EXHIBIT 3.3
AGREEMENT AND PLAN OF MERGER
OF
CONTANGO OIL & GAS COMPANY
(A DELAWARE CORPORATION)
AND
CONTANGO OIL & GAS COMPANY
(A NEVADA CORPORATION)
This Agreement and Plan of Merger ("Merger Agreement") dated as of
December 1, 2000, is made by and between Contango Oil & Gas Company, a Delaware
corporation ("Contango-Delaware") and Contango Oil & Gas Company, a Nevada
corporation ("Contango-Nevada" and together with Contango-Delaware, the
"Constituent Corporations").
RECITALS
A. Contango-Nevada desires to merge with and into Contango-Delaware, a
Delaware corporation that is a wholly-owned subsidiary of Contango-Nevada, and
Contango-Delaware desires to merge with Contango-Nevada, all upon the terms and
subject to the conditions of this Merger Agreement (the "Proposed Merger").
B. Contango- Delaware is a corporation duly organized and existing
under the Delaware General Corporation Law (the "DGCL"). Contango-Delaware has
an authorized capital of 50,125,000 shares, consisting of 50,000,000 shares of
common stock, par value $0.04 per share ("Contango-Delaware Common Stock"), and
125,000 shares of preferred stock, par value $0.04 per share, 5,000 of which are
designated as Series A senior convertible cumulative preferred stock
("Contango-Delaware Series A Preferred Stock"), and another 10,000 of which are
designated as Series B senior convertible cumulative preferred stock
("Contango-Delaware Series B Preferred Stock" and together with the
Contango-Delaware Series A Preferred Stock, the "Contango-Delaware Preferred
Stock" ). As of the date hereof, one share of Contango-Delaware Stock is issued
and outstanding, which is held by Contango-Nevada.
C. Contango-Nevada is a corporation duly organized and existing under
the Revised Statutes of the State of Nevada (the "NRS"). Contango-Nevada has an
authorized capital of 50,125,000 shares, consisting of 50,000,000 shares of
common stock, par value $0.04 per share ("Contango-Nevada Common Stock"), and
125,000 shares of preferred stock, par value $0.04 per share, 5,000 of which are
designated as Series A senior convertible cumulative preferred stock
("Contango-Nevada Series A Preferred Stock") and another 10,000 of which are
designated as Series B Senior convertible cumulative preferred stock
("Contango-Nevada Series B Preferred Stock" and together with the
Contango-Delaware Series A Preferred Stock, the "Contango-Delaware Preferred
Stock" ). As of the date hereof, 22,926,415 shares of Contango-Nevada Common
Stock, 2,500 shares of Contango-Nevada Series A Preferred Stock, and 5,000
shares of Contango-Nevada Series B Preferred Stock are issued and outstanding.
D. The Board of Directors of Contango-Nevada has determined by
unanimous vote that, for the purpose of effecting the reincorporation of
Contango-Nevada in the State of Delaware, it is advisable and in the best
interest of Contango-Nevada and its stockholders that it
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ratify, confirm and approve the Proposed Merger, pursuant to which it will merge
with and into Contango-Delaware upon the terms and conditions herein provided.
E. The Board of Directors of Contango-Nevada has determined that for
the purposes of reducing the number of shares of the Contango-Nevada Common
Stock that are outstanding and increasing the price per share of such Common
Stock, Contango-Nevada shall effect a two-for-one reverse stock split
contemporaneous with the Proposed Merger whereby the holders of Contango-Nevada
Common Stock shall receive one validly issued, fully paid and nonassessable
share of Contango-Delaware Common Stock, for every two shares of Contango-Nevada
Common Stock that they hold.
F. The Board of Directors of Contango-Nevada has further determined
that it is advisable that upon consummation of the Proposed Merger, (i) the
holders of Contango-Nevada Series A Preferred Stock shall receive one share of
Contango-Delaware Series A Preferred Stock for each share of Contango-Nevada
Series A Preferred Stock that they hold; and (ii) the holders of Contango-Nevada
Series B Preferred Stock shall each receive one share of Contango-Delaware
Series B Preferred Stock, provided that after the consummation of the Proposed
Merger as a result of the two for one reverse stock split, each share of
Contango-Delaware Preferred Stock shall be convertible, at an adjusted
conversion price, into one-half of the number of shares of Nevada Common Stock
that would have been received before such Merger.
G. The respective Boards of Directors of Contango-Delaware and
Contango-Nevada have authorized and approved this Merger Agreement and have
directed that this Merger Agreement be submitted to a vote of their respective
stockholders and executed by the undersigned officers.
H. This Merger Agreement is a Plan of Reorganization under Section 368
of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
agreements and covenants set forth herein, and other good and valuable
consideration, the Constituent Corporations agree as follows:
ARTICLE I
MERGER
1.1 MERGER. In accordance with the provisions of this Merger Agreement,
the DGCL and the NRS, Contango-Nevada shall be merged with and into
Contango-Delaware (the "Merger"), the separate existence of Contango-Nevada
shall cease, and Contango-Delaware shall survive the Merger and shall continue
to be governed by the DGCL. Contango-Delaware shall be, and is herein sometimes
referred to as, the "Surviving Corporation." The name of the surviving
corporation shall be Contango Oil & Gas Company.
1.2 FILING AND EFFECTIVENESS. The Merger shall become effective when
the last to occur of the following actions shall have been completed:
(a) This Merger Agreement and the Merger shall have been adopted
and approved by the stockholders of each of the Constituent Corporations in
accordance with the requirements of the DGCL and the NRS;
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(b) All of the conditions precedent to the consummation of the
Merger specified in this Merger Agreement have been satisfied or duly waived by
the party entitled to satisfaction thereof;
(c) A properly executed Certificate of Merger or an executed
counterpart of this Merger Agreement meeting the requirements of the DGCL shall
have been filed with and accepted by the Secretary of State of the State of
Delaware; and
(d) A properly executed Articles of Merger or an executed
counterpart of this Merger Agreement meeting the requirements of the NRS shall
have been filed with the State of Nevada.
The date and time when the Merger shall become effective, as
aforesaid, is herein called the "Effective Date."
1.3 EFFECT OF MERGER. Upon the Effective Date of the Merger, the
separate existence of Contango-Nevada shall cease, and Contango-Delaware, as the
Surviving Corporation, (i) shall continue to possess all of Contango-Delaware's
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 Contango-Nevada's Board of Directors; (iii) shall succeed,
without other transfer, to all of the assets, rights, powers and property of
Contango-Nevada including, without limitation, all patents, trademarks,
licenses, registrations, and all other intellectual properties however defined;
(iv) shall continue to be subject to all of Contango-Delaware's debts,
liabilities and obligations as constituted immediately prior to the Effective
Date of the Merger, (v) shall succeed, without other transfer, to all of the
debts, liabilities and obligations of Contango-Nevada in the same manner as if
Contango-Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the DGCL and the NRS, and (vi) shall continue to
operate the business of Contango-Nevada under its current name, Contango Oil &
Gas Company.
ARTICLE II
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
Contango-Delaware as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the terms thereof and applicable law.
2.2 BYLAWS. The Bylaws of Contango-Delaware 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
Contango-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 Certificate of Incorporation of the Surviving Corporation or the Bylaws
of the Surviving Corporation.
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ARTICLE III
MANNER OF CONVERSION OF STOCK
3.1 STOCK CONVERSION. Upon the Effective Date of the Merger, each share
of Contango-Nevada Common Stock 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 deemed to
represent the right to receive one-half of one fully paid and nonassessable
share of the corresponding Contango-Delaware Common Stock. No fractional shares
of Contango-Delaware Common Stock shall be issued and, in lieu thereof,
stockholders holding a number of shares of Contango-Nevada Common Stock not
evenly divisible by two, upon surrender of their old certificates, shall be paid
an amount of cash, without interest, rounded to the nearest cent, determined by
the multiplying of (i) the Market Price of a share of Nevada Common Stock on
November 16, 2000 by (ii) the fractional interest to which such stockholder
would otherwise be entitled. The "Market Price" of a share of Nevada Common
Stock means the average closing prices of such Common Stock on the securities
exchange or other national market system on which such Common Stock is then
traded over the six month-trading day period immediately prior to November 16,
2000 or, if the Common Stock is not then traded on a securities exchange or
national market system, the average of the closing prices on the
over-the-counter market on which such Common Stock is then traded as of the
close of such market on each day over the six month-trading day period
immediately prior to such date. On each day during the six month-trading period
on which there are no trades, the Company will use the closing price on the last
trading day prior to such date. As promptly as practical after the determination
of the amount of cash to be paid to holders of fractional share interests, U.S.
Stock Transfer Corporation, the transfer agent for each of the Constituent
Corporations (the "Transfer Agent"), will so notify the Surviving Corporation
and the Surviving Corporation will deposit such amount with the Transfer Agent
and cause the Transfer Agent to forward payments to such holders of fractional
shares subject to and in accordance with the terms of this Merger Agreement.
3.2 CONTANGO-NEVADA WARRANTS, CONVERTIBLE SECURITIES, EMPLOYEE
BENEFITS, STOCK OPTION AND EMPLOYEE STOCK PURCHASE PLANS.
(a) Upon the Effective Date of the Merger, the Surviving
Corporation shall assume and continue the warrants, convertible securities,
employee benefits, stock option and employee stock plans of Contango-Nevada.
Each outstanding and unexercised option or other right to purchase a security
convertible into Contango-Nevada Common Stock shall become an option or right to
purchase a security convertible into the Surviving Corporation's Common Stock on
the basis of one-half of a share of the Surviving Corporation's Common Stock for
each share of Contango-Nevada Common Stock issuable pursuant to any such option,
stock purchase right or convertible security, upon the same terms and subject to
the same conditions.
(b) In accordance with the respective terms of the Certificate of
Designations, Preferences, and Relative Rights and Limitations of the Series A
Senior Convertible, Cumulative Preferred Stock dated August 24, 2000 and the
Certificate of Designations, Preferences, and Relative Rights and Limitations of
the Series B Senior Convertible, Cumulative Preferred Stock dated September 27,
2000 (each a "Certificate of Designations" and collectively, the "Certificates
of Designation"), the number of shares of Nevada Common Stock that comprise the
Stock Units (as defined in the applicable Certificate of Designations) held by
the holders of
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Contango-Nevada Preferred Stock shall be adjusted to reflect the number of
shares of Contango-Delaware Common Stock that such holders shall be entitled to
receive after the Merger. Accordingly, for each holder of Contango-Nevada
Preferred Stock, the number of shares of Common Stock of the Surviving
Corporation that shall comprise a Stock Unit after the Merger will be adjusted
to that number determined by dividing the Conversion Price (as defined in the
applicable Certificate of Designations) by a fraction the numerator of which is
the new shares of Contango-Delaware Common Stock that such holder will be
entitled to receive after and as a result of the two for one reverse stock split
which will be effected as part of the Merger and the denominator of which will
be the number of shares of Contango-Nevada Common Stock that such holder would
have been entitled to receive prior to the Merger.
(c) A number of shares of the Surviving Corporation's Common Stock
shall be reserved for issuance upon the exercise of options, stock purchase
rights and convertible securities equal to one half the number of shares of
Contango-Nevada Common Stock so reserved immediately prior to the Effective Date
of the Merger.
3.3 CANCELLATION OF STOCK. Upon the Effective Date of the Merger, any
authorized but unissued shares of Contango-Nevada Common Stock, Contango-Nevada
Series A Preferred Stock or Contango-Nevada Series B Preferred Stock (including
Treasury shares) shall be canceled and no shares of Contango-Delaware Common
Stock, Contango-Delaware Series A Preferred Stock or Contango-Delaware Series B
Preferred Stock shall be issued in exchange therefor. Upon the Effective Date of
the Merger, the one share of Contango-Delaware Common Stock presently issued and
outstanding shall be canceled and returned to the status of authorized but
unissued shares and no shares of common stock or other securities of the
Surviving Corporation will be issued in respect thereof.
3.4 EXCHANGE OF CERTIFICATES.
(a) After the Effective Date of the Merger, each holder of an
outstanding certificate representing shares of Contango-Nevada Common Stock,
Contango-Nevada Series A Preferred Stock or Contango-Nevada Series B Preferred
Stock shall surrender the same for cancellation to the Transfer Agent, and each
such holder shall be entitled to receive in exchange therefor a certificate or
certificates representing the number of shares of corresponding
Contango-Delaware Stock into which the surrendered shares were converted as
herein provided. Until so surrendered, each outstanding certificate theretofore
representing shares of Contango-Nevada Common Stock, Contango-Nevada Series A
Preferred Stock or Contango-Nevada Series B Preferred Stock shall be deemed for
all purposes to represent the number of corresponding shares of whole
Contango-Delaware Common Stock or Contango Delaware Preferred Stock into which
such shares of Contango-Nevada Common Stock or Contango-Nevada Preferred Stock
were converted in the Merger.
(b) The registered owner on the books and records of the Surviving
Corporation or the Transfer 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 Transfer 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 Contango-Delaware
Stock represented by such outstanding certificate as provided above.
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(c) Each certificate representing Contango-Delaware Stock so
issued in the Merger shall bear the same legends, if any, with respect to
restrictions on transferability as the certificates of corresponding stock of
Contango-Nevada so converted and given in exchange therefore, unless otherwise
determined by the Board of Directors of the Surviving Corporation in compliance
with applicable laws. As applicable, the time period during which a stockholder
has held the Contango-Nevada Common Stock and/or Contango-Nevada Preferred Stock
shall be included in the time period during which such stockholder actually
holds the Contango-Delaware Common Stock and/or Contango-Delaware Preferred
Stock received in exchange for Contango-Nevada Common Stock and/or
Contango-Nevada Preferred Stock for the purposes of determining the term of the
restrictive period applicable to the Contango-Delaware Common Stock and/or
Contango-Delaware Preferred Stock.
(d) If any certificate for shares of Contango-Delaware Stock is to
be issued in a name other than that in which the certificate surrendered in
exchange therefore is registered, it shall be a condition of issuance thereof
that the certificate so surrendered shall be properly endorsed and otherwise be
in proper form for transfer, that such transfer otherwise be proper and the
person requesting such transfer pay to Contango-Delaware or the Transfer Agent
any transfer or other taxes payable by reason of the 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 Contango-Delaware
that such tax has been paid or is not payable.
ARTICLE IV
GENERAL
4.1 COVENANTS OF CONTANGO-DELAWARE. From time to time, as and when
required by Contango-Delaware or by its successors or assigns, there shall be
executed and delivered on behalf of Contango-Nevada 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 Contango-Delaware the title to
and possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Contango-Nevada and otherwise to
carry out the purposes of this Merger Agreement.
4.2 ABANDONMENT. At any time before the Effective Date of the Merger,
this Merger Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either of the Constituent
Corporations, or by both, notwithstanding the approval of this Merger Agreement
by the stockholders of either of the Constituent Corporations, or by both.
4.3 AMENDMENT. The Boards of Directors of the Constituent Corporations
may amend this Merger Agreement at any time prior to the filing of this Merger
Agreement (or certificate in lieu thereof) with the Secretary of State of the
States of Delaware and Nevada; PROVIDED, HOWEVER, that an amendment made
subsequent to the adoption of this Merger Agreement by the stockholders of
either of the Constituent Corporations shall not (a) 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, (b) alter or change any term of the
Certificate of Incorporation of the Surviving Corporation to be effective
immediately after the Merger, or (c) alter or change any of
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the terms and conditions of this Merger Agreement if such alteration or change
would adversely affect the holders of any class or series thereof of such
Constituent Corporation.
4.4 REGISTERED OFFICE. The registered and principal office of the
Surviving Corporation in the State of Delaware is located at 0000 Xxxxxx Xxxx,
Xxxx xx Xxxxxxxxxx, Xxxxxx of New Castle and its registered agent at such
address is Corporation Service Company.
4.5 GOVERNING LAW. This Merger Agreement shall in all respects be
construed, interpreted and enforced in accordance with the laws of the State of
Delaware and, so far as applicable, the merger provisions of the NRS.
4.6 COUNTERPART. To facilitate the filing and recording of this Merger
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.
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IN WITNESS WHEREOF, this Merger Agreement having first been approved by the
resolutions of the Boards of Directors of Contango-Delaware, a Delaware
corporation, and Contango-Nevada, a Nevada corporation, is hereby executed on
behalf of each of such two corporations and attested by their respective
officers thereunto duly authorized as of the date first above written.
Contango Oil & Gas Company
a Nevada corporation
By:
--------------------------------
Xxxxxxx X. Peak
Chief Executive Officer
ATTEST:
---------------------------------
Assistant Secretary
Contango Oil & Gas Company
a Delaware corporation
By:
--------------------------------
Xxxxxxx X. Peak
Chief Executive Officer
ATTEST:
---------------------------------
Assistant Secretary
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