EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Merger Agreement") is entered into on
this 1st day of February, 1999 by and between CANMAX INC., a Wyoming corporation
("Canmax-Wyoming") and ARDIS TELECOM & TECHNOLOGIES, INC., a Delaware
corporation ("Canmax-Delaware").
R E C I T A L S:
WHEREAS, Canmax-Wyoming is a corporation duly organized and existing under
the laws of the State of Wyoming;
WHEREAS, Canmax-Delaware is a corporation duly organized and existing under
the laws of the State of Delaware;
WHEREAS, on the date hereof, the authorized capital of Canmax-Wyoming
consists of 44,169,100 shares of common stock, no par value per share
("Canmax-Wyoming Common Stock"), of which 6,611,005 shares are issued and
outstanding;
WHEREAS, on the date hereof, the authorized capital of Canmax-Delaware
consists of 44,169,100 shares of common stock, par value $.001 per share
("Canmax-Delaware Common Stock"), of which 10,000 shares are issued and
outstanding and 10,000,000 shares of preferred stock, par value $0.001 per
share, of which no shares are issued and outstanding;
WHEREAS, the respective Boards of Directors of Canmax-Wyoming and
Canmax-Delaware have determined that it is advisable and in the best interests
of each such corporation that Canmax-Wyoming merge with and into Canmax-Delaware
upon the terms and subject to the conditions of this Merger Agreement for the
purpose of effecting the reincorporation of Canmax-Wyoming in the State of
Delaware, and the respective Boards of Directors of Canmax-Wyoming and
Canmax-Delaware have, by resolutions duly adopted, approved and adopted this
Merger Agreement; and
WHEREAS, the parties intend by this Merger Agreement to effect a
"reorganization" under Section 368 of the Internal Revenue Code of 1986, as
amended.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties and agreements contained herein, the parties hereto agree as follows:
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A G R E E M E N T S:
A. MERGER. At the Effective Time (as hereinafter defined),
Canmax-Wyoming shall be merged with and into Canmax-Delaware (the "Merger").
Canmax-Delaware shall be the surviving corporation of the Merger (hereinafter
sometimes referred to as the "Surviving Corporation"), and the separate
corporate existence of Canmax-Wyoming shall cease. The Merger shall become
effective upon the filing of the appropriate documents with the Secretary of
State of the State of Delaware and the Secretary of State of the State of
Wyoming. The date and time when the Merger shall become effective is herein
referred to as the "Effective Time."
B. GOVERNING DOCUMENTS.
1. The Certificate of Incorporation of Canmax-Delaware as it may be
amended or restated subject to applicable law, and as in effect immediately
prior to the Effective Time, shall constitute the Certificate of
Incorporation of the Surviving Corporation without further change or
amendment until thereafter amended in accordance with the provisions
thereof and applicable law.
2. The Bylaws of Canmax-Delaware as in effect immediately prior to
the Effective Time shall constitute the Bylaws of the Surviving Corporation
without change or amendment until thereafter amended in accordance with the
provisions thereof and applicable law.
C. OFFICERS AND DIRECTORS. The persons who are officers and directors of
Canmax-Wyoming immediately prior to the Effective Time shall, after the
Effective Time, be the officers and directors of the Surviving Corporation,
without change until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the Surviving Corporation's Certificate of Incorporation and Bylaws and
applicable law.
D. RIGHTS, PRIVILEGES, ETC. At the Effective Time, the separate
corporate existence of Canmax-Wyoming shall cease, and the Surviving Corporation
shall possess all the rights, privileges, powers and franchises of a public or
private nature and be subject to all the restrictions, disabilities and duties
of Canmax-Wyoming; and all the rights, privileges, powers and franchises of
Canmax-Wyoming on whatever account, as well for share subscriptions and all
other things in action, shall be vested in the Surviving Corporation; and all
property, rights, privileges, powers and franchises, and all and every other
interest shall be thereafter as effectively the property of the Surviving
Corporation as the same were of Canmax-Wyoming, and the title to any real estate
vested by deed or otherwise shall not revert or be in any way impaired by reason
of the Merger, but all rights of creditor and liens upon any property of
Canmax-Wyoming shall be reserved unimpaired, and all debts, liabilities and
duties of Canmax-Wyoming shall thenceforth attach to the Surviving Corporation
and may be enforced against it to the same extent as if such debts, liabilities
and duties had been incurred or contracted by it; PROVIDED, HOWEVER, that such
liens upon property of Canmax-Wyoming will be limited to the property affected
thereby immediately prior to the Merger. All corporate acts, plans, policies,
agreements, arrangements, approvals and authorizations of Canmax-Wyoming, its
shareholders, Board of Directors and committees thereof, officers and agents
which were valid and effective immediately prior to the Effective Time, shall be
taken for all purposes as the acts, plans,
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policies, agreements, arrangements, approvals and authorizations of the
Surviving Corporation, its shareholders, Board of Directors and committees
thereof, respectively, and shall be as effective and binding thereon a the
same were with respect to Canmax-Wyoming.
E. CONVERSION OF SHARES. At the Effective Time, by virtue of the Merger
and without any action on the part of the holder thereof:
1. Each share of Canmax-Wyoming Common Stock outstanding immediately
prior to the Effective Time shall, except as provided in Section 9 hereof,
be converted into, and shall become, one fully paid and nonassessable share
of Canmax-Delaware Common Stock.
2. Each share of Canmax-Wyoming Common Stock held in the treasury of
Canmax-Wyoming immediately prior to the Effective Time shall be
automatically converted into one share of Canmax-Delaware Common Stock,
which shares shall continue to be retained and held by Canmax-Delaware in
the treasury thereof.
3. Each option, warrant, purchase right, convertible debt instrument
or other security of Canmax-Wyoming issued and outstanding immediately
prior to the Effective Time shall be changed and converted into and shall
be an identical security of Canmax-Delaware, and the same number of shares
of Canmax-Delaware Common Stock shall be reserved for purposes of the
exercise of such option, warrant, purchase right, convertible debt
instrument or other securities as is equal to the number of shares of
Canmax-Wyoming Common Stock so reserved at the Effective Time; and
4. Each share of Canmax-Delaware Common Stock issued and outstanding
immediately prior to the Effective Time shall be canceled and retired, and
no payment shall be made with respect thereto, and such shares shall resume
the status of unauthorized and unissued shares of Canmax-Delaware Common
Stock.
F. STOCK CERTIFICATES. At and after the Effective Time, all of the
outstanding certificates which immediately prior to the Effective Time
represented shares of Canmax-Wyoming Common Stock shall be deemed for all
purposes to evidence ownership of, and to represent shares of, Canmax-Delaware
Common Stock into which the shares of Canmax-Wyoming Common Stock formerly
represented by such certificates have been converted as herein provided. The
registered owner on the books and records of Canmax-Wyoming or its transfer
agent of any such outstanding stock certificate shall, until such certificate
shall have been surrendered for transfer or otherwise accounted for to the
Surviving Corporation or its transfer agent, have and be entitled to exercise
any voting or other rights with respect to and to receive any dividends and
other distributions upon the shares of Canmax-Delaware Common Stock evidenced by
such outstanding certificate as above provided. Nothing contained herein shall
be deemed to require the holder of any shares of Canmax-Wyoming Common Stock to
surrender the certificate or certificates representing such shares in exchange
for a certificate or certificates representing shares of Canmax-Delaware Common
Stock.
G. OPTIONS. Each right in or to, or option to purchase, shares of
Canmax-Wyoming Common Stock, granted under Canmax-Wyoming's Stock Option Plan
(the "Plan") and otherwise, which is outstanding immediately prior to the
Effective Time, shall, by virtue of the
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Merger and without any action on the part of the holder thereof, be converted
into and become a right in or to, or an option to purchase at the same option
price per share, the same number of shares of Canmax-Delaware Common Stock,
upon the same terms and subject to the same conditions as set forth in the
Plan or otherwise as in effective at the Effective Time. The same number of
shares of Canmax-Delaware Common Stock shall be reserved for purposes of the
outstanding options as is equal to the number of shares of Canmax-Wyoming
Common Stock, upon the same terms and subject to the same conditions as set
forth in the Plan or otherwise as in effect at the Effective Time. The same
number of shares of Canmax-Delaware Common Stock shall be reserved for
purposes of the outstanding options as is equal to the number of shares of
Canmax-Wyoming Common Stock so reserved as of the Effective Time. As of the
Effective Time, the Surviving Corporation hereby assumes the Plan and all
obligations of Canmax-Wyoming under the Plan including the outstanding rights
or options or portions thereof granted pursuant to the Plan and otherwise.
H. OTHER EMPLOYEE BENEFIT PLANS. As of the Effective Time, the Surviving
Corporation hereby assumes all obligations of Canmax-Wyoming under any and all
employee benefit plans in effect as of the Effective Time or with respect to
which employee rights or accrued benefits are outstanding as of the Effective
Time.
I. DISSENTING SHAREHOLDERS.
1. Notwithstanding the provisions of Section 5.a. hereof, any
outstanding shares of Canmax-Wyoming Common Stock held by a
shareholder who shall have elected to dissent from the Merger and who
shall have exercised and perfected his right to dissent with respect
to such shares in accordance with Article 13 of the Wyoming Business
Corporation Act (a "Dissenting Shareholder") shall not be converted
into shares of Wyoming-Delaware Common Stock as a result of the
Merger, but such Dissenting Shareholders shall be entitled to receive
in lieu thereof only such consideration as shall be provided in such
Article 13, except that shares of Canmax-Wyoming Common Stock
outstanding immediately prior to the Effective Time and held by a
Dissenting Shareholder who shall thereafter withdraw his election to
dissent from the Merger or lose his right to dissent from the Merger
as provided in such Article 13 shall be deemed converted, as of the
Effective Time, into such number of shares of Canmax-Wyoming Common
Stock as such holder otherwise would have been entitled to receive as
a result of the Merger.
2. Canmax-Delaware hereby agrees that it may be served with process
in the State of Wyoming in any proceeding to enforce any obligation or
the rights of a Dissenting Shareholder arising from the Merger.
Canmax-Delaware appoints the Secretary of State of Wyoming as its
agent to accept service of process for any such proceeding and a copy
of such process shall be mailed by the Secretary of State of the State
of Wyoming to Canmax-Delaware at 150 West Carpenter Freeway, Irving,
Texas 75039, Attention: Corporate Secretary.
J. GOVERNING LAW. This Merger Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
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K. AMENDMENT. Subject to applicable law and subject to the rights of
Canmax-Wyoming's shareholders further to approve any amendment which would have
a material adverse effect on such shareholders, this Merger Agreement may be
amended, modified or supplemented by written agreement of the parties hereto at
any time prior to the Effective Time with respect to any of the terms contained
herein.
L. DEFERRAL OR ABANDONMENT. At any time prior to the Effective Time,
this Merger Agreement maybe terminated and the Merger may be abandoned or the
time of consummation of the Merger may be deferred for a reasonable time by the
Board of Directors of either Canmax-Wyoming or Canmax-Delaware or both,
notwithstanding approval of this Merger Agreement by the shareholders of
Canmax-Wyoming or the stockholders of Canmax-Delaware, or both, if circumstances
arise which, in the opinion of the Board of Directors of Canmax-Wyoming or
Canmax-Delaware, make the Merger inadvisable or such deferral of the time of
consummation thereof advisable.
M. COUNTERPARTS. This Merger Agreement may be executed in any number of
counterparts, each of which shall constitute an original document but all of
which together shall constitute one and the same Agreement.
N. FURTHER ASSURANCES. From time to time, as and when required or
requested by either Canmax-Wyoming or Canmax-Delaware, as applicable, or by its
respective successors and assigns, there shall be executed and delivered on
behalf of the other corporation, or by its respective successors and assigns,
such deeds, assignments and other instruments, and there shall be taken or
caused to be taken by it all such further and other action, as shall be
appropriate or necessary in order to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation the title to and possession of all
property, interests, assets, rights, privileges, immunities, powers, franchise
and authority of Canmax-Wyoming and otherwise to carry out the purposes of this
Merger Agreement, and the officers and directors of each corporation are fully
authorized in the name and on behalf of such corporation or otherwise, to take
any and all such action and to execute and deliver any and all such deeds,
assignments and other instruments.
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IN WITNESS WHEREOF, Canmax-Wyoming and Canmax-Delaware have caused this
Merger Agreement to be signed by their respective duly authorized officers and
delivered this 1st day of February, 1999.
CANMAX INC.,
a Wyoming corporation
By: /s/ Roger D. Bryant
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Name: Roger D. Bryant
Title: President
ARDIS TELECOM & TECHNOLOGIES, INC.
a Delaware corporation
By: /s/ Roger D. Bryant
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Name: Roger D. Bryant
Title: President
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