AGREEMENT AND PLAN OF MERGER
Exhibit
10.10
This Agreement and Plan of Merger (the
“Plan”) is adopted as of November 30, 2010, by and between Offshore Petroleum
Corp., a Delaware corporation (“Offshore-Delaware”), and Offshore Petroleum
Corp., a Florida corporation and a wholly-owned subsidiary of Offshore Delaware
(“Offshore-Florida”).
WHEREAS, Offshore-Delaware is a
corporation duly organized and existing under the laws of the State of
Delaware;
WHEREAS, Offshore-Florida is a
corporation duly organized and existing under the laws of the State of
Florida;
WHEREAS, on the date hereof,
Offshore-Delaware has authority to issue Two Hundred Million (200,000,000)
shares of common stock, $0.0001 par value per share, of which 45,450,000 shares
are issued and outstanding (“Common Stock”); Offshore-Delaware has no issued and
outstanding options to buy Common Stock (“Options”); and Offshore-Delaware has
no warrants to purchase shares of Offshore-Delaware Common Stock
(“Warrants”);
WHEREAS, on the date hereof,
Offshore-Florida has authority to issue Two Hundred Million (200,000,000) shares
of common stock (“Offshore-Florida Common Stock”);
WHEREAS, on the date hereof, one (1)
share of Offshore-Florida Common Stock is issued and outstanding and is owned by
Offshore-Delaware;
WHEREAS, the respective boards of
directors of Offshore-Delaware and Offshore-Florida have determined that, for
the purpose of effecting the reincorporation of Offshore-Delaware in the State
of Florida, it is advisable and in the best interests of such corporations and
their respective shareholders that Offshore-Delaware merge with and into
Offshore-Florida upon the terms and conditions herein provided;
WHEREAS, the respective boards of
directors of Offshore-Delaware and Offshore-Florida have approved the Plan and
recommend that it be submitted to the respective shareholders of
Offshore-Delaware and Offshore-Florida entitled to vote thereon;
and
WHEREAS, the respective shareholders of
Offshore-Delaware and Offshore-Florida entitled to vote thereon have approved
the Plan.
NOW, THEREFORE, in consideration of the
mutual agreements and covenants set forth herein, Offshore-Delaware and
Offshore-Florida hereby agree to merge as follows:
1. Merger. Subject to
the terms and conditions hereinafter set forth, Offshore-Delaware shall be
merged with and into Offshore-Florida, with Offshore-Florida to be the surviving
corporation in the merger (the “Merger”). The Merger shall be
effective on the later of the date and time (the “Effective Time”) that a
properly executed certificate of merger consistent with the terms of this Plan
and Section 253 of the Delaware General Corporation Law (the “DGCL”) is filed
with the Secretary of State of Delaware and articles of merger are filed with
the Department of State of Florida as required by Section 607.1103 and 607.1105
of the Florida Business Corporation Law (the “FBCL”).
2. Principal Office of Offshore
Florida. The address of the principal office of Offshore-Florida is 000
Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx, XX 00000.
3. Corporate Documents.
The Articles of Incorporation of Offshore-Florida, as in effect immediately
prior to the Effective Time, shall continue to be the Articles of Incorporation
of Offshore-Florida as the surviving corporation. The Bylaws of
Offshore-Florida, as in effect immediately prior to the Effective Time, shall
continue to be the Bylaws of Offshore-Florida as the surviving corporation
without change or amendment until further amended in accordance with the
provisions thereof and applicable law.
4. Directors and
Officers. The directors and officers of Offshore-Delaware at the
Effective Time shall be and become directors and officers, holding the same
titles and positions, of Offshore-Florida at the Effective Time, and after the
Effective Time shall serve in accordance with the Bylaws of
Offshore-Florida.
5. Succession. At the
Effective Time, Offshore-Florida shall succeed to Offshore Delaware in the
manner of and as more fully set forth in Section 259 of the DGCL and in Section
607.1106 of the FBCL.
6. Further Assurances.
From time to time, as and when required by Offshore-Florida or by its successors
and assigns, there shall be executed and delivered on behalf of
Offshore-Delaware such deeds and other instruments, and there shall be taken or
caused to be taken by it such further and other action, as shall be appropriate
or necessary in order to vest or perfect in or to confer of record or otherwise
in Offshore-Florida the title to and possession of all the interests, assets,
rights, privileges, immunities, powers, franchises and authority of
Offshore-Delaware, and otherwise to carry out the purposes and intent of this
Plan, and the officers and directors of Offshore-Florida are fully authorized in
the name and on behalf of Offshore-Delaware or otherwise to take any and all
such actions and to execute and deliver any and all such deeds and other
instruments.
7. Offshore-Delaware Common
Stock. At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, each share of Common Stock outstanding
immediately prior thereto shall be changed and converted automatically into one
fully paid and nonassessable share of Offshore-Florida Common
Stock.
8. Stock Certificates.
At and after the Effective Time, all of the outstanding certificates which prior
to that time represented shares of Common Stock shall be deemed for all purposes
to evidence ownership of and to represent shares of Offshore-Florida Common
Stock into which the shares of the Offshore-Delaware represented by such
certificates have been converted as herein provided.
9. Options; Warrants.
Each option, warrant or other right to purchase shares of Common Stock, which
are outstanding at the Effective Time shall, by virtue of the Merger and without
any action on the part of the holder thereof, be converted into and become an
option, warrant or right to purchase the same number of shares of
Offshore-Florida Common Stock at an exercise or purchase price per share equal
to the exercise or purchase price applicable to the option, warrant or other
right to purchase the Common Stock.
10. Stock
Option Plan. At and after the Effective
Time, Offshore-Florida shall assume all of the rights and obligations of
Offshore-Delaware under the 2008 Stock Option Plan adopted by
Offshore-Delaware. All stock options to be issued pursuant to such
plan shall be options to acquire common stock of
Offshore-Florida. Offshore-Florida shall amend such plan and related
documents as appropriate to reflect the assumption of such plan by
Offshore-Florida.
11. Common Stock of
Offshore-Florida. At the Effective Time, the previously outstanding one
(1) share of Offshore-Florida Common Stock registered in the name of
Offshore-Delaware shall, by reason of the Merger, be reacquired by
Offshore-Florida, shall be retired and shall resume the status of authorized and
unissued shares of Offshore-Florida Common Stock, and no shares of
Offshore-Florida Common Stock or other securities of Offshore-Florida shall be
issued in respect thereof.
12. Amendment. The boards
of directors of Offshore-Delaware and Offshore-Florida may amend this Plan at
any time prior to the Merger, provided that an amendment made subsequent to the
adoption of the Plan by the sole shareholder of Offshore-Florida or the
stockholders of Offshore-Delaware shall not (i) alter or change the amount or
kind of shares, securities, cash, property and/or rights to be received in
exchange for the Common Stock, (ii) alter or change any term of the articles of
incorporation of Offshore-Florida, as the surviving corporation to the Merger,
or (iii) alter or change any of the terms and conditions of the Plan if such
alteration or change would adversely affect the holders of Offshore-Delaware
Common Stock.
13. Abandonment. At any
time before the Effective Time, this Plan may be terminated and the Merger
contemplated hereby may be abandoned by the Board of Directors of either
Offshore-Delaware or Offshore-Florida or both, notwithstanding approval of this
Plan by the sole shareholder of Offshore-Florida or the stockholders of
Offshore-Delaware, or both.
14. Rights and Duties of
Offshore-Florida. At the Effective Time and for all purposes the separate
existence of Offshore-Delaware shall cease and shall be merged with and into
Offshore-Florida which, as the surviving corporation, shall thereupon and
thereafter possess all the rights, privileges, immunities, licenses and
franchises (whether of a public or private nature) of Offshore-Delaware; and all
property (real, personal and mixed), all debts due on whatever account, all
choses in action, and all and every other interest of or belonging to or due to
Offshore-Delaware shall continue and be taken and deemed to be transferred to
and vested in Offshore-Florida without further act or deed; and the title to any
real estate, or any interest therein, vested in Offshore-Delaware shall not
revert or be in any way impaired by reason of such Merger; and Offshore-Florida
shall thenceforth be responsible and liable for all the liabilities and
obligations of Offshore-Delaware; and, to the extent permitted by law, any claim
existing, or action or proceeding pending, by or against Offshore-Delaware may
be prosecuted as if the Merger had not taken place, or Offshore-Florida may be
substituted in the place of such corporation. Neither the rights of
creditors nor any liens upon the property of Offshore-Delaware shall be impaired
by the Merger. If at any time Offshore-Florida shall consider or be
advised that any further assignment or assurances in law or any other actions
are necessary or desirable to vest the title of any property or rights of
Offshore-Delaware in Offshore-Florida according to the terms hereof, the
officers and directors of Offshore-Florida are empowered to execute and make all
such proper assignments and assurances and do any and all other things necessary
or proper to vest title to such property or other rights in Offshore-Florida,
and otherwise to carry out the purposes of this Plan.
15. Consent to Service of
Process. Offshore-Florida hereby agrees that it may be served with
process in the State of Delaware in any proceeding for enforcement of any
obligation of Offshore-Delaware, as well as for enforcement of any obligation of
Offshore-Florida arising from the Merger. Offshore-Florida hereby
irrevocably appoints the Secretary of State of the State of Delaware and the
successors of such officer its attorney in the State of Delaware upon whom may
be served any notice, process or pleading in any action or proceeding against it
to enforce against Offshore-Florida any obligation of
Offshore-Delaware. In the event of such service upon the Secretary of
State of the State of Delaware or the successors of such officer, such service
shall be mailed to the principal office of Offshore-Florida at 000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx, XX 00000.
IN WITNESS WHEREOF, this Agreement and
Plan of Merger, having first been duly approved by resolution of the Boards of
Directors and by vote of stockholders of Offshore-Delaware and Offshore-Florida,
has been executed on behalf of each of said two corporations by their respective
duly authorized officers.
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OFFSHORE
PETROELUM CORP.,
A
Delaware Corporation
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By
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/s/
Xxxx Xxxxxxxxx
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Name:
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Xxxx Xxxxxxxxx
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Title:
President and Chief
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Executive
Officer
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OFFSHORE
PETROELUM CORP.,
A
Florida Corporation
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By
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/s/
Xxxx Xxxxxxxxx
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Name:
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Xxxx Xxxxxxxxx
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Title:
President and Chief
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Executive
Officer
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