MERGER AGREEMENT
Exhibit 2.2
This Merger Agreement, dated as of March 30,
2017 (this “Agreement”),
is entered into by and between Wrap Technologies, LLC, a Delaware
limited liability company (“Wrap
LLC”), and Megawest
Energy Montana Corp., a Delaware corporation (the
“Company”).
RECITALS
A. The Company has an authorized capital of 1000
shares of common stock, par value $0.01 per share
(“Old Common
Stock”), of which 1000
shares are issued and outstanding;
B.
At the Effective Time (defined below), all of the shares of Old
Common Stock are owned by Wrap LLC, its sole
stockholder;
C. Each of the members listed on Schedule A
(“Wrap
Members”), collectively
own 100% of the limited liability company interests in Wrap LLC
(each, a “Membership
Interest” and,
collectively, the “Membership
Interests”);
D. The parties desire to merge Wrap LLC with and
into the Company, pursuant to which the Company will continuing as
the surviving corporation and the separate existence of Wrap LLC
will cease, upon the terms and subject to the conditions set forth
in this Agreement (the “Merger”);
E.
The board of directors of the Company and the managers of Wrap LLC
have each determined that the Merger is advisable and in the best
interest of the Company and Wrap LLC and have each approved and
adopted this Agreement and recommended that the respective equity
holders of the Company and Wrap LLC approve and adopt this
Agreement and approve the Merger; and
F.
The holders of the voting equity of each of the Company and Wrap
LLC have unanimously approved and adopted this Agreement and the
Merger.
NOW,
THEREFORE, in consideration of
the premises and the respective representations, warranties,
covenants and agreements set forth in this Agreement, Wrap LLC and
the Company agree as follows:
I. THE MERGER
1.1 Merger. In accordance with the provisions of this
Agreement and the Delaware General Corporation Law (the
“DGCL”),
at the Effective Time (as defined below), Wrap LLC will be merged
with and into the Company, Wrap LLC’s separate existence will
cease and the Company will be the surviving corporation in the
Merger and shall succeed to and assume all the rights and
obligations of Wrap LLC. The Company, as the surviving corporation
after the Merger, is herein sometimes referred to as the
“Surviving
Corporation.”
1.2 Filing and
Effectiveness. The parties will
cause a Certificate of Merger (the “Certificate
of Merger”) in
substantially the form of Exhibit
A hereto, meeting the
requirements of the DGCL, to be executed and filed with the
Secretary of State of the State of Delaware. The Merger will become
effective at the time when the Certificate of Merger has been duly
filed with the Secretary of State of the State of Delaware (the
“Effective
Time”).
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1.3 Effects of the
Merger.
(a) General.
The Merger will have the effects specified in Section 259 of
the DGCL.
(b) Certificate of
Incorporation and Bylaws. At
the Effective Time, the Company’s certificate of
incorporation shall be amended and restated as set forth
in Exhibit
B attached hereto (the
“Certificate
of Incorporation”) and
shall continue to be the certificate of incorporation of the
Surviving Corporation until thereafter amended in accordance with
the provisions thereof and applicable law. The Company’s
bylaws as in effect immediately prior to the Effective Time (the
“Bylaws”)
will be the Surviving Corporation’s bylaws until thereafter
amended in accordance with the provisions thereof and applicable
law.
(c) Directors and
Officers. Following the
Effective Time, the directors of the Company immediately prior to
the Effective Time shall be the directors of the Surviving
Corporation, and the officers of the Company immediately prior to
the Effective Time shall be the officers of the Surviving
Corporation, in each case until their respective successors are
duly elected or appointed and qualified or until their earlier
death, resignation, retirement, disqualification or removal in
accordance with applicable law and the Certificate of Incorporation
and Bylaws.
(d) Effect on Capital
Stock. At and as of the
Effective Time, without any action on the part of Wrap LLC or the
Company, as the case may be, or of any holder of any Membership
Interests, shares of capital stock of or other equity interest in
Wrap LLC or the Company, the Membership Interests, shares of
capital stock and other securities of Wrap LLC and the Company will
be treated as follows:
(i) Cancellation of Old
Common Stock. Each share of Old
Common Stock outstanding immediately prior to the Effective Time
will be canceled without payment of any consideration therefor and
shall cease to exist.
(ii) Conversion of the
Membership Interests. All the
Membership Interests issued and outstanding immediately prior to
the Effective Time will be converted into and exchanged
for 20,000,000 validly
issued, fully paid and nonassessable shares of the common stock of
the Surviving Corporation, par value $0.0001 per share
(“Surviving
Common Stock”).
(iii) Surrender of Old
Common Stock. At or before the
Effective Time, Wrap LLC shall surrender any and all outstanding
certificates representing shares of Old Common Stock to the
Surviving Corporation.
1.4 Taking of Necessary Action;
Further Action. Prior to the
Effective Time, the Company and Wrap LLC shall take all such action
as shall be necessary or appropriate to effectuate the Merger. If,
at any time after the Effective Time, any such further action is
necessary or desirable to carry out the purposes of this Agreement
and to vest the Surviving Corporation with full right, title and
possession to all assets, property, rights, privileges, powers, and
franchises of the Company and Wrap LLC, the officers and directors
of the Surviving Corporation are fully authorized, in the name of
and on behalf of the Company and Wrap LLC, to take, and the Company
will cause them to take, all such lawful and necessary
action.
II. GENERAL
2.1 Termination. Wrap LLC and the Company, by written agreement,
may terminate this Agreement as to all parties and the Merger may
be abandoned for any reason whatsoever, at any time prior to the
Effective Time.
2.2 No Third Party
Beneficiaries. There are no
third party beneficiaries having rights under or with respect to
this Agreement.
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2.3 Governing
Law. This Agreement will be
governed by and construed in accordance with the laws of the State
of Delaware, without giving effect to any choice of law
principles.
2.4 Amendments. This Agreement may not be amended or modified
except by a writing signed by all of the
parties.
2.5 Entire
Agreement. This Agreement,
together with the Exhibits hereto, constitutes the entire agreement
and understanding of the parties in respect of its subject matter
and supersedes all prior understandings, agreements or
representations by or among the parties, written or oral, to the
extent they relate in any way to the subject matter
hereof.
2.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed to be an original and
all of which together will constitute one and the same
instrument.
[SIGNATURE PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their authorized representative as of the date stated
in the introductory paragraph of this Agreement.
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WRAP TECHNOLOGIES, LLC |
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By: |
/s/
Xxxxx X. Xxxxxx
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Name: |
Xxxxx
X. Xxxxxx
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Title: |
Managing
Member
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MEGAWEST ENERGY MONTANA CORP.
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By:
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/s/ Xxxxxxx
Xxxxxxx
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Name:
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Xxxxxxx
Xxxxxxx
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Title:
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President
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Signature Page
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EXHIBIT A
CERTIFICATE OF MERGER
OF
WRAP TECHNOLOGIES, LLC
WITH AND INTO
MEGAWEST ENERGY MONTANA CORP.
Pursuant
to Title 8, Section 264(c) of the Delaware General Corporation
Law and Title 6, Section 18-209 of the Delaware Limited
Liability Company Act, the undersigned corporation, hereby
certifies that:
FIRST: The name of the surviving corporation is
Megawest Energy Montana Corp., a Delaware corporation, and the name
of the limited liability company being merged into this surviving
corporation is Wrap Technologies, LLC.
SECOND: An agreement of merger has been approved,
adopted, certified, executed and acknowledged by the surviving
corporation and the merging limited liability company in accordance
with the requirements of Delaware law.
THIRD: The name of the surviving corporation
following the consummation of the Merger shall be Wrap
Technologies, Inc., a Delaware corporation.
FOURTH: The merger is to become effective upon the
filing of this certificate of merger.
FIFTH: The Company’s certificate of
incorporation shall be amended and restated in the merger, and the
certificate of incorporation of the surviving corporation shall be
as set forth in Exhibit
A attached
hereto.
SIXTH: The executed agreement of merger is on file at
0000 Xxxxxxx Xxxxxx, Xxx X, Xxx Xxxxx, XX 00000, the address of the
principal place of business of the surviving
corporation.
SEVENTH: A copy of the agreement of merger will be
furnished by the surviving corporation, on request and without
cost, to any stockholder of any constituent corporation or member
of any constituent limited liability company.
IN WITNESS
WHEREOF, Megawest Energy
Montana Corp. has caused this certificate to be signed by an
authorized officer on this 30th day of March,
2017.
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MEGAWEST ENERGY MONTANA CORP. |
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By:
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Name:
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Title:
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EXHIBIT B
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MEGAWEST ENERGY MONTANA, INC.
ARTICLE ONE
The
name of this Corporation is Wrap Technologies, Inc.
ARTICLE TWO
The
address of the Corporation’s registered office in the State
of Delaware is to be located at 000 Xxxxxxxxx Xxxxx, Xxx 000,
Xxxxx, XX 00000. The registered agent in charge thereof is National
Registered Agents, Inc.
ARTICLE THREE
The
purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of Delaware.
ARTICLE FOUR
The
Corporation is authorized to issue two classes of stock to be
designated, respectively, “Common Stock” and
“Preferred Stock”.
The
total number of shares this Corporation shall have authority to
issue is 155,000,000. 150,000,000 shares shall be designated Common
Stock and shall have a par value of $0.0001 per share. 5,000,000
shares shall be designated Preferred Stock and shall have a par
value of $0.0001 per share.
The
Preferred Stock may be issued from time to time in one or more
series. The Board of Directors is hereby authorized, subject to
limitations prescribed by law, to fix by resolution or resolutions
the designations, powers, preferences, and rights and the
qualifications, limitations, or restrictions thereof, of each such
series of Preferred Stock, including without limitation, authority
to fix by resolution or resolutions the dividend rights, dividend
rate, conversion rights, voting rights, rights and terms of
redemption (including sinking fund provisions), redemption price or
prices, and liquidation preferences of any wholly unissued series
of Preferred Stock, and the number of shares constituting such
series and the designation thereof, or any of the foregoing. The
Board of Directors is further authorized to increase (but not above
the total number of authorized shares of the class) or decrease
(but not below the number of shares of any such series then
outstanding) the number of shares of any series, the number of
which was fixed by it, subsequent to the issue of shares of such
series then outstanding, subject to the powers, preferences, and
rights and the qualifications, limitations, and restrictions
thereof stated in the resolution of the Board of Directors
originally fixing the number of shares of such series. If the
number of shares of any series is so decreased, then the shares
constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the
number of shares of such series.
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ARTICLE FIVE
The
Corporation is to have perpetual existence.
ARTICLE SIX
The
number of Directors which constitutes the whole Board of Directors
of the Corporation and the manner of their election shall be
designated in the Bylaws of the Corporation.
ARTICLE SEVEN
(a) The
business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the
powers and authority expressly conferred upon them by statute or by
this Amended and Restated Certificate of Incorporation or the
Bylaws of the Corporation, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation.
(b)
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to adopt,
amend, alter or repeal the Bylaws of the Corporation. The
affirmative vote of at least a majority of the Board of Directors
then in office shall be required in order for the Board of
Directors to adopt, amend, alter or repeal the Corporation’s
Bylaws. The Corporation’s Bylaws may also be adopted,
amended, altered or repealed by the stockholders of the Corporation
in accordance with the Bylaws. No Bylaw hereafter legally amended,
altered or repealed shall invalidate any prior act of the directors
or officers of the Corporation that would have been valid if such
Bylaw had not been amended, altered or repealed.
(c)
Elections of directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
(d)
Subject to the rights of any holders of any series of Preferred
Stock to act by written consent as specified in any duly authorized
certificate of designation of any series of Preferred Stock, any
action required or permitted to be taken by the stockholders of the
Corporation must be effected at a duly called annual or special
meeting of stockholders of the Corporation and may not be effected
by any action by written consent by such stockholders.
(e)
Subject to the rights of holders of any series of Preferred Stock
then outstanding to elect additional directors under specified
circumstances, the number of directors that constitute the whole
Board of Directors shall be fixed exclusively in the manner
designated in the Bylaws of the Corporation.
ARTICLE EIGHT
(a)
To the fullest extent permitted by the
Delaware General Corporation Law as the same exists or as may
hereafter be amended, a Director of the Corporation shall not be
personally liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a Director;
provided, however, that this provision shall not eliminate or limit
the liability of a Director: (i) for any breach of the
Director’s duty of loyalty to the Corporation or its
stockholders; (ii) for acts or omissions not in good faith or which
involve material misconduct or a knowing violation of law; (iii)
under the Delaware General Corporation Law; or (iv) for any
transaction from which the Director derived an improper personal
benefit
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(b)
The Corporation may indemnify to the
fullest extent permitted by law any person made or threatened to be
made a party to an action or proceeding, whether criminal, civil,
administrative, or investigative, by reason of the fact that he or
his testator or testate is or was a director, officer, employee, or
agent of the Corporation or any predecessor of the Corporation or
serves or served at any other enterprise as a director, officer,
employee, or agent at the request of the Corporation or any
predecessor to the Corporation.
(c)
Neither any amendment nor repeal of
this Article Eight, nor the adoption of any provision of this
Corporation’s Certificate of Incorporation inconsistent with
this Article Eight, shall eliminate or reduce the effect of this
Article Eight in respect of any matter occurring, or any action or
proceeding accruing or arising or that, but for this Article Eight,
would accrue or arise, prior to such amendment, repeal, or adoption
of an inconsistent provision.
ARTICLE NINE
(a) Any
director may be removed from the Board of Directors by the
stockholders of the Corporation only for cause, and in such case
only by the affirmative vote of the holders of at least a majority
of the voting power of the issued and outstanding shares of capital
stock of the Corporation then entitled to vote in the election of
directors. Vacancies occurring on the Board of Directors for any
reason and newly created directorships resulting from an increase
in the authorized number of directors may be filled solely by a
vote of a majority of the remaining members of the Board of
Directors, although less than a quorum, or by a sole remaining
director, at any meeting of the Board of Directors. A person so
elected by the Board of Directors to fill a vacancy or newly
created directorship shall hold office until the next election of
the Board of Directors and until his or her successor shall be duly
elected and qualified. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any
incumbent director.
(b)
At each meeting of stockholders of the Corporation at which
directors are to be elected, directors shall be elected by a
plurality of the votes of the issued and outstanding shares of
captital stock of the Corporation present in person or represented
by proxy at the meeting and entitled to vote on the election of
directors. Cummulative voting for the
election of directors shall not be permitted.
ARTICLE TEN
Advance
notice of new business and stockholder nominations for the election
of Directors shall be given in the manner and to the extent
provided in this Bylaws of the Corporation.
ARTICLE ELEVEN
The
Corporation reserves the right to amend or repeal any provision
contained in this Amended and Restated Certificate of Incorporation
in the manner prescribed by the laws of Delaware and all rights
conferred upon stockholders are granted subject to this
reservation.
IN
WITNESS WHEREOF, the Corporation has caused this Amended and
Restated Certificate of Incorporation to be signed by the
undersigned, a duly authorized officer of the Corporation, on March
31, 2017
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By: /s/ Xxxxx X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
President & Chief Executive Officer
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