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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated as of March 28, 2003
(the "Agreement"), by and between Bostrom
Holding, Inc., a Delaware corporation
("Buyer"), CVS Merger Co., a Delaware
corporation and a wholly-owned subsidiary
of Buyer ("Transitory Subsidiary"), and CVS
Holdings, Inc., a Delaware
corporation ("Target"). Buyer, Transitory
Subsidiary, and Target are sometimes
collectively referred to herein as the
"Constituent Corporations."
WITNESSETH:
WHEREAS, the capitalization of Buyer, Transitory Subsidiary,
and Target is set forth in Schedule A
attached hereto.
WHEREAS, this Agreement contemplates a transaction in which
Buyer will acquire all of Target's
outstanding stock in exchange for common
stock of Buyer through a reverse subsidiary
merger of Buyer's Transitory
Subsidiary with and into Target;
WHEREAS, the respective Boards of Directors of the Constituent
Corporations deem it advisable that
Transitory Subsidiary merge with and into
Target and that Target continue as the
surviving corporation, upon the terms set
forth herein and in accordance with the
laws of the State of Delaware (the
"Merger"), and that the shares of
Transitory Subsidiary be converted upon
consummation of the Merger as set forth
herein; and
WHEREAS, the respective Boards of Directors of the Constituent
Corporations have, by resolutions duly
approved and adopted the provisions of
this Agreement, as the plan of merger
required by Section 251 of the General
Corporation Law of the State of Delaware
(the "Delaware Law").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
EFFECT OF THE MERGER; MANNER AND
BASIS OF CONVERTING SHARES.
Section 1.1. At the Effective Time (as hereinafter defined),
Transitory Subsidiary will merge with and
into Target, and the separate
corporate existence of Transitory
Subsidiary (except as may be continued by
operation of law) shall cease. Target shall
be the corporation surviving the
Merger (the "Surviving Corporation").
Section 1.2. At and as of the Effective Time, (i) each Target
share of Class A Common shall be converted
into the right to receive one (1)
share of Buyer's Class A Common, (ii) each
Target share of Class B Common shall
be converted into the right to receive one
(1) share of Buyer's Class B Common,
(iii) each Target share of Class C Common
shall be
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converted into the right to receive one (1)
share of Buyer's Class C Common,
(iv) each Target share of Class D-1 Common
shall be converted into the right to
receive one (1) share of Buyer's Class D-1
Common, (v) each Target share of
Class D-2 Common shall be converted into
the right to receive one (1) share of
Buyer's Class D-2 Common, and (vi) each
Target share of Class E Common shall be
converted into the right to receive one (1)
share of Buyer's Class E Common;
accordingly, each Target shareholder's
common stock in Target shall be converted
into Buyer's common stock in the number and
class of stock as indicated on
Schedule B attached hereto (the "Merger
Consideration").
Section 1.3 At and as of the Effective Time, each share of
Transitory Subsidiary's common stock, $0.01
par value per share, shall be
converted into one share of Surviving
Corporation's common stock, $0.01 par
value per share. At and as of the Effective
Time, the Surviving Corporation
shall issue shares of common stock, $0.01
par value per share, to Buyer in
consideration for Buyer's issuing its
common stock to former stockholders of
Target pursuant to Section 1.2. The number
of shares of Surviving Corporation's
common stock issued to Buyer pursuant to
this Section 1.3 shall be equal to the
number of Target common shares outstanding
immediately before the Effective Time
(other than such Target common stock held
in Target's treasury, immediately
before the effective time, which shall be
cancelled).
Section 1.4. At and as of the Effective Time, the Surviving
Corporation shall possess all the rights,
privileges, immunities and franchises,
of both a public and private nature, and be
subject to all the duties and
liabilities of Transitory Subsidiary; and
all rights, privileges, immunities and
franchises of Transitory Subsidiary and all
property, real, personal and mixed,
and all debts due on whatever accounts,
including subscriptions to shares, and
all other choses in action, and all and
every other interest, of or belonging to
Transitory Subsidiary shall be taken and
deemed to be transferred to and vested
in the Surviving Corporation without
further act or deed; and title to any real
estate, or any interest therein, vested in
Transitory Subsidiary shall not
revert or be in any way impaired by reason
of the Merger; and the Surviving
Corporation shall thenceforth be
responsible and liable for all liabilities and
obligations of Transitory Subsidiary and
any claim existing or action or
proceeding pending by or against Transitory
Subsidiary may be prosecuted to
judgment as if the Merger had not taken
place or the Surviving Corporation may
be substituted in its place; all with the
effect set forth in Section 251 of the
Delaware Law. The authority of the officers
of Transitory Subsidiary shall
continue with respect to the due execution
in the name of each respective
corporation of tax returns, instruments of
transfer or conveyance and other
documents where the execution thereof is
required or convenient to comply with
any provision of the Delaware Law or any
contract to which Transitory Subsidiary
was a party or this Agreement.
Section 1.5. The name of the Surviving Corporation shall be
"CVS Holdings, Inc."
ARTICLE 2
EFFECTIVE TIME.
Section 2.1. Upon fulfillment or waiver of the conditions
specified in Article 4 hereof, Target shall
cause a Certificate of Merger to be
executed and delivered for filing to
the
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Secretary of State of the State of
Delaware, all as provided in and in
accordance with Section 251 of the Delaware
Law (the "Target Certificate of
Merger").
Section 2.2. The Merger shall become effective on March __,
2003, the date of filing of the Target
Certificate of Merger and the Transitory
Subsidiary Certificate of Merger, as
provided by applicable law (the "Effective
Time").
ARTICLE 3
CERTIFICATE OF INCORPORATION AND
BY-LAWS; BOARD OF DIRECTORS.
Section 3.1. The Certificate of Incorporation of Surviving
Corporation shall be the Certificate of
Incorporation of CVS Holdings, Inc.,
attached hereto as Exhibit A.
Section 3.2. The By-laws of Surviving Corporation shall be
amended and restated at and as of the
Effective Time to read as did the Bylaws
of Transitory Subsidiary immediately prior
to the Effective Time (except that
the name of the Surviving Corporation shall
remain unchanged).
Section 3.3. The directors and officers of Transitory
Subsidiary shall become the directors and
officers of Surviving Corporation at
and as of the Effective Time (retaining
their respective positions and terms of
office).
ARTICLE 4
CONDITIONS.
Section 4.1. The respective obligations of each of Constituent
Corporations to consummate the Merger under
this Agreement is subject to the
fulfillment of the following
conditions:
(a) At the option of Transitory Subsidiary, Buyer, or Target, any
third
party consents which are required in order
to avoid a breach, violation,
conflict or default under any agreement,
contract, statute, rule or regulation
shall have been obtained;
(b) There shall have been no law, statute, rule or regulation,
domestic
or foreign, enacted or promulgated which
would make consummation of the Merger
illegal; and
(c) No preliminary or permanent injunction or other order by
any
federal or state court of competent
jurisdiction that makes illegal or otherwise
prevents the consummation of the Merger
shall have been issued and shall remain
in effect.
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ARTICLE 5
MISCELLANEOUS
Section 5.1. This Agreement may be executed in one or more
counterparts, all of which taken together
shall constitute one and the same
instrument.
Section
5.2. The internal law, not the law of conflicts, of
the State of Delaware will govern all
questions concerning the construction,
validity and interpretation of this
Agreement.
Section 5.3. This Agreement is not intended to confer upon any
person (other than the parties hereto and
their respective successors and
assigns) any rights or remedies hereunder
or by reason hereof; provided however,
that the provisions in Section 1.2 above
concerning payment of the Merger
Consideration are intended for the benefit
of Target's shareholders
Section 5.4 The Schedules and Exhibits identified in this
Agreement are incorporated herein by
reference and made a part hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by their respective
officers thereunto duly authorized,
all as of the day and year first written
above.
BOSTROM HOLDING, INC.
By: /s/ Daniel F. Moorse
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Name: Daniel F. Moorse
Title: Vice President and
Assistant Secretary
CVS HOLDINGS, INC.
By: /s/ Judith A. Vijums
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Name: Judith A. Vijums
Title:
Vice President and
Assistant Secretary
CVS MERGER CO.
By:
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Name: Judith A. Vijums
Title:
[Signature Page to Ag
