AGREEMENT AND PLAN OF MERGER OF MINN SHARES, INC. A DELAWARE CORPORATION, AND MINN SHARES, INC. A MINNESOTA CORPORATION
OF
MINN SHARES, INC.
A
DELAWARE CORPORATION,
AND
MINN
SHARES, INC.
A
MINNESOTA CORPORATION
This Agreement and Plan of Merger dated
as of December 1, 2010 (the “Agreement”) is
between Minn Shares Inc., a Minnesota corporation (“Minn Shares
Minnesota”) and Minn Shares Inc., a Delaware corporation (“Minn Shares Delaware”
or the “Surviving Corporation”). Minn Shares Delaware and Minn Shares Minnesota
are sometimes referred to in this Agreement as the “Constituent
Corporations.”
RECITALS
A.
Minn Shares Delaware is a corporation duly organized and existing under the laws
of the State of Delaware and has an authorized capital of 110,000,000 shares,
100,000,000 of which are designated “Common Stock,” $0.0001 par value (the
“Surviving Corporation Common Stock”), and 10,000,000 of which are designated
“Preferred Stock,” $0.0001 par value (the “Surviving Corporation Preferred
Stock”). Immediately prior to the Effective Time of the Merger (as hereinafter
defined), no shares of the Surviving Corporation Common Stock were issued and
outstanding, and no shares of the Surviving Corporation Preferred Stock were
issued and outstanding.
B.
Minn Shares Minnesota is a corporation duly organized and existing under the
laws of the State of Minnesota and has an authorized capital of 20,000,000
shares, 15,000,000 of which are designated “Common Stock,” $.01 par value (the
“Minn Shares Minnesota Common Stock”) and 5,000,000 of which are undesignated
(“Undesignated Stock”). As of the date of this Agreement, 11,913,455 shares of
Minn Shares Minnesota Common Stock were issued and outstanding and no shares of
Undesignated Stock were issued and outstanding.
C.
The Boards of Directors of the Constituent Corporations have determined that it
is in the best interests of the Constituent Corporations, that Minn Shares
Minnesota merge with and into Minn Shares Delaware, upon the terms and
conditions provided in this Agreement and for the purpose of effecting the
reincorporation of Minn Shares Minnesota in the State of Delaware.
D.
The respective Boards of Directors of Minn Shares Delaware and Minn Shares
Minnesota have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective stockholders, if required, and executed
by the undersigned officers.
AGREEMENT
In
consideration of the mutual agreements and covenants set forth herein, Minn
Shares Delaware and Minn Shares Minnesota hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
Article
I: Merger
1.1 Merger. In
accordance with the provisions of this Agreement, the Delaware General
Corporation Law (the “DGCL”) and the Minnesota Business Corporation Act (the
“MBCA”), Minn Shares Minnesota shall be merged with and into Minn Shares
Delaware (the “Merger”), the
separate existence of Minn Shares Minnesota shall cease and Minn Shares Delaware
shall be, and is sometimes referred to below as, the “Surviving Corporation,”
and the name of the Surviving Corporation shall be Minn Shares Inc.
1.2
Filing and
Effectiveness. The Merger shall become effective upon the filing of a
duly executed Articles of Merger with the Secretary of State of Minnesota and a
duly executed Certificate of Merger with the Secretary of State of Delaware (the
“Effective Time”).
1.3 Effect of the
Merger. Upon the Effective Time, the separate existence of
Minn Shares Minnesota shall cease and Minn Shares Delaware, as the Surviving
Corporation, (a) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Time,
(b) shall be subject to all actions previously taken by its and Minn Shares
Minnesota’s Board of Directors, (c) shall succeed, without other transfer,
to all of the assets, rights, powers and property of Minn Shares Minnesota in
the manner more fully set forth in §259 of the DGCL, (d) shall
continue to be subject to all of the debts, liabilities and obligations of Minn
Shares Delaware as constituted immediately prior to the Effective Time, and
(e) shall succeed, without other transfer, to all of the debts, liabilities
and obligations of Minn Shares Minnesota in the same manner as if Minn Shares
Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the DGCL and the MBCA.
Article
II: Charter
Documents, Directors and Officers
2.1 Certificate of
Incorporation. The Certificate of Incorporation of Minn Shares
Delaware as in effect immediately prior to the Effective Time shall continue in
full force and effect as the Certificate of Incorporation of the Surviving
Corporation until duly amended in accordance with the provisions thereof and
applicable law.
2.2 Bylaws. The
Bylaws of Minn Shares Delaware as in effect immediately prior to the Effective
Time shall continue in full force and effect as the Bylaws of the Surviving
Corporation until duly amended in accordance with the provisions thereof and
applicable law.
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2.3 Directors and
Officers. The directors and officers of Minn Shares Delaware
immediately prior to the Effective Time shall be the directors and officers of
the Surviving Corporation until their successors shall have been duly elected
and qualified or as otherwise provided by law, the Certificate of Incorporation
of the Surviving Corporation or the Bylaws of the Surviving
Corporation.
Article
III: Manner
of Conversion of Stock
3.1 Minn Shares Minnesota Common
Stock. Upon the Effective Time, each ten (10) shares of Minn
Shares Minnesota Common Stock issued and outstanding immediately prior thereto
shall, by virtue of the Merger and without any action by the Constituent
Corporations, the holder of such shares or any other person, be converted into
and exchanged for one (1) fully paid and nonassessable share of Common Stock,
$0.0001 par value, of the Surviving Corporation. No fractional share interests
of the Surviving Corporation shall be issued. Any fractional share interests to
which a holder would otherwise be entitled shall be rounded up to the nearest
whole number.
3.2 Exchange of
Certificates. After the Effective Time, each holder of an
outstanding certificate representing Minn Shares Minnesota Common Stock may, at
such holder’s option, surrender the same for cancellation and each such holder
shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of the Surviving Corporation’s Common Stock
into which the surrendered shares were converted as provided herein. Until so
surrendered, each outstanding certificate theretofore representing ten (10)
shares of Minn Shares Minnesota Common Stock shall be deemed for all purposes to
represent one (1) whole share of the Surviving Corporation’s Common Stock into
which such shares of Minn Shares Minnesota Common Stock were converted in the
Merger (with such adjustments for fractional shares as necessary).
The registered owner on the books and
records of the Surviving Corporation of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation, have and be entitled to
exercise any voting and other rights with respect to and to receive dividends
and other distributions upon the shares of Common Stock of the Surviving
Corporation represented by such outstanding certificate as provided
above.
Each certificate representing Common
Stock of the Surviving Corporation so issued in the Merger shall bear the same
legends, if any, with respect to the restrictions on transferability as the
certificates of Minn Shares Minnesota so converted and given in exchange
therefor, unless otherwise determined by the Board of Directors of the Surviving
Corporation in compliance with applicable laws.
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If any certificate for shares of the
Surviving Corporation’s stock is to be issued in a name other than that in which
the certificate surrendered in exchange therefor is registered, it shall be a
condition of issuance thereof that the certificate so surrendered shall be
properly endorsed and otherwise in proper form for transfer, that such transfer
otherwise be proper and comply with applicable securities laws and that the
person requesting such transfer pay to the Surviving Corporation any transfer or
other taxes payable by reason of the issuance of such new certificate in a name
other than that of the registered holder of the certificate surrendered or
establish to the satisfaction of the Surviving Corporation that such tax has
been paid or is not payable.
Article
IV: General
4.1 Covenants of Minn Shares
Delaware. Minn Shares Delaware covenants and agrees that it
will, on or before the Effective Time:
(a)
File any and all documents with the Minnesota Department of Revenue necessary
for the assumption by Minn Shares Delaware of all of the franchise tax
liabilities of Minn Shares Minnesota; and
(b)
Take such other actions as may be required by the MBCA.
4.2 Further
Assurances. From time to time, as and when required by Minn
Shares Delaware or by its successors or assigns, there shall be executed and
delivered on behalf of Minn Shares Minnesota such deeds and other instruments,
and there shall be taken or caused to be taken by it such further and other
actions, as shall be appropriate or necessary in order to vest or perfect in or
conform of record or otherwise by Minn Shares Delaware the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Minn Shares Minnesota and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of Minn Shares Delaware are fully authorized in the name and on behalf
of Minn Shares Minnesota or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
4.3 Abandonment. At any
time before the Effective Time, this Agreement may be terminated and the Merger
may be abandoned for any reason whatsoever by the Board of Directors of either
Minn Shares Minnesota or Minn Shares Delaware, or both, notwithstanding the
approval of this Agreement by the shareholders of Minn Shares
Minnesota.
4.4 Amendment. The Boards
of Directors of the Constituent Corporations may amend this Agreement at any
time prior to the filing of this Agreement (or certificate in lieu thereof) with
the Secretary of State of the State of Delaware, provided that an amendment made
subsequent to the adoption of this Agreement by the stockholders of either
Constituent Corporation shall not: (a) alter or change the amount or kind of
shares, securities, cash, property and/or rights to be received in exchange for
or on conversion of all or any of the shares of any class or series thereof of
such Constituent Corporation, (b) alter or change any term of the
Certificate of Incorporation of the Surviving Corporation to be effected by the
Merger, or (c) alter or change any of the terms and conditions of this
Agreement if such alteration or change would adversely affect the holders of any
class of shares or series of capital stock of such Constituent
Corporation.
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4.5 Registered Office. The registered
office of the Surviving Corporation in the State of Delaware is located at 0000
Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, County of New Castle. Vcorp
Services, LLC is the registered agent of the Surviving Corporation at such
address.
4.6 Agreement. Executed copies of this
Agreement will be on file at the principal place of business of the Surviving
Corporation at 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, XX 00000, and copies
thereof will be furnished to any stockholder of either Constituent Corporation,
upon request and without cost.
4.7 Governing Law. This Agreement and all
acts and transactions pursuant hereto and the rights and obligations of the
parties hereto shall be governed, construed and interpreted in accordance with
the laws of the State of Delaware, without giving effect to principles of
conflicts of law.
4.8 Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original
and all of which together shall constitute one instrument.
[Signature
Page Follows]
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The undersigned authorized
representatives of the Constituent Corporations have executed and acknowledged
this Agreement as of the date first set forth above.
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Minn Shares Minnesota:
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MINN SHARES INC.
a Minnesota corporation |
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By:
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/s/ Xxxxxxx Xxxxxxx
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Name:
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Xxxxxxx
Xxxxxxx
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Title:
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President,
Secretary and
Chairman
of the Board
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Minn
Shares Delaware:
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MINN SHARES INC.
a Delaware corporation |
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By:
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/s/ Xxxxxxx Xxxxxxx
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Name:
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Xxxxxxx
Xxxxxxx
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Title:
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President,
Secretary and
Chairman
of the Board
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