EXHIBIT 2.2
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
HIENERGY TECHNOLOGIES, INC., A WASHINGTON CORPORATION
AND
HIENERGY TECHNOLOGIES, INC., A DELAWARE CORPORATION
THIS AGREEMENT AND PLAN OF MERGER ("Agreement") is entered into as of the
18th day of October, 2002, by and between HiEnergy Technologies, Inc., a
Washington corporation (hereinafter, the "Parent"), located at 0000 Xxxxx
Xxxxxxx, Xxxx X, Xxxxxx, Xxxxxxxxxx, 00000, and HiEnergy Technologies, Inc., a
Delaware corporation and a wholly-owned subsidiary of the Parent (hereinafter,
the "Subsidiary"), located at 0000 Xxxxx Xxxxxxx, Xxxx X, Xxxxxx, Xxxxxxxxxx,
00000. The Parent and the Subsidiary are referred to collectively herein as the
"Parties."
RECITALS
A. The Parent is a corporation organized and existing under the laws of
the State of Washington. The authorized capital stock of the Parent consists of
100,000,000 shares of Common Stock, having a par value of $0.0001 per share, of
which 22,624,276 shares are duly issued and outstanding as of October 4, 2002
and 20,000,000 shares of Preferred Stock, having a par value of $0.0001 per
share, of which 97.95 shares of Series A Convertible Preferred Stock are duly
issued and outstanding.
B. The Subsidiary is a corporation organized and existing under the laws
of the State of Delaware. The authorized capital stock of the Subsidiary
consists of 100,000,000 shares of Common Stock, having a par value of $0.001 per
share, of which 1,000 shares are duly issued and outstanding, and 20,000,000
shares of Preferred Stock, having a par value of $0.001 per share, of which none
are duly issued and outstanding. All 1,000 shares of issued and outstanding
shares of Common Stock are held by the Parent.
C. This Agreement contemplates a merger of the Parent with and into the
Subsidiary. The Parent stockholders will receive one (1) security of the
Subsidiary in exchange for each security of the Parent outstanding at the
Effective Time. The purpose of the Merger is to change the domicile of the
Parent from the State of Washington to the State of Delaware.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the Parties agree as follows.
1. BASIC TRANSACTION.
1.1 Merger. On and subject to the terms and conditions of this Agreement,
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the Parent will merge with and into the Subsidiary (the "Merger") at the
Effective Time. The Subsidiary shall be the corporation surviving the Merger
(the "Surviving Corporation").
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1.2 Effect of Merger.
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1.2.1 General. The Merger shall become effective at the time (the
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"Effective Time") the Surviving Entity signs the Certificate of Merger and the
Articles of Merger and files the Certificate of Merger with the Secretary of
State of Delaware and files the Articles of Merger with the Secretary of State
of Washington. The Merger shall have the effect set forth in the laws of the
States of Delaware and Washington. The Surviving Corporation may, at any time
after the Effective Time, take any action (including executing and delivering
any document) in the name and on behalf of either the Subsidiary or the Parent
in order to carry out and effectuate the transactions contemplated by this
Agreement.
1.2.2 Certificate of Incorporation. The Certificate of Incorporation of the
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Subsidiary in effect at and as of the Effective Time will remain the Certificate
of Incorporation of the Surviving Corporation without any modification or
amendment in the Merger.
1.2.3 Bylaws. The Bylaws of the Subsidiary in effect at and as of the
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Effective Time will remain the Bylaws of the Surviving Corporation without any
modification or amendment in the Merger.
1.2.4 Directors and Officers. The directors and officers of the Parent in
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office at and as of the Effective Time will become the directors and officers of
the Surviving Corporation (retaining their respective positions and terms of
office).
1.3 Conversion of Shares.
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1.3.1 Common Stock. At the Effective Time of the Merger, by virtue of the
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Merger and without any action on the part of the holder of any shares of stock
of the Parent or the Subsidiary, every one (1) issued and outstanding share of
the Common Stock of the Parent held as of the Effective Time shall be converted
into and become one (1) new fully paid and nonassessable share of Common Stock,
par value $0.001 per share, of the Surviving Corporation. The Surviving
Corporation will honor the stock certificates of the Parent as if they were
issued by the Surviving Corporation.
1.3.2 Preferred Stock. At the Effective Time of the Merger, by virtue of the
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Merger and without any action on the part of the holder of any shares of stock
of the Parent or the Subsidiary, every issued and outstanding share, or fraction
thereof, of Preferred Stock of the Parent held as of the Effective Time shall be
converted into and become an issued and outstanding share, or fraction thereof,
par value $0.001 per share, of the Surviving Corporation. The Surviving
Corporation will honor the stock certificates of the Parent as if they were
issued by the Surviving Corporation.
1.3.3 Conversion of Other Equity Instruments. At the Effective Time of the
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Merger, by virtue of the Merger and without any action on the part of the holder
of any stock options or warrants of the Parent, every one (1) stock option or
warrant granted and convertible into shares of the Common Stock of the Parent,
whether or not vested, shall be converted into and become one (1) stock option
or warrant convertible into shares of the Common Stock of the Surviving
Corporation. Any stock options and warrants of the Surviving Corporation shall
be issued pursuant to economic terms substantially similar to those of existing
options and warrants in the Parent. At the Effective Time of the Merger, every
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other equity instrument of the Parent not addressed elsewhere in this Agreement
shall be converted into a similar equity instrument in the Surviving Corporation
on economic terms substantially similar to those of the existing other equity
instruments in the Parent.
1.3.4 Cancellation of Parent Securities. At and as of the Effective Time,
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each outstanding security of the Parent shall be canceled.
1.3.5 Cancellation of Subsidiary Shares. Each security of the Subsidiary
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issued and outstanding immediately before the Effective Time shall be canceled
at or immediately after the Effective Time.
2. RIGHTS, DUTIES, POWERS, LIABILITIES, ETC.
At the Effective Time of the Merger, the separate existence of the Parent
shall cease, and the Parent shall be merged, in accordance with the provisions
of this Agreement and the laws of the States of Washington and Delaware, with
and into the Subsidiary, which shall possess all the properties and assets, and
all the rights, privileges, powers, immunities and franchises, of whatever
nature and description, and shall be subject to all restrictions, disabilities,
duties and liabilities of each of the Parties; and all such things shall be
taken and deemed to be transferred to and vested in the Surviving Corporation
without further act or deed; and the title to any real estate or other property,
or any interest therein, vested by deed or otherwise in either the Parent or the
Subsidiary, shall be vested in the Surviving Corporation without reversion or
impairment. Any claim existing or action or proceeding, whether civil, criminal
or administrative, pending by or against either the Parent or the Subsidiary,
may be prosecuted to judgment or decree as if the Merger had not taken place,
and the Surviving Corporation may be substituted in any such action or
proceeding.
3. IMPLEMENTATION.
Each of the Parties hereto shall take, or cause to be taken, all action or
do, or cause to be done, all things necessary, proper or advisable under the
laws of the States of Washington and Delaware to consummate and make effective
the Merger.
4. TERMINATION.
This Agreement may be terminated for any reason at any time before the
filing of the Certificate of Merger and Articles of Merger with the Secretaries
of State of the States of Delaware and Washington, respectively, (whether before
or after approval by the stockholders of either of the Parties) by resolution of
the Boards of Directors of both the Parent and the Subsidiary.
5. AMENDMENT.
This Agreement may, to the extent permitted by law, be amended,
supplemented or interpreted at any time by action taken by the Boards of
Directors of both of the Parties; provided, however, that, subject to the
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succeeding sentence, this Agreement may not be amended or supplemented after
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having been approved by the stockholders of either the Parent or the Subsidiary
except by a vote or consent of stockholders of both Parties in accordance with
applicable law. Notwithstanding the preceding proviso, to the extent permitted
by law, the Boards of Directors of both Parties may amend, supplement or
interpret this Agreement following stockholder approval to correct technical
deficiencies that do not affect the economic or voting rights of the
stockholders.
6. GOVERNING LAW.
This Agreement and all matters relating to this Agreement, except for
provisions pertaining to effecting the merger in the State of Washington, shall
be governed by, construed and interpreted in accordance with the laws of the
State of Delaware.
7. HEADINGS.
The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
8. SEVERABILITY.
Any term or provision of this Agreement that is invalid or unenforceable in
any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction.
9. COUNTERPART AND FACSIMILE SIGNATURES.
This Agreement may be signed in counterparts, each of which shall be an
original, but all of which shall constitute one and the same document.
Signatures transmitted by facsimile shall be deemed valid execution of this
Agreement binding on the Parties.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first set forth above.
PARENT: SUBSIDIARY:
HiEnergy Technologies, Inc., HiEnergy Technologies, Inc.,
a Washington corporation a Delaware corporation
By /s/ Xxx Xxxxxx By /s/ Xxx Xxxxxx
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Xxx Xxxxxx, CEO and President Xxx Xxxxxx, President
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ADOPTION OF THE AGREEMENT AND PLAN OF MERGER BY STOCKHOLDERS
OF RECORD OF THE PARENT AND SUBSIDIARY
PARENT:
The Agreement and Plan of Merger has been approved, adopted, certified, executed
and acknowledged by the Parent. The merger contemplated by the Agreement and
Plan of Merger was approved at the Annual Meeting of the Stockholders of the
Parent held on October 10, 2002 by stockholders of record holding 15,778,991
shares of voting common stock, which constitutes 69.78% of the Parent's duly
issued and outstanding shares entitled to vote.
HIENERGY TECHNOLOGIES, INC., a Washington corporation
By: /s/ Xxxxxx Xxxx 10/18/02
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Xxxxxx Xxxx, Secretary (Date)
SUBSIDIARY:
The Agreement and Plan of Merger has been approved, adopted, certified, executed
and acknowledged by the Subsidiary. The Agreement and Plan of Merger was
approved by unanimous written consent of the director and sole stockholder of
the Subsidiary on October 18, 2002.
HIENERGY TECHNOLOGIES, INC., a Delaware corporation
By: /s/ Xxxxxx Xxxx 10/18/02
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Xxxxxx Xxxx, Secretary (Date)
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