AGREEMENT AND PLAN OF MERGER
EXHIBIT
2.1
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER
dated as
of March 2, 2007 (this “Agreement”) is made and entered into by and among Xxxxxx
Acquisition, Inc., a Delaware corporation (“Xxxxxx”), Guardian Zone
Technologies, Inc., an Ohio corporation (“Guardian”) and Heatherwood, Inc., a
Delaware corporation (“Heatherwood”) (Xxxxxx, Guardian and Heatherwood sometimes
are referred to collectively in this Agreement as the “Constituent
Corporations”).
WITNESSETH:
WHEREAS,
Xxxxxx,
Guardian and Heatherwood desire to effect a merger of each of Guardian and
Heatherwood with and into Xxxxxx pursuant to the provisions of the Delaware
General Corporation Law (the “DGCL”) and the Ohio Revised Code (the
“ORC”);
WHEREAS,
the
Board of Directors of each of Xxxxxx, Guardian and Heatherwood have deemed
it
advisable and in the best interests of each organization that each of Guardian
and Heatherwood merge with and into Xxxxxx upon the terms and subject to the
conditions herein provided; and
WHEREAS,
the
Board of Directors of each of Xxxxxx, Guardian and Heatherwood has, by
resolution duly adopted, approved this Agreement and directed that it be
executed by the undersigned officers.
NOW,
THEREFORE,
in
consideration of the mutual agreements herein contained, the parties agree
that
each of Guardian and Heatherwood shall be merged with and into Xxxxxx and that
the terms and conditions of the merger, the mode of carrying the merger into
effect and certain other provisions relating thereto shall be as hereinafter
set
forth.
ARTICLE
I
The
Merger
1.1 Surviving
Corporation.
Subject
to the terms and provisions of this Agreement, and in accordance with the DGCL
and the ORC, at the Effective Time (as defined in Section 1.3 hereof), each
of
Guardian and Heatherwood shall be merged with and into Xxxxxx (the “Merger”).
Xxxxxx shall be the surviving corporation (hereinafter sometimes called the
“Surviving Corporation”) of the Merger and shall continue its corporate
existence under the laws of the State of Delaware. At the Effective
Time:
(a) the
separate corporate existence of each of Guardian and Heatherwood shall
cease;
(b) the
Surviving Corporation shall hereupon and thereafter possess all the rights,
privileges, powers and franchises of a private nature, and be subject to all
the
liabilities and duties of each of Guardian and Heatherwood; and all and
singular, the rights, privileges, powers and franchises thereof, and all
property, real, personal and mixed, and all debts due to each of Guardian and
Heatherwood on whatever account, as well for stock subscriptions as all other
things in action or belonging to each of Guardian and Heatherwood, shall be
vested in the Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all and every other interest shall be thereafter
as
effectually the property of the Surviving Corporation as they were of each
of
Guardian and Heatherwood; but all rights of creditors and all liens upon any
property of each of Guardian and Heatherwood shall be preserved unimpaired,
and
all debts, liabilities and duties of each of Guardian and Heatherwood shall
attach to the Surviving Corporation and may be enforced against it to the same
extent as if said debts, liabilities and duties had been incurred or contracted
by it;
(c) the
assets, liabilities, reserves and accounts of each of Guardian and Heatherwood
shall be recorded on the books of the Surviving Corporation at the amounts
at
which they, respectively, shall then be carried on the books of the Surviving
Corporation subject to such adjustments or eliminations of intercompany items
as
may be appropriate in giving effect to the Merger; and
(d) at
the
Effective Time, the Board of Directors, and the members thereof, and the
officers of the Surviving Corporation shall be the following:
1. Xxxxxx
X.
Xxxx
2. Xxxxxx
X.
Xxxxxx
3. Xxxxxx
Xxxxx
1.2 Effect
of the Merger.
At the
Effective Time, the Merger shall have the effects provided for herein and in
the
relevant provisions of the DGCL and the ORC.
1.3 Effective
Time.
The
Merger shall become effective on the date and at the time at which the filing
of
each of the Certificate of Merger in the State of Delaware and the Certificate
of Merger in the State of Ohio shall have occurred in the manner required to
cause the Merger to become effective under the applicable provisions of the
DGCL
and the ORC (the “Effective Time”).
1.4 Consideration.
The
consideration for the Merger will be as follows:
(a) Guardian
shall pay to the shareholder of the Surviving Corporation, within ninety (90)
days of the date of first trading as a publicly traded company Sixty Thousand
Dollars ($60,000.00), secured by a promissory note (the “Guardian Note”), which
Guardian Note will be substantially in the form attached hereto as Exhibit
A;
(b) Guardian
shall pay to shareholders of Heatherwood, within five (5) days of the Effective
Time of the Merger, Thirty Thousand Dollars ($30,000.00);
(c) the
Surviving Corporation shall, at the Effective Time, issue the following shares
of its common stock ( the “Shares”) based on a goal of 40,000,000 shares of
common stock to be issued and outstanding after the proposed
financings:
(i) to
the
shareholders of Heatherwood as of the date hereof, One Million Six Hundred
Thousand (1,600,000) Shares, or the number of Shares equivalent to four percent
(4%) of the issued and outstanding Shares on the date thereof, according to
the
percentage share ownership of such shareholders in Heatherwood immediately
prior
to the Effective Time; and
(ii) to
Guardian Shareholders as of the date hereof Thirty Eight Million Four Hundred
Shares (38,400,000), or the number of Shares equivalent to ninety-six percent
(96%) of the issued and outstanding Shares on the date thereof, according to
the
percentage share ownership of such shareholders in Guardian immediately prior
to
the Effective Time.
1.5 Name
Change.
Upon
the
filing of the Certificate of Merger with the Secretary of State of the State
of
Delaware and pursuant to such filing, the name of the Surviving Corporation
shall be changed to Guardian Zone Technologies, Inc.
1.6 Additional
Actions.
If, at
any time after the Effective Time, the Surviving Corporation shall consider
or
be advised that any further assignments or assurances in law or any other acts
are necessary or desirable (a) to vest, perfect or confirm, of record or
otherwise, in the Surviving Corporation, title to and possession of any property
or right of Guardian and Heatherwood acquired or to be acquired by reason of,
or
as a result of, the Merger, or (b) otherwise to carry out the purpose of this
Agreement, Guardian and Heatherwood and their proper officers shall be deemed
to
have granted hereby to the Surviving Corporation a irrevocable power of attorney
to execute and deliver all such proper deeds, assignments and assurances in
law
and to do all acts necessary or proper to vest, perfect or confirm title to
and
the possession of such property or rights in the Surviving Corporation and
otherwise to carry out the purposes of this Agreement; and the proper officers
and directors of the Surviving Corporation are hereby fully authorized in the
name of Guardian and Heatherwood or otherwise to take any and all such
action.
ARTICLE
II
Treatment
of Shares of the Constituent Corporations
2.1 Xxxxxx
Common Shares.
Xxxxxx
has 100,000,000 shares authorized, all of which are of one class and are shares
of common stock, of which 200 Shares are currently issued and
outstanding.
2.2 Guardian
Common Shares.
Guardian
has 1,500 shares authorized, all of which are of one class and are common
shares, of which 758 are currently issued and outstanding.
2.3 Heatherwood
Common Shares.
Heatherwood
has 100,000,000 shares authorized, all of which are of one class and are shares
of common stock, of which 1,000 shares are currently issued and
outstanding.
2.4 No
Conversion of Shares.
No
shares of Xxxxxx, Guardian or Heatherwood shall be converted or substituted.
Upon the Effective Time of the Merger herein provided for, the issued shares
of
Guardian and Heatherwood shall be surrendered and extinguished, and, at the
Effective Time, each share of Xxxxxx issued and outstanding immediately prior
to
the Effective Time shall be surrendered and extinguished.
ARTICLE
III
Approval;
Amendment; Termination
3.1 Approval.
This
Agreement shall be submitted to the directors of each of Xxxxxx, Guardian and
Heatherwood for approval by each of them.
3.2 Amendment.
This
Agreement may be amended only by the board of directors of each of Xxxxxx,
Guardian and Heatherwood by a writing executed by each of the parties hereto;
provided,
however,
that
after the approval contemplated by Section 3.1 hereof, there shall be no
amendments that (a) alter or change any term of the articles of incorporation
of
the Surviving Corporation, except for alterations or changes that could
otherwise be adopted by the Board of Directors of the Surviving Corporation;
or
(b) alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any class of stock
of
Xxxxxx, Guardian or Heatherwood.
3.3 Termination.
At
any
time prior to the Effective Time, this Agreement may be terminated and the
Merger may be abandoned by the Board of Directors of each of Xxxxxx, Guardian
or
Heatherwood, notwithstanding approval of this Agreement by the holders of shares
of each of Xxxxxx, Guardian or Heatherwood.
3.4 Effect
of Termination.
If this
Agreement is terminated pursuant to Section 3.3 hereof, this Agreement shall
become null and void and of no further force and effect, and all obligations
of
the parties hereto shall terminate and there shall be no liability or obligation
of any party hereto or its representatives.
ARTICLE
IV
Miscellaneous
4.1 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original and the same agreement.
4.2 Statutory
Agent in Delaware.
The
name
and address of the statutory agent in Delaware upon whom any process, notice
or
demand against Guardian or Heatherwood or the Surviving Corporation may be
served is:
Corporation
Service Company
0000
Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx,
Xxxxxxxx 00000
4.3 Statutory
Agent in Ohio.
The
name
and address of the statutory agent in Ohio upon whom any process, notice or
demand against Guardian or Heatherwood or the Surviving Corporation may be
served is:
Xxxxx
X.
Xxxxxxxxx
00000
Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx
Xxxx, Xxxx 00000
4.4 Assignment.
This
Agreement shall be binding upon and inure to the benefit of the successors
and
assigns of each party hereto.
4.5 Waivers.
Any
waiver by any party of any violation of, breach of, or default under, any
provision of this Agreement, or any other agreements provided for herein, by
any
other party shall not be construed as, or constitute a continuing waiver of
such
provision, or waiver of any other violation of, breach of, or default under,
any
other provision of this Agreement or such other agreements.
4.6 Severability.
In
case
any provision in this Agreement shall be held invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions hereof
will not in any way be affected or impaired thereby.
IN
WITNESS WHEREOF,
each of
the parties hereto has caused this Agreement to be duly executed and attested
hereto by its duly authorized officers as of the day and year first above
written.
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Attest:
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XXXXXX
ACQUISITION, INC.
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By:
/s/ Xxxxx X. Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title:
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By:
/s/ Xxxxxxx X. Xxxxxxxxx
Name:
Xxxxxxx X. Xxxxxxxxx
Title:
President
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Attest:
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GUARDIAN
ZONE TECHNOLOGIES, INC.
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By:
/s/ Xxxxx X. Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title:
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By:
/s/ Xxxxxx X. Xxxx
Name:
Xxxxxx X. Xxxx
Title:
President
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Attest:
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HEATHERWOOD,
INC.
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By:
/s/ Xxxxx X. Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title:
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By:
/s/ Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
President
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