AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Plan" or "Merger Agreement") dated as
of July 8, 2003, between WEC Acquisition, Inc., a Wyoming corporation ("Newco")
and a wholly owned subsidiary of Olympic Resources Ltd., a Wyoming corporation
("Olympic"), and Whittier Energy Company, a Nevada corporation ("Whittier").
Newco and Whittier are hereinafter collectively referred to as the "Constituent
Corporations."
WITNESSETH:
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WHEREAS, Newco is a corporation duly organized and existing under the laws
of the State of Wyoming, having filed its Articles of Incorporation in the
office of the Secretary of State of Wyoming on June 23, 2003, and having total
authorized capital stock of 1,000 shares of common stock, $1.00 par value, of
which 1,000 shares are issued and outstanding and owned by Olympic;
WHEREAS, Whittier is a corporation duly organized and existing under the
laws of the State of Nevada, having filed its Articles of Incorporation in the
office of the Secretary of State of Nevada on December 18, 1991 and having total
authorized capital stock of 100,000 shares of common stock, without par value
("Whittier Common"), of which 100,000 shares are issued and outstanding;
WHEREAS, the Boards of Directors of the Constituent Corporations deem it
advisable and in the best interests of the Constituent Corporations and their
shareholders that Newco be merged with and into Whittier, which shall be the
surviving corporation, as authorized by the applicable statutes of the State of
Nevada ("Nevada Law") and the State of Wyoming ("Wyoming Law"), and pursuant to
the terms and conditions hereinafter set forth, and each such Board has duly
approved this Merger Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, and for the purpose of setting forth the terms
of the merger (the "Merger") provided by this Merger Agreement, the mode of
carrying the same into effect and such other details and provisions as are
deemed necessary or desirable, the parties hereto have agreed and do hereby
agree, subject to the approval or adoption of this Merger Agreement by the
requisite vote of the shareholders of each Constituent Corporation, and subject
to the conditions hereinafter set forth, as follows:
ARTICLE I
THE MERGER
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Section 1.01. The Merger. Upon the terms and subject to the conditions set
forth in this Merger Agreement, and in accordance with Chapters 78 and 92A of
the Nevada Revised Statutes and Article 11 of the Wyoming Business Corporation
Act, at the Effective Time (as defined in Section 1.02), Newco shall be merged
with and into Whittier. As a result of the Merger, the separate corporate
existence of Newco shall cease and Whittier shall continue as the surviving
corporation in the Merger (the "Surviving Corporation"). The name of the
Surviving Corporation shall be "Whittier Energy Company" or such other name as
may be selected by the Board of Directors of the Surviving Corporation
subsequent to the Effective Time.
Section 1.02. Effective Time of the Merger. As promptly as practicable
after the approval hereof by the shareholders of each Constituent Corporation
and the execution and delivery of this Merger Agreement by each of the parties
hereto, but in no event after August 29, 2003, the parties hereto shall cause
the Merger to be consummated by filing (i) with the Secretary of State of
Nevada, articles of merger in the form of Exhibit A attached hereto and (ii)
with the Secretary of State of Wyoming, articles of merger in the form of
Exhibit B attached hereto (collectively, the "Articles of Merger"), as required
by, and executed in accordance with the relevant provisions of, Nevada Law and
Wyoming Law, respectively. The Merger shall become effective at such time as the
Secretary of State of each of Nevada and Wyoming issues a certificate of merger
with respect thereto (the "Effective Time").
Section 1.03. Effect of the Merger. At the Effective Time, the effect of
the Merger shall be as provided in the applicable provisions of Nevada Law and
Wyoming Law. Without limiting the generality of the foregoing, and subject
thereto, at the Effective Time, except as otherwise provided herein, all the
properties, rights, privileges, powers and franchises of Newco and Whittier
shall vest in the Surviving Corporation without any transfer or assignment
having occurred, and all debts, liabilities and duties of Newco and Whittier
shall become the debts, liabilities and duties of the Surviving Corporation.
Section 1.04. Articles of Incorporation; Bylaws. At the Effective Time, the
Articles of Incorporation and the Bylaws of Whittier, as in effect immediately
prior to the Effective Time, shall be the Articles of Incorporation and the
Bylaws of the Surviving Corporation.
Section 1.05. Directors. The members of the Board of Directors of the
Surviving Corporation shall be composed of up to seven members, including up to
five members nominated by Whittier, and Xxxxx Xxxxxxx and Xxxx Xxxxxx, the
latter two for a term of six months. Except as otherwise provided herein, each
member shall hold office in accordance with the Articles of Incorporation and
Bylaws of the Surviving Corporation and until his or her successor is duly
elected and qualified in accordance with Nevada Law or until his or her earlier
death, resignation, or removal.
Section 1.06. Officers. The officers of Whittier immediately prior to the
Effective Time shall be the officers of the Surviving Corporation, in each case
until his or her successor is duly elected and qualified in accordance with
Nevada Law or until his or her earlier death, resignation, or removal.
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ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
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Section 2.01. Conversion of Securities. At the Effective Time, by virtue of
the Merger and without any action on the part of Newco, Whittier, or the holders
of any of the following securities:
(a) Each share of Whittier Common issued and outstanding immediately prior
to the Effective Time, excluding any treasury shares held by Whittier, shares
held by Olympic and Dissenting Shares (as defined in Section 2.04), if any,
shall be converted into the right to receive (i) 793.93142 shares (the "Common
Stock Exchange Ratio") of fully paid, nonassessable shares of Olympic common
stock, no par value ("Olympic Common") and (ii) one (1) share (the "Preferred
Stock Exchange Ratio") of Olympic Series A Convertible Preferred Stock, no par
value ("Olympic Preferred").
(b) All shares of Whittier Common shall no longer be outstanding and shall
automatically be canceled and retired and shall cease to exist, and each
certificate previously evidencing any such shares of Whittier Common shall
thereafter represent the right to receive the Merger Consideration (as defined
in Section 2.02(b) below). The holders of certificates previously evidencing
shares of Whittier Common outstanding immediately prior to the Effective Time
shall cease to have any rights with respect to such shares of Whittier Common,
except as otherwise provided herein or by law. Such certificates previously
evidencing shares of Whittier Common shall be exchanged for separate
certificates evidencing shares of Olympic Common and Olympic Preferred
(collectively, the "Olympic Securities"), as appropriate, issued in
consideration therefor in accordance with the allocation procedures of this
Section 2.01 and upon the surrender of such certificates in accordance with the
provisions of Section 2.02.
Section 2.02. Exchange of Certificates.
(a) Exchange Agent. As of the date hereof, Newco ha s deposited, or caused
to be deposited, with Whittier, for the benefit of the holders of shares of
Whittier Common, for exchange in accordance with this Article II through
Whittier (i) certificates evidencing such whole number of shares of Olympic
Common equal to the Common Stock Exchange Ratio multiplied by the number of
shares of Whittier Common, and rounded upward to the nearest whole share as
provided in Section 2.07, and (ii) certificates evidencing such number of shares
of Olympic Preferred equal to the Preferred Stock Exchange Ratio multiplied by
the number of shares of Whittier Common. As soon as practicable after the
Effective Time, Whittier shall, pursuant to irrevocable instructions, deliver
the Olympic Common and Olympic Preferred to the holders of Whittier Common.
(b) Exchange Procedures. As soon as reasonably practicable after the
Effective Time, Whittier will mail to each holder of record of Whittier Common
(other than Dissenting Shares) (all stock certificates and other documents
evidencing Whittier Common being collectively, the "Certificates"), (i) a letter
of transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon proper delivery of the
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Certificates to Whittier and shall be in such form and have such other
provisions as Whittier may reasonably specify) and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for separate
certificates evidencing Olympic Common and Olympic Preferred. Upon surrender of
a Certificate for cancellation to Whittier together with such letter of
transmittal, duly executed, and such other customary documents as may be
required pursuant to such instructions, the holder of such Certificate shall be
entitled to receive in exchange therefor (i) certificates evidencing that number
of shares of Olympic Common which such holder has the right to receive in
respect of the shares of Whittier Common and (ii) certificates evidencing that
number of shares of Olympic Preferred which such holder has the right to receive
in respect of the shares of Whittier Common, in each case in accordance with
Section 2.01 of this Agreement (such Olympic Common and Olympic Preferred being
collectively, the "Merger Consideration") and the Certificates so surrendered
shall forthwith be canceled. In the event of a transfer of ownership of shares
of Whittier Common, which transfer is not registered in the transfer records of
Whittier, a certificate evidencing the proper number of shares of Olympic Common
and a certificate evidencing the proper number of shares of Olympic Preferred
may be issued in accordance with this Article II to a transferee if the
Certificate evidencing such Whittier Common is presented to Whittier,
accompanied by all documents required to evidence and effect such transfer and
by evidence that any applicable stock transfer taxes have been paid. Until
surrendered as contemplated in this Section 2.02, each Certificate shall be
deemed at any time after the Effective Time to evidence only the right to
receive, upon such surrender, the Merger Consideration.
(c) No Further Rights in Whittier Common. All Olympic Common and Olympic
Preferred issued upon conversion of Whittier Common in accordance with the terms
hereof shall be deemed to have been issued or paid in full satisfaction of all
rights pertaining to the previously issued and outstanding Whittier Common.
Section 2.03. Stock Transfer Books. At the Effective Time, the stock
transfer books of Whittier shall be closed and there shall be no further
registration of transfers of shares of Whittier Common thereafter on the records
of Whittier. On or after the Effective Time, any Certificates presented to the
Exchange Agent for any reason shall be converted into the Merger Consideration.
Section 2.04. Dissenting Shares. If required under Nevada Law,
notwithstanding any other provisions of this Merger Agreement to the contrary,
shares of Whittier Common that are outstanding immediately prior to the
Effective Time and which are he ld by stockholders who shall have not voted in
favor of the Merger or consented thereto in writing and who shall have demanded
properly in writing appraisal for such shares in accordance with Nevada Law
(collectively, the "Dissenting Shares") shall not be converted into or represent
the right to receive the Merger Consideration. Such stockholders shall be
entitled to receive payment of the appraised value of the shares of Whittier
Common held by them in accordance with the provisions of such sections of Nevada
Law, except that all Dissenting Shares held by stockholders who shall have
failed to perfect or who effectively shall have withdrawn or lost their rights
to appraisal of such shares of Whittier Common under such sections of Nevada Law
shall thereupon be deemed to have been converted into and to have become
exchangeable, as of the Effective Time, for the right to receive shares of
Olympic Common and Olympic Preferred, 261653.7 5 upon surrender, in the manner
provided in Section 2.02, of the certificate or certificates that formerly
evidenced such shares of Whittier Common.
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Section 2.06 Adjustment. In the event of any stock split, combination,
reclassification, recapitalization, exchange, stock dividend, or other
distribution payable in Olympic Common with respect to shares of Olympic Common,
Olympic Preferred, or both (or if a record date with respect to any of the
foregoing should occur) during the period between the date of this Merger
Agreement and the Effective Time, then the Merger Consideration shall be
appropriately adjusted to reflect such stock split, combination,
reclassification, recapitalization, exchange, stock dividend, or other
distribution.
Section 2.07 Fractional Shares. No certificates representing fractional
shares of Olympic Common shall be issued to holders of Whittier Common upon the
surrender for exchange of Certificates, and such holders shall not be entitled
to any voting rights, rights to receive any dividends or distributions or other
rights as a stockholder of Olympic with respect to any fractional shares of
Olympic Common that would otherwise be issued to such holders. Each holder of
Whittier Common that would have been entitled to receive a fractional share of
Olympic Common shall, upon proper surrender of such holder's Certificates,
receive one share of Olympic Common in lieu of such fractional share of Olympic
Common.
ARTICLE III
APPROVAL AND EFFECTIVE TIME OF THE MERGER
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The Merger shall become effective when certified, executed and acknowledged
in accordance with Chapters 78 and 92A of the Nevada Revised Statutes, Article
11 of the Wyoming Business Corporation Act, and appropriate Articles of Merger
shall be filed and recorded in the office of the Secretary of State of Nevada
and the Secretary of State of Wyoming, respectively.
ARTICLE IV
MISCELLANEOUS PROVISIONS
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(a) For the convenience of the parties, any number of counterparts hereof
may be executed, and each such counterpart shall be deemed to be an original
instrument.
(b) It is the intention of the parties that the interna l laws, and not the
laws of conflicts, of the State of Nevada shall govern the enforceability and
validity of this Merger Agreement, the construction of its terms and the
interpretation of the rights and duties of the parties; provided, however, that
with respect to matters of law concerning the internal affairs of any entity
that is a party to or the subject of this Merger Agreement the law of the
jurisdiction of organization of such entity shall govern.
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(c) This Merger Agreement may not be altered or amended except pursuant to
an instrument in writing signed on behalf of the parties hereto.
[*** Signature Page to Follow ***]
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IN WITNESS WHEREOF, Whittier has caused this Merger Agreement to be signed
by its Vice President pursuant to authorization contained in a resolution
adopted by its Board of Directors approving this Merger Agreement, and Newco has
caused this Merger Agreement to be signed by its President pursuant to
authorization contained in a resolution adopted by its Board of Directors
approving this Merger Agreement, all on the date first above written.
WEC ACQUISITION, INC.
By /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, President
WHITTIER ENERGY COMPANY
By /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Vice President
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