Exhibit 10.1
AGREEMENT AND PLAN OF MERGER
OF
EQUIVEST FINANCE, INC.
AND
EQUIVEST REINCORPORATION, INC.
AGREEMENT AND PLAN OF MERGER, dated as of December 3, 1998,
between Equivest Finance, Inc., a Florida corporation (the "Corporation") and
Equivest Reincorporation, Inc., a Delaware corporation (the "Delaware
Subsidiary") and a wholly owned subsidiary of the Corporation.
WHEREAS, the Board of Directors of the Corporation has
determined that it is advisable that the Corporation be merged with and into the
Delaware Subsidiary (the "Merger") , on the terms and subject to the conditions
contained herein and in accordance with the Florida Business Corporation Act
("FBCA") and in accordance with the Delaware General Corporation Law ("DGCL");
WHEREAS, the Corporation has authorized (i) 50,000,000 shares
of common stock, par value $.05 per share, of which 25,198,368 shares have been
duly issued and are now outstanding and (ii) 1,000,000 shares of preferred
stock, par value $3.00 per share that includes 15,000 shares being currently
authorized and designated as Series 2 Class A Preferred Stock, of which 10,000
shares have been duly issued and are now outstanding;
WHEREAS, solely in order to effectuate the Merger, the
Corporation acquired all of the outstanding capital stock of the Delaware
Subsidiary; and
WHEREAS, the Board of Directors of the Corporation has adopted
and approved this Agreement and Plan of Merger by resolution;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, and in order to set forth the terms and conditions of the
Merger and the mode of carrying the same into effect, the Corporation and the
Delaware Subsidiary hereby agree as follows:
1. The Merger. At the Effective Time (as defined in Section 2), the
Corporation shall be merged with and into the Delaware Subsidiary, the
separate corporate existence of the Corporation shall cease, and the
Delaware Subsidiary shall continue as the surviving corporation
(hereinafter sometimes referred to as the "Surviving Corporation"), and
the
Surviving Corporation, without further action, shall possess all the
rights, privileges, powers and franchises, public and private and all
of the property, real, personal, and mixed, of both the Corporation and
the Delaware Subsidiary and shall be subject to all the debts,
liabilities, obligations, restrictions, disabilities and duties of both
the Corporation and the Delaware Subsidiary.
2. Effective Time of the Merger. The Merger shall become effective
immediately upon the later of the filing of an Articles of Merger with
the Secretary of State of the State of Florida and the filing of a
Certificate of Ownership and Merger with the Secretary of State of the
State of Delaware (the time of such later filing being the "Effective
Time").
3. Certificate of Incorporation and By-laws. The Certificate of
Incorporation and By-laws of the Delaware Subsidiary, as in effect
immediately prior to the Effective Time, shall become the Certificate
of Incorporation and By-laws of the Surviving Corporation, except that
Article I of the Certificate of Incorporation shall be amended to read
as follows:
"ARTICLE I.
Name of Company
The name of this corporation shall be EQUIVEST FINANCE, INC.
(the "Corporation")."
4. Directors and Officers. The directors of the Corporation immediately
prior to the Effective Time shall be the initial directors of the
Surviving Corporation, each to hold office in accordance with the
Certificate of Incorporation and By-laws of the Surviving Corporation,
and the executive officers of Corporation immediately prior to the
Effective Time shall be the initial executive officers of the Surviving
Corporation, in each case until their respective successors are duly
elected or appointed and qualified.
5. Further Assurance of Title. If at any time the Surviving Corporation
shall consider or be advised that any acknowledgments or assurances in
law or other similar actions are necessary or desirable in order to
acknowledge or confirm in and to the Surviving Corporation any right,
title, or interest of the Corporation held immediately prior to the
Effective Time, the Corporation and its authorized executive officers
and directors shall and will execute and deliver all such
acknowledgments or assurances in law and do all things necessary or
proper to acknowledge or confirm such right, title, or interest in the
Surviving Corporation as shall be necessary to carry out the purposes
of this Agreement and Plan of Merger, and the Surviving Corporation and
the authorized executive officers and directors thereof are fully
authorized to take any and all such action in the name of the
Corporation or otherwise.
6. Conversion of Shares. At the Effective Time, each issued and
outstanding share of common stock of the Delaware Subsidiary, par value
$.01 per share, shall be canceled and each issued and outstanding share
of the common stock of the Corporation, par value $.05 per share,
2
shall, without any action on the part of the Corporation or the
Delaware Subsidiary, be deemed converted into one (1) fully paid and
non-assessable issued and outstanding share of common stock of the
Surviving Corporation, par value $.01 per share. Additionally, each
issued and outstanding share of the preferred stock of the Delaware
Subsidiary, par value $3.00 per share, shall be canceled and each
issued and outstanding share of the preferred stock of the Corporation,
par value $3.00 per share, shall, without any action on the part of the
Corporation or the Delaware Subsidiary, be deemed converted into one
(1) fully paid and non-assessable issued and outstanding share of
preferred stock of the Surviving Corporation, par value $3.00 per
share.
7. Service of Process on the Surviving Corporation. The Surviving
Corporation agrees that:
(a) it may be served with process in the State of Florida in any prior
proceeding for the enforcement of any obligation of any corporation
organized under the laws of the State of Florida or any foreign
corporation, previously amenable to suit in Florida, which is a party
to the Merger.
(b) the Secretary of State of the State of Florida shall be and hereby
is irrevocably appointed as the agent to accept service of process in
any such proceeding and the post office address to which the service of
process in any such proceeding shall be mailed is Equivest Finance,
Inc., 2 Clinton Square, Syracuse, New York 13202.
8. Termination. This Agreement and Plan of Merger may be terminated and
abandoned by action of the directors of the Corporation or the Delaware
Subsidiary at any time prior to the Effective Time, whether before or
after approval by the shareholders of the parties hereto.
9. Plan of Reorganization. The Corporation and the Delaware Subsidiary
intend that the Merger constitute a "reorganization" within the meaning
of Section 368(a)(1)(F) of the Internal Revenue Code of 1986, as
amended. This Agreement and Plan of Merger constitutes a plan of
reorganization to be carried out in the manner, on the terms and
subject to the conditions herein set forth.
3
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement and Plan of Merger to be executed as of the date first above written
by the respective executive officers thereunto duly authorized.
EQUIVEST FINANCE, INC.,
a Florida Corporation
By: /s/ Richard C. Breeden
---------------------------
Name: Richard C. Breeden
Title: Chairman and Chief Executive Officer
EQUIVEST REINCORPORATION, INC.,
a Delaware Corporation
By: /s/ Richard C. Breeden
---------------------------
Name: Richard C. Breeden
Title: Chairman and Chief Executive Officer
4