AGREEMENT AND PLAN OF MERGER
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AGREEMENT AND PLAN OF MERGER dated as of December 31, 2004 ("Agreement"), between Force Protection, Inc., a Colorado corporation ("Force Protection Colorado"), and Force Protection, Inc., a Nevada corporation ("Force Protection Nevada").
RECITALS
Whereas, the Board of Directors of Force Protection Colorado has approved a change of legal domicile to the State of Nevada as being in the best interests of the corporation and its shareholders; and
Whereas, the change of legal domicile through the merger ("Merger") with Force Protection Nevada will take place under the terms and conditions set forth in this Agreement.
Now Therefore, in consideration of the respective representations, warranties, covenants and agreements contained in this Agreement, Force Protection Colorado and Force Protection Nevada hereby agree as follows:
ARTICLE I—THE MERGER
1.01 THE MERGER. Upon the terms and subject to the conditions of this Agreement, and in accordance with the relevant provisions of the Colorado Business Corporation Act ("Colorado Statute") and the Nevada Business Corporation Act ("Nevada Statute"), respectively, Force Protection Colorado will be merged with and into Force Protection Nevada as soon as practicable following the satisfaction or waiver, if permissible, of the conditions set forth in Article IV of this Agreement. Following the Merger, Force Protection Nevada will continue as the surviving corporation and will continue its existence under the laws of the State of Nevada, and the separate corporate existence of Force Protection Colorado will cease.
1.02 EFFECTIVE DATE. Subject to approval of the Merger by the shareholders of the two entities, the Merger will be consummated by filing with the Secretaries of State of the States of Colorado and Nevada, respectively, Articles of Merger, and any other appropriate documents ("Articles of Merger") in accordance with the Colorado Statute and the Nevada Statute, respectively. The Articles of Merger shall specify that the Merger will become effective on JANUARY 1, 2005 (the time the Merger becomes effective being the "Effective Date").
1.03 EFFECTS OF THE MERGER. The Merger will have the effects specified in the Colorado Statute and the Nevada Statute, respectively.
1.04 DIRECTORS AND OFFICERS OF FORCE PROTECTION NEVADA. After the Effective Date, the initial directors and officers of Force Protection Nevada, as the surviving corporation, will be the following persons:
| Xxxx Xxxxxxx | Director Class I, President | |
| R. Xxxxx Xxxxx | Director Class II, Secretary | |
| Xxxxx Xxxxxxxxx | Director Class III | |
| Xxx Thebes | Treasurer |
Such persons will serve until their successors will have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with Force Protection Nevada's Certificate of Incorporation and by laws.
ARTICLE II—EXCHANGE OF SHARES
2.01 SHARE EXCHANGE. On the Effective Date by virtue of the Merger, each share of common stock and/or Preferred stock of Force Protection Colorado held by the shareholders of Force Protection Colorado will be deemed exchanged for corresponding shares of the common stock and/or Preferred
stock as the case may be of Force Protection Nevada. Promptly after the Effective Date, Force Protection Nevada may issue to each shareholder of Force Protection Colorado a certificate representing the common stock and/or preferred stock to be issued to each shareholder and in such event each shareholder of Force Protection Colorado will be required to exchange and surrender the certificate representing all of such shareholder's shares in Force Protection Colorado. At the close of business on the day of the Effective date, the stock ledger of Force Protection Colorado will be closed.
ARTICLE III—COVENANTS
3.01 FURTHER ACTION. The parties will, subject to the fulfillment at or before the Effective Date of each of the conditions of performance set forth in Section IV herein, perform such further acts and execute such documents as may be reasonably required to effect the Merger.
3.02 MEETING OF BREAKTHROUGH SHAREHOLDERS. Force Protection Colorado will submit the Merger to its shareholders for their consideration and consent in accordance with the Colorado Statute and other provisions of applicable law. Force Protection Colorado will notify Force Protection Nevada that the consent of the shareholders has been obtained.
3.03 BEST EFFORTS TO CLOSE. The parties hereto agree to use their best efforts to close the transactions contemplated hereby as soon as practicable after the execution of this Agreement.
ARTICLE IV—CONDITIONS TO CONSUMMATION OF THE MERGER
4.01 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE MERGER. The respective obligations of each party to effect the Merger are subject to the satisfaction or waiver, where permissible, prior to the Effective Date, of the following conditions:
- (a)
- This
Agreement will have been approved by the affirmative vote of the shareholders of Force Protection Colorado by the requisite vote in accordance with
applicable law;
- (b)
- No statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent), will have been enacted, entered, promulgated or enforced by any court or governmental authority which is in effect and has the effect of prohibiting the consummation of the Merger; provided, however, that each of the parties will have used its best efforts to prevent the entry of any injunction or other order and to appeal as promptly as possible any injunction or other order that may be entered.
ARTICLE V—MISCELLANEOUS
5.01 ASSIGNMENT, BINDING EFFECT; BENEFIT; ENTIRE AGREEMENT. Neither this Agreement nor any of the rights, interests or obligations hereunder will be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon and will inure to the benefit of the parties hereto and their respective successors and assigns. Notwithstanding anything contained in this Agreement to the contrary, nothing in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto or their respective heirs, successors, executors, administrators and assign any rights, remedies, obligations or liabilities under or by reason of this Agreement. This Agreement and any documents delivered by the parties in connection herewith constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all prior agreements and understandings (oral and written) among the parties with respect thereto. No addition to or modification of any provision of this Agreement will be binding upon any party hereto unless made in writing and signed by all parties hereto.
5.02 SEVERABILITY. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such invalidity or
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unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement in any other jurisdiction. If any provision, clause, section or part of this Agreement is so broad as to be unenforceable, the provision, clause, section or part will be interpreted to be only so broad as is enforceable, and all other provisions, clauses, sections or parts of this Agreement which can be effective without such unenforceable provision, clause, section or part will, nevertheless, remain in full force and effect.
5.03 GOVERNING LAW. This Agreement will be governed by and construed in accordance with the laws of the State of Nevada without regard to its rules of conflict of laws.
5.04 DESCRIPTIVE HEADINGS. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
5.05 COUNTERPARTS. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered will be an original, but all such counterparts will together constitute one and the same instrument. Each counterpart may consist of a number of copies of this Agreement each of which may be signed by less than all of the parties hereto, but together all such copies will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be executed on its behalf by its duly authorized representative, all as of the day and year first above written.
| Force Protection, Inc. (Colorado) | ||
By: |
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| /s/ XXXX XXXXXXX |
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| Title: | President | |
Force Protection, Inc. (Nevada) |
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By: |
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| /s/ XXXX XXXXXXX |
||
| Title: | President | |
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