AGREEMENT AND PLAN OF MERGER
Exhibit
2.1
AGREEMENT
AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this
“Agreement”) is
dated this 3rd day of
February, 2009, pursuant to the provisions of the General Corporation Law of
Delaware (the “DGCL”) and the Nevada
Revised Statutes (the “NRS”), by and between
VeruTEK Technologies, Inc., a Nevada corporation (the “Company”), and
VeruTEK Technologies, Inc., a Delaware corporation (the “Surviving
Company”).
WITNESSETH:
WHEREAS, the Company is a corporation
duly organized and existing under the laws of the State of Nevada and is
authorized to issue 150,000,000 shares of common stock, par value $0.001 per
share (the “Common
Stock of the Company”), and 10,000,000 shares of preferred stock, par
value $0.001 per share;
WHEREAS, the Surviving Company is a
corporation duly organized and existing under the laws of the State of Delaware,
is a wholly owned subsidiary of the Company and, as of the Effective Date (as
defined below), will be authorized to issue 150,000,000 shares of common stock,
par value $0.001 per share (the “Common Stock of the
Surviving Company”), and 10,000,000 shares of preferred stock, par value
$0.001 per share;
WHEREAS, the Company desires to merge
itself into the Surviving Company;
WHEREAS, the Surviving Company desires
that the Company be merged into the Surviving Company; and
WHEREAS, each of the Boards of
Directors of the Company and the Surviving Company has adopted resolutions
approving the Merger (as defined below) upon the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, in consideration of the
foregoing premises and the undertakings herein contained and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Merger. On the Effective
Date, the Company shall be merged into the Surviving Company pursuant to the
provisions of the DGCL and the NRS. The Surviving Company shall
survive the Merger and shall continue to be governed by the laws of the State of
Delaware. The separate corporate existence of the Company shall cease
forthwith upon the Effective Date. The registered agent and address
of the registered office of the Surviving Company in Delaware will be
Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx
00000. The merger of the Company into the Surviving Company shall
herein be referred to as the “Merger.”
2. Stockholder
Approval. As soon as
practicable after the execution of this Agreement, the Company and the Surviving
Company shall, if necessary under the DGCL and the NRS, submit this Agreement to
their respective stockholders for approval (the “Stockholder
Approvals”).
1
3. Closing
Conditions. The obligations
of the Company and the Surviving Company to consummate the Merger are subject to
(i) receipt of the Stockholder Approvals, (ii) expiration of the time period
provided by the NRS for stockholders of the Company to properly exercise
dissenters’ rights with respect to the Merger (the “Expiration Date”) and
(iii) no holders of shares of Common Stock of the Company having properly
exercised dissenters’ rights with respect to the Merger as of the Expiration
Date.
4. Effective
Date. As soon as
practicable after the satisfaction or waiver of the last of the conditions set
forth in Section 3, duly authorized officers of the Company and the Surviving
Company shall execute Articles of Merger and a Certificate of Merger and shall
cause such documents to be filed with the Secretary of State of the State of
Nevada and the Secretary of State of the State of Delaware, respectively, in
accordance with the NRS and the DGCL. The effective date of the
Merger (the “Effective
Date”) shall be the date on which the Merger becomes effective under the
NRS or the date on which the Merger becomes effective under the DGCL, whichever
occurs later.
5. Common
Stock of the Company. On the Effective
Date, by virtue of the Merger and without any action on the part of the holders
thereof, each share of Common Stock of the Company issued and outstanding
immediately prior thereto shall cease to exist and shall be changed and
converted into one fully paid and non-assessable share of Common Stock of the
Surviving Company. The stockholders of the Company are entitled to
dissenters’ rights under Section 92A.300 through Section 92A.500 of the
NRS.
6. Common
Stock of the Surviving Company. On the Effective
Date, by virtue of the Merger and without any action on the part of the holder
thereof, each share of Common Stock of the Surviving Company owned by the
Company immediately prior to the Effective Date shall, by virtue of the Merger
and without any action on the part of the holder thereof, cease to be
outstanding, be cancelled and retired without payment of any consideration and
cease to exist.
7. Options. Each option to acquire
shares of Common Stock of the Company outstanding immediately before the
Effective Date of the Merger shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into and become an
equivalent option to acquire, upon the same terms and conditions, including the
original vesting schedule, the number of shares of Common Stock of the Surviving
Company that is equal to the number of shares of Common Stock of the Company
that the optionee would have received had the optionee exercised such option in
full immediately before the Effective Date (whether or not such option was then
exercisable) and the exercise price per share under each such option shall be
equal to the exercise price per share thereunder immediately before the
Effective Date, unless otherwise provided in the instrument granting such
option.
8. Other
Rights. Any other right,
by contract or otherwise, to acquire the shares of Common Stock of the Company
outstanding immediately before the Effective Date shall, by virtue of the Merger
and without any action on the part of the holder thereof, be converted and
become a right to acquire, upon the same terms and conditions, the number of
shares of Common Stock of the Surviving Company that is equal to the number of
shares of Common Stock of the Company that the right holder would have received
had the right holder exercised such right in full immediately before the
Effective Date (whether or not such right was then exercisable) and the exercise
price per share under each such right shall be equal to the exercise price per
share thereunder immediately before the Effective Date, unless otherwise
provided in the instrument granting such right.
2
9. Stock
Certificates. On and after the
Effective Date, all of the outstanding certificates that prior to that time
represented shares of Common Stock of the Company shall be deemed for all
purposes to evidence ownership of and to represent shares of Common Stock of the
Surviving Company into which the shares of Common Stock of the Company
represented by such certificates have been converted as herein provided. The
registered owner on the books and records of the Surviving Company or its
transfer agent of any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or conversion or otherwise
accounted for to the Surviving Company 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 the Surviving Company
evidenced by such outstanding certificate as above provided.
10. Employee
Benefit and Compensation Plans. On the Effective
Date, each employee benefit plan, incentive compensation plan and other similar
plans to which the Company is a party or to which the Common Stock of the
Company is subject (the “Employee Benefit
Plans”), shall be assumed by, and continue to be the plan of, the
Surviving Company. To the extent any Employee Benefit Plan provides
for the issuance and purchase of, or otherwise relates to, Common Stock of the
Company, after the Effective Date, such Employee Benefit Plan shall be deemed to
provide for the issuance or purchase of, or otherwise relate to, Common Stock of
the Surviving Company.
11. Succession. On the Effective
Date, the Surviving Company shall succeed to all of the rights, privileges,
debts, liabilities, powers and property of the Company in the manner of and as
more fully set forth in Section 259 of the General Corporation Law of Delaware.
Without limiting the foregoing, upon the Effective Date, all property, rights,
privileges, franchises, patents, trademarks, licenses, registrations, and other
assets of every kind and description of the Company shall be transferred to,
vested in and devolved upon the Surviving Company without further act or deed,
and all property, rights, and every other interest of the Company and the
Surviving Company shall be as effectively the property of the Surviving Company
as they were of the Company and the Surviving Company, respectively. All rights
of creditors of the Company and all liens and obligations upon any property of
the Company shall be preserved unimpaired, and all debts, liabilities,
obligations and duties of the Company, including, without limitation, all debts,
liabilities, obligations and duties of the Company under its Employee Benefit
Plans shall attach to the Surviving Company and may be enforced against it to
the same extent as if said debts, liabilities, obligations and duties had been
incurred or contracted by it.
12. Certificate
of Incorporation and By-Laws. The Certificate
of Incorporation of the Surviving Company in effect on the Effective Date shall
continue to be the Certificate of Incorporation of the Surviving Company until
further amended in accordance with the provisions thereof and applicable law.
The By-Laws of the Surviving Company in effect on the Effective Date shall
continue to be the By-Laws of the Surviving Company until amended in accordance
with the provisions thereof and applicable law.
3
13. Directors
and Officers. The members of
the Board of Directors and the officers of the Company on the Effective Date
shall become members of the Board of Directors and the officers, respectively,
of the Surviving Company until the expiration of their respective terms of
office and until their successors have been elected and qualified.
14. Termination. This Agreement
may be terminated by either party at any time prior to the Effective Date if any
of the conditions set forth in Section 3 is not satisfied as of the Expiration
Date.
15. Further
Assurances. From time to
time, as and when required by the Surviving Company or by its successors and
assigns, there shall be executed and delivered on behalf of the Company 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 confirm of record or otherwise in the Surviving
Company the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of the Company,
and otherwise to carry out the purposes of this Agreement, and the officers and
directors of the Company are fully authorized in the name and on behalf of the
Company or otherwise to take any and all such action and to execute and deliver
any and all such deeds and other instruments.
16. Abandonment. At any time prior
to the Effective Date, this Agreement may be terminated and the Merger may be
abandoned by the Board of Directors of either the Company or the Surviving
Company or both, notwithstanding approval of this Agreement by the stockholders
of the Company or the Surviving Company.
17. Amendment. This Agreement
may be amended by the Boards of Directors of the Company and the Surviving
Company at any time prior to the Effective Date, provided that an amendment made
subsequent to the approval of this Agreement by the stockholders of either the
Company or the Surviving Company shall not (1) 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 corporation, (2) alter or change any term of the Certificate of
Incorporation of the Surviving Company to be effected by the Merger or (3) alter
or change any of the terms and conditions of this Agreement if such alteration
or change would adversely affect the holders of any class or series of the stock
of such corporation.
18. Governing
Law. This Agreement
and the legal relations between the parties shall be governed by and construed
in accordance with the laws of the State of Delaware, except to the extent the
laws of Nevada apply to the Merger as mandated by the NRS.
19. Counterparts. In order to
facilitate the filing and recording of this Agreement, the same may be executed
in any number of counterparts, each of which shall be deemed to be an
original.
4
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as
of the date first above written.
|
(Delaware)
|
|||
|
By:
|
/s/ Xxxx Xxxxxxx | ||
| Xxxx Xxxxxxx | |||
| Chief Executive Officer | |||
|
(Nevada)
|
|||
|
|
By:
|
/s/ Xxxx Xxxxxxx | |
| Xxxx Xxxxxxx | |||
| President and Chief Executive Officer | |||
5
