AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (“Agreement”) dated as of August 18, 2005, is made and
entered into by and between True Religion Apparel, Inc., a Nevada corporation (“Parent”) and True
Religion Apparel (Delaware), Inc., a Delaware corporation (“Subsidiary”).
WHEREAS, Parent is a corporation organized and existing under the laws of Nevada;
WHEREAS, Subsidiary is a corporation organized and existing under the laws of Delaware and is
a wholly owned subsidiary of Parent;
WHEREAS, Parent and Subsidiary and their respective Boards of Directors deem it advisable and
to the advantage, for the welfare and in the best interests of the corporations and their
respective stockholders to merge Parent with and into Subsidiary pursuant to the provisions of
Nevada Revised Statutes (“NRS”) and the Delaware General Corporation Law (“DGCL”) upon the terms
and conditions set forth in this Agreement;
NOW THEREFORE, in consideration of the premises, the mutual covenants herein contained and
other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree that Parent shall be merged into Subsidiary (the “Merger”) upon the terms
and conditions set forth below.
ARTICLE 1
PRINCIPAL TERMS OF THE MERGER
Section 1.1 Merger. On the Effective Date (as defined in Section 4.1 below), Parent
shall be merged into Subsidiary, the separate existence of Parent shall cease and Subsidiary (the
surviving entity following the Merger is referred to in this Agreement as the “Surviving
Corporation”) shall operate under the name “True Religion Apparel, Inc.” by virtue of, and shall be
governed by, the laws of Delaware. The address of the registered office of the Surviving
Corporation in Delaware will be National Corporate Research, Ltd., 000 Xxxxx XxXxxx Xxxxxxx, xx xxx
Xxxx xx Xxxxx, Xxxxxx of Xxxx, Xxxxxxxx 00000, and the registered agent in charge thereof shall be
National Corporate Research, Ltd.
Section 1.2 Certificate of Incorporation of the Surviving Corporation. The
certificate of incorporation of the Surviving Corporation shall be the certificate of incorporation
of Subsidiary as in effect on the date hereof without change unless and until amended in accordance
with applicable law; provided, however, that on the Effective Date, Article I of the certificate of
incorporation of the Surviving Corporation shall hereby be amended to read, “The name of the
corporation is True Religion Apparel, Inc.”
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Section 1.3 Bylaws of the Surviving Corporation. The bylaws of the Surviving
Corporation shall be the bylaws of Subsidiary as in effect on the date hereof without change unless
and until amended or repealed in accordance with applicable law.
Section 1.4 Directors and Officers. At the Effective Date, the directors and
officers of Parent in office at the Effective Date shall become the directors and officers,
respectively, of the Surviving Corporation, each of such directors and officers to hold office,
subject to the applicable provisions of the certificate of incorporation and bylaws of the
Surviving Corporation and the DGCL, until his or her successor is duly elected or appointed and
qualified.
ARTICLE 2
CONVERSION, CERTIFICATES AND PLANS
Section 2.1 Conversion of Shares. At the Effective Date, each of the following
transactions shall be deemed to occur simultaneously:
(a.) Common Stock. Each share of Parent’s common stock, $0.00001 par value per share
(“Parent Stock”), issued and outstanding immediately before the Effective Date of the Merger
shall, by virtue of the Merger and without any action on the part of the holder thereof, be
converted into and become one validly issued, fully paid and nonassessable share of the
Surviving Corporation’s common stock, $0.0001 par value per share (the “Surviving Corporation
Stock”).
(b.) Options. Each option to acquire shares of Parent Stock outstanding immediately before
the Effective Date shall, by virtue of the Merger and without any action on the part of the
holder thereof, be converted into and become an equivalent option to acquire, upon the same
terms and conditions, the number of shares of Surviving Corporation Stock that is equal to the
number of shares of Parent Stock that the optionee would have received had the optionee
exercised such option in full immediately before to the Effective Date (whether or not such
option was then exercisable) and the exercise price per share under each such option shall be
equal to the exercise price per share thereunder immediately before the Effective Date, unless
otherwise provided in the instrument granting such option.
(c.) Other Rights. Any other right, by contract or otherwise, to acquire shares of Parent
Stock outstanding immediately before the Effective Date shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into and become a right to
acquire, upon the same terms and conditions, the number of shares of Surviving Corporation Stock
that is equal to the number of shares of Parent Stock that the right holder would have received
had the right holder exercised such right in full immediately before the Effective Date r
(whether or not such right was then exercisable) and the exercise price per share under each
such right shall be equal to the exercise price per share thereunder immediately before the
Effective Date, unless otherwise provided in the agreement granting such right.
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(d.) Subsidiary Stock. Each share of Subsidiary Stock issued and outstanding immediately
before the Effective Date of the Merger and held by Parent shall be canceled without any
consideration being issued or paid therefor.
Section 2.2 Stock Certificates. After the Effective Date, each certificate
theretofore representing issued and outstanding shares of Parent Stock will thereafter be deemed to
represent the same number of shares of the same class and series of capital stock of the Surviving
Corporation. The holders of outstanding certificates theretofore representing Parent Stock will not
be required to surrender such certificate to Parent or the Surviving Corporation.
Section 2.3 Employee Benefit and Compensation Plans. At the Effective Date, each
employee benefit plan, incentive compensation plan and other similar plans to which Parent is then
a party shall be assumed by, and continue to be the plan of, the Surviving Corporation. To the
extent any employee benefit plan, incentive compensation plan or other similar plan of Parent
provides for the issuance or purchase of, or otherwise relates to, Parent Stock, after the
Effective Date such plan shall be deemed to provide for the issuance or purchase of, or otherwise
relate to, Surviving Corporation Stock.
ARTICLE 3
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
AND ASSUMPTION OF LIABILITIES
Section 3.1 Effects of the Merger. At the Effective Date, the Merger shall have the
effects specified in the NRS, the DGCL and this Agreement. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Date, the Surviving Corporation shall possess all
the rights, privileges, powers and franchises, of a public as well as a private nature, and shall
be subject to all the restrictions, disabilities and duties of each of the parties to this
Agreement; the rights, privileges, powers and franchises of Parent and Subsidiary, and all
property, real, personal and mixed, and all debts due to each of them on whatever account, shall be
vested in the Surviving Corporation; and all property, rights, privileges, powers and franchises,
and all and every other interest shall be thereafter the property of the Surviving Corporation, as
they were of the respective constituent entities, and the title to any real estate, whether by deed
or otherwise vested in Parent and Subsidiary or either of them, shall not revert or be in any way
impaired by reason of the Merger; but all rights of creditors and all liens upon any property of
the parties hereto shall be preserved unimpaired, and all debts, liabilities and duties of the
respective constituent entities shall thenceforth attach to the Surviving Corporation and may be
enforced against it to the same extent as if such debts, liabilities and duties had been incurred
or contracted by it.
Section 3.2 Additional Actions. If, at any time after the Effective Date, 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 Parent
acquired or to be acquired by reason of, or as a result of, the Merger, or (b) otherwise to carry
out the purposes of this Agreement, Parent and its proper officers and directors shall be deemed to
have granted to
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the Surviving Corporation an 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 possession of such property or rights in the Surviving Corporation
and otherwise to carry out the purposes of this Agreement. The proper officers and directors of the
Surviving Corporation are fully authorized in the name of Parent or otherwise to take any and all
such action.
ARTICLE 4
APPROVAL BY STOCKHOLDERS;
AMENDMENT; EFFECTIVE DATE
AMENDMENT; EFFECTIVE DATE
Section 4.1 Approval. This Agreement and the Merger contemplated hereby are subject
to approval by the requisite vote of stockholders in accordance with the NRS and the DGCL. As
promptly as practicable after approval of this Agreement by stockholders in accordance with
applicable law, duly authorized officers of the respective parties shall make and execute Articles
of Merger and a Certificate of Merger and shall cause such documents to be filed with the Secretary
of State of Nevada and the Secretary of State of Delaware, respectively, in accordance with the
laws of Nevada and Delaware. The effective date (“Effective Date”) of the Merger shall be the date
on which the Merger becomes effective under the laws of Nevada or the date on which the Merger
becomes effective under the laws of Delaware, whichever occurs later.
Section 4.2 Amendments. The Board of Directors of Parent may amend this Agreement
at any time before the Effective Date, provided, however, that an amendment made subsequent to the
approval of the Merger by the stockholders of Parent shall not (a) alter or change the amount or
kind of shares to be received in exchange for or on conversion of all or any of the shares of
Parent Stock, (b) alter or change any term of the certificate of incorporation of Subsidiary or (c)
alter or change any of the terms and conditions of this Agreement if such alteration or change
would adversely affect the holders of Parent Stock.
ARTICLE 5
MISCELLANEOUS
Section 5.1 Termination. This Agreement may be terminated and the Merger abandoned
at any time before the filing of this Agreement with the Secretary of State of Nevada and the
Secretary of State of Delaware, whether before or after stockholder approval of this Agreement, by
the consent of the Boards of Directors of Parent and Subsidiary.
Section 5.2 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered to be an original instrument.
Section 5.3 Descriptive Headings. The descriptive headings are for convenience of
reference only and shall not control or affect the meaning or construction of any provision of this
Agreement.
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Section 5.4 Governing Law. This Agreement shall be construed in accordance with the
laws of Delaware, except to the extent the laws of Nevada shall apply to the Merger where mandated
by the NRS.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned officers of each of the parties to this Agreement,
pursuant to authority duly given by their respective boards of directors, have caused this
Agreement to be duly executed on the date set forth above.
| TRUE RELIGION APPAREL, INC. |
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| By: | /s/ XXXXXXX XXXXXX | |||
| Name: | Xxxxxxx Xxxxxx | |||
| Title: | President and Chief Executive Officer | |||
| TRUE RELIGION APPAREL (DELAWARE), INC. |
||||
| By: | /s/ XXXXXXX X. XXXXXX | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Chief Executive Officer and President | |||
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