Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of December 4, 2006 (the "PLAN OF
MERGER"), between Enthrust Financial Services, Inc. (the "SURVIVING
CORPORATION"), a corporation organized under the laws of the State of Delaware
and Entrust Financial Services, Inc. (the "NON-SURVIVOR"), a corporation
organized under the laws of the State of Colorado. The Surviving Corporation and
the Non-Survivor are collectively referred to herein as the "CORPORATIONS."
WHEREAS, the Surviving Corporation is a corporation duly organized
and existing under the laws of the State of Delaware, having been formed in
December 2006, pursuant to a Certificate of Incorporation filed with the State
of Delaware;
WHEREAS, the Non-Survivor is a corporation duly organized and
existing under the laws of the State of Colorado, having been formed on November
8, 1996, pursuant to Articles of Incorporation filed with the State of Colorado;
and
WHEREAS, the Board of Directors of each of the Corporations has
determined that it is in the best interests of the Corporations to merge into a
single corporation (the "MERGER") and that the Surviving Corporation be the
surviving corporation to the Merger on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, representations and warranties contained herein, it is agreed that:
1. Upon the Effective Time of the Merger (as defined in Section 12 below),
the Non-Survivor shall, pursuant to the applicable provisions of the
Colorado Business Corporation Act (the "CBCA"), be merged with and into
the Surviving Corporation, which shall (a) be the surviving corporation
upon the Effective Time of the Merger and (b) continue to exist as said
surviving corporation under the name "Enthrust Financial Services, Inc.",
pursuant to the applicable provisions of the General Corporation Law of
the State of Delaware (the "DGCL"). The separate existence of the
Non-Survivor shall cease upon the Effective Time of the Merger in
accordance with the applicable provisions of the CBCA.
2. The Certificate of Incorporation of the Surviving Corporation upon the
Effective Time of the Merger shall be the Certificate of Incorporation of
the Surviving Corporation following the Merger, and said Certificate of
Incorporation shall continue in full force and effect until amended and
changed in the manner prescribed by the provisions of the laws of the
State of Delaware.
3. The Bylaws of the Surviving Corporation upon the Effective Time of the
Merger shall be the Bylaws of the Surviving Corporation following the
Merger, and said Bylaws shall continue in full force and effect until
changed, altered, or amended as therein provided and in the manner
prescribed by the provisions of the laws of the State of Delaware.
4. The directors and officers of the Surviving Corporation upon the Effective
Time of the Merger shall be the directors and officers of the Surviving
Corporation following the Merger, all of whom shall hold their
directorships and offices until the election and qualification of their
respective successors or until their tenure is otherwise terminated in
accordance with the Bylaws of the Surviving Corporation.
5. At the Effective Time of the Merger, the separate existence of the
Non-Survivor shall cease, and
the Surviving Corporation shall continue in existence and, without
transfer, shall succeed to and possess all of the properties, rights,
privileges, immunities, powers, purposes and franchises, of a public and
private nature, and shall be subject to all of the obligations,
restrictions, disabilities and duties, of the Non-Survivor, all without
further act or deed, as provided in the applicable statutes of the State
of Delaware.
6. If at any time the Surviving Corporation shall consider or be advised that
any further assignments, conveyances or assurances in law are necessary or
desirable to carry out the provisions hereof, the proper officers and
directors of the Non-Survivor as of the Effective Time of the Merger shall
execute and deliver any and all proper deeds, assignments and assurances
in law, and do all things necessary or proper to carry out the provisions
hereof.
7. One (1) share of common stock of the Surviving Corporation ("Survivor
Shares") shall be issued in exchange for each share of issued and
outstanding common stock of the Non-Survivor ("Non-Survivor Shares") upon
the Effective Time of the Merger (the "Exchange Ratio"). The issued shares
of the Surviving Corporation, if any, at the Effective Time of the Merger,
shall not be converted or exchanged in any manner, but each said share
which is issued as of the Effective Time shall be canceled without
consideration.
8. Immediately following the Effective Time of the Merger, any and all issued
and outstanding options, warrants or other rights to acquire any of the
Non-Survivor Shares shall be converted into an option, warrant or other
right, as the case may be, to purchase Survivor Shares on the same terms,
at the Exchange Ratio and at a price equal to the current exercise price.
9. This Plan of Merger, as approved by the Corporations, shall be submitted
to the shareholders of the Non-Survivor for their approval or rejection in
the manner prescribed by the provisions of the CBCA.
10. In the event that the Plan of Merger shall have been (x) approved by the
shareholders of the Non-Survivor and (y) otherwise duly authorized in the
manner prescribed by the applicable provisions of the DGCL and the CBCA,
each of the Corporations hereby stipulates that it will cause to be
executed and filed and/or recorded any document or documents prescribed by
the laws of the State of Delaware and Colorado, and that each of the
Corporations will cause to be performed all necessary acts therein and
elsewhere to effectuate the Merger.
11. The Board of Directors and the proper officers of each of the
Corporations, are hereby authorized, empowered and directed to do any and
all acts and things, and to make, execute, deliver, file and/or record any
and all instruments, papers and documents which shall be or become
necessary, proper or convenient to carry out or put into effect any of the
provisions of this Plan of Merger or of the Merger herein provided for.
12. The effective date of the Merger shall (i) in the State of Colorado be the
date the Statement of Merger is filed by the Secretary of State of
Colorado or such later date as set forth in the Statement of Merger and
(ii) in the State of Delaware be the date the Certificate of Merger is
filed by the Secretary of State of Delaware or such later date as set
forth in the Certificate of Merger (the "EFFECTIVE TIME OF THE MERGER");
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13. Notwithstanding the approval of the Plan of Merger by the shareholders of
the Non-Survivor, the Merger herein provided for may be abandoned at any
time prior to the Effective Time of the Merger, notwithstanding favorable
action on the Merger by the shareholders of one or both of the
Corporations, but not later than the Effective Time of the Merger, by the
mutual consent of the Board of Directors of the Corporations.
14. The Corporations, by mutual consent of their respective Board of
Directors, may amend or modify this Plan of Merger in such manner as may
be agreed upon by them in writing at any time before or after approval or
adoption thereof by the shareholders of the Non-Survivor. Either of the
Corporations may, pursuant to action by its Board Directors, by an
instrument in writing, extend the time for or waive compliance by the
other with any of the covenants or conditions contained herein; provided,
however, that no such waiver or extension shall affect the rights of the
shareholders of either of the Corporations in a manner which is materially
adverse to such stockholders in the judgment of its respective Board of
Directors so acting.
15. This Plan of Merger may be executed in counterparts, each of which when so
executed shall be deemed to be an original, and such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, pursuant to the general approval and authority duly
given by resolutions adopted by their respective Boards of Directors, each of
the Corporations has caused this Plan of Merger to be executed by a duly
authorized officer.
ENTRUST FINANCIAL SERVICES, INC.,
A COLORADO CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: President
ENTHRUST FINANCIAL SERVICES, INC.,
A DELAWARE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
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CERTIFICATE OF SECRETARY OF ENTHRUST FINANCIAL SERVICES, INC.
The undersigned, being the Secretary of Enthrust Financial Services, Inc.,
a Delaware corporation, does hereby certify that the foregoing Agreement and
Plan of Merger has been adopted upon behalf of said corporation pursuant to the
provisions of Subsection (f) of Section 251 of the Delaware General Corporation
Law, and that, as of the date of this Certificate, the outstanding shares of
said corporation were such as to render the provisions of said Subsection (f)
applicable.
Executed on this 22nd day of December, 2006.
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, Secretary
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