AGREEMENT AND PLAN OF MERGER
Exhibit
2.1
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER, dated November 16, 2007 (the "Agreement"), is
between BOO KOO HOLDINGS, INC., a Florida corporation ("Boo Koo Florida"),
and
BKHI
ACQUISITION CORP.
("Boo
Koo Delaware") and a wholly-owned subsidiary of Boo Koo Florida. Boo Koo Florida
and Boo Koo Delaware are sometimes hereinafter collectively referred to as
the
"Constituent Corporations."
RECITALS
WHEREAS,
Boo Koo Florida is a corporation organized and existing under the laws of the
State of Florida, and, as of the date hereof, has 34,459,880 shares of common
stock, no par value, issued and outstanding ("Boo Koo Florida Common
Stock").
WHEREAS,
Boo Koo Delaware is a corporation organized and existing under the laws of
the
State of Delaware, and, as of the date hereof, has 100 shares of common stock,
par value $0.0001 per share, issued and outstanding ("Boo Koo Delaware Common
Stock"), all of which are held by Boo Koo Florida.
WHEREAS,
the respective Boards of Directors of Boo Koo Florida and Boo Koo Delaware
have
adopted and approved, as the case may be, this Agreement, which is the plan
of
merger for purposes of the Florida Business Corporation Act and the agreement
of
merger for purposes of the Delaware General Corporation Law, and the
transactions contemplated by this Agreement, including the Merger (as
hereinafter defined).
WHEREAS,
the Board of Directors of Boo Koo Florida has determined that for the purpose
of
effecting the reincorporation of Boo Koo Florida into the State of Delaware,
this Agreement and the transactions contemplated by this Agreement, including
the Merger, are advisable and in the best interests of Boo Koo Florida and
its
shareholders, and the Board of Directors of Boo Koo Delaware has determined
that
this Agreement and the transactions contemplated by this Agreement, including
the Merger, are advisable and in the best interests of Boo Koo Delaware and
its
sole stockholder.
WHEREAS,
the respective Boards of Directors of Boo Koo Florida and Boo Koo Delaware
have
determined to recommend this Agreement and the Merger to their respective
shareholders and stockholder, as the case may be.
NOW
THEREFORE, in consideration of the mutual agreements and covenants set forth
herein, Boo Koo Florida and Boo Koo Delaware hereby agree, subject to the terms
and conditions hereinafter set forth, as follows:
ARTICLE
I
THE
MERGER
1.1 Merger.
In accordance with the provisions of this Agreement, the Delaware General
Corporation Law and the Florida Business Corporation Act, Boo Koo Florida shall
be merged with and into Boo Koo Delaware (the "Merger"), whereupon the separate
existence of Boo Koo Florida shall cease and Boo Koo Delaware shall be, and
is
hereinafter sometimes referred to as, the "Surviving Corporation." Upon
consummation of the Merger, the name of Boo Koo Delaware shall be changed to
Boo
Koo Holdings, Inc.
1.2 Filing
and Effectiveness. The Merger shall become effective, upon the filing of (i)
the
certificate of merger with the Secretary of State of the State of Delaware
and
(ii) the articles of merger with the Secretary of State of the State of Florida,
unless another date and time is set forth in the certificate of merger and
the
articles of merger. The date and time when the Merger shall become effective
is
referred to herein as the "Effective Date of the Merger."
1.3 Effect
of
the Merger.
(a) On
the
Effective Date of the Merger, the separate existence of Boo Koo Florida shall
cease, and the Merger shall have the effects set forth in the applicable
provisions of the Delaware General Corporation Law and the Florida Business
Corporation Act.
(b) Without
limiting the generality of the foregoing, and subject thereto and to any other
applicable laws, at the Effective Date of the Merger, all the properties,
rights, privileges, powers and franchises of Boo Koo Florida shall vest in
the
Surviving Corporation, and, subject to the terms of this Agreement, all debts,
liabilities, restrictions, disabilities and duties of Boo Koo Florida shall
become the debts, liabilities, restrictions, disabilities and duties of the
Surviving Corporation.
ARTICLE
II
CHARTER
DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate
of Incorporation. The Certificate of Incorporation of Boo Koo Delaware in effect
immediately prior to the Effective Date of the Merger shall be, as of the
Effective Date of the Merger, the certificate of incorporation of the Surviving
Corporation until duly amended in accordance with the provisions thereof and
applicable law.
2.2 By-laws.
The By-laws of Boo Koo Delaware in effect immediately prior to the Effective
Date of the Merger shall be, as of the Effective Date of the Merger, the by-laws
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 the Surviving Corporation as of
the
Effective Date of the Merger shall be the same as the directors and officers
of
Boo Koo Florida immediately prior to the Effective Date of the
Merger.
ARTICLE
III
MANNER
OF CONVERSION OF SHARES
3.1 Boo
Koo
Florida Common Stock. Upon the Effective Date of the Merger, each share of
Boo
Koo Florida Common Stock (excluding shares held by shareholders who perfect
their dissenters' rights of appraisal as provided in Section 3.2 of this
Agreement) that is 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 converted into the right to
receive one fully paid and nonassessable share of Boo Koo Delaware Common Stock
(the "Merger Consideration"). As of the Effective Date of the Merger, all shares
of Boo Koo Florida Common Stock shall no longer be outstanding and shall
automatically be cancelled and retired and shall cease to exist and each
certificate that previously represented such shares of Boo Koo Florida Common
Stock shall thereafter represent the Merger Consideration for all such
shares.
3.2 Dissenting
Shareholders. Any holder of shares of Boo Koo Florida Common Stock who perfects
his or her dissenters' rights of appraisal in accordance with and as
contemplated by Section 607.1302 of the Florida Business Corporation Act shall
be entitled to receive the value of such shares in cash as determined pursuant
to Sections 607.1320 through 607.1333 of the Florida Business Corporation Act;
provided, however, that no such payment shall be made to any dissenting
shareholder unless and until such dissenting shareholder has complied with
the
applicable provisions of the Florida Business Corporation Act, and surrendered
to the Surviving Corporation the certificate or certificates representing the
shares for which payment is being made. In the event that after the Effective
Date of the Merger a dissenting shareholder of Boo Koo Florida fails to perfect,
or effectively withdraws or loses, his or her right to appraisal and of payment
for his or her shares, such dissenting shareholder shall be entitled to receive
the Merger Consideration in accordance with Section 3.1 upon surrender of the
certificate or certificates representing the shares of Boo Koo Florida Common
Stock held by such shareholder.
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3.3 Boo
Koo
Florida Options, Stock Purchase Rights and Other Equity-Based Awards. Upon
the
Effective Date of the Merger, the Surviving Corporation shall assume and
continue any and all stock option, stock incentive and other equity-based award
plans heretofore adopted by Boo Koo Florida (individually, an "Equity Plan"
and,
collectively, the "Equity Plans"), and shall reserve for issuance under each
Equity Plan a number of shares of Boo Koo Delaware Common Stock equal to the
number of shares of Boo Koo Florida Common Stock so reserved immediately prior
to the Effective Date of the Merger. Each unexercised option or other right
to
purchase Boo Koo Florida Common Stock granted under and by virtue of any such
Equity Plan which is outstanding immediately prior to the Effective Date of
the
Merger shall, upon the Effective Date of the Merger, become an option or right
to purchase Boo Koo Delaware Common Stock on the basis of one share of Boo
Koo
Delaware Common Stock for each share of Boo Koo Florida Common Stock issuable
pursuant to any such option or stock purchase right, and otherwise on the same
terms and conditions and at an exercise or conversion price per share equal
to
the exercise or conversion price per share applicable to any such Boo Koo
Florida option or stock purchase right. Upon the Effective Date of the Merger,
each warrant to purchase Boo Koo Florida Common Stock which is outstanding
immediately prior to the Effective Date of the Merger shall, upon the Effective
Date of the Merger, become a warrant to purchase Boo Koo Delaware Common Stock
on the basis of one share of Boo Koo Delaware Common Stock for each share of
Boo
Koo Florida Common Stock issuable immediately prior to the Effective Date of
the
Merger pursuant to any such warrant, and otherwise on the same terms and
conditions and at an exercise price per share equal to the exercise price per
share applicable to any such Boo Koo Florida warrant immediately prior to the
Effective Date of the Merger. Each other equity-based award relating to Boo
Koo
Florida Common Stock granted or awarded under any of the Equity Plans which
is
outstanding immediately prior to the Effective Date of the Merger shall, upon
the Effective Date of the Merger, become an award relating to Boo Koo Delaware
Common Stock on the basis of one share of Boo Koo Delaware Common Stock for
each
share of Boo Koo Florida Common Stock to which such award relates and otherwise
on the same terms and conditions applicable to such award immediately prior
to
the Effective Date of the Merger.
3.4 Boo
Koo
Delaware Common Stock. Upon the Effective Date of the Merger, each share of
Boo
Koo Delaware 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 cancelled
without compensation therefor and returned to the status of authorized but
unissued shares.
3.5 Exchange
of Certificates.
(a) After
the
Effective Date of the Merger, each holder of an outstanding certificate
representing Boo Koo Florida Common Stock (excluding holders of certificates
who
perfect their dissenters' rights of appraisal as provided in Section 3.2 of
this
Agreement) may, at such holder's option, surrender the same for cancellation
to
such entity as the Surviving Corporation so designates as exchange agent (the
"Exchange Agent"), and each such holder shall be entitled to receive in exchange
therefor a certificate or certificates representing the Merger Consideration.
Until so surrendered, each outstanding certificate theretofore representing
Boo
Koo Florida Common Stock shall be deemed for all purposes to represent the
Merger Consideration and the associated Rights.
(b) The
registered owners of Boo Koo Florida Common Stock on the books and records
of
Boo Koo Florida immediately prior to the Effective Date of the Merger (excluding
registered owners who perfect their dissenters' rights of appraisal as provided
in Section 3.2 of this Agreement) shall be the registered owners of Boo Koo
Delaware Common Stock on the books and records of Boo Koo Delaware immediately
after the Effective Time of the Merger, and the holders of shares of Boo Koo
Florida Common Stock, until such certificates shall have been surrendered for
transfer or conversion or otherwise accounted for by the Surviving Corporation,
shall be entitled to exercise any voting and other rights with respect to,
and
receive dividends and other distributions upon, the shares of Boo Koo Delaware
Common Stock that the holders of Boo Koo Florida Common Stock would be entitled
to receive pursuant to the Merger.
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(c) Each
certificate representing Boo Koo Delaware Common Stock so issued in the Merger
shall bear the same legends, if any, with respect to the restrictions on
transfer that appeared on the certificates representing Boo Koo Florida Common
Stock so converted and given in exchange therefor, unless otherwise determined
by the Board of Directors of the Surviving Corporation in compliance with
applicable laws.
(d) If
any
certificate representing shares of Boo Koo Delaware Common Stock is to be
issued
in a name other than the name in which the certificate surrendered in exchange
therefor is registered, the following conditions must be satisfied before
the
issuance thereof: (i) the certificate so surrendered shall be properly endorsed
and otherwise in proper form for transfer; (ii) such transfer shall otherwise
be
proper; and (iii) the person requesting such transfer shall pay to the Exchange
Agent any transfer or other taxes payable by reason of issuance of such new
certificate in a name other than the name of the registered holder of the
certificate surrendered or shall establish to the satisfaction of the Surviving
Corporation that such tax has been paid or is not payable.
ARTICLE
IV
GENERAL
PROVISIONS
4.1 Covenants
of Boo Koo Florida. Boo
Koo
Florida covenants and agrees that it will on or before the Effective Date of
the
Merger take all such other actions as may be required by the Delaware General
Corporation Law and the Florida Business Corporation Act to effect the
Merger.
4.2
Covenants
of Boo Koo Delaware. Boo Koo Delaware covenants and agrees that it will on
or
before the Effective Date of the Merger:
(a)
take
such
action as may be required to qualify to do business as a foreign corporation
in
the states in which Boo Koo Florida is qualified to do business immediately
before the Effective Date of the Merger and in connection therewith irrevocably
appoint an agent for service of process as required under the applicable
provisions of the relevant state laws;
(b) take
all
such other actions as may be required by the Delaware General Corporation Law
and the Florida Business Corporation Act to effect the Merger.
4.3 Conditions
to the Obligations of the Constituent Corporations to Effect the Merger. The
respective obligation of each Constituent Corporation to effect the Merger
shall
be subject to the satisfaction at or prior to the Effective Date of the Merger
of the following conditions:
(a) The
Agreement shall have been approved by a majority of the outstanding shares
of
Boo Koo Florida Common Stock entitled to vote on the Agreement, and the
Agreement shall have been adopted by the affirmative vote of a majority of
the
outstanding shares of Boo Koo Delaware Common Stock entitled to vote on the
Agreement.
(b) No
statute, rule, regulation, executive order, decree, ruling, injunction or other
order (whether temporary, preliminary or permanent) shall have been enacted,
entered, promulgated or enforced by any court or governmental authority of
competent jurisdiction which prohibits, restrains, enjoins or restricts the
consummation of the Merger; provided, however that the Constituent Corporations
shall use their reasonable best efforts to cause any such decree, ruling,
injunction or other order to be vacated or lifted.
(c) Holders
of shares of Boo Koo Florida Common Stock holding no more than one percent
(1%)
of the outstanding Boo Koo Florida Common Stock shall continue to have a right
to exercise appraisal, dissenters' or similar rights under applicable law with
respect to their Boo Koo Florida Common Stock by virtue of the
Merger.
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4.4
Further
Assurances. From
time
to time, as and when required by Boo Koo Delaware, Boo Koo Florida shall
execute
and deliver or shall cause to be executed and delivered such deeds and other
instruments, and Boo Koo Florida shall take or cause to be taken any actions
as
shall be appropriate or necessary, (a) to vest or perfect in Boo Koo Delaware
or
confirm that Boo Koo Delaware shall have record ownership of or otherwise
own
the title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of Boo Koo Florida
on
the Effective Date of the Merger or shortly thereafter and (b) to carry out
the
purposes of or to effectuate this Agreement by the Effective Date of the
Merger
or shortly thereafter, unless a specific deadline is established by this
Agreement.
4.5 Abandonment.
At any time before the Effective Date of the Merger, this Agreement may be
terminated and the Merger may be abandoned for any reason whatsoever by the
Board of Directors of any Constituent Corporation, notwithstanding the approval
or adoption, as the case may be, of this Agreement by the shareholders or
stockholder, as the case may be, of any or both of the Constituent
Corporations.
4.6 Registered
Office. The registered office of the Surviving Corporation in the State of
Delaware is located at 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000 and Corporation Service Company is the registered agent of the Surviving
Corporation at such address.
4.7 Agreement.
Executed copies of this Agreement will be on file at the principal place of
business of the Surviving Corporation in Addison, Texas, and copies thereof
will
be furnished to any shareholder or stockholder, as the case may be, of either
Constituent Corporation, upon request and without cost.
4.8 Governing
Law. This Agreement shall in all respects be construed, interpreted and enforced
in accordance with and governed by the laws of the State of Delaware (without
giving effect to principles of conflicts of laws) and, so far as applicable,
the
merger provisions of the Florida Business Corporation Act.
4.9 Counterparts.
In order to facilitate the filing and recording of this Agreement, this
Agreement 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.
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, Boo Koo Florida and Boo Koo Delaware have caused this Agreement
to be executed as of the day and year first above written by their respective
duly authorized officers.
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a
Florida corporation
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx
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Chief
Financial Officer, Chief Operating Officer and
Secretary
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BKHI
ACQUISITION CORP.,
a
Delaware corporation
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By:
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/s/
Xxxxxx Xxxxxxx
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Xxxxxx
Xxxxxxx
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President
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