EXHIBIT 3.3
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (the "Merger
Agreement"), dated as of March 24, 2004, is by and between, PACIFIC CMA, INC., a
Colorado corporation ("Parent") and PACIFIC CMA, INC., a Delaware corporation
and a wholly-owned subsidiary of Parent ("Subsidiary").
WHEREAS, Parent, as of the date hereof, has the authority to issue
110,000,000 shares of capital stock consisting of: (i) 100,000,000 shares of
common stock, no par value ("Parent Common Stock"); and (ii) 10,000,000 shares
of preferred stock, no par value ("Parent Preferred Stock"), all of which are
undesignated as to class or series and unissued ("Parent Undesignated Stock");
WHEREAS, Subsidiary, as of the date hereof, has the authority to issue
110,000,000 shares of capital stock consisting of: (i) 100,000,000 shares of
common stock, par value $0.001 per share ("Subsidiary Common Stock"); and (ii)
10,000,000 shares of preferred stock, par value $0.001 per share ("Subsidiary
Preferred Stock"), all shares of preferred stock are undesignated as to class or
series ("Subsidiary Undesignated Stock");
WHEREAS, Parent and Subsidiary desire that Parent merge with and into
Subsidiary and that Subsidiary shall continue as the Surviving Company (as
hereinafter defined) in such Merger (as hereinafter defined), upon the terms and
subject to the conditions set forth herein and in accordance with the laws of
the State of Colorado and the laws of the State of Delaware;
WHEREAS, this Merger Agreement contemplates a tax-deferred merger of
Parent with and into Subsidiary in a reorganization pursuant to Section
368(a)(1)(F) of the Internal Revenue Code of 1986, as amended; and
WHEREAS, the respective Boards of Directors of Parent and Subsidiary
have approved this Merger Agreement, and Parent and Subsidiary shall each submit
this Merger Agreement to their shareholders for their approval, if required.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, the parties hereto agree to merge as follows:
ARTICLE 1
MERGER
1.1. MERGER. Subject to the terms and conditions of this Merger
Agreement, Parent shall be merged with and into Subsidiary (the "Merger") in
accordance with the General Corporation Law of the State of Delaware (the
"Delaware Code") and the Colorado Business Corporation Law (the "CBC"), and the
separate existence of Parent shall cease and Subsidiary shall be the surviving
company (which, in its capacity as the surviving company, is hereinafter
sometimes referred to as the "Surviving Company") and continue its corporate
existence under the laws of the State of Delaware.
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1.2. EFFECT OF THE MERGER. At the Effective Time of the Merger (as
hereinafter defined), the Surviving Company shall possess all the rights,
privileges, immunities and franchises, of a public and private nature, of each
of Parent and Subsidiary; all property (real, personal and mixed) and all debts
due on any account, including subscriptions for shares, and all other choses in
action, and every other interest of or belonging to or due to each of Parent and
Subsidiary shall vest in the Surviving Company without any further act or deed;
the title to any real estate or any interest therein vested by deed or otherwise
in Parent shall not revert nor in any way become impaired by reason of the
Merger, the Surviving Company shall be responsible and liable for all the
liabilities and obligations of each of Parent and Subsidiary; a claim of or
against or a pending proceeding by or against Parent or Subsidiary may be
prosecuted as if the Merger had not taken place, or the Surviving Company may be
substituted in the place of Parent; and neither the rights of creditors nor any
liens upon the property of Parent or Subsidiary shall be impaired by the Merger.
All corporate acts, plans, policies, agreements, arrangements, approvals and
authorizations of Parent, 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, policies,
agreements, approvals and authorizations of the Surviving Company and shall be
as effective and binding thereon as the same were with respect to Parent. The
requirements of any plans or agreements of Parent involving the issuance or
purchase by Parent of any shares of its capital stock, including the Parent's
Option Plan, shall be satisfied by the issuance or purchase of a like number of
shares of the capital stock of the Surviving Company.
1.3. EFFECTIVE DATE AND TIME OF THE MERGER. The Merger shall become
effective as of the date and time (the "Effective Date" and "Effective Time",
respectively) on which a certified copy of this Merger Agreement or a
Certificate of Merger, executed and acknowledged on behalf of the Parent and the
Subsidiary, in accordance with the requirements of the Delaware Code and the
CBC, has been filed with the Delaware Secretary of State and the State
Corporation Commission of Colorado.
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ARTICLE 2
NAME, ARTICLES/CERTIFICATES OF
INCORPORATION, BY-LAWS, DIRECTORS AND
OFFICERS OF THE SURVIVING COMPANY
2.1. NAME OF SURVIVING CORPORATION. The name of the Surviving Company
shall continue to be Pacific CMA, Inc., a Delaware corporation.
2.2. ARTICLES/CERTIFICATES OF INCORPORATION. The Certificate of
Incorporation of the Subsidiary shall be the Certificate of Incorporation of the
Surviving Company from and after the Effective Time until amended thereafter as
provided therein or by law.
2.3. BY-LAWS. The By-Laws of Subsidiary shall be the By-Laws of the
Surviving Company from and after the Effective Time until amended thereafter as
provided therein or by law.
2.4. DIRECTORS AND OFFICERS. The directors and officers of Subsidiary
at the Effective Time shall be the trustees and officers, respectively, of the
Surviving Company from and after the Effective Time and shall hold office in
accordance with the Certificate of Incorporation and By-Laws of the Surviving
Company until the next annual meeting of shareholders and until their successors
have been elected and qualified.
ARTICLE 3
CONVERSION AND EXCHANGE OF CERTIFICATES
3.1. CONVERSION. At the Effective Time, each of the following
transactions shall be deemed to occur simultaneously:
(a) Each share of Parent Common Stock issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into and
become a validly issued, fully paid and non-assessable share of Subsidiary's
Common Stock. The shares of Parent Common Stock so converted shall cease to
exist as such and shall exist only as shares of Subsidiary Common Stock.
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(b) Each warrant, option or other right to purchase shares of
Parent's Common Stock granted by Parent or any of its subsidiaries under any
warrant, stock option or stock purchase plan of Parent, including the Parent's
Option Plan, and outstanding immediately prior to the Effective Time shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into and become a warrant, option or other right to purchase, upon
the same terms and conditions, the number of shares of Subsidiary Common Stock
or Subsidiary Preferred Stock, as the case may be, which is equal to the number
of shares of Parent Common Stock or Parent Preferred Stock that the
warrantholder, optionee or rightholder would have received had he exercised his
warrant, option or other right in full immediately prior to the Effective Time
(whether or not such warrant, option or other right was then exercisable). A
number of shares of Subsidiary Common Stock and Subsidiary Preferred Stock shall
be reserved by the Surviving Company for issuance upon the exercise of options,
warrants, stock purchase rights and other convertible securities equal to the
number of shares of Parent Common Stock and Parent Preferred Stock so reserved
by Parent immediately prior to the Effective Time.
(c) The shares of Subsidiary Common Stock issued and
outstanding immediately prior to the Effective Time and held by Parent, without
any action on the part of Parent or any other person, shall be canceled and
retired and resume the status of authorized and unissued shares of Subsidiary
Common Stock, and no shares of Subsidiary Common Stock, Subsidiary Preferred
Stock or other securities of Subsidiary shall be issued in respect thereof.
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3.2. EXCHANGE OF CERTIFICATES.
(a) From and after the Effective Time, each holder of an
outstanding certificate which, immediately prior to the Effective Time,
represented shares of Parent Common Stock or other securities of Parent shall be
entitled to receive in exchange therefore, upon surrender thereof to the
transfer agent designated by the Surviving Corporation, a certificate or
certificates representing the number of shares of Subsidiary Common Stock,
Subsidiary Preferred Stock or other securities of Subsidiary, as the case may
be, into which such holder's shares of Parent Common Stock, Parent Preferred
Stock or other securities of Parent were converted. Until so surrendered, the
outstanding shares of stock of Parent to be converted into the stock of
Subsidiary, as provided herein, may be treated by the Surviving Company for all
corporate purposes as evidencing the ownership of shares of the Surviving
Company as though said surrender and exchange had taken place. Irrespective of
whether so surrendered, however, each such outstanding certificate insofar as it
purports to represent securities of Parent shall be deemed to be canceled and
shall be of no further force or effect.
(b) If any certificate for shares of Subsidiary capital stock
is to be issued in a name other than that in which the certificate for shares of
Parent capital stock surrendered in exchange therefore is registered, it shall
be a condition of such exchange that the surrendered certificate shall be
properly endorsed and otherwise in proper form for transfer and the person
requesting such exchange shall pay any transfer and other taxes required by
reason of the issuance of certificates for such shares of Subsidiary capital
stock in a name other than that of the registered holder of the certificate
surrendered, or shall establish to the satisfaction of the Surviving Company or
its agent that such tax has been paid or is not applicable. Notwithstanding the
foregoing, no party hereto shall be liable to a holder of shares of Parent
capital stock for any shares of Subsidiary capital stock or dividends or
distributions thereon delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
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ARTICLE 4
EMPLOYEES AND EMPLOYEE BENEFITS
The employees and agents of Parent shall become the employees and
agents of the Surviving Company and continue to be entitled to the same rights
and benefits that they enjoyed as employees and agents of Parent. All benefits
that accrue shall carryover and continue unabated. At the Effective Time, any
employee benefit plan or incentive compensation plan, including any stock option
plan, to which Parent is then a party, including the Parent's Option Plan, shall
be assumed by, and continue to be the plan of the Surviving Corporation. To the
extent any employee benefit plan or incentive compensation plan of Parent or any
of its subsidiaries provides for the issuance or purchase of, or otherwise
relates to, Parent capital stock, from and after the Effective Time such plan,
including Parent's Option Plan, shall be deemed to provide for the issuance or
purchase of, or otherwise to relate to, Surviving Company capital stock.
ARTICLE 5
CONDITIONS
Consummation of the Merger is subject to the satisfaction at or prior
to the Effective Time of the following conditions:
5.1. PARENT SHAREHOLDER APPROVAL. This Merger Agreement and the Merger
shall have been adopted and approved by the shareholders of Parent in accordance
with the CBC.
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5.2. SUBSIDIARY SHAREHOLDER APPROVAL. The Articles of Incorporation of
the Subsidiary shall have been filed in Delaware, and this Merger Agreement
shall have been duly adopted and approved by the Parent as the sole shareholder
of Subsidiary pursuant to the Delaware Code. The signature of Parent on this
Merger Agreement shall constitute its written consent, as the sole shareholder
of the Subsidiary, to this Merger Agreement and the Merger.
5.3. CONSENTS, ETC. Any and all consents, permits, authorizations,
approvals and orders deemed in the sole discretion of Parent to be necessary or
desirable to obtain in connection with the consummation of the Merger including,
without limitation, any consents necessary for the assignment of any contract
rights, obligations or benefits of Parent to the Surviving Company and any
consents of preferred shareholders, lenders or parties to investors' rights
agreements shall have been obtained or the receipt thereof shall have been
waived by Parent in its sole discretion.
ARTICLE 6
GENERAL
6.1. TERMINATION AND ABANDONMENT. This Merger Agreement may be
terminated, and the Merger and other transactions provided or herein abandoned,
at any time prior to the Effective Time, by action of the Board of Directors of
Parent, whether before or after adoption and approval of this Merger Agreement
by the shareholders of Parent, if the Board of Directors of Parent determines
that the consummation of the transactions provided for herein would not, for any
reason, be advisable. In the event of termination of this Merger Agreement, this
Merger Agreement shall become void and of no effect, and there shall be no
liability on the part of either Parent or Subsidiary or their respective Boards
of Directors, or shareholders, except
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that Parent shall pay all expenses incurred by Parent and Subsidiary in
connection with the Merger and this Merger Agreement.
6.2. AMENDMENT. This Merger Agreement may be amended by the Board of
Directors of Parent and Board of Directors of Subsidiary at any time prior to
the Effective Time, provided that an amendment made subsequent to the approval
of this Merger Agreement by either the shareholders of Parent or the sole
shareholder of Subsidiary shall not (a) alter or change the amount or kind of
shares, securities, cash, property and/or rights to be received in exchange for
or on conversion of all or any of the shares of any class or series thereof of
such corporation, (b) alter or change any term of the Certificate of
Incorporation of Subsidiary to be effected by the Merger, or (c) alter or change
any of the terms and conditions of this Merger Agreement, if such alteration or
change would adversely affect the holders of the class or series of the stock of
such company.
6.3. DEFERRAL. Consummation of the transactions provided for herein may
be deferred by Parent for any period of time if the Board of Directors or
Chairman of Parent determines that such deferral would be advisable for any
reason.
6.4. HEADINGS. The headings set forth herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Merger Agreement.
6.5. COUNTERPARTS. This Merger Agreement may be executed in
counterparts, each of which shall constitute an original, and all of which, when
taken together, shall constitute one and the same instrument.
6.6. GOVERNING LAW. This Merger Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado, without regard
to the principles of conflicts of laws.
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6.7. FURTHER ASSURANCES. From time to time, as and when required by the
Surviving Company or by its successors or assigns, there shall be executed and
delivered on behalf of Parent such deeds 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, advisable or necessary in order to vest, perfect or confirm, of
record or otherwise, in the Surviving Company the title to and possession of all
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of Parent, and otherwise to carry out the purposes of this Merger
Agreement, and the officers and directors of the Surviving Company are fully
authorized in the name and on behalf of Parent or otherwise, to take any and all
such action and to execute and deliver any and all such deeds and other
instruments.
IN WITNESS WHEREOF, the undersigned have each caused this Merger
Agreement to be executed on their respective behalves as of the day and year
first above written.
PACIFIC CMA, INC.
(a Colorado corporation)
By: /s/▇▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇
Title: Chairman
PACIFIC CMA, INC.
(a Delaware corporation)
By: /s/ ▇▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇
Title: Chairman
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