EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (hereinafter called the "Merger
Agreement") is made as of September 9, 2003, by and between assure energy, inc.,
a Delaware corporation ("Assure Delaware"), and ASSURE ENERGY, INC., a Nevada
corporation ("Assure Nevada"). Assure Delaware and Assure Nevada are sometimes
referred to as the "Constituent Corporations."
The authorized capital stock of Assure Delaware consists of one hundred
million (100,000,000) shares of Common Stock, par value $0.001 per share, four
million nine hundred seventy-seven thousand two hundred fifty (4,977,250) shares
of blank check Preferred Stock, par value $.001 per share, seventeen thousand
five hundred (17,500) shares of Series A Preferred Stock, par value $.001 per
share, and five thousand two hundred fifty (5,250) shares of Series B Preferred
Stock, par value $.001 per share. The authorized capital stock of Assure Nevada
consists of one hundred million (100,000,000) shares of Common Stock, par value
$0.001 per share, four million nine hundred seventy seven thousand two hundred
fifty (4,977,250) shares of blank check Preferred Stock, par value $.001 per
share, seventeen thousand five hundred (17,500) shares of Series A Preferred
Stock, par value $.001 per share, and five thousand two hundred fifty (5,250)
Shares of Series B Preferred Stock, par value $.001 per share.
The directors of the Constituent Corporations deem it advisable and to
the advantage of the Constituent Corporations that Assure Delaware merge into
Assure Nevada upon the terms and conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that Assure Delaware
shall merge into Assure Nevada on the following terms, conditions and other
provisions:
1. TERMS AND CONDITIONS.
1.1 MERGER. Assure Delaware shall be merged with and into Assure Nevada
(the "Merger"), and Assure Nevada shall be the surviving corporation (the
"Surviving Corporation") effective upon the date when this Merger Agreement is
filed with the Nevada Secretary of State (the "Effective Date").
1.2 SUCCESSION. On the Effective Date, Assure Nevada shall continue its
corporate existence under the laws of the State of Nevada, and the separate
existence and corporate organization of Assure Delaware, except insofar as it
may be continued by operation of law, shall be terminated and cease.
1.3 TRANSFER OF ASSETS AND LIABILITIES. On the Effective Date, the
rights, privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in and
possessed by the Surviving Corporation, subject to all of the disabilities,
duties and restrictions of or upon each of the Constituent Corporations;
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and all and singular rights, privileges, powers and franchises of each of the
Constituent Corporations, and all property, real, personal and mixed, of each of
the Constituent Corporations, and all debts due to each of the Constituent
Corporations on whatever account, and all things in action or belonging to each
of the Constituent Corporations shall be transferred to and vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest, shall be thereafter the property
of the Surviving Corporation as they were of the Constituent Corporations, and
the title to any real estate vested by deed or otherwise in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the Merger; provided, however, that the liabilities of the Constituent
Corporations and of their shareholders, directors and officers shall not be
affected and all rights of creditors and all liens upon any property of either
of the Constituent Corporations shall be preserved unimpaired, and any claim
existing or action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted to judgment as if the Merger had not taken place
except as they may be modified with the consent of such creditors and all debts,
liabilities and duties of or upon each of the Constituent Corporations shall
attach to the Surviving Corporation, and may be enforced against it to the same
extent as if such debts, liabilities and duties had been incurred or contracted
by it.
1.4 COMMON AND PREFERRED STOCK OF ASSURE DELAWARE AND ASSURE NEVADA. On
the Effective Date, by virtue of the Merger and without any further action on
the part of the Constituent Corporations or their shareholders, (i) each share
of Common Stock and each share of Preferred Stock, Series A Preferred Stock and
Series B Preferred Stock of Assure Delaware issued and outstanding immediately
prior thereto shall be converted into shares of fully paid and nonassessable
shares of the Common Stock, Preferred Stock, Series A Preferred Stock and Series
B Preferred Stock respectively, of Assured Nevada at a ratio of 1 to 1 and (ii)
each share of Common Stock, Preferred Stock, Series A Preferred Stock and Series
B Preferred Stock of Assure Nevada issued and outstanding immediately prior
thereto shall be cancelled and returned to the status of authorized but unissued
shares.
1.5 STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of the
Common Stock, Preferred Stock, Series A Preferred Stock and Series B Preferred
Stock of Assure Delaware shall be deemed for all purposes to evidence ownership
of and to represent the shares of Assure Nevada into which such shares of Assure
Delaware represented by such certificates have been converted as herein provided
and shall be so registered on the books and records of the Surviving Corporation
or its transfer agents. The registered owner of any such outstanding stock
certificate shall, until such certificate shall have been surrendered for
transfer or conversion or otherwise accounted for to the Surviving Corporation
or its transfer agent, have and be entitled to exercise any voting and other
rights with respect to and to receive any dividend and other distributions upon
the shares of Assure Nevada evidenced by such outstanding certificate as above
provided.
1.6 OPTIONS AND WARRANTS. On the Effective Date, the Surviving
Corporation will assume and continue Assure Delaware's stock awards plans, if
any, and the outstanding and unexercised portions of all options and warrants to
purchase Common Stock of Assure Delaware, including without limitation all
options outstanding under such stock plan and any other outstanding options and
warrants, shall be converted into options and warrants of Assure Nevada, such
that an option or warrant for shares of Assure Delaware shall be converted into
an option or warrant, as the case may be, for shares of Assure Nevada at a ratio
of 1 to 1. No other
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changes in the terms and conditions of such options will occur. Effective on the
Effective Date, Assure Nevada hereby assumes the outstanding and unexercised
portions of such options and warrants and the obligations of Assure Delaware
with respect thereto.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate of
Incorporation and Bylaws of Assure Nevada in effect on the Effective Date shall
continue to be the Certificate of Incorporation and Bylaws of the Surviving
Corporation.
2.2 DIRECTORS. The directors of Assure Delaware immediately preceding
the Effective Date shall become the directors of the Surviving Corporation on
and after the Effective Date to serve until the expiration of their terms and
until their successors are elected and qualified.
2.3 OFFICERS. The officers of Assure Delaware immediately preceding the
Effective Date shall become the officers of the Surviving Corporation on and
after the Effective Date to serve at the pleasure of its Board of Directors.
3. MISCELLANEOUS.
3.1 FURTHER ASSURANCES. From time to time, and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed
and delivered on behalf of Assure Delaware such deeds and other instruments, and
there shall be taken or caused to be taken by it such further and other action,
as shall be appropriate or necessary in order to vest or perfect in or to
conform of record or otherwise, in the Surviving Corporation the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Assure Delaware and otherwise to
carry out the purposes of this Merger Agreement, and the officers and directors
of the Surviving Corporation are fully authorized in the name and on behalf of
Assure Delaware or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
3.2 AMENDMENT. At any time before or after approval by the shareholders
of Assure Delaware, this Merger Agreement may be amended in any manner (except
that, after the approval of the Merger Agreement by the shareholders of Assure
Delaware, the principal terms may not be amended without the further approval of
the shareholders of Assure Delaware) as may be determined in the judgment of the
respective Board of Directors of Assure Nevada and Assure Delaware to be
necessary, desirable, or expedient in order to clarify the intention of the
parties hereto or to effect or facilitate the purpose and intent of this Merger
Agreement.
3.3 CONDITIONS TO MERGER. The obligations of the Constituent
Corporations to effect the transactions contemplated hereby is subject to
satisfaction of the following conditions (any or all of which may be waived by
either of the Constituent Corporations in its sole discretion to the extent
permitted by law):
(a) the Merger shall have been approved by the shareholders of
Assure Delaware in accordance with applicable provisions of the General
Corporation Law of the State of Delaware; and
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(b) Assure Delaware, as sole stockholder of Assure Nevada,
shall have approved the Merger in accordance with the General Corporation Law of
the State of Nevada; and
(c) any and all consents, permits, authorizations, approvals,
and orders deemed in the sole discretion of Assure Delaware to be material to
consummation of the Merger shall have been obtained.
3.4 ABANDONMENT OR DEFERRAL. At any time before the Effective
Date, this Merger Agreement may be terminated and the Merger may be abandoned by
the Board of Directors of either Assure Delaware or Assure Nevada or both,
notwithstanding the approval of this Merger Agreement by the shareholders of
Assure Delaware or Assure Nevada, or the consummation of the Merger may be
deferred for a reasonable period of time if, in the opinion of the Boards of
Directors of Assure Delaware and Assure Nevada, such action would be in the best
interest of such corporations. In the event of termination of this Merger
Agreement, this Merger Agreement shall become void and of no effect and there
shall be no liability on the part of either Constituent Corporation or its Board
of Directors or shareholders with respect thereto, except that Assure Delaware
shall pay all expenses incurred in connection with the Merger or in respect of
this Merger Agreement or relating thereto.
3.5 COUNTERPARTS. In order to facilitate the filing and recording
of this Merger Agreement, the same may be executed in any number of
counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, this Merger Agreement, having first been duly
approved by the Board of Directors of Assure Delaware and Assure Nevada, is
hereby executed on behalf of each said corporation and attested by their
respective officers thereunto duly authorized.
ASSURE ENERGY, INC. ASSURE ENERGY, INC.
A Delaware corporation A Nevada corporation
/s/ Xxxxxx Lalach /s/ Xxxxxx Lalach
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By: Xxxxxx Lalach By: Xxxxxx Lalach
Title: President Title: President
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