EXHIBIT 3.1
AGREEMENT AND PLAN OF MERGER
OF
GULFWEST ENERGY INC., A TEXAS CORPORATION
AND
CRIMSON EXPLORATION INC., A DELAWARE CORPORATION
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") dated as of June
28, 2005, made and entered into by and between GulfWest Energy Inc., a Texas
corporation ("GulfWest"), and Crimson Exploration Inc., a Delaware corporation
("Crimson"), which corporations are sometimes referred to herein as the
"Constituent Corporations."
W I T N E S S E T H:
WHEREAS, GulfWest is a corporation organized and existing under the
laws of the State of Texas, having been incorporated on July 22, 1992; and
WHEREAS, Crimson is a wholly-owned subsidiary corporation of GulfWest,
having been incorporated on June 13, 2005; and
WHEREAS, the respective Boards of Directors of GulfWest and Crimson
have determined that it is desirable to merge GulfWest into Crimson (the
"Merger"); and
WHEREAS, the parties intend by this Agreement to effect a
reorganization under Section 368 of the Internal Revenue Code of 1986, as
amended;
NOW, THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that
GulfWest shall be merged into Crimson upon the terms and conditions set forth
below.
ARTICLE I
MERGER
On the effective date of the Merger (the "Effective Date"), as provided
herein, GulfWest shall be merged into Crimson, the separate existence of
GulfWest shall cease and Crimson (hereinafter sometimes referred to as the
"Surviving Corporation") shall continue to exist under the name of Crimson by
virtue of, and shall be governed by, the laws of the State of Delaware. The
address of the registered office of the Surviving Corporation in the State of
Delaware will be Corporation Trust Center, 0000 Xxxxxx Xxxxxx, in the County of
New Castle, in the City of Xxxxxxxxxx, Xxxxxxxx 00000.
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ARTICLE II
CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION
The name of the Surviving Corporation shall be "Crimson Exploration
Inc." The Certificate of Incorporation of the Surviving Corporation, attached
hereto as Exhibit A, as in effect on the date hereof shall be the Certificate of
Incorporation of Crimson (the "Delaware Charter") without change, unless and
until amended in accordance with Article VIII of this Agreement or otherwise
amended in accordance with applicable law.
ARTICLE III
BYLAWS OF THE SURVIVING CORPORATION
The Bylaws of the Surviving Corporation as in effect on the date hereof
shall be the Bylaws of Crimson (the "Delaware Bylaws") without change, unless
and until amended in accordance with applicable law.
ARTICLE IV
EFFECT OF MERGER ON STOCK OF CONSTITUENT CORPORATIONS
4.1 On the Effective Date, each outstanding share of Class A Common Stock
of GulfWest, par value $.001 per share, (the "Common Stock"), other than the
shares, if any, for which appraisal rights have been perfected under Articles
5.12 and 5.13 of the Texas Business Corporation Act ("TBCA"), shall be converted
into one share of Common Stock, $.001 par value per share, of Crimson (the
"Delaware Common Stock"), and each outstanding share of Delaware Common Stock
held by GulfWest shall be retired and canceled. In addition, on the Effective
Date, (i) each outstanding share of GulfWest's Series D Preferred Stock, par
value $.01 per share ("Series D"), shall be converted into one share of the
corresponding series of Crimson's Series D Preferred Stock, $.01 par value per
share (the "Delaware Series D"); (ii) each outstanding share of GulfWest's
Cumulative Convertible Preferred Stock, Series E, par value $.01 per share
("Series E"), shall be converted into one share of the corresponding series of
Crimson's Cumulative Convertible Preferred Stock, Series E, $.01 par value per
share (the "Delaware Series E"); (iii) each outstanding share of GulfWest's
Series G Convertible Preferred Stock, par value $.01 per share ("Series G"),
other than the shares, if any, for which appraisal rights shall be perfected
under Articles 5.12 and 5.13 of the TBCA, shall be converted into one share of
the corresponding series of Crimson's Series G Convertible Preferred Stock, $.01
par value per share (the "Delaware Series G"); and (iv) each outstanding share
of GulfWest's Series H Convertible Preferred Stock, par value $.01 per share
("Series H" and together with Series D, Series E and Series G, the "Preferred
Stock"), other than the shares, if any, for which appraisal rights have been
perfected under Articles 5.12 and 5.13 of the TBCA, shall be converted into one
share of the corresponding series of Crimson's Series H Convertible Preferred
Stock, $.01 par value per share (the "Delaware Series H" and together with the
Delaware Series D, the Delaware Series E and the Delaware Series G, the
"Delaware Preferred Stock"). The shares of Delaware Preferred Stock shall be
identical to the shares of Preferred Stock in substantially all other aspects.
The powers, designations, preferences, and rights of the Delaware Preferred
Stock are described in more detail in the Certificates of Designation, attached
hereto as Exhibit B.
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4.2 All options and rights to acquire the Common Stock under the GulfWest
2004 Stock Option and Compensation Plan and the GulfWest 2005 Stock Incentive
Plan, and under all other outstanding options, warrants or rights outstanding on
the Effective Date, will automatically be converted into equivalent options,
warrants and rights to purchase the same number of shares of Delaware Common
Stock.
4.3 After the Effective Date, (i) certificates representing shares of the
Common Stock will represent shares of Delaware Common Stock, and (ii)
certificates representing shares of the Preferred Stock will represent shares of
Delaware Preferred Stock, and upon surrender of the same to the transfer agent
for Crimson, the holder thereof shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of shares of
Delaware Common Stock or Delaware Preferred Stock into which such shares of
Common Stock or Preferred Stock shall have been converted pursuant to Article
4.1.
ARTICLE V
CORPORATE EXISTENCE, POWERS AND LIABILITIES OF THE SURVIVING CORPORATION
5.1 On the Effective Date, the separate existence of GulfWest shall cease.
GulfWest shall be merged with and into Crimson, the Surviving Corporation, in
accordance with the provisions of this Agreement. Thereafter, Crimson shall
possess all the rights, privileges, powers and franchises of a public as well as
of a private nature, and shall be subject to all the restrictions, disabilities
and duties of each of the parties to this Agreement; all singular rights,
privileges, powers and franchises of GulfWest and Crimson, and all property,
real, personal and mixed and all debts due to each of them on whatever account,
shall be vested in Crimson; and all property, rights, privileges, powers and
franchises, and all and every other interest shall be thereafter the property of
Crimson, the Surviving Corporation, as they were of the respective constituent
entities, and the title to any real estate, whether by deed or otherwise, vested
in GulfWest and Crimson, or either of them, shall not revert or be in any way
impaired by reason of the Merger, but all rights of creditors and all liens upon
the property of the parties hereto, shall be preserved unimpaired, and all
debts, liabilities and duties of GulfWest, shall thenceforth attach to Crimson,
and may be enforced against it to the same extent as if said debts, liabilities
and duties had been incurred or contracted by it.
5.2 GulfWest agrees that it will execute and deliver, or cause to be
executed and delivered, all such deeds and other instruments and will take or
cause to be taken such further or other action as the Surviving Corporation may
deem necessary in order to vest in and confirm to the Surviving Corporation
title to and possession of all the property, rights, privileges, immunities,
powers, purposes and franchises, and all and every other interest of GulfWest
and otherwise to carry out the intent and purposes of this Agreement.
ARTICLE VI
OFFICERS AND DIRECTORS OF SURVIVING CORPORATION
6.1 Upon the Effective Date, the officers and directors of GulfWest shall
become the officers and directors of Crimson, and such persons shall hold office
in accordance with the Delaware Bylaws until their respective successors shall
have been appointed or elected.
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6.2 If upon the Effective Date, a vacancy shall exist in the Board of
Directors of the Surviving Corporation, such vacancy shall be filled in the
manner provided by the Delaware Bylaws.
ARTICLE VII
DISSENTING SHARES
7.1 Holders of shares of Common Stock, Series G and Series H who have
complied with all requirements for perfecting their rights of appraisal set
forth in Articles 5.12 and 5.13 of the TBCA shall be entitled to their rights
under Texas law with payments to be made by the Surviving Corporation.
ARTICLE VIII
APPROVAL BY SHAREHOLDERS, EFFECTIVE DATE, CONDUCT OF BUSINESS PRIOR TO
EFFECTIVE DATE
8.1 Promptly after the approval of this Agreement by the requisite number
of shareholders of GulfWest, the respective Boards of Directors of GulfWest and
Crimson will cause their duly authorized officers to make and execute Articles
of Merger and a Certificate of Merger or other applicable certificates or
documentation effecting this Agreement and shall cause the same to be filed with
the Secretaries of State of Texas and Delaware, respectively, in accordance with
the TBCA and the Delaware General Corporation Law (the "DGCL"). The Effective
Date shall be the date on which the Merger becomes effective under the TBCA or
the date on which the Merger becomes effective under the DGCL, whichever occurs
later.
8.2 The Boards of Directors of GulfWest and Crimson may amend this
Agreement and the Delaware Charter or Bylaws at any time prior to the Effective
Date, provided that an amendment made subsequent to the approval of the Merger
by the shareholders of GulfWest may not (i) change the amount or kind of shares
to be received in exchange for or on conversion of the shares of the Common
Stock or Preferred Stock; or (ii) alter or change any of the terms and
conditions of this Agreement or the Delaware Charter or Bylaws if such change
would adversely affect the holders of the Common Stock or Preferred Stock.
ARTICLE IX
TERMINATION OF MERGER
This Agreement may be terminated and the Merger abandoned at any time
prior to the Effective Date, whether before or after shareholder approval of
this Agreement, by the consent of the Board of Directors of GulfWest and
Crimson.
ARTICLE X
MISCELLANEOUS
10.1 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
10.2 EXPENSES. If the Merger becomes effective, the Surviving Corporation
shall assume and pay all expenses in connection therewith not theretofore paid
by the respective parties. If for any reason the Merger shall not become
effective, GulfWest shall pay all expenses incurred in connection with all the
proceedings taken in respect of this Merger Agreement or relating thereto.
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10.3 AGREEMENT. An executed copy of this Merger Agreement will be on file
at the principal place of business of the Surviving Corporation at 000 X. Xxx
Xxxxxxx Xxxxxxx X., Xxxxx 000, Xxxxxxx, Xxxxx 00000, and, upon request and
without cost, a copy thereof will be furnished to any shareholder.
10.4 COUNTERPARTS. This Merger Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective Presidents and Secretaries, all as of the day and
year first above written.
GULFWEST ENERGY INC.,
a Texas corporation
By: /s/ Xxxxx X. Xxxx
------------------------------------------
Xxxxx X. Xxxx, President
and Chief Executive Officer
ATTEST:
Xxx X. Xxxxxx
------------------------------
Xxx X. Xxxxxx, Secretary
CRIMSON EXPLORATION INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxx
---------------------------------------------
Xxxxx X. Xxxx, President
and Chief Executive Officer
ATTEST:
/s/ Xxx X. Xxxxxx
---------------------------------------------
Xxx X. Xxxxxx, Secretary
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