AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of this 8th day of December, 1999,
between Xxxxxx, Inc., a Delaware corporation ("XXXXXX-DEL"), and Xxxxxx, Inc., a
Colorado corporation ("XXXXXX-COL"). XXXXXX-DEL and XXXXXX-COL are sometimes
hereinafter referred to individually as a "Constituent Corporation" and
collectively as the "Constituent Corporations."
WHEREAS, the Board of Directors of each of the Constituent Corporations has
determined that it is advisable and in the best interests of each such
corporation to merge (the "Merger") XXXXXX-COL with and into XXXXXX-DEL upon the
terms and subject to the conditions herein provided; and
WHEREAS, the Board of Directors of each of the Constituent Corporations
has, by resolution duly adopted, approved this Agreement and Plan of Merger and
directed that it be executed by the undersigned officers and that it be
submitted to a vote of their respective stockholders.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and
provisions set forth herein, each of the Constituent Corporations hereby agrees
as follows:
FIRST: (a) The name of each Constituent Corporation in the Merger is as
follows:
Xxxxxx, Inc.
Xxxxxx, Inc.
(b) XXXXXX-DEL shall be the surviving corporation in the Merger (the
"Surviving Corporation"), and following the Merger its name shall continue to be
Xxxxxx, Inc.
SECOND: As to XXXXXX-COL and XXXXXX-DEL, the designation and number of
outstanding shares of each class and series and the voting rights thereof are as
follows:
Shares
entitled
to vote
Designation and number Class or Series as a
Name of shares in each class of Shares class or
Corporation or series outstanding entitled to Vote series
--------------------- ---------------- ------
XXXXXX-COL Common Stock N/A N/A
5,183,175 Shares
XXXXXX-DEL Common Stock N/A N/A
100,000 Shares
THIRD: The terms and conditions of the Merger, including the manner and
basis of converting the shares of XXXXXX-COL into shares of XXXXXX-DEL are as
follows:
(a) At 5:00 p.m. on the date on which the certificate of merger is filed
with the Secretary of State of the State of Delaware (the "Effective Time"), the
separate existence of XXXXXX-COL shall cease and XXXXXX-COL shall be merged with
and into XXXXXX-DEL, and XXXXXX-DEL shall be the Surviving Corporation.
(b) At the Effective Time, (i) each share of common stock, $0.001 par
value, of XXXXXX-COL that is issued and outstanding immediately before the
Effective Time shall be canceled and extinguished and shall be converted into
one share in XXXXXX-DEL; and (ii) each share of common stock, $0.001 par value,
of XXXXXX-DEL that is issued and outstanding immediately before the Effective
Time shall be canceled and returned to the status of authorized but unissued
shares.
(c) At the Effective Time, if any options or rights granted to purchase
shares of Common Stock of XXXXXX-COL remain
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outstanding, then the Surviving Corporation will assume outstanding and
unexercised portions of such options and such options shall be changed and
converted into options to purchase common stock of the Surviving Corporation,
such that an option to purchase one share of common Stock of XXXXXX-COL shall be
converted into an option to purchase one share of common stock of XXXXXX-DEL. No
other changes in the terms and conditions of such options will occur.
(d) At the Effective Time, (i) the Certificate of Incorporation of
XXXXXX-DEL as in effect immediately prior to the Effective Time shall be the
Certificate of Incorporation of the Surviving Corporation, (ii) the By-laws of
XXXXXX-DEL as in effect immediately prior to the Effective Time shall be the
By-laws of the Surviving Corporation, (iii) the directors and officers of
XXXXXX-COL holding such positions immediately prior to the Effective Time shall
be the directors and officers, respectively, of the Surviving Corporation; and
(iv) the name of the Surviving Corporation shall be Xxxxxx, Inc.
FOURTH: No amendments or changes will be made to the Certificate of
Incorporation of the Surviving Corporation in the Merger.
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FIFTH: The foregoing Agreement and Plan of Merger was duly adopted by the
Board of Directors of each Constituent Corporation on the dates set forth below:
NAME OF CORPORATION DATE OF ADOPTION
------------------- ----------------
XXXXXX-COL December 8, 1999
XXXXXX-DEL December 8, 1999
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IN WITNESS WHEREOF, the Constituent Corporations have caused this Agreement
to be executed as of the date first written above by their respective officers
thereunto duly authorized.
Xxxxxx, Inc.
(a Colorado corporation)
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Co-Chief Executive
Officer and President
Xxxxxx, Inc.
(a Delaware corporation)
By: /s/ Xxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President
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