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Title: |
Agreement and Plan of Merger |
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Entities: |
First Union Corp.; First Union National Bank; First Union Securities, Inc.; Jw Charles Financial Services Inc; Kilpatrick Stockton |
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Date: |
2000 |
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Size: |
Preview shows 16KB of 146KB total |
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Price: |
$59 |
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ID: |
#1522971 |
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<SEQUENCE>2
<FILENAME>mergeragr.txt
<DESCRIPTION>AGREEMENT AND PLAN OF MERGER WITH FIRST UNION CORP
<TEXT>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of the 31st day of August, 2000
(as it may be amended from time to time hereafter, this "Plan"), by and between
JWGENESIS FINANCIAL CORP. (the "Company") and FIRST UNION CORPORATION ("First
Union").
RECITALS:
(A) THE COMPANY. The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of Florida, with
its principal executive offices located in Boca Raton, Florida. As of the date
hereof, the Company has 30,000,000 authorized shares of common stock, each of
$.001 par value ("Company Common Stock") and 5,000,000 authorized shares of
Preferred Stock, each of $.10 par value ("Company Preferred Stock")(no other
class of capital stock being authorized), of which 8,560,702 shares of Company
Common Stock and no shares of Company Preferred Stock were issued and
outstanding as of August 11, 2000.
(B) FIRST UNION. First Union is a corporation duly organized and
validly existing in good standing under the laws of the State of North Carolina,
with its principal executive offices located in Charlotte, North Carolina. First
Union is registered as a financial holding company and a bank holding company
under the Bank Holding Company Act of 1956, as amended.
(C) MERGING ENTITY. Promptly as practicable after the date hereof,
First Union shall cause the formation of a wholly-owned subsidiary of First
Union, which shall be incorporated under the laws of the State of Florida (the
"Merging Entity"). The Merging Entity shall be formed solely for the purpose of
engaging in the transactions contemplated by this Plan.
(D) RIGHTS, ETC. Except as Previously Disclosed (as hereinafter
defined), there are no shares of capital stock of the Company authorized and
reserved for issuance, the Company has no Rights (as hereinafter defined) issued
or outstanding and the Company has no commitment to authorize, issue or sell any
such shares or any Rights, except pursuant to this Plan. There are no preemptive
rights in respect of the Company Common Stock.
(E) APPROVALS. The Board of Directors of the Company and First Union
each has approved this Plan and has authorized the execution hereof in
counterparts.
(F) VOTING AGREEMENT. As a condition and inducement to First Union's
willingness to enter into this Plan, certain individuals have entered into an
agreement with First Union in the form attached hereto as ANNEX A (the "Voting
Agreement"), pursuant to which such individuals have agreed to vote all shares
<PAGE>
of Company Common Stock owned or acquired by them in favor of approval of the
transactions contemplated by this Plan.
(G) RETENTION PROGRAM. First Union and the Company have agreed, in
connection with the transactions contemplated hereby, to establish a retention
program on substantially the terms described herein, the purpose of which is to
retain the services of certain employees and Independent Contractors (as
hereinafter defined) of the Company and the Company Subsidiaries (as hereinafter
defined) following the consummation of the transactions contemplated hereby.
(H) EMPLOYMENT AGREEMENTS. In connection with the transactions
contemplated hereby, certain employees of the Company identified on ANNEX B
hereto have entered into employment agreements with First Union.
In consideration of their mutual promises and obligations, the parties
hereto adopt and make this Plan and prescribe the terms and conditions thereof
and the manner and basis of carrying it into effect, which shall be as follows:
I. THE MERGER.
1.01. THE MERGER. On the Effective Date (as hereinafter defined):
----------
(A) THE CONTINUING CORPORATION. The Merging Entity shall merge
with and into the Company (the "Merger"), the separate existence of the
Merging Entity shall cease and the Company (sometimes hereinafter
referred to as the "Continuing Corporation") shall survive the Merger
and the name of the Continuing Corporation shall be "First Union
Genesis Holdings, Inc". The Continuing Corporation shall continue to be
governed by the laws of the State of Florida, and the separate
corporate existence of the Continuing Corporation with all its rights,
privileges, immunities, powers and franchises shall continue unaffected
by the Merger. The Merger shall have the effects specified in the
Florida Business Corporation Act (the "FBCA").
(B) ARTICLES OF INCORPORATION; BYLAWS; DIRECTORS; OFFICERS.
The articles of incorporation and by-laws of the Continuing Corporation
shall be those of the Company in effect immediately prior to the
Effective Time (as hereinafter defined). The directors of the Merging
Entity in office immediately prior to the Effective Time shall be the
directors of the Continuing Corporation and the officers of the Merging
Entity and the Company in office immediately prior to the Effective
Time shall be the officers of the Continuing Corporation, in each case,
together with such additional directors and officers as may thereafter
be elected, who in the case of directors shall hold office until such
time as their successors are elected and qualified.
2
<PAGE>
1.02. EFFECTIVE DATE.
--------------
(A) If the conditions set forth in SECTIONS 6.01(A) and (B)
and 6.03(C) through (H) have been satisfied or waived in writing on or
before January 2, 2001, the effective date (the "Effective Date") of
the Merger shall be January 2, 2001. If those conditions have not been
satisfied or waived on such date, the Effective Date shall occur on
such later date as the parties hereto mutually agree after such
conditions are satisfied or waived; provided, however, that if the
parties are not able to agree upon such date, the Effective Date shall
be such date as First Union shall notify the Company in writing not
less than five days prior thereto, which date shall not be more than 15
days after the satisfaction or waiver of such conditions.
Notwithstanding anything to the contrary in the preceding, the
occurrence of the Effective Date shall be subject to the satisfaction
or written waiver of all of the conditions set forth in ARTICLE VI.
(B) Prior to the Effective Date, the Merging Entity and the
Company shall execute and deliver to the Department of State of the
State of Florida, articles of merger, in accordance with applicable
law, specifying the date and time at which the Merger shall become
effective. The time on the Effective Date at which the Merger becomes
effective is referred to as the "Effective Time".
II. CONSIDERATION.
2.01. CONSIDERATION. Subject to the provisions of this Plan, at the
-------------
Effective Time:
(A) OUTSTANDING MERGING ENTITY COMMON STOCK. Each of the shares of
Merging Entity common stock issued and outstanding immediately prior to the
Effective Time shall by virtue of the Merger, become and be converted into one
share of Company Common Stock, which shall be owned by First Union.
(B) OUTSTANDING COMPANY COMMON STOCK. Each share (excluding shares held
by the Company or any Company Subsidiaries or by First Union or any of its
subsidiaries, in each case other than in a fiduciary capacity, in connection
with any market making or proprietary trading activities or as a result of debts
previously contracted ("Excluded Shares")) of Company Common Stock issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger, automatically and without any action on the part of the holder thereof,
become and be converted into the right to receive, subject to any adjustment as
3
<PAGE>
provided in this SECTION 2.01(B), $12 in cash (as the same may be adjusted, the
"Merger Consideration"). Notwithstanding the foregoing, if:
(1) registered representatives of the JWG Broker-Dealers (as
hereinafter defined) as of the date hereof and accounting for at least
95% of the Aggregate Production (as hereinafter defined) do not both
(i) enter into Independent Contractor agreements with JWGFS (as
hereinafter defined) for the calendar year 2001 (substantially in the
customary form provided to First Union before the date of this Plan) on
or prior to the Effective Time and (ii) continue as registered
representatives of JWGFS and engage in their customary business
function as of the Effective Time, then the Merger Consideration shall
be reduced to $11; and
(2) registered representatives of the JWG Broker-Dealers as of
the date hereof and accounting for at least 90% of Aggregate Production
do not both (i) enter into Independent Contractor agreements with JWGFS
for the calendar year 2001 (substantially in the customary form
provided to First Union before the date of this Plan) on or prior to
the Effective Time or (ii) continue as registered representatives of
JWGFS and engage in their customary business function as of the
Effective Time, then the Merger Consideration shall be reduced further
to $10.00;
provided, however, that a registered representative of any JWG Broker-Dealer as
of the date hereof will be treated as having met the requirements of clauses (i)
and (ii) of SECTIONS 2.01(B)(1) and (2) if, as of the Effective Time, the
registered representative is an employee of First Union or an affiliate of it.
2.02. STOCKHOLDER RIGHTS; STOCK TRANSFERS. At the Effective Time,
holders of Company Common Stock shall cease to be, and shall have no rights as,
stockholders of the Company, other than to receive the Merger Consideration
provided under this ARTICLE II, without interest. After the Effective Time,
there shall be no transfers on the stock transfer books of the Company or the
Continuing Corporation of the shares of Company Common Stock which were issued
and outstanding immediately prior to the Effective Time.
2.03. PAYING AGENT AND EXCHANGE PROCEDURES.
------------------------------------
(A) First Union shall designate First Union National Bank to act
as agent for the exchange of the certificates representing shares of Company
Common Stock for the Merger Consideration upon surrender of the certificates for
the Company Common Stock (the "Exchange Agent"). As soon as reasonably
practicable after the Effective Date, the Exchange Agent will send or cause to
be sent to each former stockholder of the Company of record immediately prior to
4
<PAGE>
the Effective Time, transmittal materials for use in exchanging such
stockholder's certificates for Company Common Stock for the Merger
Consideration. The Merger Consideration will be delivered to such stockholder
only upon delivery to the Exchange Agent of (i) properly completed and duly
executed transmittal materials (in the form provided by the Exchange Agent) and
(ii) the certificates representing all of such shares of Company Common Stock
(or indemnity satisfactory to First Union and the Exchange Agent, in their
judgment, if any of such certificates are lost, stolen or destroyed). No
interest will be paid or shall accrue on the cash payable upon surrender of any
such certificates.
(B) Notwithstanding the foregoing, neither the Exchange Agent nor
any party hereto shall be liable to any former holder of Company Common Stock
for any amount properly delivered to a public official pursuant to applicable
abandoned property, escheat or similar laws.
2.04. EXCLUDED SHARES. Each of the Excluded Shares shall be canceled
----------------
and retired at the Effective Time, and no consideration shall be issued in
exchange therefor.
2.05. COMPANY DERIVATIVE SECURITIES. As soon as practicable after the
date of this Plan, the Board of Directors of the Company (the "Company Board")
(or, if appropriate, any committee administering the Previously Disclosed stock
option plans of the Company (the "Company Stock Option Plans")) shall adopt such
resolutions or take or cause to be taken such other actions (if any) as may be
required, including without limitation, amending the Company Stock Option Plans
and/or obtaining any necessary consents or agreements from holders of Company
Options (as hereinafter defined), holders of Non-Plan Company Options (as
hereinafter defined) and/or holders of warrants to purchase shares of Company
Common Stock (the "Company Warrants"), to provide that:
(A) each stock option to purchase shares of Company Common
Stock pursuant to a Company Stock Option Plan (each, a "Company
Option") outstanding immediately prior to the Effective Time (whether
vested or unvested) shall be converted, at the Effective Time, into the
right to receive, in lieu of the shares of Company Common Stock
theretofore purchasable upon the exercise of the Company Option, an
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