AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is entered into as of
July
19, 2007 by and between Marwich II, Ltd., a Colorado corporation
("Marwich-Colorado"), and Marwich II, Ltd., a Nevada corporation ("Marwich-Nevada").
WITNESSETH:
WHEREAS,
Marwich-Colorado is a corporation duly organized and existing under the laws
of
the State of Colorado;
WHEREAS,
Marwich-Nevada is a corporation duly organized and existing under the laws
of
the State of Nevada;
WHEREAS,
on the date of this Merger Agreement, Marwich-Nevada has authority to issue
400,000,000 shares of common stock, par value $0.001 per share (the
"Marwich-Nevada Common Stock"), of which 100 shares are issued and outstanding
and owned by Marwich-Colorado and 50,000,000 shares of Preferred Stock, par
value $0.001 per share (the "Marwich-Nevada Preferred Stock"), of which no
shares are issued or outstanding;
WHEREAS,
on the date of this Merger Agreement, Marwich-Colorado has authority to issue
100,000,000 shares of common stock (the "Marwich-Colorado Common Stock"), of
which 3,785,664 shares are issued and outstanding;
WHEREAS,
the respective Boards of Directors for Marwich-Colorado and Marwich-Nevada
have
determined that, for the purpose of effecting the reincorporation of
Marwich-Colorado in the State of Nevada, it is advisable and to the advantage
of
said two corporations and their shareholders that Marwich-Colorado merge with
and into Marwich-Nevada upon the terms and conditions herein provided;
and
WHEREAS,
the respective Boards of Directors of Marwich-Colorado and Marwich-Nevada,
the
shareholders of Marwich-Colorado, and the sole stockholder of Marwich-Nevada
have adopted and approved this Merger Agreement, all by the number of votes
required under Colorado and Nevada law, respectively;
NOW,
THEREFORE, in consideration of the mutual agreements and covenants set forth
herein, Marwich-Colorado and Marwich-Nevada hereby agree to merge as follows,
which agreement constitutes the “plan of merger” required by Colo. Rev. Stat. §
0-000-000:
1. Merger.
Marwich-Colorado shall be merged with and into Marwich-Nevada, and
Marwich-Nevada shall be the surviving corporation and shall, therefore, survive
the merger ("Merger"). The Merger shall be effective when Marwich-Nevada
delivers a statement of merger to the Colorado Secretary of State as required
by
Paragraph 11(b) of this Merger Agreement or, if later, when the requirements
under Nevada law for the completion of the Merger have been accomplished (the
"Effective Date").
2. Governing
Documents.
The
Articles of Incorporation of Marwich-Nevada, attached hereto as Exhibit A (the
"Articles of Incorporation") shall continue to be the Articles of Incorporation
of Marwich-Nevada as the surviving Corporation, unless and until thereafter
changed or amended in accordance with the provisions thereof and applicable
laws. The Bylaws of Marwich-Nevada, in effect on the Effective Date, shall
continue to be the Bylaws of Marwich-Nevada as the surviving Corporation without
change or amendment until further amended in accordance with the provisions
thereof and applicable laws.
3. Directors
and Officers.
The
directors and officers of Marwich-Nevada shall remain the directors and officers
of Marwich-Nevada upon the Effective Date.
4. Succession.
On the
Effective Date, Marwich-Nevada shall succeed to Marwich-Colorado in the manner
of and as more fully set forth in Section 92A.250 of the Nevada Revised
Statutes.
5. Further
Assurances.
From
time to time, as and when required by Marwich-Nevada or by its successors and
assigns, there shall be executed and delivered on behalf of Marwich-Colorado
such deeds and other instruments, and there shall be taken or caused to be
taken
by it such further and other action, as shall be appropriate or necessary in
order to vest, perfect or confirm, of record or otherwise, in Marwich-Nevada
the
title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of Marwich-Colorado,
and otherwise to carry out the purposes of this Merger Agreement and the
officers and directors of Marwich-Nevada are fully authorized in the name and
on
behalf of Marwich-Colorado or otherwise to take any and all such action and
to
execute and deliver any and all such deeds and other instruments.
6. Stock
of Marwich-Colorado.
Upon
the Effective Date, by virtue of the Merger and without any action on the part
of the holder thereof, each outstanding share of Marwich-Colorado Common Stock
outstanding immediately prior thereto shall be changed and converted into one
(1) fully paid and nonassessable share of Marwich-Nevada Common
Stock.
7. Stock
Certificates.
On and
after the Effective Date, all of the outstanding certificates which prior to
that time represented shares of Marwich-Colorado stock shall be deemed for
all
purposes to evidence ownership of and to represent the shares of Marwich-Nevada
stock into which the shares of Marwich-Colorado stock represented by such
certificates have been converted as herein provided. The registered owner on
the
books and records of Marwich-Colorado or its transfer agent of any such
outstanding stock certificate shall, until such certificate shall have been
surrendered for transfer or otherwise accounted for to Marwich-Nevada or its
transfer agent, have and be entitled to exercise any voting and other rights
with respect to and to receive any dividend and other distributions upon the
shares of Marwich-Nevada stock evidenced by such outstanding certificate as
above provided.
8. Options,
Warrants and All Other Rights to Purchase Stock.
Upon
the Effective Date, each outstanding option, warrant or other right to purchase
shares of Marwich-Colorado stock shall be converted into and become an option,
warrant, or right to purchase the same number of shares of Marwich-Nevada stock,
at a price per share equal to the exercise price of the option, warrant or
right
to purchase Marwich-Colorado stock and upon the same terms and subject to the
same conditions pertaining to such options, warrants, or rights. A number of
shares of Marwich-Nevada stock shall be reserved for purposes of such options,
warrants, and rights equal to the number of shares of Marwich-Colorado stock
so
reserved as of the Effective Date. As of the Effective Date, Marwich-Nevada
shall assume all obligations of Marwich-Colorado under agreements pertaining
to
such options, warrants, and rights.
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9. Other
Employee Benefit Plans.
As of
the Effective Date, Marwich-Nevada hereby assumes all obligations of
Marwich-Colorado under any and all employee benefit plans in effect as of said
date or with respect to which employee rights or accrued benefits are
outstanding as of said date.
10. Outstanding
Common Stock of Marwich-Nevada.
Forthwith upon the Effective Date, the one thousand (1,000) shares of
Marwich-Nevada Common Stock presently issued and outstanding in the name of
Marwich-Colorado shall be canceled and retired and resume the status of
authorized and unissued shares of Marwich-Nevada Common Stock, and no shares
of
Marwich-Nevada Common Stock or other securities of Marwich-Nevada shall be
issued in respect thereof.
11. Covenants
of Marwich-Nevada.
Marwich-Nevada covenants and agrees that it will:
a. On
or
before the Effective Date qualify to do business as a foreign corporation in
all
states in which Marwich-Colorado is so qualified and in which the failure so
to
qualify would have a material adverse impact on the business or financial
condition of Marwich-Nevada. In connection therewith, Marwich-Nevada shall
irrevocably appoint an agent for service of process as required under the
applicable provisions of state law in other states in which qualification is
required hereunder.
b. On
the
Effective Date, file a statement of merger with the Secretary of State of
Colorado as required by C.R.S. § 7-111-107(1)(c), incorporating by reference
C.R.S. §7-111-104.5.
c. On
and
after the Effective Date, comply with the requirements of C.R.S. §7-90-204.5 as
required by §7-111-107(1.5)
d. On
and
after the Effective Date, comply with the requirements under the laws of the
State of Nevada in effecting the Merger as contemplated in this Merger
Agreement.
e. File
any
and all other documents with the Colorado Secretary of State necessary to
complete the merger of Marwich-Colorado into Marwich-Nevada.
12. Amendment.
At any
time before or after approval and adoption by the stockholders of
Marwich-Colorado, this Merger Agreement may be amended in any manner as may
be
determined in the judgment of the respective Boards of Directors of
Marwich-Colorado and Marwich-Nevada to be necessary, desirable or expedient
in
order to clarify the intention of the parties hereto or to effect or facilitate
the purposes and intent of this Merger Agreement.
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13. Abandonment.
At any
time before the Effective Date, this Merger Agreement may be terminated and
the
Merger may be abandoned by the Board of Directors of either Marwich-Colorado
or
Marwich-Nevada or both, without further shareholder action and notwithstanding
approval of this Merger Agreement by the sole stockholder of Marwich-Nevada
and
the stockholders of Marwich-Colorado.
14. Counterparts.
In
order to facilitate the filing and recording of this Merger Agreement, the
same
may be executed in any number of counterparts, each of which shall be deemed
to
be an original.
IN
WITNESS WHEREOF, this Merger Agreement, having been duly approved by resolution
of the Board of Directors and approved by the shareholders of Marwich-Colorado
and Marwich-Nevada, is hereby executed on behalf of each of said two
corporations by their respective officers thereunto duly authorized.
MARWICH
II, LTD., a Colorado corporation
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
CFO
MARWICH
II, LTD., a Nevada corporation
By:
/s/
Xxxxxxx X. Xxxxxxx
Name:
Xxxxxxx
X. Xxxxxxx
Title:
CFO
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