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EXHIBIT 6.5
AGREEMENT AND PLAN OF MERGER
OF
TREK RESOURCES, INC.,
A UTAH CORPORATION
WITH AND INTO
TREK RESOURCES, INC.,
A DELAWARE CORPORATION
THIS AGREEMENT AND PLAN OF MERGER (the "AGREEMENT") is entered into by
and between Trek Resources, Inc., a Utah corporation ("TREK-UT") and Trek
Resources, Inc., a Delaware corporation and wholly-owned subsidiary of Trek-UT
("TREK-DE").
RECITALS
WHEREAS, Trek-UT desires to change its state of incorporation from Utah
to Delaware;
WHEREAS, the respective Boards of Directors of Trek-UT and Trek-DE have
approved the business combination contemplated hereby in which Trek-UT would
merge with and into Trek-DE, its wholly-owned subsidiary (the "MERGER"), with
Trek-DE as the corporation surviving the Merger, on the terms and subject to the
conditions set forth in this Agreement; and
WHEREAS, for Federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section 368(a) of
the Internal Revenue Code of 1986, as amended (the "CODE").
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein, the parties hereby agree as follows:
ARTICLE I - DEFINITIONS
Capitalized terms used in this Agreement are used as defined in this
Article I or elsewhere in this Agreement.
"CERTIFICATES" shall have the meaning set forth in Section 3.02.
"CLOSING" shall have the meaning set forth in Section 2.02
"CLOSING DATE" shall have the meaning set forth in Section 2.02.
"DGCL" means the Delaware General Corporation Law, as amended.
"EFFECTIVE TIME" shall have the meaning set forth in Section 2.03.
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"MERGER CONSIDERATION" means, in respect of each share of Trek-UT
Stock, the right to receive one (1) fully-paid and nonassessable share of
Trek-DE Stock and, in respect of each share of Trek-UT Preferred Stock, the
right to receive six (6) fully paid and nonassessable shares of Trek-DE stock.
"SURVIVING CORPORATION" shall mean, upon effectiveness of the Merger,
Trek-DE.
"TREK-DE STOCK" means shares of common stock of Trek-UT, par value $.01
per share.
"TREK-UT PREFERRED STOCK" means shares of Series A Preferred Stock of
Trek-UT, par value $0.10 per share.
"TREK-UT STOCK" means shares of the common stock of Trek-UT, par value
$.01177 per share.
"URBCA" means the Utah Revised Business Corporation Act, as amended.
ARTICLE II - THE MERGER
2.01 THE MERGER. Upon the terms and subject to the conditions set forth
in this Agreement, Trek-UT shall be merged with and into Trek-DE at the
Effective Time of the Merger. Following the Merger, the separate corporate
existence of Trek-UT shall cease and Trek-DE shall continue as the surviving
corporation and shall succeed to and assume all the rights and obligations of
Trek-UT in accordance with the DGCL and URBCA. Trek-DE, the surviving
corporation, will be responsible for, and obligated to pay, all applicable Utah
franchise tax and related fees of Trek-UT, if the same are not timely paid.
2.02 CLOSING.
(a) The Closing of the Merger (the "CLOSING") will take place
at Trek-DE's principal office at a date to be mutually agreed upon between the
parties (the date of the Closing being referred to herein as the "CLOSING
DATE"). At the Closing the appropriate officers of Trek-UT and Trek-DE shall
execute and acknowledge the Articles of Merger and the Certificate of Merger
(both as defined below) and the parties shall take such further action as is
required to consummate the transactions described in this Agreement, the
Articles of Merger and the Certificate of Merger.
(b) Notwithstanding anything herein to the contrary, the
Closing of the Merger shall be contingent upon the receipt of necessary
approvals from the shareholders of Trek-DE and Trek-UT in accordance with the
DGCL and the URBCA.
2.03 EFFECTIVE TIME. As soon as practicable on or after the Closing
Date, the parties shall file Articles of Merger ("ARTICLES OF MERGER") and a
Certificate of Ownership and Merger ("CERTIFICATE OF MERGER") executed in
accordance with the relevant provisions of the URBCA and DGCL, respectively, and
shall make all other filings or recordings required under the URBCA and DGCL.
The Merger shall become effective upon the later of the filing of the Articles
of Merger with the Division of Corporations of the Utah Department of Commerce
or the Certificate of Merger with the Delaware Secretary of State (the time the
Merger becomes effective being the "EFFECTIVE TIME" of the Merger).
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2.04 EFFECTS OF THE MERGER. The Merger shall have the effects set forth
in the laws of the DGCL and URBCA.
2.05 CERTIFICATE OF INCORPORATION AND BYLAWS
(a) The Certificate of Incorporation of Trek-DE as in effect
at the Effective Time shall be the Certificate of Incorporation of the Surviving
Corporation, until thereafter changed or amended as provided therein or by
applicable law.
(b) The Bylaws of Trek-DE as in effect at the Effective Time
of the Merger shall be the Bylaws of the Surviving Corporation, until thereafter
changed or amended as provided therein or by applicable law.
2.06 DIRECTORS. The directors of Trek-DE at the Effective Time of the
Merger shall be the directors of the Surviving Corporation, until the earlier of
their resignation or removal or until their respective successors are duly
elected and qualified, as the case may be.
2.07 OFFICERS. The officers of Trek-DE at the Effective Time of the
Merger shall be the officers of the Surviving Corporation, until the earlier of
their resignation or removal or until their respective successors are duly
elected and qualified, as the case may be.
2.08 ABANDONMENT. Notwithstanding anything to the contrary contained
herein, at any time before the Effective Time, this Agreement may be terminated
and the Merger may be abandoned for any reason whatsoever by either the Board of
Directors of Trek-UT or Trek-DE, or both, regardless of whether the Merger and
this Agreement have been approved by the shareholders of Trek-UT.
2.09 AMENDMENT. This Agreement may be amended at any time pursuant to a
written instrument approved by the Board of Directors of Trek-UT and Trek-DE;
provided, however, that after the shareholders of Trek-UT or Trek-DE have
approved this Agreement, no such amendment may be made that would require the
further approval of the shareholders of Trek-UT or Trek-DE unless such approval
is obtained.
ARTICLE III - EFFECT OF MERGER ON CAPITAL STOCK
OF THE PARTIES; EXCHANGE OF CERTIFICATES
3.01 EFFECT ON CAPITAL STOCK. As of the Effective Time of the Merger,
by virtue of the Merger and without any action on the part of the holders of any
shares of Trek-UT or any shares of capital stock of Trek-DE:
(a) CONVERSION OF TREK-UT STOCK. Each share of Trek-UT Stock
and Trek-UT Preferred Stock issued and outstanding as of the Effective Time of
the Merger shall be converted into the right to receive the applicable Merger
Consideration; provided, however, any shares of Trek-UT Stock held by Trek-DE
shall no longer be outstanding and shall automatically be canceled and retired
and shall cease to exist. As of the Effective Time of the Merger, all shares of
Trek-UT shall no longer be outstanding and shall automatically be canceled and
retired and shall cease to exist, and each holder of a certificate representing
any shares of Trek-UT Stock or Trek-UT Preferred Stock shall cease to have any
rights with respect thereto, except the right to receive the Merger
Consideration in exchange therefor.
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(b) CANCELLATION OF TREASURY STOCK. All shares of Trek-UT
Stock and Trek-DE Stock, if any, that are owned as treasury stock as of the
Effective Time of the Merger shall be canceled and retired and shall cease to
exist and no capital stock of Trek-DE or other consideration shall be delivered
in exchange therefor.
3.02 EXCHANGE OF CERTIFICATES; PAYMENT OF MERGER CONSIDERATION. Each
holder of record of a certificate or certificates that immediately prior to the
Effective Time of the Merger represented issued and outstanding shares of
Trek-UT Stock or the Trek-UT Preferred Stock (the "CERTIFICATES") whose shares
were converted into the right to receive the Merger Consideration pursuant to
Section 3.01 shall surrender such Certificates for cancellation to Trek-DE or
its transfer agent, duly endorsed and executed, immediately following the
Effective Time. Trek-DE shall issue or cause to be issued to such holder in
exchange therefor a certificate representing the number of shares of Trek-DE
Stock that such holder has the right to receive pursuant to the provisions of
Section 3.01. Upon payment of the Merger Consideration, the Certificates so
surrendered shall forthwith be canceled.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGE TO FOLLOW.
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IN WITNESS WHEREOF, the undersigned corporations have executed this
Agreement as of the 4th day of January, 2001.
TREK RESOURCES, INC.,
a Utah corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
TREK RESOURCES, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
