corporation System, Inc., 1013 Centre Road,
Wilmington, DE 19805, in the county of New Castle;
WHEREAS, the total number of shares of common stock which Parent has the
authority to
issue is 50,000,000 shares, all of which are of one class with a $.01 par value
per share (the "Parent Common Stock") and the total number of shares of
preferred stock which the Parent has the authority to issue is 5,000,000 shares,
all of which are of one class with a $.01 par value;
WHEREAS, the Business Corporation Act of the State of Florida (the "FBCA")
permits a merger of a business corporation of the State of Florida with and into
a business corporation of another jurisdiction;
WHEREAS, the General Corporation Law of the State of Delaware ("DGCL")
permits the merger of a corporation of another jurisdiction with and into the
corporation of the State of Delaware;
WHEREAS, the Company and Subsidiary and the respective Boards of Directors
thereof declare it advisable and to the advantage, welfare, and best interests
of said corporations and their respective stockholders to merge the Company with
and into Subsidiary pursuant to the provisions of the FBCA and pursuant to the
provisions of the DGCL upon the terms and conditions hereinafter set forth; and
WHEREAS, simultaneously with the execution and delivery of this Plan and
Agreement of Merger, Parent, Subsidiary and the Company are entering into an
agreement dated as of the date hereof (the "Supplemental Agreement"), setting
forth certain representations, warranties and agreements with respect to the
merger herein provided for.
The foregoing recitals shall be included, and shall be made a part of, this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement of the parties hereto, being thereunto duly entered into by the
Company, the Parent and the Subsidiary and approved by resolutions adopted by
their respective Board of Directors, the Plan and Agreement of Merger and the
terms and condition thereof and the mode of carrying the same into effect,
together with any provisions required or permitted to be set forth therein, are
hereby determined and agreed upon as hereinafter set forth in this Plan and
Agreement of Merger set forth:
1. The Company and Subsidiary shall, pursuant to the provisions of the FBCA
and the provisions of the DGCL, be merged with and into a single corporation, to
wit, Subsidiary, which shall be the surviving corporation from and after the
effective time of the merger (the "Effective Time"), and which is sometimes
hereinafter referred to as the "surviving corporation", and which shall continue
to exist as said surviving corporation under its present name pursuant to the
provisions of the DGCL. The separate existence of the Company, which is
sometimes hereinafter referred to as the "terminating company", shall cease at
the Effective Time in accordance with the provisions of the FBCA .
2. Annexed hereto and made a part hereof is a copy of the Certificate of
Incorporation of the surviving corporation as the same shall be in force and
effect at the Effective Time in the State of Delaware of the merger herein
provided for, and said Certificate of Incorporation shall continue to be the
Certificate of Incorporation of said surviving corporation until amended and
changed
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pursuant to the provisions of the DGCL.
3. The present by-laws of the surviving corporation shall be the by-laws of
said surviving corporation and shall continue in full force and effect until
changed, altered or amended as therein provided and in the manner prescribed by
the provisions of the DGCL.
4. The directors and officers in the office of the surviving corporation at
the Effective Time shall be as set forth below, all of whom shall hold their
directorships and offices until the election and qualification of their
respective successors or until their tenure is otherwise terminated in
accordance with the by-laws of the surviving corporation.
Directors
---------
Richard J. Maglio
Philip Luizzo
Frank Luizzo
Anthony Luizzo
John Svedese
Joseph Slattery
Officers
--------
Philip Luizzo - President
John Svedese - Vice President
Anthony Luizzo - Secretary
5. Each issued share of the Company Common Stock shall, at the Effective
Time, be converted into 1774.71 shares of the Parent Common Stock. All 100
issued and outstanding shares of the Company Common Stock shall therefore be
converted into an aggregate of 177,471 shares of Parent Common Stock. The issued
shares of the surviving corporation shall not be converted or exchanged in any
manner, but each said share which is issued as of the Effective Time shall
continue to represent one issued share of the surviving corporation.
6. If at the date of this Plan and Agreement of Merger and the Effective
Time, the outstanding shares of the Company Common Stock shall have been changed
into a different number of shares or a different class by reason of any issuance
or cancellation of shares, or any reclassification, recapitalization, split-up,
combination, exchange of shares or readjustment, or a stock dividend thereon
shall be declared with a record date within such period, the number of shares of
Parent Common Stock to be issued and delivered in the merger herein provided for
in exchange for each outstanding share of the Company Common Stock as provided
for in this Plan and Agreement of Merger shall be correspondingly adjusted.
7. At the Effective Time, each share of the Company's Common Stock held in
the Company's treasury immediately prior to the Effective Time, if any, shall,
by virtue of the merger herein provided for, be canceled and retired and cease
to exist, without any conversion thereof.
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8. In the event that this Plan and Agreement of Merger shall have been
fully approved and adopted upon behalf of the terminating corporation in
accordance with the provisions of the FBCA and upon behalf of the surviving
corporation in accordance with the provisions of the DGCL, the said corporations
agree that they will cause to be executed and filed and recorded any document or
documents prescribed by the laws of the State of Florida and by the laws of the
State of Delaware, and that they will cause to be performed all necessary acts
within the State of Florida and the State of Delaware and elsewhere to
effectuate the merger herein provided for.
9. The Board of Directors and the proper officers of each of the
terminating corporation (the Company), the surviving corporation (the
Subsidiary) and the Parent are hereby authorized, empowered, and directed to do
any and all acts and things, and to make, execute, deliver, file, and record any
and all instruments, papers, and documents which shall be or become necessary,
proper, or convenient to carry out or put into effect any of the provisions of
this Plan and Agreement of Merger or of the merger herein provided for.
10. The Effective Time of this Plan and Agreement of Merger, and the time
at which the merger herein agreed upon shall be or become effective in the State
of Delaware and Florida, shall be on the date of filing.
11. This Plan and Agreement of Merger may be terminated at any prior to the
Effective Time by mutual consent of Parent, Subsidiary and the Company.
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IN WITNESS WHEREOF, this Plan and Agreement of Merger is hereby executed
upon behalf of each of the constituent parties thereto.
ACCUFACTS PRE-EMPLOYMENT SCREENING, INC.
By: /s/ Philip Luizzo
-------------------------------
Name: Philip Luizzo
Title: President
MAGLIO-ACCUFACTS PRE-EMPLOYMENT SCREENING, INC.
By: /s/ Philip Luizzo
-------------------------------
Name: Philip Luizzo
Title: President
MAGLIO, INC.
By: /s/ Richard J. Maglio
-------------------------------
Name: Richard J. Maglio
Title: President
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