Exhibit 3.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is made this 7th
day of August 2006, by and between BTHC VIII, LLC, a Texas limited liability
company ("BTHC VIII"), and BTHC VIII, Inc., a Delaware corporation ("BTHC
Corp.") (the two corporate parties hereto being sometimes collectively referred
to as the "Constituent Corporations").
W I T N E S S E T H :
WHEREAS, BTHC VIII desires to reincorporate in the State of Delaware;
WHEREAS, in order to reincorporate BTHC VIII desires to merge into BTHC
Corp. (the "Merger"); and
WHEREAS, the Merger has been authorized by BTHC Corp. in accordance
with Section 264 of the Delaware General Corporation Law and by BTHC VIII in
accordance with Article 10.01 of the Texas Limited Liability Company Act;
NOW, THEREFORE, the Constituent Corporations do hereby agree to merge
on the terms and conditions herein provided, as follows:
ARTICLE I
MERGER
1.1 Agreement to Merge. The parties to this Agreement agree to effect
the Merger herein provided for, subject to the terms and conditions set forth
herein.
1.2 Effective Time of the Merger. The Merger shall be effective upon
the acceptance for filing of (i) Articles of Merger with the Secretary of State
of Texas and (ii) a Certificate of Merger with the Secretary of State of
Delaware. The date and time the Merger becomes effective is referred to as the
"Effective Time of the Merger."
1.3 Surviving Corporation. Upon the Effective Time of the Merger, BTHC
VIII shall be merged with and into BTHC Corp., and BTHC Corp. shall be the
surviving corporation, governed by the laws of the State of Delaware
(hereinafter sometimes called the "Surviving Corporation").
1.4 Certificate of Incorporation and Bylaws. Upon the Effective Time of
the Merger, the Certificate of Incorporation and Bylaws of BTHC Corp. in effect
immediately prior to the Effective Time of the Merger shall be the Certificate
of Incorporation and Bylaws of the Surviving Corporation, subject always to the
right of the Surviving Corporation to amend its Certificate of Incorporation and
Bylaws in accordance with the laws of the State of Delaware and the provisions
of its Certificate of Incorporation and Bylaws.
1.5 Directors and Officers. Xxxxxxx X. Xxxxxx, acting President of BTHC
VIII and BTHC Corp. at the Effective Time of the Merger, shall be and constitute
the sole director and officer of the Surviving Corporation, until his respective
successor(s) shall be elected or appointed and qualified or until his sooner
death, resignation or removal.
1.6 Effect of the Merger. On and after the Effective Time of the
Merger, subject to the terms and conditions of this Agreement, the separate
existence of BTHC VIII shall automatically cease, the separate existence of BTHC
Corp., as the Surviving Corporation, shall continue unaffected by the Merger,
except as expressly set forth herein, and the Surviving Corporation shall
succeed, without further action, to all the properties and assets of BTHC VIII
of every kind, nature and description and to BTHC VIII's business as a going
concern. The Surviving Corporation shall also succeed to all rights, title and
interests in any real or other property owned by BTHC VIII without reversion or
impairment, without further act or deed, and without any transfer or assignment
having occurred, but subject to any existing liens thereon. All liabilities and
obligations of BTHC VIII that were not discharged prior to the Effective Time of
the Merger shall become the liabilities and obligations of the Surviving
Corporation and any proceedings pending against BTHC VIII that were not
discharged will be continued as if the Merger had not occurred.
1.7 Further Assurances. BTHC VIII hereby agrees that at any time, or
from time to time, as and when requested by the Surviving Corporation, or by its
successors and assigns, it will execute and deliver, or cause to be executed and
delivered in its name by its last acting officers, or by the corresponding
officers of the Surviving Corporation, all such conveyances, assignments,
transfers, deeds or other instruments, and will take or cause to be taken such
further or other action and give such assurances as the Surviving Corporation,
its successors or assigns may deem necessary or desirable in order to evidence
the transfer, vesting of any property, right, privilege or franchise or to vest
or perfect in or confirm to the Surviving Corporation, its successors and
assigns, title to and possession of all the property, rights, privileges,
powers, immunities, franchises and interests referred to in this Article I and
otherwise to carry out the intent and purposes thereof.
ARTICLE II
CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
2.1 BTHC VIII Membership Interests. As of even date herewith, there are
no membership interests ("Interests") in BTHC VIII outstanding. All Interests in
BTHC VIII were cancelled pursuant to that certain First Amended Joint Plan of
Reorganization (the "Plan") of Ballantrae Healthcare, LLC, et al.
2.2 Outstanding BTHC Corp. Capital Stock. Each share of the common
stock, $0.001 par value, of BTHC Corp. (the "BTHC Corp. Common Stock") issued
and outstanding immediately prior to the Effective Time of the Merger shall
continue unchanged and remain issued and outstanding and shall be retained by
the stockholders of BTHC Corp. immediately prior to the Effective Time of the
Merger as shares of the Surviving Corporation. As of even date herewith, 500,000
shares of BTHC Corp. Common Stock are outstanding, and each holder of BTHC Corp.
Common Stock is entitled to vote at a meeting of BTHC Corp. stockholders.
ARTICLE III
TERMINATION AND AMENDMENT
3.1 Termination. This Agreement may be terminated and abandoned at any
time prior to the Effective Time of the Merger by the mutual written consent of
the authorized officers and the Board of Directors of BTHC VIII and BTHC Corp.,
respectively.
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3.2 Consequences of Termination. In the event of the termination and
abandonment of this Agreement pursuant to the provisions of Section 3.1 hereof,
this Agreement shall be of no further force or effect.
3.3 Modification, Amendment, etc. Any of the terms or conditions of
this Agreement may be waived at any time by the party entitled to the benefits
thereof, and this Agreement may be modified or amended at any time to the full
extent permitted by all applicable corporate laws. Any waiver, modification or
amendment shall be effective only if reduced to writing and executed by the duly
authorized representatives of the Constituent Corporations.
ARTICLE IV
GENERAL
4.1 Expenses. The Surviving Corporation shall pay all expenses of
carrying this Agreement into effect and accomplishing the Merger herein provided
for.
4.2 Exhibits. The Articles of Organization of BTHC VIII and the
Certificate of Incorporation of BTHC Corp. as in effect immediately prior to the
merger are attached hereto as Exhibits A and B, respectively.
4.3 Headings. Descriptive headings are for convenience only and shall
not control or affect the meaning or construction of any provisions of this
Agreement.
4.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original instrument, and all such counterparts together shall constitute only
one original.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf by an officer duly authorized thereunto
as of the date first above written.
BTHC VIII, LLC, a Texas limited liability company
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President
BTHC VIII, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President
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