AGREEMENT AND PLAN OF MERGER
Exhibit
2.2
This
Agreement and Plan of Merger (the “Agreement”) is made and entered into this
3rd day of
August 2007, by and between Buckeye Ventures, Inc., a Michigan corporation
(the
“Michigan Company”) and Buckeye Ventures, Inc., a Nevada corporation (the
“Nevada Company”) (the Michigan Company and the Nevada Company are sometimes
referred to herein individually as a “Merging Company” and, collectively, as the
“Merging Companies”).
RECITALS
WHEREAS,
the Nevada Company is a wholly owned subsidiary of the Michigan Company;
and
WHEREAS,
the Merging Companies desire that the Michigan Company merge with and into
the
Nevada Company, which shall be the surviving corporation, in the manner and
upon
the terms and conditions set forth in this Agreement; and
WHEREAS,
the Michigan Company’s Articles of Incorporation authorize the issuance of
150,000,000 shares of common stock, par value $0.001, 103,988,618 of which
shares of common stock are issued and outstanding as of the date of this
Agreement (which number may increase prior to the effective date of the merger
if outstanding options or warrants of the Michigan Company are exercised
during
such period of time) and 3,000,000 shares of preferred stock, par value $0.01,
of which 998,086 preferred shares are designated as follows:
717
preferred stock have been designated as “Series 89-B Preferred Stock and are
issued and outstanding as of the date of this Agreement;
1,000
preferred stock have been designated as “Series 91-C Preferred Stock” and are
issued and outstanding as of the date of this Agreement;
26,000
preferred stock have been designated as “Series 92-D+E Preferred Stock” and are
issued and outstanding as of the date of this Agreement;
50,000
preferred stock have been designated as “Series 94-F Preferred Stock” and are
issued and outstanding as of the date of this Agreement;
1,000
preferred stock have been designated as “Series 94-G Preferred Stock” and are
issued and outstanding as of the date of this Agreement;
7,500
preferred stock have been designated as “Series 94-H+I Preferred Stock” and are
issued and outstanding as of the date of this Agreement;
15,000
preferred stock have been designated as “Series 96-J Preferred Stock” and are
issued and outstanding as of the date of this Agreement;
10,000
preferred stock have been designated as “Series 99-K Preferred Stock” and are
issued and outstanding as of the date of this Agreement;
25,000
preferred stock have been designated as “Series 00-L Preferred Stock” and are
issued and outstanding as of the date of this Agreement;
28,000
preferred stock have been designated as “Series 01-O Preferred Stock” and are
issued and outstanding as of the date of this Agreement;
14,000
preferred stock have been designated as “Series 03-U Preferred Stock” and are
issued and outstanding as of the date of this Agreement;
796,869
preferred stock have been designated as “Series 06-W Preferred Stock” and are
issued and outstanding as of the date of this Agreement; and
1
10,000
of
which shares of preferred stock, par value $10, have been designated as “Series
88-A Preferred Stock” and are issued and outstanding as of the date of this
Agreement;
2,000
of
which shares of preferred stock, par value $10, have been designated as “Series
01-P Preferred Stock” and are issued and outstanding as of the date of this
Agreement; and
1,000
of
which shares of preferred stock, par value $10, have been designated as “Series
03-V Preferred Stock” and are issued and outstanding as of the date of this
Agreement;
WHEREAS,
the Nevada Company’s Certificate of Incorporation authorizes 100,000,000 shares
of common stock, par value $0.00 1, of which 100 shares are issued and
outstanding as of the date of this Agreement all of which are owned by the
Michigan Company, and no shares of preferred stock, par value $0.01, are
issued
and outstanding;
WHEREAS,
the respective Board of Directors of each of the Merging Companies have approved
and adopted this Agreement and deem it desirable that the Michigan Company
be
merged with and into the Nevada Company in accordance with Section 735 of
the
Michigan Business Corporation Act (“MBCA”) and Nevada Revised Statue Chapter 78
(“NRS”); and
WHEREAS,
the Michigan Company, being sole stockholder of the Nevada Company, has approved
this Agreement in accordance with Section 703a(d) of the MBCA; and
WHEREAS,
the respective Board of Directors of each of the Merging Companies desires
that
the merger described in this Agreement (the “Merger”) be a tax-free
reorganization pursuant to Section 368(a) of the Internal Revenue Code of
1986,
as amended.
NOW
THEREFORE, the parties agree as follows:
ARTICLE
I
MERGER
AND NAME OF SURVIVING CORPORATION
On
the
Effective Date (as defined herein), the Michigan Company and the Nevada Company
shall be merged into a single corporation, in accordance with the laws of
the
states of Nevada and Michigan, by the Michigan Company merging into the Nevada
Company, which shall be the surviving corporation and which shall exist under
the name “Buckeye Ventures, Inc.” (the “Surviving Corporation”).
ARTICLE
II
TERMS
AND CONDITIONS OF MERGER
The
terms
and conditions of the merger are (in addition to those set forth elsewhere
in
this Agreement) as follows:
(a)
On
the Effective Date:
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(i)
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The
Michigan Company shall be merged with and into the Nevada Company
to form
a single corporation and the Nevada Company shall be, and is designated
herein as, the Surviving
Corporation;
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(ii)
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The
separate existence of the Michigan Company shall
cease;
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(iii)
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The
Surviving Corporation shall have all the rights, privileges, immunities,
and powers and shall be subject to all duties and liabilities of
a
corporation organized under the laws of
Michigan;
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(iv)
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The
surviving Corporation shall thereupon and thereafter possess all
the
rights, privileges, immunities, and franchises, of a public as
well as of
a private nature, of the Merging Companies; and all property, real,
personal, and mixed, including all trademark, trademark registrations
and
applications for registration of trademarks, and all debts due
of whatever
account, including subscriptions to shares, and all and every other
interest, of or belonging to or due to the Merging Companies, shall
be
taken and deemed to be transferred to and vested in the Surviving
Corporation without further act or deed; the title to any real
estate, or
any interest therein, vested in the Merging Companies shall not
revert or
be in any way impaired by reason of the
merger;
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(v)
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The
Surviving Corporation shall thenceforth be responsible and liable
for all
the liabilities and obligations of the Merging Companies; any claim
existing or action or proceeding pending by or against the Merging
Companies may be prosecuted as if the merger had not taken place,
or the
Surviving Corporation may be substituted in place of the Merging
Companies;
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(vi)
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neither
the rights of creditors nor any liens on the property of the Merging
Companies shall be impaired by the
merger;
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(vii)
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All
corporate acts, plans, policies, contracts, approvals and authorizations
of the Michigan Company, its stockholders, Board of Directors,
committees
elected or appointed by the Board of Directors, officers and agents,
which
were valid and effective immediately prior to the Effective Date
shall be
taken for all purposes as the acts, plans, policies, contracts,
approvals
and authorizations of the Surviving Corporation and shall be effective
and
binding thereon as the same were with respect to the Michigan
Company.
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(b)
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On
the Effective Date, the Board of Directors of the Surviving Corporation
and the members thereof, shall be and consist of the members of
the Board
of Directors of the Michigan Company immediately prior to the merger,
to
serve thereafter in accordance with the bylaws of the Surviving
Corporation and until their respective successors shall have been
duly
elected and qualified in accordance with such bylaws and the laws
of the
State of Michigan.
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(c)
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On
the Effective Date, the officers of the Surviving Corporation shall
be and
consist of the officers of the Michigan Company immediately prior
to the
merger, such officers to serve thereafter in accordance with the
bylaws of
the Surviving Corporation and until their respective successors
shall have
been duly elected and qualified in accordance with such bylaws
and the
laws of the State of Michigan.
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(d)
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On
the Effective Date, the bylaws of the Nevada Company shall become
the
by-laws of the Surviving
Corporation.
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ARTICLE
III
ARTICLES
OF INCORPORATION
The
Articles of Incorporation of the Surviving Corporation shall be the Certificate
of Incorporation of the Nevada Company except that, upon the Effective Date,
Article III shall be amended as follows:
1.
By
striking out Article III in its entirety and substituting in lieu thereof
a new
Article III as follows:
The
total authorized capital stock is:
Preferred
Stock 5,000,000 shares, par value $0.01 per share. Common Stock 500,000,000
shares, par value $0.001 per share.
A
statement of all of the relative designations, powers, rights, preferences,
restrictions and limitations of the shares of each class is as
follows:
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The
Preferred Stock:
Shares
of
the Preferred Stock of the Corporation may be issued from time to time in
one or
more series, each of which series shall have such distinctive designations
or
title as shall be fixed by the Board of Directors of the Corporation prior
to
the issuance of any shares thereof. The Board of Directors of the Corporation
is
hereby expressly granted authority to fix by duly adopted resolution or
resolutions the designations and the relative powers and preferences, the
relative, participating, optional, voting, conversion or other special rights,
the terms and conditions of any redemptions and the relative qualifications,
limitations or restrictions as may be authorized or permitted by the laws
of the
State of Nevada in respect of each such series of Preferred Stock.
The
Common Stock:
Dividends
- Subject to any and all prior rights of the holders of any outstanding shares
of the Preferred Stock of the Corporation, of any and all series, the Board
of
Directors may declare and pay ratable dividends or make other distributions
in
cash, its bonds or its property, including shares or bonds of other
corporations, on the outstanding shares of its Common Stock, payable to the
full
extent permitted under the laws of the State of Michigan, except when currently
the Corporation is insolvent or would thereby be made insolvent. Dividends
may
be declared or paid and distributions may only be made out of surplus. Once
declared, holders of Common Stock are entitled to prompt payment of dividends,
without interest, to the extent that surplus then exists. Dividends in the
shares of the Corporation's own capital stock may be declared and paid pro
rata
on the outstanding shares of its Common Stock to the extent permitted by
the
Nevada Business Corporation Act.
No
Pre-Emptive Rights:
No
shareholder of the Corporation shall have any preemptive or other right to
purchase or subscribe for any shares of the capital stock of the Corporation
which it may issue or sell, whether now or hereafter authorized, other than
such
right, if any, as the Board of Directors of the Corporation in its discretion
may from time to time determine.
ARTICLE
IV
MANNER
AND BASIS OF CONVERTING SHARES
The
manner and basis of converting the shares of stock of the Merging Companies
into
shares of stock of the Surviving Corporation shall be as follows:
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(a)
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Each
one share of common stock of the Michigan Company outstanding on
the
effective date of the merger shall, without any action on the part
of the
holder thereof, be converted into one fully paid and nonassessable
share
of common stock of the Surviving Corporation. Each outstanding
certificate
of the Michigan Company which, prior to the Effective Date, represented
shares of the common stock of the Michigan Company shall, for all
purposes, evidence the ownership of the shares of common stock
of the
Surviving Corporation into which such shares shall have been converted
and
the holders thereof shall have the same rights such holders would
have if
such certificates had been issued by the Surviving
Corporation.
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(b)
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Each
one share of any series of Preferred Stock of the Michigan Company
outstanding on the Effective Date shall, without any action on
the part of
the holder thereof, be converted into one fully paid and nonassessable
share of any series of Preferred Stock of the Surviving Corporation.
Each
outstanding certificate of the Michigan Company which, prior to
the
Effective Date, represented shares of any series of Preferred Stock
of the
Michigan Company shall, for all purposes, evidence the ownership
of the
shares of any series of Preferred Stock of the Surviving Corporation
into
which such shares shall have been converted and the holders thereof
shall
have the same rights such holders would have if such certificates
had been
issued by the Surviving
Corporation.
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(c)
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Any
stock options granted by the Michigan Company and in existence
on the
Effective Date, and any warrants or other rights to acquire or
receive shares of common stock of the Michigan Company in existence
on
such date, shall remain in full force and effect and be applicable
to the
shares of common stock of the Surviving Corporation and shall continue,
without impairment or alternation , following the effectiveness
of the
merger.
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(d)
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The
100 shares of common stock of the Nevada Company which are presently
issued and outstanding and owned by the Michigan Company shall,
on the
Effective Date, be cancelled for no
consideration.
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ARTICLE
V
APPROVAL;
EFFECTIVENESS
This
Agreement has been approved by the Board of Directors of the Michigan Company
on
behalf of the Michigan Company as the sole shareholder of the Nevada Company;
however, this Agreement shall be submitted to a vote of shareholders of the
Michigan Company as provided by the laws of the State of Michigan to determine
approval of the Michigan Company itself.
The
effective date of the merger (the “Effective Date”) shall be determined by the
Board of Directors of the Michigan Company after the approval or adoption
if
this Agreement by the shareholders of the Michigan Company in accordance
with
the requirements of the laws of the State of Michigan. On the Effective Date,
all required documents shall be executed, filed, and recorded in accordance
with
all requirements of the States of Nevada and Michigan to accomplish the
merger.
ARTICLE
VI
ABANDONMENT
OF MERGER
Anything
herein or elsewhere to the contrary notwithstanding, this Agreement may be
abandoned by the Michigan Company by appropriate resolution of its Board
of
Directors at any time prior to the merger becoming effective, notwithstanding
approval of the Agreement by the stockholders of the Michigan Company. In
the
event of termination and abandonment of this Agreement pursuant to the foregoing
sentence, this Agreement shall become null and void and shall have no effect,
without any liability on the part of either of the Merging Companies or the
stockholders or directors thereof. The Board of Directors of the Michigan
Company and the Nevada Company may modify this Agreement as they mutually
agree
at any time prior to the merger becoming effective, notwithstanding approval
of
the Agreement by the stockholders of the Michigan Company, provided that
no such
modification may materially adversely affect the Michigan Company’s stockholders
or change the principal terms of this Agreement.
ARTICLE
VII
MISCELLANEOUS
Articles
or Certificate of Merger setting forth the information required by, and executed
and certified in accordance with, the laws of the states of Nevada and Michigan,
shall be filed in the appropriate governmental office of states of Nevada
and
Michigan so that each state may issue a certificate of merger or other evidence,
as provided by the applicable law, reflecting such filing.
If
at any
time the Surviving Corporation shall deem or be advised that any further
grants,
assignments, confirmations, or assurances are necessary or desirable to vest,
perfect, or confirm title in the Surviving Corporation, of record or otherwise,
to any property of the Merging Companies, the officers and directors of the
Surviving Corporation or any of them shall be severally and fully authorized
to
execute and deliver any and all such deeds, assignments, confirmations, and
assurances and to do all things necessary or proper so as to best prove,
confirm, and ratify title to such property in the Surviving Corporation and
otherwise carry out the purposes of the merger and the terms of this
Agreement.
For
the
convenience of the parties and to facilitate the filing and recording of
this
Plan, any number of counterparts hereof may be executed, and each such
counterpart shall be deemed to be an original instrument and all such
counterparts together shall be considered one instrument. This Plan shall
be
governed by and construed in accordance with the laws of the State of Michigan.
This Plan cannot be altered or amended except pursuant to an instrument in
writing signed on behalf of the parties hereto.
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IN
WITNESS WHEREOF, the Merging Companies have caused this Plan of Merger to
be
executed, all as of the date first above written.
Buckeye
Ventures, Inc., a Michigan corporation
By:
Xxxx
X. Xxxxx, Chief Executive Officer
Buckeye
Ventures, Inc., a Nevada corporation
By:
Xxxx
X. Xxxxx, Chief Executive Officer
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