Exhibit 10.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of November 21, 2005 (this
"Agreement"), between Darwin Resources Corp., a Nevada corporation (the
"Corporation") and Darwin Resources Corp., a Delaware corporation (the
"Subsidiary").
WITNESSETH:
WHEREAS, the Subsidiary desires to acquire all the assets, and to
assume all of the liabilities and obligations, of the Corporation by means of a
merger of the Corporation with and into the Subsidiary, with the Subsidiary
being the surviving corporation (the "Merger");
WHEREAS, the Subsidiary is a wholly-owned subsidiary of the Corporation;
WHEREAS, Section 92A.100 of the Nevada Revised Statutes ("Nevada Law")
and Section 253B of the Delaware General Corporation Law (the "DGCL"), authorize
the merger of a Nevada corporation into a Delaware corporation;
WHEREAS, the Subsidiary shall be the surviving entity (the "Surviving
Corporation") and continue its existence as a Delaware corporation; and
WHEREAS, the stockholders and Board of Directors of the Corporation and
the Subsidiary have approved this Agreement and the consummation of the Merger.
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01. THE MERGER.
(a) At the Effective Time, the Corporation shall be merged, the
separate existence of the Corporation shall cease and the Surviving Corporation
shall be the surviving entity and continue its existence as a Delaware
corporation;
(b) EFFECTIVE TIME OF MERGER. The Merger shall become effective on
the date that a Certificate of Merger with respect to the Merger is accepted for
filing by the Office of the Secretary of State of Delaware (the "Effective
Time") and all other filings or recordings required by the Nevada General
Corporation Law and the Delaware General Corporation Law in connection with the
Merger are made.
SECTION 1.02. MERGER CONSIDERATION.
At the Effective Time, each share of common stock, par value $0.001 per
share of the Corporation which shall be issued and outstanding immediately prior
to the Effective Time shall be converted into 1.317663818 issued and outstanding
shares of common stock, par value $0.001 per share of the Surviving Corporation,
and from and after the Effective Time, the holders of all said issued and
outstanding shares of stock of the Corporation shall automatically become
holders of shares of the Surviving Corporation, whether or not certificates
representing said shares are then issued and delivered.
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.01. BYLAWS; CERTIFICATE OF INCORPORATION. The certificate of
incorporation of the Subsidiary, as in effect immediately prior to the Effective
Time, shall be the certificate of incorporation of the Surviving Corporation
unless and until thereafter amended in accordance with its terms and applicable
law. The bylaws of the Subsidiary as in effect immediately prior to the
Effective Time shall be the bylaws of the Surviving Corporation unless and until
thereafter amended in accordance with applicable law.
At the Effective Time the name of the Surviving Corporation shall be
the name of the Corporation.
ARTICLE III
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
SECTION 3.01. TRANSFER, CONVEYANCE AND ASSUMPTION. At the Effective
Time, the Subsidiary shall continue in existence as the Surviving Corporation,
and without further transfer, succeed to and possess all of the rights,
privileges and powers of the Corporation, and all of the assets and property of
whatever kind and character of the Corporation shall vest in the Surviving
Corporation without further act or deed; thereafter, the Surviving Corporation,
shall be liable for all of the liabilities and obligations of the Corporation,
and any claim or judgment against the Corporation may be enforced against the
Surviving Corporation in accordance with Section 92A.100 of the Nevada Law and
Section 253 of the DGCL.
SECTION 3.02. FURTHER ASSURANCES. If at any time the Subsidiary shall
consider or be advised that any further assignment, conveyance or assurance is
necessary or advisable to vest, perfect or confirm of record in the Surviving
Corporation the title to any property or right of the Corporation, or otherwise
to carry out the provisions hereof, the proper representatives of the
Corporation as of the Effective Time shall execute and deliver any and all
proper deeds, assignments, and assurances and do all things necessary or proper
to vest, perfect or convey title to such property or right in the Surviving
Corporation, and otherwise to carry out the provisions hereof.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. AUTHORIZED PERSON. Xxxxxx Xxxxxxxx, the President and
Chief Financial Officer of the Corporation, shall be authorized, at such time in
his sole discretion as he deems appropriate to execute, acknowledge, verify,
deliver, file and record, for and in the name of the Corporation any and all
documents and instruments including, without limitation, the certificate of
incorporation of the Surviving Corporation and the Certificate of Merger, and
shall do and perform any and all acts required by applicable law which the
Surviving Corporation deems necessary or advisable, in order to effectuate the
Merger.
SECTION 4.02. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties and agreements contained in any certificate or
other writing delivered pursuant hereto shall not survive the Effective Time or
the termination of this Agreement.
SECTION 4.03. AMENDMENTS; NO WAIVERS. (a) Any provision of this
Agreement may, subject to applicable law, be amended or waived prior to the
Effective Time if, and only if, such amendment or waiver is in writing and
signed by the Corporation and the Subsidiary.
(b) No failure or delay by any party hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 4.04. INTEGRATION. All prior or contemporaneous agreements,
contracts, promises, representations, and statements, if any, between the
Subsidiary and the Corporation, or their representatives, are merged into this
Agreement, and this Agreement shall constitute the entire understanding between
the Subsidiary and the Corporation with respect to the subject matter hereof.
SECTION 4.05. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other party hereto.
SECTION 4.06. GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of Delaware,
without reference to principles of conflicts of law.
SECTION 4.07. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
the counterpart hereof signed by the other party hereto.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned have executed this instrument as of
the 21st day of November, 2005.
DARWIN RESOURCES CORP.,
a Nevada corporation
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President and Chief Financial Officer
DARWIN RESOURCES CORP.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: President and Chief Financial Officer
