Exhibit 2.1
MERGER AGREEMENT
This merger agreement is dated January 25th , 2001, and is between XXXX
XXXXXXX AUCTIONS, INC., a New York corporation ("GM New York"), and XXXX XXXXXXX
DELAWARE, INC., a Delaware corporation ("GM Delaware").
GM New York is a corporation duly organized and validly existing under
the laws of the State of New York having at the date hereof authorized capital
stock of 40,000,000 shares of common stock, par value $.001 per share ("New York
Common Stock"), of which approximately 9,775,262 shares were issued outstanding
on January 25th, 2001.
GM Delaware is a corporation duly organized and existing under the laws
of the State of Delaware having at the date hereof authorized capital stock of
40,000,000 shares of common stock, par value $.001 per share ("Delaware Common
Stock"), of which 100 shares are issued and outstanding and held by GM New York
on the date of this agreement.
GM New York desires to reincorporate into the State of Delaware by
merging with and into GM Delaware with GM Delaware continuing as the surviving
corporation in such merger, upon the terms and subject to the conditions herein
set forth and in accordance with the laws of the State of Delaware.
The parties therefore agree as follows:
ARTICLE 1
PRINCIPAL TERMS OF THE MERGER
1.1 Merger. At the Effective Time, GM New York will merge into GM
Delaware in accordance with the New York Business Corporation Law (the "NYBCL")
and the General Corporation Law of the State of Delaware (the "DGCL"; that
merger, the "Merger"). The separate existence of GM New York will thereupon
cease and GM Delaware will be the surviving corporation (in that capacity, the
"Surviving Corporation") and will continue its corporate existence under the
laws of the State of Delaware.
1.2 Effective Time. The Merger will become effective upon the date a
certificate of merger is filed by the Surviving Corporation with the Department
of State of the State of New York pursuant to Section 907(c)(2)of the NYBCL, or
the date a certificate of ownership and merger is filed by the Surviving
Corporation with the Secretary of State of the State of Delaware pursuant to
Section 253 of the DGCL whichever filing occurs last (that date, the "Effective
Time").
1.3 Effects of the Merger. At the Effective Time, the Merger will have
the effects specified in the NYBCL, the DGCL, and this agreement.
1.4 Certificate of Incorporation. At the Effective Time, the
certificate of incorporation of GM Delaware as in effect immediately prior to
the Effective Time will become the certificate of incorporation of the Surviving
Corporation until duly amended in accordance with its terms and as provided by
the DGCL.
1.5 Bylaws. At the Effective Time, the bylaws of GM Delaware as in
effect immediately prior to the Effective Time will become the bylaws of the
Surviving Corporation until duly amended in accordance with their terms and as
provided by the DGCL.
1.6 Name of Surviving Corporation. At the Effective Time, the name of
the Surviving Corporation will be changed to "Xxxx Xxxxxxx Auctions, Inc."
1.7 Directors and Officers. At the Effective Time, the directors and
officers of GM New York in office at the Effective Time will retain their
positions as the directors and officers, respectively, of the Surviving
Corporation, each of those directors and officers to hold office, subject to the
applicable provisions of the certificate of incorporation and bylaws of the
Surviving Corporation and the DGCL, until his or her successor is duly elected
or appointed or until his or her earlier death, incompetency or removal.
ARTICLE 2
CONVERSION AND CANCELLATION OF STOCK
2.1 Conversion. At the Effective Time, each share of New York Common
Stock issued and outstanding immediately prior to the Effective Time will by
virtue of the Merger and without any action on the part of the holder thereof be
converted into one share of Delaware Common Stock. At the Effective Time, each
option and warrant to purchase shares of New York Common Stock outstanding
immediately prior to the Effective Time will be automatically converted into
options and warrants to acquire an equal number of shares of Delaware Common
Stock.
2.2 Cancellation. At the Effective Time, each share of Delaware Common
Stock issued and outstanding immediately prior to the Effective Time and held by
GM New York will be canceled without any consideration being issued or paid
therefor.
2.3 Exchange of Certificates. At any time on or after the Effective
Time, the holders of New York Common Stock will be entitled, upon surrender to
the Surviving Corporation of any certificate representing shares of New York
Common Stock, to receive in exchange therefor one or more new stock certificates
evidencing ownership of the same number of shares of Delaware Common Stock. If
any certificate representing shares of Delaware Common Stock is to be issued in
a name other than that in which the certificate surrendered in exchange therefor
is registered, it will be a condition of the issuance thereof that the
certificate or other writing so surrendered must be properly endorsed and
otherwise in proper form for transfer and that the person requesting that
exchange must pay to the Surviving Corporation or its transfer agent any
transfer or other taxes required by reason of the issuance of a certificate
representing shares of Delaware Common Stock in any name other than that of the
registered holder of the certificate surrendered, or otherwise required, or must
establish to the satisfaction of the transfer agent that any such taxes have
been paid or is not payable.
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ARTICLE 3
CONDITIONS
Consummation of the Merger is subject to the satisfaction at or prior
to the Effective Time of the following conditions:
3.1 Approval. That this agreement and the Merger are adopted and
approved by GM New York in the manner provided in Section 905 of the NYBCL and
by GM Delaware in the manner provided in Section 253 of the DGCL.
3.2 Third Party Consents. That the parties have received all required
consents to the Merger.
ARTICLE 4
MISCELLANEOUS
4.1 Amendment. This agreement may be amended, in whole or in part, at
any time prior to the Effective Time with the mutual consent of the board of
directors of GM New York and the board of directors of GM Delaware to the full
extent permitted under applicable law.
4.2 Termination. This agreement may be terminated at any time prior to
the Effective Time by either the board of directors of GM New York or the board
of directors of GM Delaware, without any action of the stockholders of GM New
York or GM Delaware, notwithstanding the approval of this agreement by the
stockholders or board of directors of either GM New York or GM Delaware.
4.3 Necessary Actions, etc. If at any time after the Effective Time the
Surviving Corporation considers that any assignments, transfers, deeds, or other
assurances in law are necessary or desirable to vest, perfect or confirm, of
record or otherwise, in the Surviving Corporation title to any property or
rights of GM New York, GM New York and its directors and officers at the
Effective Time shall execute and deliver such documents and do all things
necessary and proper to vest, perfect or confirm title to such property or
rights in the Surviving Corporation, and the officers and directors of the
Surviving Corporation are fully authorized in the name of GM New York or
otherwise to take any and all such action.
4.4 Counterparts. This agreement may be executed in any number of
counterparts, all of which shall be considered to be an original instrument.
4.5 Governing Law. This agreement is governed by the laws of the State
of Delaware.
[SIGNATURE PAGE FOLLOWS]
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The parties are executing this agreement on the date stated in the
introductory clause.
XXXX XXXXXXX AUCTIONS, INC.
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
President
XXXX XXXXXXX DELAWARE, INC.
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
President
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