Agreement and Plan of Merger of Tengasco, inc. (a Tennessee corporation) with and into Tengasco, Inc. (a Delaware corporation)
Agreement and Plan of Merger
of
Tengasco, inc.
(a Tennessee corporation)
with and into
Tengasco, Inc.
(a Delaware corporation)
This Agreement and Plan of Merger (the “Agreement”), dated as of April 15, 2011, by and between Tengasco, Inc., a Tennessee corporation (“TGC-Tennessee”), and its wholly-owned subsidiary, Tengasco, Inc., a Delaware corporation (“TGC-Delaware”), is made with respect to the following facts.
Whereas, TGC-Tennessee is a corporation duly organized and existing under the laws of the State of Tennessee with an authorized aggregate capital of 100,000,000 shares of Common Stock $.001 par value and 25,000000 shares of Preferred Xxxxx, x.0000 par value;
Whereas, TGC-Delaware is a corporation duly organized and existing under the laws of the State of Delaware with an authorized aggregate capital of 100,000,000 shares of Common Stock $.001 par value of which 100 shares were duly issued to TGC-Tennessee and are now outstanding and 25,000000 shares of Preferred Xxxxx, x.0000 par value, of which no shares have been issued; and
Whereas, the board of directors for TGC-Tennessee and the sole shareholder of TGC-Delaware have determined that, for purposes of effecting the reincorporation of TGC-Tennessee in the State of Delaware, it is advisable and to the advantage of said two corporations and their stockholders that TGC-Tennessee merge with and into TGC-Delaware so that TGC-Delaware is the surviving corporation on the terms provided herein (the “Merger”).
Now therefore, based upon the foregoing, and in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties to this Agreement agree as follows.
ARTICLE I
1.1 The Merger; Surviving Corporation. Subject to the terms and conditions set forth in this Agreement, at the Effective Date (as defined in Section 1.5 below), TGC-Tennessee shall be merged with and into TGC-Delaware, subject to and upon the terms and conditions provided in this Agreement and the applicable provisions of the General Corporation Law of the State of Delaware (the “DGCL”) and the applicable provisions of the Tennessee Business Corporation Act (the “TBCA”), and the separate existence of TGC-Tennessee shall cease. TGC-Delaware shall be the surviving entity (the “Surviving Corporation”) and shall continue to be governed by the DGCL.
(a) TGC-Tennessee: Tengasco, Inc., a corporation organized under and governed by the laws of the State of Tennessee with an address of 00000 Xxxxxxxx Xxxx Xxxxx X, Xxxxxxxxx, Xxxxxxxxx 00000; and
(b) TGC-Delaware: Tengasco, Inc., a corporation organized under and governed by the laws of the State of Delaware with an address of 00000 Xxxxxxxx Xxxx Xxxxx X, Xxxxxxxxx, Xxxxxxxxx 00000.
(a) This Agreement and the Merger shall each have been adopted and recommended to the stockholders of TGC-Tennessee by the board of directors of TGC-Tennessee and approved by a majority of the voting power of the outstanding stock of TGC-Tennessee entitled to vote thereon, in accordance with the requirements of the TBCA;
(b) This Agreement and the Merger shall each have been adopted by the board of directors of TGC-Delaware in accordance with the requirements of the DGCL;
(c) An executed Articles of Merger (the “Articles of Merger”) shall have been filed with the Secretary of State for the State of Tennessee; and
(d) An executed Certificate of Ownership and Merger (the “Certificate of Merger”) or an executed counterpart to this Agreement meeting the requirements of the DGCL shall have been filed with the Secretary of State of the State of Delaware.
(a) From and after the Effective Date, the Certificate of Incorporation of TGC-Delaware shall be the Certificate of Incorporation of the Surviving Corporation.
(b) From and after the Effective Date, the Bylaws of TGC-Delaware as in effect immediately prior to the Effective Date shall be the Bylaws of the Surviving Corporation.
ARTICLE II
(a) each share of common stock of TGC-Tennessee, par value of $.001 per share, issued and outstanding immediately prior to the Effective Date shall be converted (without the surrender of stock certificates or any other action) into one (1) fully paid and non-assessable share of common stock, par value $.001, of TGC-Delaware’s common stock, $.001 par value per share (the “Common Stock”); and
(b) the one hundred shares of TGC-Delaware common stock owned by TGC-Tennessee shall be canceled at the Effective Date.
(a) From and after the Effective Date, the Surviving Corporation shall assume the obligations of TGC-Tennessee under, and continue the Tengasco Stock Incentive Plan and any other employee benefit plans of TGC-Tennessee. Each outstanding and unexercised option, other right to purchase, or security convertible into or exercisable for, TGC-Tennessee common stock (a “Right”) shall become, an option, right to purchase or a security convertible into the Surviving Corporation’s Common Stock, on the basis of one share of the Surviving Corporation’s Common Stock for each one share of TGC-Tennessee common stock issuable pursuant to any such Right, on the same terms and conditions and at an exercise price equal to the exercise price applicable to any such TGC-Tennessee Right from and after the Effective Date. This paragraph 2.2(a) shall not apply to currently issued and outstanding TGC-Tennessee common stock. Such common stock is subject to paragraph 2.1 hereof.
(b) A number of shares of the Surviving Corporation’s Common Stock shall be reserved for issuance upon the exercise of options and convertible securities equal to the number of shares of TGC-Tennessee common stock so reserved immediately prior to the Effective Date.
ARTICLE III
ARTICLE IV
ARTICLE V
The obligation of TGC-Delaware and of TGC-Tennessee to consummate the Merger shall be subject to the satisfaction or waiver of the following conditions:
ARTICLE VI
ARTICLE VII
In witness whereof, the undersigned have caused this Agreement to be executed by an officer duly authorized to do so, all as of the day and year first above written.
Tengasco, Inc.,
a Tennessee Corporation
By: s/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Chief Executive Officer
Tengasco, Inc.,
a Delaware Corporation
By: s/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx,
Chief Executive Officer