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PLAN OF MERGER
WHITESTONE ACQUISITION CORP.
and
BJB HOLDINGS CORP.
This Plan of Merger (this "Plan") is made and entered into effective as
of January 14, 2000 between Whitestone Acquisition Corp., a New York business
corporation ("WAC"), and BJB Holdings Corp., a New York business corporation
("BJB"), and is joined in by Newtek Capital, Inc. ("Newtek"), a New York
business corporation that is the sole shareholder of WAC. Pursuant to this Plan,
WAC will be merged with and into BJB, BJB shall survive the merger and shall
become the wholly owned subsidiary of Newtek, and all of the outstanding shares
of common stock of BJB will be exchanged for and converted into the right to
receive stock in Newtek.
ARTICLE I
THE MERGER
Section 1.01 The Merger. Subject to the terms and conditions of this
Plan and the applicable provisions of the Business Corporation Law of the State
of New York (the "BCL"), at the Effective Time (as defined in Article II of this
Plan), WAC shall be merged with and into BJB (the "Merger").
Section 1.02 Effects of the Merger. BJB shall be the surviving
corporation in the Merger (hereinafter sometimes referred to as the "Surviving
Corporation"), and the name, identity, rights, privileges, powers, franchises,
properties and assets of BJB shall continue unaffected and unimpaired by the
Merger. At the Effective Time, the identity and separate existence of WAC shall
cease, all of the rights, privileges, powers, franchises, properties and assets
of WAC shall be vested in the Surviving Corporation, and the Surviving
Corporation shall be subject to all of the liabilities and obligations of WAC.
Section 1.03 Names of Constituent Corporations. The names of the
corporations proposing to merge are "Whitestone Acquisition Corp." and "BJB
Holdings, Inc."
Section 1.04 Name of Surviving Corporation. At and after the Effective
Time, the name of the Surviving Corporation shall be "BJB Holdings, Inc."
Section 1.05 Certificate of Incorporation of Surviving Corporation. The
Certificate of Incorporation of BJB, as in effect immediately before the
Effective Time, shall be the Certificate of Incorporation of the Surviving
Corporation until thereafter amended as provided therein and by applicable law.
No amendments to the Certificate of Incorporation of the Surviving Corporation
will be effected by the Merger.
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Section 1.06 Directors. The directors of BJB prior to the Effective
Time will continue as the directors of the Surviving Corporation in accordance
with the Surviving Corporation's Certificate of Incorporation and Bylaws until
their successors are duly elected or appointed and qualified or until their
earlier death, resignation, or removal.
Section 1.07 Officers. The persons serving as officers of BJB prior to
the Effective Time will continue as the officers of the Surviving Corporation,
each to hold office in accordance with the Surviving Corporation's Certificate
of Incorporation and Bylaws until their respective successors are duly elected
or appointed and qualified or until their earlier death, resignation or removal.
Section 1.08 Outstanding Voting Securities of Constituent Corporations.
(a) The securities of WAC entitled to vote consist of the common stock
of WAC, no par value per share ("WAC Common Stock"), of which 10 shares are
issued and outstanding as of the date of this Plan.
(b) The securities of BJB entitled to vote consist of the common stock
of BJB, par value $0.01 per share ("BJB Common Stock"), of which 18,000,000
shares are issued and outstanding as of the date of this Plan. An additional
250,000 shares of BJB Common Stock will be issued to two insiders of affiliated
companies prior to the Effective Time.
Section 1.09 Conversion of Securities.
(a) At the Effective Time, by virtue of the Merger and without any
action on the part of WAC or BJB, each share of BJB Common Stock issued and
outstanding at the Effective Time shall be converted into and represent solely
the right to receive one (1) share of common stock of Newtek, par value $0.02
per share (the "Merger Consideration"), upon compliance with the procedures of
Section 1.09(c) hereof, and shall no longer represent a share of BJB Common
Stock or an interest of any kind or nature whatever in BJB.
(b) At the Effective Time, each share of common stock of WAC Common
Stock issued and outstanding at the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into one outstanding share of BJB Common Stock. From and after the Effective
Time, each outstanding certificate previously representing shares of WAC Common
Stock shall be deemed for all purposes to evidence ownership of and to represent
the number of shares of BJB Common Stock into which such shares of WAC Common
Stock shall have been converted.
(c) As promptly as possible after the Effective Time, each record
holder of BJB Common Stock shall surrender his certificates for BJB Common Stock
("BJB Certificates") to the Surviving Corporation for cancellation in exchange
for the right to receive the Merger Consideration. Promptly following the
Surviving Corporation's receipt of the BJB Certificates from each record holder
thereof, the Exchange Agent selected and serving pursuant to Section 1.07(c) of
the Agreement and Plan of Merger dated as of December 9, 1999 by and between
REXX Environmental Corporation ("REXX"), Newtek, and REXX Acquisition Corp. (the
"REXX Merger Agreement") shall deliver the Merger Consideration to which such
record holder is entitled pursuant to Section 1.09(a) of this Plan.
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ARTICLE II
CONSUMMATION OF THE MERGER
The closing of the Merger (the "Closing") will take place as soon as
practicable after the satisfaction of the conditions precedent to the Merger set
forth in Article III of this Plan at such time, date and place, or by facsimile
or overnight delivery, as shall be mutually agreed to by the parties hereto. At
the time of the Closing, the parties will cause the Merger to be consummated by
filing a Certificate of Merger with the Secretary of State of New York, in such
form as required by and executed in accordance with the BCL. The date and time
of the filing of the Certificate of Merger shall be referred to in this
Agreement as the "Effective Time."
ARTICLE III
CONDITIONS
The obligations of the parties to effect the Merger are subject to the
satisfaction (or waiver, if applicable) of the conditions to the merger of REXX
with REXX Acquisition Corp. set forth in Article VI of the REXX Merger Agreement
(except for the consummation of the Merger).
ARTICLE IV
AMENDMENT
To the extent permitted by applicable law, this Plan may be amended at
any time before the Effective Time, but only by a written instrument that has
been duly authorized, executed and delivered by Newtek, WAC and BJB.
ARTICLE V
TERMINATION
This Plan shall terminate and become null and void, and the
transactions contemplated herein shall thereupon be abandoned, upon any
occurrence of a permitted termination of the REXX Merger Agreement pursuant to
Article VII thereof.
ARTICLE VI
GOVERNING LAW
This Plan shall be construed and interpreted in accordance with the
laws of the State of New York applicable to agreements made and entirely to be
performed within such jurisdiction.
ARTICLE VII
COUNTERPARTS
This Plan may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
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IN WITNESS WHEREOF, the parties have caused this Plan of Merger to be
executed by their duly authorized officers as of the day and year first above
written.
Attest: WHITESTONE ACQUISITION CORP.
/s/ Barry Sloane By: /s/ Brian A. Wasserman
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Barry Sloane Brian A. Wasserman
Secretary President
Attest: BJB HOLDINGS CORP.
/s/ Barry Sloane By: /s/ Brian A. Wasserman
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Barry Sloane Brian A. Wasserman
Secretary President
Attest: NEWTEK CAPITAL, INC.
/s/ Brian A. Wasserman By: /s/ Jeffrey G. Rubin
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Brian A. Wasserman Jeffery G. Rubin
Treasurer and Chief Financial Officer President and Chief Operating
Officer
