EXHIBIT 2.2
PLAN AND AGREEMENT OF MERGER AND REORGANIZATION
This Plan and Agreement of Merger and Reorganization (this "Agreement"), dated
as of June 1, 2004 is entered into by and among TREY RESOURCES, INC., a Delaware
corporation ("TREY"), SWK TECHNOLOGIES, INC., a Delaware corporation and a
wholly-owned subsidiary of TREY ("Merger Sub"), each with an office at 000 Xxxxx
00, Xxxxxxx, Xxx Xxxxxx 00000, and SWK, INC., a New Jersey corporation, with an
office at 000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX 00000 ("SWK").
I. RECITALS:
WHEREAS, the Board of Directors of each of TREY and SWK have
determined that it is in the best interests of TREY and SWK and their
shareholders to effect a business combination pursuant to which SWK will merge
with and into Merger Sub on the terms and subject to the conditions set forth
herein (the "Merger");
WHEREAS, the Board of Directors of Merger Sub has determined that it
is in the best interests of Merger Sub and its sole stockholder to effect the
Merger;
WHEREAS, the Board of Directors of each of TREY and SWK and the
shareholders of SWK have approved this Agreement and the Merger pursuant to the
terms and conditions herein set forth as of the date hereof;
WHEREAS, the Board of Directors of Merger Sub has approved this
Agreement and the Merger pursuant to the terms and conditions herein set forth
as of the date hereof;
WHEREAS, for federal income tax purposes, it is intended that the
Merger shall qualify to the extent possible as a tax-free reorganization within
the meaning of Section 368(a)(1)(A) of the Internal Revenue Code of 1986, as
amended (the "Code");
NOW, THEREFORE, in consideration of the above premises and the
mutual promises set forth in this Agreement, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows.
II. THE MERGER
Section 1. The Merger. At the Effective Time (as hereinafter
defined) and upon the terms and subject to the conditions of this Agreement and
in accordance with the Delaware General Corporations Law (the "DGCL") and the
New Jersey Business Corporation Act (the "NJBCA"), SWK shall be merged with and
into Merger Sub. Following the Merger, Merger Sub shall continue as the
surviving corporation (the "Surviving Entity"), and the separate corporate
existence of SWK shall cease.
Section 2. Effective Time. The parties hereto will file with the
Secretary of State of the State of Delaware and the Department of Treasury of
the State of New Jersey or other
governmental agencies as required under applicable law certificates of merger in
such form as required by, and executed in accordance with, the relevant
provisions of the law of each such state. The later of (i) the effective time of
the filing of the certificate of merger with the Department of Treasury of the
State of New Jersey or (ii) the effective time of the filing of the certificate
of merger with the Secretary of State of the State of Delaware is the "Effective
Time."
Section 3. Effects of the Merger. The Merger shall have the effects
set forth in the DGCL and the NJBCA. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all the properties,
rights, privileges, powers and franchises of Merger Sub and SWK shall vest in
the Surviving Entity, and all debts, liabilities and duties of Merger Sub and
SWK shall become the debts, liabilities and duties of the Surviving Entity.
Section 4. Certificate of Incorporation. The Certificate of
Incorporation of Merger Sub, as in effect immediately prior to the Effective
Time, shall be the Certificate of Incorporation of the Surviving Entity until
amended in accordance with applicable law.
Section 5. Directors and Officers. As of the Effective Time, the directors and
officers of the Surviving Entity shall be comprised of the individuals listed in
Exhibit A hereto who shall hold office in accordance with the Certificate of
Incorporation and By-Laws of the Surviving Entity until their successors are
duly elected or appointed and qualified or until their earlier death,
resignation or removal.
Section 6. Merger Sub and SWK Securities.
At the Effective Time, all of the shares of Common Stock, no par value, of
SWK issued and outstanding immediately prior to the Effective Time ("SWK
Common Stock") shall, by virtue of the Merger and without any action on
the part of SWK, Merger Sub or TREY, be converted into and be exchangeable
for an aggregate of 2,750,000 newly issued, fully paid and non-assessable
shares of common stock, par value $0.00001 per share, of TREY (the "TREY
Common Stock"), and certain other TREY Common Stock that may be issued to
the shareholders of SWK, pursuant to the terms of that certain Acquisition
Agreement to which TREY, SWK and the shareholders of SWK are parties (the
"Acquisition Agreement"), including the Additional Buyer Shares (as such
term is defined in the Acquisition Agreement) which are referred to herein
as the "Additional Consideration");
(b) At the Effective Time, all capital stock of Merger Sub issued and
outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of SWK, Merger Sub or
TREY, be converted into One Hundred Percent (100%) of the capital
stock of the Surviving Entity;
(c) At the Effective Time, all options, warrants, convertible notes and
other rights, entitling the holders thereof to purchase or otherwise
acquire any shares of SWK capital stock shall be canceled, retired and
cease to exist at and as of the Effective Time.
Section 7. Tax Consequences. It is intended by the parties hereto
that the Merger shall constitute a tax-free reorganization within the meaning of
Section 368(a)(1)(A) of the Code. Each party hereto shall use its commercially
reasonable efforts to cause the Merger to be so qualified, shall report the
transactions contemplated by this Agreement in a manner consistent with such
reorganization treatment and will not take any position inconsistent therewith
in any tax return, refund claim, litigation or otherwise unless required to do
so by law. The Merger shall be treated as a purchase for accounting purposes.
Section 8. No Further Ownership Rights in SWK Common Stock. At the
Effective Time and subject to and after giving effect to the provisions of
Section 6(a) hereof, each share of SWK Common Stock owned prior to the Effective
Time shall be canceled and extinguished.
Section 9. Stock Certificates. At or after the Effective Time,
certificates representing SWK Common Stock presented to the Surviving Entity or
TREY for any reason shall be exchanged for certificates representing TREY Common
Stock.
Section 10. Shareholders' Approval. This Agreement and the Merger
provided for herein have been submitted for approval to, and approved by, the
shareholders of SWK in the manner prescribed by the provisions of the NJBCA.
This Agreement and the Merger provided for herein have been submitted for
approval to, and approved by, the sole shareholder.of Merger Sub in the manner
prescribed by the provisions of the DGCL.
Section 11. Commercially Reasonable Efforts. Subject to the terms
and conditions of this Agreement, each party will use commercially reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws to
consummate the Merger and the other transactions contemplated by this Agreement.
Neither TREY, SWK nor Merger Sub will take, agree to take or knowingly permit to
be taken any action or do or knowingly permit to be done anything in the conduct
of the business of the companies, or otherwise, which would be contrary to or in
breach of any of the terms or provisions of this Agreement.
Section 12. Termination. This Agreement may be terminated and the
Merger and the other transactions contemplated herein may be abandoned at any
time prior to the Effective Time by mutual written consent of SWK, TREY and
Merger Sub.
Section 13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, excluding any
choice of law rules that may direct the application of the laws of another
jurisdiction.
Section 14. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
[signature page follows]
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be
executed on their behalf by their respective officers thereunto duly authorized
all as of the date first above written.
TREY RESOURCES, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: President
SWK TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: President
SWK, INC.
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: President
EXHIBIT A
Directors
Xxxxx Xxxxxxx
Xxxx Xxxxxx
Xxxxxxx Xxxx
Officers
Xxxxxxx Xxxx -- Chief Executive Officer
Xxxx Xxxxxx - President
Xxxx Xxxxxx - Chief Technical Officer
Xxxx Xxxxxx - Secretary
