AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of July 30 , 2003 (the "Merger
Agreement"), between KBF Pollution Management, Inc., a New York corporation (the
"Company"), and Veridium Corporation, a Delaware corporation and wholly-owned
subsidiary of the Company (the "Delaware Company").
WHEREAS, on the date hereof, the Company has authority to issue 500,000,000
shares of Common Stock, par value $.00001 per share (the "New York Common
Stock"), of which 375,397,705 shares are issued and outstanding and options to
purchase 104,242,210 shares are outstanding.
WHEREAS, on the date hereof the Delaware Company has authority to issue
50,000,000 shares of Common Stock, par value $.001 per share (the "Delaware
Common Stock"), of which no shares are issued and outstanding and 5,000,000
shares of Preferred Stock, par value $.001 per share, of which no shares are
issued and outstanding;
WHEREAS, the respective Boards of Directors of the Company and the Delaware
Company have determined that it is advisable and in the best interests of each
of such corporations that the Company merge with and into the Delaware Company
upon the terms and subject to the conditions set forth herein for the purpose of
effecting the change of the state of incorporation of the Company from New York
to Delaware;
WHEREAS, the respective Boards of Directors of the Company and the Delaware
Company have by resolutions duly adopted, approved this Merger Agreement;
WHEREAS, the Company has approved this Merger Agreement in its capacity as the
sole stockholder of the Delaware Company; and
WHEREAS, the Board of Directors of the Company has directed that this Merger
Agreement be submitted to a vote of its stockholders at the Annual Meeting of
stockholders to be held on August 27, 2003, or at any and all adjournments
thereof;
NOW, THEREFORE, in consideration of the mutual agreements and covenants herein
contained, the Company and the Delaware Company hereby agree as follows:
1. Merger. The Company shall be merged with and into the Delaware Company
(the "Merger"), and the Delaware Company shall be the surviving
corporation (hereinafter sometimes referred to as the "Surviving
Corporation"). The Merger shall become effective upon the date and
time of filing an appropriate certificate of merger, providing for the
Merger, with the Secretary of State of the State of New York and an
appropriate certificate of merger, providing for the Merger, with the
Secretary of State of the State of Delaware, whichever later occurs
(the "Effective Time").
2. Governing Documents. The Certificate of Incorporation of the Delaware
Company, as in effect immediately prior to the Effective Time, shall
be the Certificate of Incorporation of the Surviving Corporation
without change or amendment until thereafter amended in accordance
with the provisions thereof and applicable law. The By-laws of the
Delaware Company, as in effect immediately prior to the Effective
Time, shall be the By-laws of the Surviving Corporation without change
or amendment unless and until thereafter amended in accordance with
the provisions thereof, the Certificate of Incorporation of the
Surviving Corporation and applicable law.
3. Succession. At the Effective Time, the separate corporate existence of
the Company shall cease, and the Delaware Company shall succeed to all
of the assets and property (whether real, personal or mixed), rights,
privileges, franchises, immunities and powers of the Company, and the
Delaware Company shall assume and be subject to all of the duties,
liabilities, obligations and restrictions of every kind and
description of the Company, including, without limitation, all
outstanding indebtedness of the Company, all in the manner and as more
fully set forth in Section 259 of the General Corporation Law of the
State of Delaware.
4. Directors. The directors and the members of the various committees of
the Board of the Company immediately prior to the Effective Time shall
be the directors and members of such committees of the Surviving
Corporation at and after the Effective Time to serve until the
expiration of their respective terms and until their successors are
duly elected and qualified.
5. Officers. The officers of the Company immediately preceding the
Effective Time shall be the officers of the Surviving Corporation at
and after the Effective Time until their successors are duly elected
and qualified.
6. Further Assurances. From time to time, as and when required by the
Surviving Corporation or by its successors or assigns, there shall be
executed and delivered on behalf of the Company such deeds and other
instruments, and there shall be taken or caused to be taken by it all
such further and other action, as shall be appropriate, advisable or
necessary in order to vest, perfect or conform, of record or
otherwise, in the Surviving Corporation, the title to and possession
of all property, interests, assets, rights, privileges, immunities,
powers, franchises and authority of the Company, and otherwise to
carry out the purposes of this Merger Agreement, and the officers and
directors of the Surviving Corporation are fully authorized, in the
name and on behalf of the Company or otherwise, to take any and all
such action and to execute and deliver any and all such deeds and
other instruments.
7. Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of the holder thereof:
(a) every twenty (20) shares of New York Common Stock issued and
outstanding immediately prior to the Effective Time shall be
changed and converted into and shall be one (1) fully paid and
nonassessable share of Delaware Common Stock;
(b) each share of Delaware Common Stock issued and outstanding in the
name of the Company immediately prior to the Effective Time shall
be cancelled and retired and resume the status of authorized and
unissued shares of Delaware Common Stock, and no shares of
Delaware Common Stock or other securities of the Delaware Company
shall be issued in respect thereof.
8. Employee Option and Benefit Plans. Each option or other right to
purchase or otherwise acquire shares of New York Common Stock
evidenced by an option agreement (an "Option") or granted under any
employee option, stock purchase or other benefit plan of the Company
(collectively, the "Plans") which is outstanding immediately prior to
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 or right to acquire (and the Delaware Company hereby assumes
the obligation to deliver) 1/20th number of shares of Delaware Common
Stock, at an exercise price equal to twenty times the exercise price
specified before the Merger, resulting in approximately the same
aggregate price being required to be paid thereof upon exercise as
immediately preceding the Merger, and upon the same terms, and subject
to the same conditions, as set forth in the respective Plan as in
effect immediately prior to the Effective Time. The same number of
shares of Delaware Common Stock shall be reserved for purposes of the
Plans as is equal to the proportional number of shares of New York
Common Stock so reserved immediately prior to the Effective Time. The
Delaware Company hereby assumes, as of the Effective Time, (i) the
Plans and all obligations of the Company under the Plans, including
the outstanding options, stock purchase rights or awards or portions
thereof granted pursuant to the Plans and the right to grant
additional options and stock purchase rights thereunder, (ii) all
obligations of the Company under all other benefit plans in effect as
of the Effective Time with respect to which employee rights or accrued
benefits are outstanding as of the Effective Time and (iii) all
obligations of the Company under any Options.
9. Conditions to the Merger. The consummation of the Merger and the other
transactions herein provided is subject to receipt prior to the
Effective Time of the requisite approval of the Merger by the holders
of New York Common Stock pursuant to the New York Business Corporation
Law.
10. Certificates. At and after the Effective Time, all of the outstanding
certificates which immediately prior thereto represented shares of New
York Common Stock or other securities of the Company shall be deemed
for all purposes to evidence ownership of and to represent the shares
of Delaware Common Stock or other securities of the Delaware Company,
as the case may be, into which the shares of New York Common Stock or
other securities of the Company 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 Delaware Common Stock or other securities of the Delaware
Company, as the case may be, evidenced by such outstanding
certificate, as above provided.
11. Amendment. The parties hereto, by mutual consent of their respective
boards of directors, may amend, modify or supplement this Merger
Agreement prior to the Effective Time; provided, however, that no
amendment, modification or supplement may be made after the adoption
of this Merger Agreement by the stockholders of the Company which
changes this Merger Agreement in a way which, in the judgment of the
Board of Directors of the Company, would have a material adverse
effect on the stockholders of the Company, unless such amendment,
modification or supplement is approved by such stockholders.
12. Termination. This Merger Agreement may be terminated, and the Merger
and the other transactions provided for herein may be abandoned, at
any time prior to the Effective Time, whether before or after approval
of this Merger Agreement by the stockholders of the Company, by action
of the Board of Directors of the Company if:
(a) the conditions specified in Section 9 hereof shall not have been
satisfied or waived; or
(b) the Board of Directors of the Company determines for any reason,
in its sole judgment and discretion, that the consummation of the
merger would be inadvisable or not in the best interests of the
Company and its stockholders.
13. Counterparts. This Merger Agreement may be executed in one or more
counterparts, and each such counterpart hereof shall be deemed to be
an original instrument, but all such counterparts together shall
constitute but one agreement.
14. Descriptive Headings. The descriptive headings herein are inserted for
convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Merger Agreement.
15. New York Appointment. The surviving Corporation hereby agrees that it
may be served with process in the State of New York in any action or
special proceeding for enforcement of any liability or obligation of
the Company, the Delaware Company or the Surviving Corporation arising
from the Merger. The Surviving Corporation appoints the Secretary of
State of the State of New York as its agent to accept service of
process of any such suit or other proceeding and a copy of such
process shall be mailed by the Secretary of State of the State of New
York to the Surviving Corporation at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 x/x Xxxxx Xxxxxxxx X.X.
00. Governing Law. This Merger Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company and the Delaware Company have caused this Merger
Agreement to be executed and delivered as of the date first above written.
KBF POLLUTION MANAGEMENT, INC.
a New York corporation
/s/ Xxxxx Xxxxxxxx
By: -------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President and Chief Executive Officer
VERIDIUM CORPORATION
a Delaware corporation
/s/ Xxxxx Xxxxxxxx
By: -------------------------------------------
Name: Xxxxx Xxxxxxxx
Title: President and Chief Executive Officer
