Exhibit 2.1
AGREEMENT AND PLAN OF MERGER OF
PREFERRED CONSUMER MARKETING, INC.
WITH AND INTO
NATIONAL SYNDICATIONS, INC.
This Agreement and Plan of Merger (this "Agreement") is entered into on
May 14, 2003, between Preferred Consumer Marketing, Inc., a Florida corporation
(the "Disappearing Corporation"), and National Syndications, Inc., a Delaware
corporation (the "Surviving Corporation" and together with the Disappearing
Corporation, the "Merging Entities").
WITNESSETH:
WHEREAS, the Disappearing Corporation and the Surviving Corporation desire
that the Disappearing Corporation merge with and into the Surviving Corporation
(the "Merger");
WHEREAS, Section 252 of the Delaware General Corporation Law (the "DGCL")
authorizes the merger of a Delaware corporation and a corporation that is not
formed in Delaware;
WHEREAS, Section 607.1107 of the Business Corporation Act of the State of
Florida (the "FBCA") authorizes the merger of a Florida corporation and
corporation that is not formed in Florida;
WHEREAS, Cross Media Marketing Corporation, a Delaware corporation, is the
sole shareholder of both the Disappearing Corporation and the Surviving
Corporation;
WHEREAS, the board of directors and the sole shareholder of the
Disappearing Corporation deem the consummation of the Merger in the manner
contemplated in this Agreement to be advisable and accordingly have adopted,
approved and authorized the execution of this Agreement by resolutions dated May
14, 2003; and
WHEREAS, the board of directors and the sole shareholder of the Surviving
Corporation deem the consummation of the Merger in the manner contemplated in
this Agreement to be advisable and accordingly have adopted, approved and
authorized the execution of this Agreement by resolutions dated May 14, 2003.
NOW THEREFORE, for and in consideration of the premises and covenants and
agreements set forth in this Agreement, the parties to this Agreement agree as
follows:
(1) At the Effective Time (as defined below) (a) the Disappearing
Corporation shall be merged with and into the Surviving Corporation and the
Surviving Corporation shall be the surviving entity of the Merger under its
present name and shall have all of the rights, privileges, immunities and powers
and shall be subject to all of the duties and liabilities of a corporation
formed under the DGCL; (b) the separate existence of the Disappearing
Corporation shall cease; (c) the Surviving Corporation shall thereafter be
responsible and liable for all liabilities and obligations of each of the
Merging Entities and any claim existing or action or proceeding pending by or
against either of the Merging Entities may be prosecuted as if the Merger had
not
taken place; and (d) neither the rights of creditors nor any liens upon the
property of either of the Merging Entities shall be impaired by the Merger.
(2) All corporate acts, plans, policies, contracts, approvals and
authorizations of the Disappearing Corporation and its sole shareholder, board
of directors, committees elected or appointed by the board of directors,
officers and agents, that were valid and effective immediately prior to the
Effective Time, shall be taken for all purposes as acts, plans, policies,
contracts, approvals and authorizations of the Surviving Corporation and shall
be as effective and binding thereon as the same were with respect to the
Disappearing Corporation.
(3) The By-laws of the Surviving Corporation, as in effect at the
Effective Time, shall continue as the By-laws of the Surviving Corporation
without amendment or other modification and the certificate of incorporation of
the Surviving Corporation, as in effect at the Effective Time, shall continue as
the certificate of incorporation of the Surviving Corporation without amendment
or other modification.
(4) The directors of the Surviving Corporation immediately prior to the
Effective Time shall be the directors of the Surviving Corporation at the
Effective Time, each to hold office in accordance with the certificate of
incorporation and By-laws of the Surviving Corporation, and the officers of the
Surviving Corporation immediately prior to the Effective Time shall be the
officers of the Surviving Corporation at the Effective Time, in each case until
their respective successors are duly elected or appointed and qualified.
(5) At the Effective Time, each of the issued shares of the Disappearing
Corporation immediately prior to the Effective Time, by virtue of the Merger and
without any action on the part of the sole shareholder, shall be converted into
one fully paid share of common stock of the Surviving Corporation and each
certificate theretofore representing a share of the Disappearing Corporation
common stock shall thereafter for all purposes be deemed to represent the
ownership of a like number of shares of common stock of the Surviving
Corporation.
(6) Upon the later of the filing of a Certificate of Merger with the
Secretary of State of the State of Delaware and the filing of the Articles of
Merger with the Department of State of the State of Florida, the Merger shall
become effective (the "Effective Time").
(7) The Disappearing Corporation and the Surviving Corporation hereby
stipulate that they will cause to be executed and filed the Certificate of
Merger with the Secretary of State of the State of Delaware and the filing of
the Articles of Merger with the Department of State of the State of Florida and
any other documents prescribed by the DGCL and the FBCA and they will cause to
be performed all necessary acts to effectuate the Merger.
(8) For the convenience of the parties, any number of counterparts of this
Agreement may be executed and each such counterpart shall be deemed to be an
original instrument.
(9) This Agreement shall be binding upon and inure to the benefit of the
parties to this Agreement and their respective successors and assigns.
2
IN WITNESS WHEREOF, each of the parties to this Agreement have caused this
Agreement to be executed as of the date first written above.
PREFERRED CONSUMER MARKETING, INC.,
a Florida corporation
By:
--------------------------------------
Name:
Title:
NATIONAL SYNDICATIONS, INC., a Delaware
corporation
By:
------------------------------------
Name:
Title: