AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger ("Agreement") by and between Cerro Mining
Corporation ("Cerro") and Maxxon, Inc. ("Maxxon").
WHEREAS, Maxxon was formed to develop, test, improve, market and secure
government approval for a new safety syringe; and
WHEREAS, Cerro owns but plans to sell certain mining properties; and
WHEREAS, the parties desire to provide for the terms and conditions upon
which Maxxon will merge into Cerro in a statutory merger "Merger") under Section
1082 of the Oklahoma General Corporation Act and Section 92A.100 et. seq of the
Nevada Revised Statutes ("Act"); and
WHEREAS, for federal income tax purposes, it is intended that the merger
qualify as a tax-free reorganization within the meaning of Section 368(A)(1)(a)
of the Internal Revenue Code of 1986, as amended ("Code").
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I
THE MERGER
1.01. The Merger
(a) Agreement to Merge. Subject to the terms and conditions of this
Agreement, at the Effective Time, as defined below, Maxxon shall be merged with
and into Cerro in accordance with the provisions of the Agreement and the Act,
the separate corporate existence of Maxxon shall cease, and Cerro shall continue
as the surviving corporation ("Surviving Corporation"). The constituent
corporations ("Constituent Corporations") to the Merger are Cerro and Maxxon.
The name of Cerro, as the Surviving Corporation, shall be changed by reason of
the Merger to "Maxxon, Inc."
(b) Effective Time. The Merger shall become effective ("Effective Time") at
the time of filing of the Articles of Merger substantially in the form attached
as Exhibit A ("Articles of Merger") with the Secretary of State of the State of
Nevada in accordance with applicable provisions of the Act.
(c) Effect of the Merger. At the Effective Time, all rights, powers,
privileges, franchises, licenses and permits of the Constituent Corporations and
all property, real, personal and mixed, shall be vested in the Surviving
Corporation; and all debts, duties, liabilities and claims of every kind,
character and description of the Constituent Corporations
shall be debts, duties, liabilities and claims of the Surviving Corporation and
may be enforced against the Surviving Corporation to the same extent as if such
debts, duties, liabilities and claims had been incurred by it. All rights of
creditors of the Constituent Corporations and all liens upon property of either
Constituent Corporation shall be preserved unimpaired and shall not be altered
in any way by reason of the Merger.
1.02. Conversion of Stock. At the Effective Time, by virtue of the Merger
and without any action on the part of the holders thereof:
(i) Each share of Common Stock of Maxxon which is issued and outstanding
shall be converted automatically into one (1) share of Common Stock of Cerro.
(ii) All issued and outstanding options, warrants or similar rights to
purchase Common Stock of Maxxon at the Effective Time shall by reason of the
Merger and without action on the part of the holders thereof be automatically
converted into options, warrants or similar rights to purchase one (1) share of
Common Stock of Cerro for each share covered by such options, warrants or
similar rights upon the same terms and conditions as if issuable by Maxxon upon
the exercise of such options immediately prior the Effective Time.
(iii) Each share of Common Stock of Cerro issued and outstanding at the
Effective Time shall remain issued and outstanding as one share of capital stock
of Cerro.
1.03. Effect of Merger.
(a) Rights in Maxxon Cease. At and after the Effective Time, the holder of
each certificate of Common Stock of Maxxon shall cease to have any rights as a
stockholder of Maxxon. All dividends or other distributions with respect to
Maxxon common stock prior to the Effective Time shall be payable without
interest upon surrender of certificates representing Maxxon Common Stock.
(b) Closure of Maxxon Stock Records. From and after the Effective Time, the
stock transfer books of Maxxon shall be closed, and there shall be no further
registration or transfers on the stock records of Maxxon.
1.04. Articles of Incorporation of the Surviving Corporation. Automatically
upon the occurrence of the Effective Time, the Articles of Incorporation of
Cerro from and after the Effective Time shall be amended to read as set forth in
paragraph 5 of Exhibit A hereto until thereafter amended in accordance with
applicable law.
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1.05. Bylaws of The Surviving Corporation. Automatically upon the
occurrence of the Effective Time, the Bylaws of Cerro from and after the
Effective Time shall be amended as set forth in Exhibit B until amended in
accordance with applicable law.
1.06. Directors of The Surviving Corporation. Automatically upon the
occurrence of the Effective Time, the directors of Cerro immediately prior to
the Effective Time shall resign as the directors of Cerro, and the directors of
Maxxon immediately prior to the Effective Time shall become the directors of the
Surviving Corporation until their respective successors are elected and duly
qualified.
1.07. Officers of the Surviving Corporation. The officers of Cerro
immediately prior to the Effective Time shall resign as the officers of Cerro,
and the officers of Maxxon immediately prior to the Effective Time shall become
of the officers of the Surviving Corporation until their respective successors
are duly elected and qualified.
1.08. Closing. The Closing of the Merger shall take place at the offices of
Maxxon at 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxx Xxxxxxxx 00000 at 5:00 p.m. local
time on the date on which the last condition set forth herein is fulfilled or
waived or at such time and place as the parties agree ("Closing Date").
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01. General Representations and Warranties. Each party represents to the
other that:
(i) It is a corporation duly organized, validly existing and in good
standing under the laws of the state of its incorporation and that it is not
required to be qualified or licensed to do business as a foreign corporation in
any other jurisdiction.
(ii) The execution of this Agreement and the consummation of the Merger and
the other transactions contemplated hereby have been duly authorized by its
Board of Directors and Shareholders, and no other corporate action on its part
is necessary in order to execute, deliver, consummate and perform its
obligations hereunder.
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(iii) The execution, delivery, performance and consummation of the Merger
and the transactions contemplated hereby do not violate any obligation to which
it is a party and will not create a default thereunder.
(iv) There are no suits, actions or proceedings pending or to its knowledge
threatened which seek to enjoin the Merger or the transactions contemplated by
this Agreement or which, if adversely decided, would have a materially adverse
effect on its business, results of operations, assets or prospects.
(v) No statement made by it herein or in the exhibits hereto or any
document delivered by it or on its behalf pursuant to this Agreement contains an
untrue statement of material fact or omits to state all material facts necessary
to make the statements therein not misleading in any material respect.
(vi) It has incurred no finder=s, broker=s, investment banking, financial,
advisory or other similar fee for which the other shall be liable by reason of
the Merger or otherwise.
(vii) All issued and outstanding shares have been validly issued and are
fully paid and non-assessable and have not been issued in violation of any
preemptive or other rights of any other person or any applicable laws.
(viii) There are no outstanding options, warrants, commitments, calls or
other rights or agreements requiring it to issue any shares of its common stock
or securities convertible into shares of its common stock to anyone for any
reason whatsoever.
2.02 Representations by Cerro. Cerro represents to the parties that its
authorized capital consists of 25,000,000 shares of Common Stock, par value
$.001 per share and at the date hereof, 2,256,000shares of its Common Stock are
issued and outstanding; and no shares were held in its treasury, except that at
the Effective Time of the Merger 1,725,000 shares of Cerro's Common Stock shall
be held in treasury. All issued and outstanding shares have been validly issued
and are fully paid and non-assessable shares and have not been issued in
violation of any preemptive or other rights of any other person or any
applicable laws. There are no outstanding options, warrants, commitments, calls
or other rights or agreements requiring it to issue any shares of its Common
Stock or securities convertible into shares of its Common Stock to anyone for
any reason whatsoever, except that warrants to purchase 250,000 shares of Common
Stock of Cerro at an exercise price of $2.00 per share are outstanding. By
reason of the Merger, the Surviving Corporation shall issue 7,758,000 shares of
its Common Stock to shareholders of Maxxon in exchange for certificates
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representing shares of Maxxon Common Stock and such newly issue shares shall be
validly issued, fully paid and non-assessable shares upon such exchange.
2.03. Representations by Maxxon. Maxxon represents to the parties that its
authorized capital consists of 25,000,000 shares of Common Stock, par value $.01
per share; at the date hereof, 7,578,000 shares of its Common Stock are issued
and outstanding to Maxxon; and no shares were held in its treasury. All issued
and outstanding shares have been validly issued and are fully paid and
non-assessable and have not been issued in violation of any preemptive or other
rights of any other person or applicable laws. There are no outstanding options,
warrants, commitments, calls or other rights or agreements requiring it to issue
any shares of its Common Stock or securities convertible into shares of its
Common Stock to any person for any reason whatsoever.
ARTICLE III
TRANSACTIONS PRIOR TO CLOSING
3.01. Corporate Approvals. Prior to Closing, each of the parties shall
submit this Agreement to its Board of Directors and Shareholders and obtain
approval thereof. Copies of corporate actions taken shall be provided to each
party.
3.02. Access to Information. Each party agrees to permit upon reasonable
notice the attorneys, accountants, and other representatives of the other
parties reasonable access during normal business hours to its properties and its
books and records to make reasonable investigations with respect to its affairs,
and to make its officers and employees available to answer questions and provide
additional information as reasonably requested.
3.03. Expenses. Each party agrees to bear its own expenses in connection
with the negotiation and consummation of the Merger and the transactions
contemplated hereby.
3.04. Covenants. Except as permitted in writing, each party agrees that it
will:
(i) Pending completion of the Merger, conduct its business in accordance
with its ordinary, usual and normal course of business, and consistent with its
past practices and use its good faith efforts to preserve intact its business
organization, key employees, good will and business relationships;
(ii) Use its good faith efforts to obtain all requisite licenses, permits,
consents, approvals and authorizations necessary in order to consummate the
Merger;
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(iii) Notify the other parties upon the occurrence of any event which would
have a materially adverse effect upon the Merger or the transactions
contemplated hereby or upon the business, assets or results of operations; and
(iv) Not enter into any material agreement not in the ordinary course of
its business and not to modify its corporate structure or otherwise act outside
the ordinary course of its business, except as necessary or advisable in order
to consummate the Merger and the transactions contemplated hereby.
ARTICLE IV
CONDITIONS PRECEDENT
The obligation of the parties to consummate the Merger and the transactions
contemplated hereby are subject to the following conditions which may be waived
to the extent permitted by law:
(i) Each party must obtain the approval of its Board of Directors and
Shareholders in accordance with applicable law, and such approval shall not have
been rescinded or restricted.
(ii) Each party shall obtain all requisite licenses, permits, consents,
authorizations and approvals required to complete the Merger and the
transactions contemplated hereby.
(iii) There shall be no effective injunction, writ or preliminary
restraining order or other order of a similar nature issued by any court or
governmental agency having jurisdiction directing that the Merger or the
transactions contemplated hereby shall not be consummated.
(iv) The representations and warranties of the parties shall be true and
correct in all material respects at the Effective Time.
ARTICLE V
MISCELLANEOUS
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Neither party may assign this Agreement or any right or obligation of it
hereunder without the prior written consent of the other parties hereto. No
permitted assignment shall relieve a party of its obligations under this
Agreement without the separate written consent of the other parties. This
Agreement shall be binding upon and enure to the benefit of the parties and
their respective permitted successors and assigns. Each party agrees that it
will comply with all applicable laws, rules and regulations in the execution and
performance of its obligations under this Agreement. This Agreement shall be
governed by and construed in accordance with the laws of the State of Nevada.
This document constitutes a complete and entire agreement among the parties with
reference to the subject matters set forth herein. No statement or agreement,
oral or written, made prior to or at the execution hereof and no prior course of
dealing or practice by either party shall vary or modify the terms set forth
herein without the prior consent of the other parties hereto. This Agreement may
be amended only by a written document signed by the parties. Notices or other
communications required to be made in connection with this Agreement shall be
delivered to the parties at the address set forth below or at such other address
as may be changed from time to time by giving written notice to the other
parties. This Agreement may be executed in multiple counterparts, each of which
shall constitute one and a single Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed by their authorized representatives the 9th day of May, 1997.
CERRO MINING CORPORATION.
By _______________________________
Xxxxxx Xxxx, President
MAXXON, INC.
By _______________________________
Xxxxxxx Xxxxx, Chairman and President
0
XXXXXXXX XX Xxxxxxx Xxxxxxxx )
) ss
COUNTY OF ___________ )
On the 15th day of May, 1997 before the undersigned personally appeared
Xxxxxx Xxxx, who acknowledged that he is President of Cerro Mining Corporation,
and Xxxxxxx Xxxxx who acknowledged to me that she is Corporate Secretary of
Cerro Mining Corporation, and the each is authorized to execute the above
instrument in their respective capacities and for the purposes contained herein
and that the above instrument is true and correct for all purposes.
In witness, I set my hand and official seal.
---------------------------
Notary Public in and for The Province
of British Columbia
[seal]
My commission expires:
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STATE OF OKLAHOMA )
) ss
COUNTY OF TULSA )
On the 19th day of May, 1997 before the undersigned personally appeared
Xxxxxxx Xxxxx, who acknowledged to me that he is President of Maxxon, Inc., and
Xxxxxx Xxxxxxx, who acknowledged to me that she is Corporate Secretary of
Maxxon, Inc., and the each is authorized to execute the above instrument in
their respective capacities and for the purposes contained herein and that the
above instrument is true and correct for all purposes.
In witness, I set my hand and official seal.
-----------------------------
Notary Public in and for Tulsa
County, Oklahoma
[seal]
My commission expires:
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ARTICLES OF MERGER
An Agreement and Plan of Reorganization has been adopted in accordance with
Section 92A.190 and 92A.200 of the Nevada Revised Statutes by and between Cerro
Mining Corporation ("Cerro"), a Nevada Corporation, and Maxxon, Inc. ("Maxxon"),
an Oklahoma Corporation.
1. The Constituent Corporations are Cerro Mining Corporation, a Nevada
corporation, and Maxxon, Inc. an Oklahoma corporation. As a result of the
Merger, Maxxon, Inc. will cease to exist.
2. An Agreement and Plan of Merger has been approved, adopted, certified,
executed and acknowledged by each Constituent Corporation in accordance with
92A.100 et seq. of Nevada Revised Statutes and Title 18, Oklahoma Statutes, ss.
1082 of the Oklahoma Corporation Act.
3. The Surviving Corporation is Cerro Mining Corporation.
4. (a) The approval of Cerro shareholders is required because its
corporate charter is being amended by reason of the Merger. Cerro
has issued and outstanding 2,256,000 shares of its Common Stock,
of which 2,000,000 shares (88% of shares outstanding) were voted
for the Merger, which is sufficient for approval by the owners of
Common Stock of Cerro. There are no other classes of securities
of Cerro issued, outstanding or entitled to vote on the Merger.
(b) The approval of Maxxon shareholders is required because it is
ceasing to exist by reason of the Merger. Maxxon has issued and
outstanding 7,578,000 shares of its Common Stock, of which
7,000,000 shares (92.37% of shares outstanding) voted for the
Merger, which is sufficient for approval by the owners of Common
Stock of Maxxon. There are no other classes of securities of
Maxxon issued, outstanding or entitled to vote on the Merger.
5. The Articles of Incorporation of the Surviving Corporation will be
amended by reason of the Merger as follows:
1. The name of the Surviving Corporation shall be changed to Maxxon,
Inc.
2. There shall be added the following Other Matters:
AMENDMENT OF BYLAWS
The Board of Directors of the Corporation is expressly authorized and
empowered to make, alter, amend or repeal the bylaws of the Corporation and
to adopt new bylaws.
POSSIBLE CONFLICTS OF INTEREST
No agreement or transaction involving the Corporation or any other
corporation, partnership, proprietorship, trust, association or other entity
in which the Corporation owns an interest or in which a director or officer
of the Corporation has a financial interest shall be void or voidable solely
for this reason or solely because any such director or officer is present at
or participates in the approval of such agreement or transaction.
INDEMNIFICATION
To the full extent not prohibited by the law as in effect from time to
time, the Corporation shall indemnify any person (and the heirs, executors
and representatives of such person) who is or was a director, officer,
employee or agent of the Corporation, or who, at the request of this
Corporation, is or was a director, officer, employee, agent, partner, or
trustee, as the case may be, of any other corporation, partnership,
proprietorship, trust, association or other entity in which this Corporation
owns an interest, against any and all liabilities and reasonable expenses
incurred by such person in connection with or resulting from any claim,
action, suit or proceeding, whether brought by or in the right of the
Corporation or otherwise and whether civil, criminal, administrative or
investigative in nature, and in connection with or resulting from any claim,
action, suit or proceeding, whether brought by or in the right of the
Corporation or otherwise and whether civil, criminal, administrative or
investigative in nature, and in connection with an appeal relating thereto,
in which such person is a party or is threatened to be made a party by
reason of serving or having served in any such capacity.
NO DIRECTOR LIABILITY IN CERTAIN CASES
To the maximum extent permitted by law as in effect from time to time,
no director of the Corporation shall be liable to the Corporation or its
shareholders for monetary damages for breach of any fiduciary duty as a
director, provided that this provision shall not eliminate or limit the
liability of a director for: (i) any breach of the director's duty of
loyalty to the Corporation or its shareholders; (ii) acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation
of law; (iii) unlawful payment of dividends or stock redemptions; or (iv)
any transaction from which the director derived an improper personal
benefit.
6. An executed copy of the Agreement and Plan of Merger is on file at the
principal place of business of the Surviving Corporation at 0000 Xxxxx Xxxx,
Xxxxx 000, Xxxxx, Xxxxxxxx 00000.
7. A copy of the Agreement and Plan of Merger will be furnished by the
Surviving Corporation upon request and without cost to any stockholder of any
Constituent Corporation.
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8. The Surviving Corporation acknowledges and agrees that (a) it may be
served with process in the State of Oklahoma in any proceeding for enforcement
of any obligation of any Constituent Corporation of Oklahoma, as well as for
enforcement of any obligation of the Surviving Corporation arising from the
Merger, including any suit or other proceeding to enforce the right of any
shareholders as determined in appraisal proceedings pursuant to the provisions
of Section 1092 of Title 18, Oklahoma Statutes, and (b) it irrevocably appoints
the Secretary of State of the State of Oklahoma as its agent to accept service
of process in any such suit or other proceedings and it instructs the Secretary
of State of the State of Oklahoma to address all such service of process to the
Surviving Corporation's principal executive offices at 0000 Xxxxx Xxxx, Xxxxx
000, Xxxxx, XX 00000, the address to which a copy of such process shall be
mailed by the Secretary of State.
IN WITNESS WHEREOF, these Articles of Merger have been duly executed by
Maxxon, Inc., the Surviving Corporation, by its President and Secretary.
Dated: May 20, 1997
CERRO MINING CORPORATION MAXXON, INC.
By: __________________________ By: _____________________________
Xxxxxx Xxxx, President Xxxxxxx Xxxxx, Chairman
ATTEST: ATTEST:
------------------------------ ---------------------------------
Xxxxxxx Xxxxx, Secretary Xxxxxx Xxxxxxx, Secretary
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ACKNOWLEDGMENTS
CITY OF Vancouver )
) ss
PROVINCE OF British Columbia )
On the 20th day of May, 1997 before the undersigned personally appeared
Xxxxxx Xxxx, who acknowledged that he is President of Cerro Mining Corporation,
and Xxxxxxx Xxxxx who acknowledged to me that she is Corporate Secretary of
Cerro Mining Corporation, and the each is authorized to execute the above
instrument in their respective capacities and for the purposes contained herein
and that the above instrument is true and correct for all purposes.
In witness, I set my hand and official seal.
-----------------------------
Notary Public in and for The Province
of British Colubia
[seal]
My commission expires:
----------------------
STATE OF OKLAHOMA )
) ss
COUNTY OF TULSA )
On the 20th day of May, 1997 before the undersigned personally appeared
Xxxxxxx Xxxxx, who acknowledged to me that he is Chairman and Chief Executive
Officer of Maxxon, Inc., and Xxxxxx Xxxxxxx, who acknowledged to me that she is
Corporate Secretary of Maxxon, Inc., and the each is authorized to execute the
above instrument in their respective capacities and for the purposes contained
herein and that the above instrument is true and correct for all purposes.
In witness, I set my hand and official seal.
--------------------------
Notary Public in and for Tulsa County,
Oklahoma
[seal]
My commission expires:
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