Exhibit 2.1
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AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
GIA2, INC.
AND
▇▇▇▇▇▇ OFFSHORE INC.
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Dated as of July 25, 2001
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of July 25, 2001 (this
"Agreement"), between GIA2, Inc., a Delaware corporation, ("GIA2") and ▇▇▇▇▇▇
Offshore Inc., a Delaware corporation ("▇▇▇▇▇▇").
W I T N E S S E T H:
WHEREAS, the respective Boards of Directors of GIA2 and ▇▇▇▇▇▇
have determined that it is desirable and in the best interests of the parties to
this Agreement and their respective stockholders to provide for the merger of
GIA2 with and into ▇▇▇▇▇▇ (the "Merger"); and
WHEREAS, the stockholders of GIA2 have approved this Agreement
and the Merger contemplated hereby; and
WHEREAS, this Agreement is the Merger Agreement contemplated
by the Agreement With Respect to Ownership of the Tonala, dated as of July 20,
2000 (the "Agreement with Respect to Ownership"), by and among ▇▇▇▇▇▇,
Perforadora Central, S.A. de C.V., a corporation organized under the laws of
Mexico, Grupo Industrial Atlantida, S.A. de C.V., a corporation organized under
the laws of Mexico ("GIA"), and the stockholders of GIA, and capitalized terms
used herein, but not defined herein, shall have the meanings set forth in the
Agreement with Respect to Ownership.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements hereinafter contained, the parties, intending to
be legally bound, hereby agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions set forth in this
Agreement, and in accordance with the Delaware General Corporation Law (the
"DGCL"), GIA2 shall be merged with and into ▇▇▇▇▇▇ at the Effective Time
(as hereinafter defined). At the Effective Time, the separate existence of
GIA2 shall cease, and ▇▇▇▇▇▇ shall continue as the surviving corporation
(the "Surviving Corporation").
1.2 Effective Time. On the date of the execution and delivery of this Agreement
by the parties hereto or as promptly as possible thereafter, the parties
hereto shall file with the Secretary of State of the State of Delaware (the
"Delaware Secretary of State") a certificate of merger (the "Certificate of
Merger") or other appropriate documents, executed in accordance with the
relevant provisions of the DGCL, and make all other filings or recordings
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required under the DGCL in connection with the Merger. The Merger shall
become effective upon the filing of the Certificate of Merger with the
Delaware Secretary of State (the "Effective Time").
1.3 Effects of the Merger. The Merger shall have the effects set forth in
Section 259 of the DGCL. Without limiting the generality of the foregoing,
and subject thereto, at the Effective Time, all the properties, rights,
privileges, powers and franchises of ▇▇▇▇▇▇ and GIA2 shall vest in the
Surviving Corporation, and all debts, liabilities and duties of ▇▇▇▇▇▇ and
GIA2 shall be and become the debts, liabilities and duties of the Surviving
Corporation.
1.4 Certificate of Incorporation; By-laws.
(a) At the Effective Time, ▇▇▇▇▇▇' certificate of incorporation shall be the
certificate of incorporation of the Surviving Corporation until thereafter
changed or amended as provided therein or by applicable law.
(b) The by-laws of ▇▇▇▇▇▇ as in effect at the Effective Time shall, from and
after the Effective Time, be the by-laws of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law.
1.5 Directors. The directors of ▇▇▇▇▇▇ at the Effective Time shall, from and
after the Effective Time, become the directors of the Surviving
Corporation, until the earlier of their resignation or removal or until
their respective successors are duly elected and qualified, as the case may
be; provided, however, that ▇▇▇▇▇▇ shall use its best efforts to cause
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Morphy and one designee of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Morphy who
shall be acceptable to the Board of Directors of ▇▇▇▇▇▇ to each become
members of the Board of Directors of ▇▇▇▇▇▇ upon the occurrence of the
Effective Time or as soon thereafter as practical.
1.6 Officers. The officers of Chiles at the Effective Time shall, from and
after the Effective Time, become the officers of the Surviving Corporation
until the earlier of their resignation or removal or until their respective
successors are duly elected and qualified, as the case may be.
ARTICLE II
CONVERSION OF SHARES
2.1 Effect on Capital Stock. As of the Effective Time, by virtue of the Merger
and without any further action on the part of any holder of (i) any shares
of common stock, no par value, of GIA2 (the "GIA2 Common Stock") or (ii)
any shares of common stock, par value $.01 per share, of ▇▇▇▇▇▇ (the
"▇▇▇▇▇▇ Common Stock"):
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(a) Conversion of Common Stock. Each share of GIA2 Common Stock issued and
outstanding immediately prior to the Effective Time shall be converted
into the right to receive the applicable portion of the Total Merger
Consideration as determined pursuant to Section 2.1(c).
(b) Total Merger Consideration. The "Total Merger Consideration" shall
consist of the number of shares of ▇▇▇▇▇▇ Common Stock (rounded to the
nearest whole share) as is equal to 24% of the sum of (A) the number of
shares of ▇▇▇▇▇▇ Common Stock outstanding immediately prior to the
Successful IPO (as defined in the Agreement with Respect to Ownership)
(but excluding any shares issued in respect of options or rights to
purchase membership interests exercised prior to the Successful IPO)
and (B) the number of shares of ▇▇▇▇▇▇ Common Stock comprising the
Total Merger Consideration. For purposes of example, if holders of
▇▇▇▇▇▇ Common Stock owned 8,485,810 shares immediately prior to the
sale of shares in the Successful IPO (excluding any shares issued upon
the pre-Successful IPO exercise of options or rights), the Total Merger
Consideration would be equal to 2,679,723 shares of ▇▇▇▇▇▇ Common
Stock. Annex A attached hereto sets forth the amount of the Total
Merger Consideration and the basis for the calculation thereof.
(c) Common Stock of GIA2. Each share of GIA2 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 the right to receive such number of shares of ▇▇▇▇▇▇
Common Stock (the "Merger Consideration") as is equal to the number of
shares of ▇▇▇▇▇▇ Common Stock comprising the Total Merger Consideration
divided by the total number of shares of GIA2 Common Stock outstanding
at the Effective Time.
2.2 Payment of Merger Consideration. Upon conversion of the shares of GIA2
Common Stock into the right to receive the Merger Consideration in the
manner described in Section 2.1(c), each record holder of issued and
outstanding GIA2 Common Stock shall have a right to receive, and ▇▇▇▇▇▇
shall promptly issue to each such holder, a certificate representing such
whole number of shares of ▇▇▇▇▇▇ Common Stock (rounded to the nearest whole
share) equal to the product of (i) the Merger Consideration and (ii) the
number of shares of GIA2 Common Stock of which such Person is the record
holder immediately prior to the Effective Time.
ARTICLE III
TERMINATION
3.1 Termination of Agreement. This Agreement may be terminated prior to the
Effective Time by the mutual written consent of ▇▇▇▇▇▇ and GIA2;
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3.2 Procedure Upon Termination. In the event of termination by GIA2 and ▇▇▇▇▇▇
pursuant to Section 3.1 hereof, this Agreement shall terminate, and the
Merger hereunder shall be abandoned, without further action by GIA2 or
▇▇▇▇▇▇.
3.3 Effect of Termination. In the event that this Agreement is validly
terminated as provided herein, then each of the parties shall be relieved
of their duties and obligations arising under this Agreement after the date
of such termination and such termination shall be without liability to GIA2
or ▇▇▇▇▇▇; provided, however, that nothing in this Article III shall
relieve GIA2, ▇▇▇▇▇▇ or any other party to the Agreement with Respect to
Ownership of any liability for a breach of this Agreement or the Agreement
with Respect to Ownership arising prior to such termination.
ARTICLE IV
MISCELLANEOUS
4.1 Specific Performance. The parties acknowledge and agree that the breach of
this Agreement by either party would cause irreparable damage to the other
party and that the non-breaching party will not have an adequate remedy at
law. Therefore, the obligations of the parties shall be enforceable by a
decree of specific performance issued by any court of competent
jurisdiction, and appropriate injunctive relief may be applied for and
granted in connection therewith. Such remedies shall, however, be
cumulative and not exclusive and shall be in addition to any other remedies
which any party may have under this Agreement, the Agreement with Respect
to Ownership or otherwise.
4.2 Further Assurances. The parties agree to execute and deliver such other
documents or agreements and to take such other action as may be reasonably
necessary or desirable for the implementation of this Agreement and the
consummation of the transactions contemplated hereby.
4.3 Submission to Jurisdiction; Consent to Service of Process.
(a) The parties hereto hereby irrevocably submit to the jurisdiction of any
federal court located in the City of Houston, Texas (or, in the event that
such federal court does not have subject matter jurisdiction over the
controversy, any state District Court located in ▇▇▇▇▇▇ County, Texas) over
any dispute arising out of or relating to this Agreement or any of the
transactions contemplated hereby and each party hereby irrevocably agrees
that all claims in respect of such dispute or any suit, action proceeding
related thereto may be heard and determined in such courts. The parties
hereby irrevocably waive, to the fullest extent permitted by applicable
law, any objection which they may now or hereafter have to the laying of
venue of any such dispute brought in such court or any defense of
inconvenient forum for the maintenance of such dispute. Each of the parties
hereto agrees that a judgment in any such dispute may be enforced in other
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jurisdictions by suit on the judgment or in any other manner provided by
law.
(b) Each of the parties hereto hereby consents to process being served by any
party to this Agreement in any suit, action or proceeding by the mailing of
a copy thereof in accordance with Section 4.7 hereof.
4.4 Entire Agreement; Amendments and Waivers. This Agreement, together with the
Agreement with Respect to Ownership and the other documents and instruments
contemplated hereby and thereby, represent the entire understanding and
agreement between the parties hereto with respect to the subject matter
hereof and this Agreement can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the party against whom enforcement of
any such amendment, supplement, modification or waiver is sought. No action
taken pursuant to this Agreement, including without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any
representation, warranty, covenant or agreement contained herein. The
waiver by any party hereto of a breach of any provision of this Agreement
shall not operate or be construed as a further or continuing waiver of such
breach or as a waiver of any other or subsequent breach. No failure on the
part of any party to exercise, and no delay in exercising, any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of such right, power or remedy by such party preclude
any other or further exercise thereof or the exercise of any other right,
power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies provided by law.
4.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
any conflicts of law provisions thereof that would require the application
of the laws of any other jurisdiction.
4.6 Section Headings. The section headings of this Agreement are for reference
purposes only and are to be given no effect in the construction or
interpretation of this Agreement.
4.7 Notices. All notices and other communications under this Agreement shall be
in writing and shall be deemed given when delivered personally or mailed by
certified mail, return receipt requested, to the parties (and shall also be
transmitted by facsimile to the Persons receiving copies thereof) at the
following addresses (or to such other address as a party may have specified
by notice given to the other party pursuant to this provision):
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If to GIA2 or any stockholder thereof, to:
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Morphy
c/o GIA-2 Central, S.A. de ▇.▇.
▇▇▇▇▇▇ Urales ▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, D.F.
Facsimile: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Milling ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile: 504-569-7001
If to ▇▇▇▇▇▇, to:
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
c/o SEACOR SMIT Inc.
1370 Avenues of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
4.8 Severability. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement shall remain in effect
provided, however, that if any such invalidity or unenforceability would
materially alter the economic results of the transactions contemplated by
this Agreement, then this Agreement shall terminated and be of no further
force or effect.
4.9 Binding Effect; Assignment. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors. Nothing in
this Agreement shall create or be deemed to create any third party
beneficiary rights in any person or entity not a party to this Agreement
except as provided below. No assignment of this Agreement or of any rights
or obligations hereunder may be made by either of the parties hereto (by
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operation of law or otherwise) without the prior written consent of the
other party hereto and any attempted assignment without the required
consents shall be void.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first written above.
▇▇▇▇▇▇ OFFSHORE INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and
Chief Financial Officer
GIA2, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Morphy
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Morphy
Title: President
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CERTIFICATION
I, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Secretary of ▇▇▇▇▇▇ Offshore Inc., a
Delaware corporation (the "Corporation") hereby certify that the above and
foregoing Agreement and Plan of Merger dated as of July 25, 2001, and the
execution thereof by the officer designated on behalf of the Corporation, was
approved by the Board of Directors of the Corporation on July 10, 2000, copies
of which resolutions have been filed in the records of proceedings and minutes
of the Board of Directors of the Corporation. I further certify that such
agreement was adopted pursuant to Section 251(f) of the Delaware General
Corporation Law and that the conditions specified in the first sentence thereof
have been satisfied.
July 25, 2001 /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Secretary
I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Assistant Secretary of GIA2 Inc., a
Delaware corporation (the "Corporation"), hereby certify that the above and
foregoing Agreement and Plan of Merger dated as of July 25, 2001, and the
execution thereof by the officer designated on behalf of the Corporation, was
approved by the Board of Directors of the Corporation on July 11, 2001, and by
the owners and holders of record of the issued and outstanding shares of stock
of the Corporation by Written Consent of Shareholders dated July 11, 2001,
copies of which resolutions and Written Consent have been filed in the records
of proceedings and minutes of the Board of Directors and shareholders of the
Corporation.
July 25, 2001 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Assistant Secretary
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Annex A
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Total Merger Consideration
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Outstanding shares of ▇▇▇▇▇▇ Common Stock immediately preceding Successful IPO
(excluding issuances in respecting options on other rights to purchase):
8,485,810
Total Merger Consideration:
2,679,723
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