Agreement and Plan of Merger of Constitution Mining Corp. (a Nevada corporation) with and into Constitution Mining Corp. (a Delaware corporation)
Exhibit
2.1
Agreement
and Plan of Merger
of
(a
Nevada corporation)
with
and into
(a Delaware
corporation)
This
Agreement
and Plan of Merger (the “Agreement”), dated as of October 21, 2009, by
and between Constitution
Mining Corp., a Nevada corporation (“CMC-Nevada”), and Constitution
Mining Corp., a Delaware corporation and a wholly-owned subsidiary of
CMC-Nevada (“CMC-Delaware”), is made with respect to the following
facts.
RECITALS
Whereas,
CMC-Nevada is a corporation duly organized and existing under the laws of the
State of Nevada;
Whereas,
CMC-Delaware is a corporation duly organized and existing under the laws of the
State of Delaware;
Whereas,
the respective boards of directors for CMC-Nevada and CMC-Delaware have
determined that, for purposes of effecting the reincorporation of CMC-Nevada in
the State of Delaware, it is advisable and to the advantage of said two
corporations and their stockholders that CMC-Nevada merge with and into
CMC-Delaware so that CMC-Delaware is the surviving corporation on the terms
provided herein (the “Merger”); and
Whereas,
the respective board of directors for CMC-Nevada and CMC-Delaware, the
stockholders of CMC-Nevada, and the sole stockholder of CMC-Delaware have
adopted and approved this Agreement.
Now
therefore, based upon the foregoing, and in consideration of the mutual
promises and covenants contained herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties to this
Agreement agree as follows.
ARTICLE I
THE
MERGER
1.1 The
Merger; Surviving Corporation. Subject to the
terms and conditions set forth in this Agreement, at the Effective Time (as
defined in Section 1.5 below), CMC-Nevada shall be merged with and into
CMC-Delaware, subject to and upon the terms and conditions provided in this
Agreement and the applicable provisions of the General Corporation Law of the
State of Delaware (the “DGCL”) and the applicable provisions of the Nevada
Revised Statutes (the “NRS”), and the separate existence of CMC-Nevada shall
cease. C MC-Delaware shall be the surviving entity (the “Surviving Corporation”)
and shall continue to be governed by the DGCL.
1.2 Constituent
Corporations. The name,
address, jurisdiction of organization and governing law of each of the
constituent corporations is as follows:
(a) CMC-Nevada: Constitution
Mining Corp., a corporation organized under and governed by the laws of the
State of Nevada with an address of Xxxxxx Xxxxxx Xxxxx 000, Xxxxxxx 0000, Xxxxxx
Empresarial Xxxx Xxxxx Torre A, Miraflores, Lima, Perú; and
(b) CMC-Delaware: Constitution
Mining Corp., a corporation organized under and governed by the laws of the
State of Delaware with an address of Xxxxxx Xxxxxx Xxxxx 000, Xxxxxxx 0000,
Xxxxxx Empresarial Xxxx Xxxxx Torre A, Miraflores, Lima, Perú.
1.3 Surviving
Corporation. Constitution
Mining Corp., a corporation organized under the laws of the State of Delaware,
shall be the Surviving Corporation of the Merger.
1.4 Address
of Principal Office of the Surviving Corporation. The address
of CMC-Delaware, as the Surviving Corporation, shall be Xxxxxx Xxxxxx Xxxxx 000,
Xxxxxxx 0000, Xxxxxx Empresarial Xxxx Xxxxx Torre A, Miraflores, Lima,
Perú.
1.5 Effective
Time. The Merger shall become effective (the “Effective
Time”), on the date upon which the last to occur of the following shall have
been completed:
(a) This
Agreement and the Merger shall each have been adopted and recommended to the
stockholders of CMC-Nevada by the board of directors of CMC-Nevada and approved
by a majority of the voting power of the outstanding stock of CMC-Nevada
entitled to vote thereon, in accordance with the requirements of the
NRS;
(b) This
Agreement and the Merger shall each have been adopted by the board of directors
of CMC-Delaware in accordance with the requirements of the DGCL;
(c) The
effective date of the Merger as stated in the executed Articles of Merger (the
“Articles of Merger”) filed with the Secretary of State for the State of
Nevada; and
(d) An
executed Certificate of Merger (the “Certificate of Merger”) or an executed
counterpart to this Agreement meeting the requirements of the DGCL shall have
been filed with the Secretary of State of the State of Delaware.
1.6 Effect of
the Merger. The effect of the Merger shall be as provided in
this Agreement, the Articles of Merger, the Certificate of Merger and the
applicable provisions of the DGCL and the NRS. Without limiting the
foregoing, from and after the Effective Time, all the property, rights,
privileges, powers and franchises of CMC-Nevada shall vest in CMC-Delaware, as
the Surviving Corporation, and all debts, liabilities and duties of CMC-Nevada
shall become the debts, liabilities and duties of CMC-Delaware, as the Surviving
Corporation.
1.7 Certificate
of Incorporation; Bylaws.
(a) From
and after the Effective Time, the Certificate of Incorporation of CMC-Delaware
shall be the Certificate of Incorporation of the Surviving
Corporation.
(b) From
and after the Effective Time, the Bylaws of CMC-Delaware as in effect
immediately prior to the Effective Time shall be the Bylaws of the Surviving
Corporation.
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1.8 Officers
and Directors. The officers of CMC-Nevada immediately prior to
the Effective Time shall continue as officers of the Surviving Corporation and
remain officers until their successors are duly appointed or their prior
resignation, removal or death. The directors of CMC-Nevada
immediately prior to the Effective Time shall continue as directors of the
Surviving Corporation and shall remain as directors until their successors
are duly elected and qualified or their prior resignation, removal or
death.
ARTICLE II
CONVERSION
OF SHARES
2.1 Conversion
of Common Stock of CMC-Nevada. At the Effective Time, by
virtue of the Merger, and without any action on part of the holders of any
outstanding shares of CMC-Nevada:
(a) each
share of common stock of CMC-Nevada, par value of $0.001 per share, issued and
outstanding immediately prior to the Effective Time shall be converted (without
the surrender of stock certificates or any other action) into one (1) fully paid
and non-assessable share of common stock, par value $0.001, of CMC-Delaware’s
common stock, $0.001 par value per share (the “Common
Stock”); and
(b) the
one hundred shares of CMC-Delaware common stock owned by CMC-Nevada shall be
canceled at the Effective Time.
2.2 CMC-Nevada
Options, Stock Purchase Rights, Convertible Securities.
(a) From
and after the Effective Time, the Surviving Corporation shall assume the
obligations of CMC-Nevada under, and continue, the option plans and all other
employee benefit plans of CMC-Nevada. Each outstanding and unexercised option,
other right to purchase, or security convertible into or exercisable for,
CMC-Nevada common stock (a “Right”)
shall become, an option, right to purchase or a security convertible into the
Surviving Corporation’s Common Stock, on the basis of one share of the Surviving
Corporation’s Common Stock for each one share of CMC-Nevada common stock
issuable pursuant to any such Right, on the same terms and conditions and at an
exercise price equal to the exercise price applicable to any such CMC-Nevada
Right from and after the Effective Time. This paragraph 2.2(a)
shall not apply to currently issued and outstanding CMC-Nevada common stock.
Such common stock is subject to paragraph 2.1 hereof.
(b) A
number of shares of the Surviving Corporation’s Common Stock shall be reserved
for issuance upon the exercise of options and convertible securities equal to
the number of shares of CMC-Nevada common stock so reserved immediately prior to
the Effective Time.
2.3 Certificates. At
and after the Effective Time, all of the outstanding certificates that
immediately prior thereto represented shares of common stock, options, warrants
or other securities of CMC-Nevada shall be deemed for all purposes to evidence
ownership of and to represent the shares of the respective common stock,
options, warrants or other securities of CMC-Delaware, as the case may be, into
which the shares of common stock, options, warrants or other securities of
CMC-Nevada represented by such certificates have been converted as herein
provided and shall be so registered on the books and records of the Surviving
Corporation or its transfer agent. The registered owner of any such outstanding
certificate shall, until such certificate shall have been surrendered for
transfer or otherwise accounted for to the Surviving Corporation or its transfer
agent, have and be entitled to exercise any voting and other rights with respect
to, and to receive any dividends and other distributions upon, the shares of
common stock, options, warrants or other securities of CMC-Delaware, as the case
may be, evidenced by such outstanding certificate, as above
provided.
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ARTICLE III
TRANSFER
AND CONVEYANCE OF ASSETS AND ASSUMPTION OF LIABILITIES
3.1 Transfer,
Conveyance and Assumption. At the Effective Time, CMC-Delaware
shall continue in existence as the Surviving Corporation, and without further
action on the part of CMC-Nevada or CMC-Delaware, succeed to and possess all the
rights, privileges and powers of CMC-Nevada, and all the assets and property of
whatever kind and character of CMC-Nevada shall vest in CMC-Delaware without
further act or deed. Thereafter, CMC-Delaware, as the Surviving
Corporation, shall be liable for all of the liabilities and obligations of
CMC-Nevada, and any claim or judgment against CMC-Nevada may be enforced against
CMC-Delaware as the Surviving Corporation, in accordance with Section 259
of the DGCL.
3.2 Further
Assurances. If at any time CMC-Delaware shall consider or be
advised that any further assignment, conveyance or assurance is necessary or
advisable to vest, perfect or confirm of record in it the title to any property
or right of CMC- Nevada, or otherwise to carry out the provisions hereof,
officers of CMC-Nevada as of the Effective Time shall execute and deliver any
and all proper deeds, assignments and assurances, and do all things necessary
and proper to vest, perfect or convey title to such property or right in
CMC-Delaware and otherwise to carry out the provisions hereof.
ARTICLE IV
REPRESENTATIONS
AND WARRANTIES OF CMC-NEVADA
CMC-Nevada
represents and warrants to CMC-Delaware as follows:
4.1 Validity
of Actions. CMC-Nevada (a) is a corporation duly formed,
validly existing and in good standing under the laws of the State of Nevada, and
(b) has full power and authority to enter into this Agreement and to carry
out all acts contemplated by it. This Agreement has been duly
executed and delivered on behalf of CMC- Nevada. CMC-Nevada has
received all necessary authorization to enter into this Agreement, and this
Agreement is a legal, valid and binding obligation of CMC-Nevada, enforceable
against CMC-Nevada in accordance with its terms. The execution and
delivery of this Agreement and consummation of the transactions contemplated by
it will not violate any provision of CMC-Nevada’s Articles of Incorporation or
Bylaws, nor violate, conflict with or result in any breach of any of the terms,
provisions or conditions of, or constitute a default or cause acceleration of,
any indebtedness under any agreement or instrument to which CMC-Nevada is a
party or by which it or its assets may be bound, or cause a breach of any
applicable Federal or state law or governmental regulation, or any applicable
order, judgment, writ, award, injunction or decree of any court or governmental
instrumentality.
ARTICLE V
REPRESENTATIONS
AND WARRANTIES OF CMC-DELAWARE
CMC-Delaware
represents and warrants to CMC-Nevada as follows:
5.1 Validity
of Actions. CMC-Delaware (a) is duly organized, validly
existing and in good standing under the laws of the State of Delaware, and
(b) has full power and authority to enter into this Agreement and to carry
out all acts contemplated by it. This Agreement has been duly
executed and delivered on behalf of CMC-Delaware. CMC- Delaware has
received all necessary authorization to enter into this Agreement, and this
Agreement is a legal, valid and binding obligation of CMC-Delaware, enforceable
against CMC-Delaware in accordance with its terms. The execution and
delivery of this Agreement and consummation of the transactions contemplated by
it will not violate any provision of the Certificate of Incorporation or Bylaws
of CMC-Delaware nor violate, conflict with or result in any breach of any of the
terms, provisions or conditions of, or constitute a default or cause
acceleration of, any indebtedness under any agreement or instrument to which
CMC-Delaware is a party or by which it or its assets may be bound, or cause a
breach of any applicable federal or state law or regulation, or any applicable
order, judgment, writ, award, injunction or decree of any court or governmental
instrumentality.
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ARTICLE VI
FURTHER
ACTIONS
6.1 Additional
Documents. At the request of any party, each party will
execute and deliver any additional documents and perform in good faith such acts
as reasonably may be required in order to consummate the transactions
contemplated by this Agreement.
ARTICLE VII
CONDITIONS
TO THE MERGER
The
obligation of CMC-Delaware and of CMC-Nevada to consummate the Merger shall be
subject to the satisfaction or waiver of the following conditions:
7.1 Bring
Down. The representations and warranties set forth in this
Agreement shall be true and correct in all material respects at, and as of, the
Effective Time as if then made as of the Effective Time.
7.2 No
Statute, Rule or Regulation Affecting. At the Effective
Time, there shall be no statute, or regulation enacted or issued by the United
States or any State, or by a court, which prohibits or challenges the
consummation of the Merger.
7.3 Satisfaction
of Conditions. All other conditions to the Merger set forth
herein shall have been satisfied.
ARTICLE VIII
TERMINATION;
AMENDMENT; WAIVER
8.1 Termination. This
Agreement and the transactions contemplated hereby may be terminated at any time
prior to the filing of the Certificate of Merger with the Secretary of State of
the State of Delaware, by mutual consent of the Board of Directors of
CMC-Delaware and the Board of Directors of CMC-Nevada.
8.2 Amendment. The
parties hereto may, by written agreement, amend this Agreement at any time prior
to the filing of the Certificate of Merger with the Secretary of State of the
State of Delaware, provided that any such amendment must first be approved by
the Board of Directors of CMC-Nevada.
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8.3 Waiver. At
any time prior to the Effective Time, any party to this Agreement may extend the
time for the performance of any of the obligations or other acts of any other
party hereto, or waive compliance with any of the agreements of any other party
or with any condition to the obligations hereunder, in each case only to the
extent that such obligations, agreements and conditions are intended for its
benefit.
ARTICLE IX
MISCELLANEOUS
9.1 Expenses. If
the Merger becomes effective, all of the expenses incurred in connection with
the Merger shall be paid by CMC-Delaware.
9.2 Notice. Except
as otherwise specifically provided, any notices to be given hereunder shall be
in writing and shall be deemed given upon personal delivery or upon mailing
thereof, if mailed by certified mail, return receipt requested, to the following
addresses (or to such other address or addresses shall be specified in any
notice given):
In
the case of CMC-Delaware:
Xxxxxx
Xxxxxx Xxxxx 000, Xxxxxxx 1203
Centro
Empresarial Xxxx Xxxxx Torre A
Miraflores,
Lima
Perú
In
the case of CMC-Nevada:
Xxxxxx
Xxxxxx Xxxxx 000, Xxxxxxx 1203
Centro
Empresarial Xxxx Xxxxx Torre A
Miraflores,
Lima
Perú
9.3 Non-Assignability. This
Agreement shall not be assignable by any of the parties hereto.
9.4 Entire
Agreement. This Agreement contains the parties’ entire
understanding and agreement with respect to its subject matter, and any and all
conflicting or inconsistent discussions, agreements, promises, representations
and statements, if any, between the parties or their representatives that are
not incorporated in this Agreement shall be null and void and are merged into
this Agreement.
9.5 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to
conflicts of law principles.
9.6 Headings. The
various section headings are inserted for purposes of reference only and shall
not affect the meaning or interpretation of this Agreement or any provision
hereof.
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9.7 Gender;
Number. All references to gender or number in this Agreement
shall be deemed interchangeably to have a masculine, feminine, neuter, singular
or plural meaning, as the sense of the context requires.
9.8 Severability. The
provisions of this Agreement shall be severable, and any invalidity,
unenforceability or illegality of any provision or provisions of this Agreement
shall not affect any other provision or provisions of this Agreement, and each
term and provision of this Agreement shall be construed to be valid and
enforceable to the full extent permitted by law.
[SIGNATURE
PAGE FOLLOWS]
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In witness
whereof, the undersigned have caused this Agreement to be executed by an
officer duly authorized to do so, all as of the day and year first above
written.
a Nevada
Corporation
By: /s/ Xxxx
Xxxxxxx
Xxxx
Xxxxxxx
CEO and
President
Constitution Mining
Corp.,
a
Delaware Corporation
By: /s/ Xxxx
Xxxxxxx
Xxxx
Xxxxxxx
CEO and
President
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