AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
This Agreement and Plan of Merger (the “Agreement” or “Plan”), dated as of July 27, 2016, is by and between Xiangtian (USA) Air Power Co., Ltd., a Delaware corporation (the “XT Delaware”), and Xiangtian (USA) Air Power Co., Ltd., a Nevada corporation (the “XT Nevada”).
RECITALS
WHEREAS, XT Delaware is a corporation duly organized and existing under the laws of the State of Delaware;
WHEREAS, XT Nevada is a corporation duly organized and existing under the laws of the State of Nevada;
WHEREAS, as of the date hereof, XT Delaware has authority to issue 1,100,000,000 shares, consisting of 1,000,000,000 shares of common stock, $0.001 par value per share (“Delaware Common Stock”), of which 591,042,000 shares have been issued and outstanding, and 100,000,000 shares of preferred stock par value $0.001 per share (“Delaware Preferred Stock”) of which no shares have been issued and outstanding;
WHEREAS, on the date hereof, ten shares of Common Stock (“Nevada Common Stock”) of XT Nevada are issued and outstanding and are owned by XT Delaware;
WHEREAS, the respective boards of directors of XT Nevada and XT Delaware have determined that, for the purpose of effecting the reincorporation of XT Delaware in the State of Nevada, it is advisable and in the best interests of such corporations and their respective stockholders that XT Delaware merge with and into XT Nevada upon the terms and conditions herein provided;
WHEREAS, the respective boards of directors of XT Nevada and XT Delaware have approved this Plan; and
WHEREAS, the respective shareholder of XT Nevada and stockholders holding a majority of the issued and outstanding shares of XT Delaware’s common stock have approved this Plan.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set forth herein, XT Delaware and XT Nevada hereby agree to merge as follows:
1. Merger. Subject to the terms and conditions hereinafter set forth, XT Delaware shall be merged with and into XT Nevada, with XT Nevada 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 252 of the Delaware General Corporation Law (the “DGCL”) is filed with the Secretary of State of Delaware or articles of merger are filed with the Secretary of the State of Nevada as required by Section 92A.200 of the Nevada Revised Statutes (the “NRS”).
2. Principal Office of XT Nevada. The address of the principal office of XT Nevada is Xx. 0 Xxxxxx Xxxx Xxxxxxx Xxxxxxxxxxx Xxxx, Xxxxx Xxxx, Xxxxx Province, China 065201.
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3. Corporate Documents. The Articles of Incorporation of XT Nevada, as in effect immediately prior to the Effective Time, shall continue to be the Articles of Incorporation of XT Nevada as the surviving corporation without change or amendment until further amended in accordance with the provisions thereof and applicable law. The Bylaws of XT Nevada, as in effect immediately prior to the Effective Time, shall continue to be the Bylaws of XT Nevada 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 XT Delaware at the Effective Time shall be and become directors and officers, holding the same titles and positions, of XT Nevada at the Effective Time, and after the Effective Time shall serve in accordance with the Bylaws of XT Nevada.
5. Succession. At the Effective Time, XT Nevada shall succeed to XT Delaware in the manner of and as more fully set forth in Section 259 of the DGCL and in Section 92A.250 of the NRS.
6. Further Assurances. From time to time, as and when required by XT Nevada or by its successors and assigns, there shall be executed and delivered on behalf of XT 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 XT Nevada the title to and possession of all the interests, assets, rights, privileges, immunities, powers, franchises and authority of XT Delaware, and otherwise to carry out the purposes and intent of this Plan, and the officers and directors of XT Nevada are fully authorized in the name and on behalf of XT Delaware or otherwise to take any and all such actions and to execute and deliver any and all such deeds and other instruments.
7. Common Stock of XT Delaware. At the Effective Time, by virtue of the Merger and without any action on the part of the holder thereof, each share of Delaware Common Stock outstanding immediately prior thereto shall be changed and converted automatically into one fully paid and nonassessable share of Nevada Common Stock.
8. Stock Certificates. At and after the Effective Time, all of the outstanding certificates which prior to that time represented shares of Delaware Common Stock shall be deemed for all purposes to evidence ownership of and to represent shares of Nevada Common Stock into which the shares of the Delaware Common Stock represented by such certificates have been converted as herein provided. The registered owner on the books and records of XT Delaware or its transfer agent of any such outstanding stock certificate shall, until such certificate shall have been surrendered for transfer or otherwise accounted for to XT Nevada or its transfer agent, have and be entitled to exercise any voting and other rights with respect to and to receive any dividend and other distributions upon the shares of Delaware Common Stock evidenced by such outstanding certificate as above provided.
9. Options; Warrants. Each option, warrant or other right to purchase shares of Delaware 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 one share of Nevada 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 Delaware Common Stock.
10. Common Stock of XT Nevada. At the Effective Time, the previously outstanding Ten (10) shares of Nevada Common Stock registered in the name of XT Nevada shall, by reason of the Merger, be reacquired by XT Nevada, shall be retired and shall resume the status of authorized and unissued shares of Nevada Common Stock, and no shares of Nevada Common Stock or other securities of XT Nevada shall be issued in respect thereof.
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11. Amendment. The Boards of Directors of XT Delaware and XT Nevada 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 XT Nevada or stockholders of XT 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 Delaware Common Stock, (ii) alter or change any term of the articles of incorporation of XT Nevada, 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 Delaware Common Stock.
12. 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 XT Delaware or XT Nevada or both, notwithstanding approval of this Plan by the sole shareholder of XT Nevada or the stockholders of XT Nevada, or both.
13. Rights and Duties of XT Nevada. At the Effective Time and for all purposes the separate existence of XT Delaware shall cease and shall be merged with and into XT Nevada 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 XT Delaware; and all property (real, personal and mixed), all debts due on whatever account, all choices in action, and all and every other interest of or belonging to or due to XT Delaware shall continue and be taken and deemed to be transferred to and vested in XT Nevada without further act or deed; and the title to any real estate, or any interest therein, vested in XT Delaware shall not revert or be in any way impaired by reason of such Merger; and XT Nevada shall thenceforth be responsible and liable for all the liabilities and obligations of XT Delaware; and, to the extent permitted by law, any claim existing, or action or proceeding pending, by or against XT Delaware may be prosecuted as if the Merger had not taken place, or XT Nevada may be substituted in the place of such corporation. Neither the rights of creditors nor any liens upon the property of XT Delaware shall be impaired by the Merger. If at any time XT Nevada 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 XT Delaware in XT Nevada according to the terms hereof, the officers and directors of XT Nevada 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 XT Nevada, and otherwise to carry out the purposes of this Plan.
14. Consent to Service of Process. XT Nevada hereby agrees that it may be served with process in the State of Delaware in any proceeding for enforcement of any obligation of XT Delaware, as well as for enforcement of any obligation of XT Nevada arising from the Merger. XT Nevada hereby irrevocably appoints the Secretary of State of the State of Delaware and the successors of such officer its attorney in fact 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 XT Nevada any obligation of XT 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 No. 6 Longda Road Yanjiao Development Zone, Sanhe City, Hebei Province, China 065201.
15. Severability. If any term or provision of this Plan is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Plan or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Plan so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
16. Governing Law; Submission to Jurisdiction. This Plan shall be governed by and construed in accordance with the internal laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Nevada.
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17. Counterparts. This Plan may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Plan delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Plan.
IN WITHNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
XT Delaware:
Xiangtian (USA) Air Power Co., Ltd.
By: _/s/ Xxxx Xxxx Hua
Name: Xxxx Xxxx Hua
Title: Chief Executive Officer
XT Nevada:
Xiangtian (USA) Air Power Co., Ltd.
By: /s/ Xxxx Xxxx Hua
Name: Xxxx Xxxx Hua
Title: Chief Executive Officer
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