EXHIBIT 2
AGREEMENT AND PLAN OF MERGER AND EXCHANGE
OF TOLLYCRAFT YACHT CORPORATION, A MINNESOTA CORPORATION,
AND TOLLYCRAFT YACHT CORPORATION, A NEVADA CORPORATION,
THIS AGREEMENT dated as of December 29, 1996, (the
"Agreement") is between Tollycraft Yacht Corporation, a
Nevada corporation ("Tollycraft-Nevada") and Tollycraft Yacht
Corporation, a Minnesota corporation
("Tollycraft-Minnesota"). Tollycraft-Nevada and
Tollycraft-Minnesota are sometimes referred to herein as the
"Constituent Corporations."
R E C I T A L S
A. Tollycraft-Nevada is a corporation duly organized and
existing under the laws of the State of Nevada and has an
authorized capital stock of 5,000,000 shares of Preferred
Stock and 50,000,000 shares of Common Stock, $.001 par value
per share. As of December 29, 1996, 1,000 shares of Common
Stock were issued and outstanding, all of which were held by
Tollycraft-Minnesota. No shares of Preferred Stock are
outstanding.
B. Tollycraft-Minnesota is a corporation duly organized
and existing under the laws of the State of Minnesota and has
an authorized capital stock of 5,000,000 shares of Preferred
Stock and 100,000,000 shares of Common Stock, no par value
per share. As of October 20, 1996, 55,000,000 shares of
Common Stock were issued and outstanding, subsequently after
December 10, 1996 as a result of a 1:25 reverse stock split,
there were 2,200,000 outstanding. No shares of Preferred
Stock are outstanding.
C. The Board of Directors of Tollycraft-Minnesota has
determined that, for the purpose of effecting the
reincorporation of Tollycraft-Minnesota in the State of
Nevada, it is advisable and in the best interests of
Tollycraft- Minnesota that Tollycraft-Minnesota merge with
and into Tollycraft-Nevada upon the terms and conditions
herein provided.
D. The respective Boards of Directors of Tollycraft-Nevada
and Tollycraft- Minnesota have approved this Agreement and
have directed that this Agreement be submitted to a vote of
their respective stockholders and sole shareholder, and
executed by the undersigned officers.
E. Tollycraft-Nevada is a wholly-owned subsidiary of
Tollycraft-Minnesota.
NOW, THEREFORE, in consideration of the mutual agreements
and covenants set forth herein, Tollycraft-Nevada and
Tollycraft-Minnesota hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
I. MERGER AND EXCHANGE
1.1 MERGER. In accordance with the provisions of this
Agreement, the Minnesota Business Corporation Act and the
Nevada General Corporation Law, Tollycraft-Minnesota shall be
merged with and into Tollycraft-Nevada (the Merger"),
thereeafter, at the option of Tollycraft-Nevada, the separate
existence of Tollycraft-Minnesota may be terminated.
Tollycraft-Nevada shall be, and is herein sometimes referred
to as, the "Surviving Corporation," and the name of the
Surviving Corporation shall be Tollycraft Yacht Corporation.
1.2 EFFECTIVENESS. The Merger shall become effective on
December 29, 1996. The date and time when the Merger shall
become effective, as aforesaid, is herein called the
"Effective Date of the Merger."
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the
Merger, Tollycraft-Minnesota shall become a wholly owned
subsidiary of Tollycraft-Nevada, and Tollycraft-Nevada, with
respect to Tollycraft-Minnesota, (i) shall possess all of its
assets, rights, powers and property as constituted
immediately prior to the Effective Date of the Merger, (ii)
shall be subject to all actions previously taken by its and
Tollycraft-Minnesota's Board of Directors, (iii) shall
succeed, without other transfer or action on the part of any
other party, to all of the assets, rights, powers and
property of Tollycraft-Minnesota in the manner more fully set
forth in the Nevada General Corporation Law, (iv) shall
continue to be subject to all of the debts, liabilities and
obligations of Tollycraft-Nevada as constituted immediately
prior to the Effective Date of the Merger, and (v) shall
succeed, without other transfer or other action on the part
of any other party, to all of the debts, liabilities and
obligations of Tollycraft- Minnesota in the same manner as if
Tollycraft-Nevada had itself incurred them, all as more fully
provided under the applicable provisions of the Minnesota
Business Corporation Act and the Nevada General Corporations
Law.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 ARTICLES OF INCORPORATION. The Articles of Incorporation
of Tollycraft- Nevada as in effect immediately prior to the
Effective Date of the Merger shall continue in full force and
effect as the Articles of Incorporation of the Surviving
Corporation until duly amended in accordance with the
provisions thereof and applicable law.
2.2 BYLAWS. The Bylaws of Tollycraft-Nevada as in effect
immediately prior to the Effective Date of the Merger shall
continue in full force and effect as the Bylaws of the
Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of
Tollycraft-Nevada immediately prior to the Effective Date of
the Merger shall be the directors and officers of the
Surviving Corporation until their successors shall have been
duly elected and qualified or until as otherwise provided by
law, the Articles of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 TOLLYCRAFT-MINNESOTA COMMON STOCK. Upon the Effective
Date of the Merger, each share (after giving effect to a 1:25
reverse stock split on December 10, 1996) of
Tollycraft-Minnesota Common Stock, par value $.001 per share,
issued and outstanding immediately prior thereto shall by
virtue of the Merger and without any action by the
Constituent Corporations, the holder of such shares or any
other person, be converted into and exchanged for one (1)
fully paid and nonassessable share of Common Stock, $.001 par
value, of the Surviving Corporation.
3.2 TOLLYCRAFT-MINNESOTA OPTIONS. Upon the Effective Date
of the Merger, the Surviving Corporation shall assume all of
the rights and obligations of Tollycraft-Minnesota under its
an Incentive Stock Option, Stock Option, and, if adopted, the
1996 Stock Option Plan. Each outstanding and unexercised
option to purchase Tollycraft-Minnesota Common Stock (an
"Option") shall become, on the basis of one (1) share of the
Surviving Corporation's Common Stock for each share of
Tollycraft-Minnesota Common Stock issuable pursuant to any
such Option, an option to purchase the Surviving
Corporation's Common Stock on the same terms and conditions
set forth in such option. As of December 29, 1996, options to
purchase 160,000 (after giving effect to a 1:25 reverse split
) shares of Tollycraft-Minnesota Common Stock were
outstanding and unexercised, with an additional 200,000
shares to be reserved pursuant to the approval of the 1996
Employee Stock Option Plan.
3.3 TOLLYCRAFT-NEVADA COMMON STOCK. Upon the Effective Date
of the Merger, each share of Common Stock, $.001 par value,
of Tollycraft-Nevada issued and outstanding immediately prior
thereto shall, by virtue of the Merger and without any action
by Tollycraft-Nevada, the holder of such shares or any other
person, be cancelled and returned to the status of authorized
but unissued shares.
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of
the Merger, each holder of an outstanding certificate
representing shares of Tollycraft- Minnesota Common Stock may
be asked to surrender the same for cancellation or transfer
to an exchange agent, whose name will be delivered to holders
prior to any requested exchange (the "Exchange Agent"), and
each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the
number of shares of the Surviving Corporation's Common Stock,
into which the surrendered shares were converted as herein
provided. Until so surrendered, each outstanding certificate
theretofore representing shares of Tollycraft-Minnesota
Common Stock shall be deemed for all purposes to represent
the number of shares of the Surviving Corporation's Common
Stock, respectively, into which such shares of
Tollycraft-Minnesota Common Stock, as the case may be, were
converted in the Merger.
The registered owner on the books and records of the
Surviving Corporation or the Exchange Agent of any such
outstanding certificate shall, until such certificate shall
have been surrendered for transfer or conversion or otherwise
accounted for to the Surviving Corporation or the Exchange
Agent, have and be entitled to exercise any voting and other
rights with respect to and to receive dividends and other
distributions upon the shares of Common Stock of the
Surviving Corporation represented by such outstanding
certificate as provided above. Each certificate representing
Common Stock of the Surviving Corporation so issued in the
Merger shall bear the same legends, if any, with respect to
the restrictions on transferability as the certificates of
Tollycraft-Minnesota so converted and given in exchange
therefore, unless otherwise determined by the Board of
Directors of the Surviving Corporation in compliance with
applicable laws, or other such additional legends as agreed
upon by the holder and the Surviving Corporation.
If any certificate for shares of the Surviving
Corporation's stock is to be issued in a name other than that
in which the certificate surrendered in exchange therefor is
registered, it shall be a condition of issuance thereof that
the certificate so surrendered shall be properly endorsed and
otherwise in proper form for transfer, that such transfer
otherwise be proper and comply with applicable securities
laws and that the person requesting such transfer pay to the
Exchange Agent any transfer or other taxes payable by reason
of issuance of such new certificate in a name other than that
of the registered holder of the certificate surrendered or
establish to the satisfaction of the Surviving Corporation
that such tax has been paid or is not payable.
IV. GENERAL
4.1 COVENANTS OF TOLLYCRAFT-NEVADA. Tollycraft-Nevada
covenants and agrees that it will, on or before the Effective
Date of the Merger:
(a) File any and all documents with the Minnesota
Franchise Tax Board necessary for the assumption by
Tollycraft-Nevada of all of the franchise tax liabilities of
Tollycraft-Minnesota.
(b) Take such other actions as may be required by the
Nevada General Corporation Law to effect the Merger.
(c) Take such other actions as may be required by the
Minnesota Business Corporation Act to effect the Merger.
4.2 FURTHER ASSURANCES. From time to time, as and when
required by Tollycraft-Nevada or by its successors or
assigns, there shall be executed and delivered on behalf of
Tollycraft-Minnesota such deeds and other instruments, and
there shall be taken or caused to be taken by it such further
and other actions as shall be appropriate or necessary in
order to vest or perfect in or conform of record or otherwise
by Tollycraft-Nevada the title to and possession of all the
property, interests, assets, rights, privileges, immunities,
powers, franchises and authority of Tollycraft-Minnesota and
otherwise to carry out the purposes of this Agreement, and
the officers and directors of Tollycraft-Nevada are fully
authorized in the name and on behalf of Tollycraft-Minnesota
or otherwise to take any and all such action and to execute
and deliver any and all such deeds and other instruments.
4.3 ABANDONMENT. At any time before the Effective Date of
the Merger, this Agreement may be terminated and the Merger
may be abandoned for any reason whatsoever by the Board of
Directors of either Tollycraft-Minnesota or of
Tollycraft-Nevada, or of both, notwithstanding the approval
of this Agreement by the stockholders of Tollycraft-Minnesota
or by the sole shareholder of Tollycraft-Nevada, or by both.
4.4 AMENDMENT. The Boards of Directors of the Constituent
Corporations may amend this Agreement at any time prior to
the filing of this Agreement (or certificate in lieu thereof)
with the Secretary of State of the State of Minnesota;
provided, that an amendment made subsequent to the adoption
of this Agreement by the stockholders of either Constituent
Corporation shall not: (1) alter or change the amount or kind
of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of
the shares of any class or series thereof of such Constituent
Corporation, (2) alter or change any term of the Articles of
Incorporation of the Surviving Corporation to be effected by
the Merger, or (3) 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 or series of
capital stock of any Constituent Corporation.
4.5 AGREEMENT. Executed copies of this Agreement will be on
file at the principal place of business of the Surviving
Corporation at 0000 Xxxxxxx Xxxxxx, Xxxxx, XX 00000 and
copies thereof will be furnished to any shareholder of either
Constituent Corporation, upon request and without cost.
4.6 GOVERNING LAW. This Agreement shall in all respects be
construed, interpreted and enforced in accordance with and
governed by the laws of the State of Nevada and, so far as
applicable, the merger provisions of the Minnesota Business
Corporation Act.
4.7 COUNTERPARTS. In order to facilitate the filing and
recording of this Agreement, the same may be executed in any
number of counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one
and the same instrument.
4.8 APPROVAL OF TOLLYCRAFT-MINNESOTA AS SOLE SHAREHOLDER OF
TOLLYCRAFT- NEVADA. By its execution and delivery of this
Agreement, Tollycraft-Minnesota, as sole shareholder of
Tollycraft-Nevada, consents to, approves and adopts this
Agreement and approves the Merger. Tollycraft-Minnesota
agrees to execute such further instruments as may be
necessary or desirable to evidence its approval and adoption
of this Agreement and the Merger as the sole shareholder of
Tollycraft-Nevada.
IN WITNESS WHEREOF, this Agreement having first been approved
by the resolutions of the Board of Directors of Tollycraft
Corporation, a Minnesota Corporation, and Tollycraft
Corporation, a Nevada Corporation is hereby executed on
behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
TOLLYCRAFT YACHT CORPORATION TOLLYCRAFT YACHT
CORPORATION
a Minnesota corporation a Nevada corporation
By:
______________________________By:_________________________
Xxxxx X. Xxxxx, Chief Executive Officer Xxxxx X. Xxxxx, Chief
Executive Officer
ATTEST:_____________________ATTEST:____________________
X.X. Xxxxxx, Secretary X.X. Xxxxxx, Secretary
