EXHIBIT (2)(a)
AGREEMENT, PLAN AND ARTICLES OF MERGER
THIS AGREEMENT, PLAN AND ARTICLES OF MERGER, is made and entered into as
of June 30, 1997 between GATEWAY AMERICAN PROPERTIES CORPORATION, a Florida
corporation (hereinafter called "GAPC-Florida") and GATEWAY AMERICAN PROPERTIES
CORPORATION, a Colorado corporation (hereinafter called "GAPC-Colorado" or the
"Surviving Corporation") (GAPC-Florida and GAPC-Colorado being sometimes
collectively referred to herein as the "Constituent Corporations").
R E C I T A L S
A. GAPC-Florida is a corporation duly organized and existing under the
laws of the State of Florida, having its offices at Sarasota, Florida.
B. GAPC-Colorado is a corporation organized and existing under the laws of
the State of Colorado, having its offices in Denver, Colorado.
C. GAPC-Florida, under its Articles of Incorporation, as amended, has
authorized capital of 10,000,000 shares of Common Stock, $.01 par value per
share. As of the date hereof, GAPC-Florida has outstanding 436,000 shares of its
Common Stock.
D. GAPC-Colorado, under its Articles of Incorporation has authorized
capital of 20,000,000 shares of Common Stock, $.01 par value per share, of which
327,010 shares of Common Stock will be issued and outstanding on the Effective
Date of the Merger (as described herein) and Common Stock Purchase Warrants
providing for the issuance, upon full exercise thereof, of 300,000 additional
shares of its Common Stock. Additionally, at a time subsequent to the Effective
Date of the Merger, GAPC-Colorado anticipates the issuance of an additional
maximum 1,725,000 shares of its Common Stock and 3,450,000 Common Stock Purchase
Warrants as a result of the conclusion of a public offering of such shares and
warrants and 2,025,000 shares of the Common Stock in connection with the
acquisition by GAPC-Colorado of all of the outstanding Membership Interest of
Gateway American Properties, L.L.C., a Colorado limited liability company.
E. The respective Boards of Directors and shareholders of GAPC-Florida and
GAPC-Colorado have determined that it is desirable and in the best interests of
such shareholders to merge GAPC-Florida into GAPC-Colorado pursuant to the
provisions of the Florida Business Corporation Act and the Colorado Business
Corporation Act.
NOW, THEREFORE, GAPC-Florida and GAPC-Colorado, in consideration of the
mutual covenants, agreements and conditions set forth herein, and in accordance
with the laws of the States of Florida and Colorado, hereby agree as follows:
ARTICLE I - Effect of Merger
Upon the Effective Date of the Merger (as described herein), which for
financial accounting and reporting services shall be deemed to be June 30, 1997:
1.01. GAPC-Florida shall be merged with and into GAPC-Colorado, which
shall be the Surviving Corporation, and GAPC-Colorado shall merge GAPC-Florida
into itself (such merger being sometimes called herein the "Merger"). The
separate existence of GAPC-Florida shall cease except to the extent provided by
the laws of the State of Florida in the case of a corporation after its merger
into another corporation. As appropriate, the directors of GAPC-Florida shall
take such action, or allow such events to occur, as shall effect the dissolution
of GAPC-Florida except as its continued existence may be required pursuant to
the laws of the State of Florida or otherwise, including, without limitation,
the provisions of Chapter 607.1404 and 607.1405, Florida Statutes, as amended.
The corporate existence of GAPC-Colorado shall continue unaffected and
unimpaired by the Merger, and as the Surviving Corporation, GAPC-Colorado shall
continue to be governed by the laws of the State of Colorado.
1.02. As the Surviving Corporation, GAPC-Colorado shall thereupon and
thereafter possess all the rights, privileges, immunities and franchises of a
public as well as a private nature of the Constituent Corporations with the
exception of certain claims proprietary to GAPC-Florida which shall be preserved
to GAPC-Florida pursuant to the statutory provisions cited in Section 1.01 above
except to the extent released or discharged. Subject only to the provisions of
the immediately preceding sentence, all property, real, personal and mixed, all
debts due on whatever account, including without limitation subscriptions to
shares, all other choses in action, and all and every other interest of or
belonging to or due to the Constituent Corporations shall be taken and deemed to
be transferred to and invested in the Surviving Corporation without further act
or deed; and the title to any real estate, or any interest therein, vested in
the Constituent Corporations shall not revert or in any way be impaired by
reason of the Merger.
1.03. The Surviving Corporation shall thenceforth be responsible and
liable for all the liabilities and obligations of the respective Constituent
Corporations, and any claim existing or action or proceeding pending against
either of the Constituent Corporations may be prosecuted as if the Merger had
not taken place, or the Surviving Corporation may be substituted in its place.
Neither the rights of creditors nor any liens upon the property of either of the
Constituent Corporations shall be impaired by the Merger.
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1.04. All corporate acts, plans, policies, arrangements, approvals and
authorizations of GAPC-Florida, its respective shareholders, Board of Directors,
officers and agents, which were valid and effective immediately prior to the
Effective Date of the Merger, shall be taken for all purposes as the acts,
plans, policies, arrangements, approvals and authorizations of the Surviving
Corporation, and shall be as effective and binding thereon as they were with
respect to GAPC-Florida.
1.05. From time to time thereafter, as and when requested by
GAPC-Colorado, or by its successors and assigns, the officers and directors of
GAPC-Florida last in office shall and will execute and deliver such deeds and
other instruments, and take or cause to be taken such further action as shall be
necessary in order to vest, perfect, or confirm, of record or otherwise,
GAPC-Colorado's title to and possession of all the properties, rights,
privileges, immunities, powers and franchises of GAPC-Florida and to otherwise
carry out the purposes of this Agreement, Plan and Articles of Merger.
ARTICLE II - Articles of Incorporation,
Bylaws and Directors
2.01. The Articles of Incorporation of GAPC-Colorado, as in effect on the
Effective Date of the Merger, shall continue in full force and effect as the
Articles of Incorporation of the Surviving Corporation, subject always to the
right of the Surviving Corporation to amend, alter, change or repeal its
Articles of Incorporation in accordance with the laws of the State of Colorado.
2.02. The Bylaws of GAPC-Colorado, as existing and constituted on the
Effective Date of the Merger, shall constitute the Bylaws of the Surviving
Corporation until such Bylaws are altered, amended or repealed in accordance
with the provisions thereof and the provisions of the laws of the State of
Colorado.
2.03. The directors and officers of the Surviving Corporation, from and
after the Effective Date of the Merger shall be:
Harvey E. Deutsch - Chairman, President and Director
Joel H. Farkas - Vice President-Finance Marketing,
Treasurer, Secretary and Director
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Michael A. Messina - Vice President-Development and
Director
ARTICLE III - Exchange of Shares
As of the Effective Date of the Merger, the record holders of the
outstanding Common Stock of GAPC-Florida shall be issued an aggregate of 327,000
shares of the Common Stock, $.01 par value, of GAPC-Colorado, allocated to the
respective record holders on the basis of .75 of a share of GAPC-Colorado for
each one share of GAPC-Florida; provided, however, that no fractional shares of
GAPC-Colorado will be issued and any resultant fractional shares will be rounded
off to the nearest full share with any remaining shares allocated among the
record holders by the President of GAPC-Florida in his sole discretion. Such
record holders shall also be issued Common Stock Purchase Warrants providing
for, upon full exercise in accordance with the terms thereof, the issuance of
400,000 shares of Common Stock, $.01 par value, of GAPC-Colorado.
ARTICLE IV - Execution, Effect and Effectiveness
4.01. Upon the execution of this Agreement, Plan and Articles of Merger by
the directors and shareholders of the Constituent Corporations, this document
shall serve as minutes of written action of such directors and of the record
holders of all of the outstanding Common Stock, $.01 par value, of GAPC-Colorado
(as permitted by the Colorado Business Corporation Act), and of the record
holders of a majority of the outstanding Common Stock of GAPC-Florida, as
permitted pursuant to the Florida Business Corporation Act, evidencing the
adoption by such directors and shareholders of the Plan of Merger incorporated
herein as of the date hereof.
4.02. The date of adoption of this Agreement, Plan and Articles of Merger
shall be June 30, 1997 and such has been adopted by the members of the Boards of
Directors and the holders of a majority of the outstanding shares of the
Con-stituent Corporations as of such date, which number was sufficient for
approval.
4.03. This Agreement, Plan and Articles of Merger shall be filed with the
Department of State of the State of Florida and the Secretary of State of
Colorado in accordance with the provisions of the Florida Business Corporation
Act and the Colorado Business Corporation Act. The Merger shall become effective
in accordance with applicable law, and as described above (such date of
effectiveness being called herein the "Effective Date of the Merger").
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ARTICLE V - Miscellaneous Matters
5.01. This Agreement, Plan and Articles of Merger may be executed in one
or more counterparts, all of which shall be considered one and the same
Agreement, and shall become a binding agreement when one or more counterparts
have been signed by each of the parties and delivered to the other party.
5.02. This Agreement, Plan and Articles of Merger shall be governed by,
and construed in accordance with, the laws of the States of Florida and Colorado
and in the event of a conflict of laws, Colorado law shall prevail except with
respect to the provisions of Section 1.01 hereof.
5.03. The headings of the several Articles herein are inserted for the
convenience of reference only, and are not intended to be a part of, or to
affect the meaning or interpretation of, this instrument.
5.04. This instrument shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors, assigns, heirs and
representatives.
IN WITNESS WHEREOF, this Agreement, Plan and Articles of Merger has been
adopted by the directors and shareholders of each of the Constituent
Corporations and has been executed by the President and Secretary of each of the
Constituent Corporations, and acknowledged by the President of each of the
Constituent Corporations, all as of the date first above written.
GATEWAY AMERICAN PROPERTIES
CORPORATION, a Florida corporation
By /s/ James T. McDonough
-------------------------------
James T. McDonough,
constituting the sole director
and Record Holder
of 85,180 shares of Common Stock
By /s/ William T. Kirtley
-------------------------------
William T. Kirtley, the Record
Holder of 16,295 shares of Common
Stock
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By /s/ William Lee Pryor III
-------------------------------
William Lee Pryor III, the Record
Holder of 4,918 shares of Common
Stock
By /s/ Maurice L. Lariviere
-------------------------------
Maurice L. Lariviere, the Record
Holder of 12,295 shares of Common
Stock
By /s/ Margaret Mountain
-------------------------------
Margaret Mountain, the Record
Holder of 16,393 shares of Common
Stock
By /s/ Randall J. Coyne
-------------------------------
Randall J. Coyne, the Record
Holder of 12,295 shares of Common
Stock
By /s/ Marshall D. Davis
-------------------------------
Marshall D. Davis, the Record
Holder of 20,393 shares of Common
Stock
By /s/ Ralph H. Grills, Jr.
-------------------------------
Ralph H. Grills, Jr., the Record
Holder of 8,196 shares of Common
Stock
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By /s/ Ralph H. Grills, Jr.
-------------------------------
5 I Partnership, Ralph H. Grills,
Jr., General Partner, the Record
Holder of 8,196 shares of Common
Stock
By /s/ Howard J. Manetti
-------------------------------
Howard J. Manetti, the Record
Holder of 22,951 shares of Common
Stock
By /s/ Allyson Palmer
-------------------------------
Allyson Palmer, the Record Holder
of 6,000 shares of Common Stock
By /s/ Carroll V. SoRelle
-------------------------------
Carroll F. SoRelle, the Record
Holder of 7,377 shares of Common
Stock
GATEWAY AMERICAN PROPERTIES
CORPORATION, a Colorado corporation
By /s/ Harvey E. Deutsch
-------------------------------
Harvey E. Deutsch, Director and
the sole shareholder of GAPC-
Colorado
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By /s/ Joel H. Farkas
-------------------------------
Joel H. Farkas, Director
By /s/ Michael A. Messina
-------------------------------
Michael A. Messina, Director
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