EXHIBIT 99.2
ARTICLES OF MERGER
OF
AVAILENT FINANCIAL, INC.
A TEXAS CORPORATION
INTO
AVAILENT FINANCIAL, INC.
A DELAWARE CORPORATION
Pursuant to the provisions of Article 5.04 of the Texas Business
Corporation Act (the "TBCA"), the undersigned corporations adopt the following
Articles of Merger for the purpose of effecting a merger (the "MERGER") in
accordance with the provisions of the TBCA:
1. The name of each of the undersigned corporations that is a party to
that certain Third Amended and Restated Agreement and Plan of Reorganization,
dated as of March 1, 2002 (the "REORGANIZATION AGREEMENT"), and the state of
incorporation of each such corporation is:
Name of Corporation State
------------------- -----
Availent Financial, Inc. Texas
Availent Financial, Inc. Delaware
2. The Reorganization Agreement has been approved in accordance with
the provisions of Article 5.03 of the TBCA. The Reorganization Agreement
provides for the merger of Availent Financial, Inc., a Texas corporation
("AVAILENT-TX"), with and into Availent Financial, Inc., a Delaware corporation
("AVAILENT-DE"), with Availent-DE as the foreign surviving corporation (the
"SURVIVING CORPORATION"). The Reorganization Agreement was duly approved by the
stockholders of each corporation as set forth below.
3. An executed copy of the Reorganization Agreement is on file at the
principal place of business of Availent-DE, 2720 Stemmons Freeway South Tower,
Suite 600, Dallas, TX 75207, and a copy of the Reorganization Agreement will be
furnished by Availent-DE, on written request and without cost, to any
shareholder of Availent-DE or Availent-TX.
4. The Amended Certificate of Incorporation, as amended on December 4,
2002 (the "CERTIFICATE OF INCORPORATION"), of Availent-DE shall be the
Certificate of Incorporation of the Surviving Corporation as a result of the
Merger. The only amendment or change to the Certificate of Incorporation of
Availent-DE desired to be effected by the Merger is as set forth below:
RESOLVED, that the Certificate of Incorporation be amended by
changing the First Article thereof so that, as amended, said Article
shall be and read as follows:
"FIRST: The name of the corporation is Availent Financial,
Inc."
FURTHER RESOLVED, that the Certificate of Incorporation be
amended by changing the Fourth Article thereof so that, as amended,
said Article shall be and read as follows:
"FOURTH: At 5:00 p.m., Delaware time, on the filing date of
this Certificate of Amendment of Amended Certificate of Incorporation
(the "EFFECTIVE TIME"), a one-for-two reverse stock split of the common
stock, par value $0.01 per share, of the Corporation ("COMMON STOCK")
shall become effective, pursuant to which each two (2) shares of common
stock outstanding and held of record by each stockholder of the
Corporation (including treasury shares) immediately prior to the
Effective Time (the "OLD COMMON STOCK") shall be reclassified and
combined (the "REVERSE SPLIT") into one share of common stock
automatically and without any action by the holder thereof upon the
Effective Time and shall represent one share of common stock from and
after the Effective Time (the "NEW COMMON STOCK").
No fractional shares of Common Stock shall be issued to the
stockholders of the Corporation in connection with the Reverse Stock
Split Amendment. Each holder of shares of Pre-Effective Stock otherwise
entitled to a fractional share of Common Stock shall be entitled to
receive a cash payment (without interest) in lieu of such fractional
share in an amount approximately equal to (i) such fractional share
multiplied by the average of the high and low trading prices of the
Common Stock as reported on the Over the Counter Bulletin Board for the
five (5) trading days immediately prior to the Effective Time if shares
of Common Stock have traded on the Over the Counter Bulletin Board
during regular trading hours on each of the five (5) business days
immediately prior to the Effective Time, (ii) such fractional share
multiplied by the average of the high and low trading prices of the
Common Stock as reported on the Over the Counter Bulletin Board for the
first five (5) consecutive trading days on which the shares of Common
Stock have traded if shares of Common Stock have not traded on the Over
the Counter Bulletin Board during regular trading hours on each of the
five (5) business days immediately prior to the Effective Time, but
have traded on the Over the Counter Bulletin Board during regular
trading hours on each of any five (5) consecutive business days at any
time prior to ten (10) business days after the Effective Time, or (iii)
such fractional share multiplied by the fair market value per share of
Common Stock as determined by the board of directors in good faith if
shares of Common Stock have not traded on the Over the Counter Bulletin
Board during regular trading hours on each of the five (5) business
days immediately prior to the Effective Time or during regular trading
hours on each of any five (5) consecutive business days at any time
prior to ten (10) business days after the Effective Time.
The corporation shall be authorized to issue two classes of
shares of stock to be designated, respectively, "Preferred Stock" and
"Common Stock"; the total number of shares of stock which the
corporation shall have authority to issue is One Hundred Ten Million
(110,000,000) and the par value of each of such shares is No and 01/100
($0.01) Dollars, amounting in the aggregate to One Million One Hundred
Thousand and no/100 ($1,100,000.00) Dollars; the total number of shares
of Preferred Stock shall be Ten Million (10,000,000); the total number
of shares of Common Stock shall be One Hundred Million (100,000,000).
2
Shares of Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized to fix the
voting rights, designations, powers, preferences and the relative,
participating, optional or other rights, if any, and the
qualifications, limitations or restrictions thereof, of any wholly
unissued series of Preferred Stock; and to fix the number of shares
constituting such series, and to increase or decrease the number of
shares of any such series (but not below the number of shares thereof
then outstanding)."
5. As to each of the undersigned corporations, the approval of whose
shareholders is required, the number of outstanding shares of each class or
series of stock of such corporation entitled to vote, with other shares or as a
class, on the Reorganization Agreement are as follows:
<Table>
<Caption>
Number of Shares
Number of Shares Entitled to Vote as
Name of Corporation Outstanding Class or Series a Class or Series
- ------------------- ---------------- --------------- -------------------
Availent-DE 12,484,689 Common Stock, $0.01 N/A
par value
Availent-TX 534,140 Common Stock, $0.01 N/A
par value
</Table>
6. The holders of at least the number of issued and outstanding shares
of capital stock of each of Availent-DE and Availent-TX entitled to vote on the
Reorganization Agreement and necessary to approve the Reorganization Agreement
have signed a consent in writing to the Reorganization Agreement adopting the
Reorganization Agreement pursuant to Article 9.10 of the TBCA, and any written
notice required by Article 9.10 of the TBCA has been given.
7. The Reorganization Agreement and the performance of its terms were
duly authorized by all action required by the laws under which the parties to
the merger were incorporated and by their respective constituent documents.
8. The Surviving Corporation will be responsible for the payment of all
fees and franchise taxes as are required by law to be paid by Availent-DE or
Availent-TX and, as the sole surviving corporation in the Merger, will be
obligated to pay all such fees and franchise taxes if the same are not timely
paid.
9. The merger shall become effective upon the filing of these Articles
of Merger with the Secretary of State of the State of Texas and the issuance of
a certificate of merger by the Secretary of State of the State of Texas.
* * * * *
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Dated: December 4, 2002
AVAILENT FINANCIAL, INC.,
A Texas corporation
By: /s/ Patrick A. McGeeney
-------------------------------
Name: Patrick A. McGeeney
Title: President
AVAILENT FINANCIAL, INC.,
A Delaware corporation
By: /s/ Patrick A. McGeeney
-------------------------------
Name: Patrick A. McGeeney
Title: President
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EXHIBIT A
Articles of Incorporation of the Surviving Corporation as Amended
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