Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER ("AGREEMENT") dated as of May 31, 2011, is
made and entered into by and between Xxxxxx Exploration Corp., a Nevada
corporation ("PARENT") and Xxxxxx Exploration Corp., a Delaware corporation
("SUBSIDIARY").
WHEREAS:
A. Parent is a corporation organized and existing under the laws of Nevada;
B. Subsidiary is a corporation organized and existing under the laws of Delaware
and is a wholly owned subsidiary of Parent;
C. Parent and Subsidiary and their respective Boards of Directors deem it
advisable and to the advantage, for the welfare and in the best interests of the
corporations and their respective stockholders to merge Parent with and into
Subsidiary pursuant to the provisions of Nevada Revised Statutes ("NRS") and the
Delaware General Corporation Law ("DGCL") upon the terms and conditions set
forth in this Agreement;
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 Parent shall be
merged into Subsidiary (the "MERGER") upon the terms and conditions set forth
below.
ARTICLE 1
PRINCIPAL TERMS OF THE MERGER
1.1 MERGER
On the Effective Date (as defined in Section 4.1 below), Parent shall be merged
into Subsidiary and the separate existence of Parent shall cease. Subsidiary
shall be the surviving corporation (sometimes hereinafter referred to as the
"SURVIVING CORPORATION") in the Merger and shall operate under the name "Xxxxxx
Exploration Corp." by virtue of, and shall be governed by, the laws of Delaware.
The address of the registered office of the Surviving Corporation in Delaware
will be 000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxx, XX, 00000, and the registered
agent in charge thereof shall be National Registered Agents, Inc.
1.2 CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION
The amended and restated certificate of incorporation of the Surviving
Corporation shall be the certificate of incorporation of Subsidiary as in effect
on the date hereof without change unless and until amended in accordance with
applicable law.
1.3 BYLAWS OF THE SURVIVING CORPORATION
The bylaws of the Surviving Corporation shall be the bylaws of Subsidiary as in
effect on the date hereof without change unless and until amended or repealed in
accordance with applicable law.
1.4 DIRECTORS AND OFFICERS
At the Effective Date of the Merger, the directors and officers of Parent in
office at the Effective Date of the Merger shall become the directors and
officers, respectively, of the Surviving Corporation, each of such directors and
officers to hold office, subject to the applicable provisions of the certificate
of incorporation and bylaws of the Surviving Corporation and the DGCL, until his
or her successor is duly elected or appointed and qualified.
ARTICLE 2
CONVERSION, CERTIFICATES AND PLANS
2.1 CONVERSION OF SHARES
At the Effective Date of the Merger, each of the following transactions shall be
deemed to occur simultaneously:
(a) COMMON STOCK. Each share of Parent's common stock, $0.001 par value
per share ("PARENT STOCK"), issued and outstanding immediately before
the Effective Date of the Merger shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted
into and become one validly issued, fully paid and nonassessable share
of the Surviving Corporation's common stock, $0.001 par value per
share (the "SURVIVING CORPORATION STOCK").
(b) OPTIONS. Each option to acquire shares of Parent Stock outstanding
immediately before the Effective Date of the Merger shall, by virtue
of the Merger and without any action on the part of the holder
thereof, be converted into and become an equivalent option to acquire,
upon the same terms and conditions, the number of shares of Surviving
Corporation Stock that is equal to the number of shares of Parent
Stock that the optionee would have received had the optionee exercised
such option in full immediately before the Effective Date of the
Merger (whether or not such option was then exercisable) and the
exercise price per share under each such option shall be equal to the
exercise price per share thereunder immediately before the Effective
Date of the Merger, unless otherwise provided in the instrument
granting such option.
(c) OTHER RIGHTS. Any other right, by contract or otherwise, to acquire
shares of Parent Stock outstanding immediately before the Effective
Date of the Merger shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into and become
a right to acquire, upon the same terms and conditions, the number of
shares of Surviving Corporation Stock that is equal to the number of
shares of Parent Stock that the right holder would have received had
the right holder exercised such right in full immediately before the
Effective Date of the Merger (whether or not such right was then
exercisable) and the exercise price per share under each such right
shall be equal to the exercise price per share thereunder immediately
before the Effective Date of the Merger, unless otherwise provided in
the agreement granting such right.
(d) SUBSIDIARY STOCK. Each share of Subsidiary Stock issued and
outstanding immediately before the Effective Date of the Merger and
held by Parent shall be canceled without any consideration being
issued or paid therefor.
2.2 STOCK CERTIFICATES
After the Effective Date of the Merger, each certificate theretofore
representing issued and outstanding shares of Parent Stock will thereafter be
deemed to represent the same number of shares of the same class and series of
capital stock of Subsidiary. The holders of outstanding certificates theretofore
representing Parent Stock will not be required to surrender such certificate to
Parent or the Surviving Corporation.
2.3 EMPLOYEE BENEFIT AND COMPENSATION PLANS
At the Effective Date of the Merger, each employee benefit plan, incentive
compensation plan and other similar plans to which Parent is then a party shall
be assumed by, and continue to be the plan of, the Surviving Corporation. To the
extent any employee benefit plan, incentive compensation plan or other similar
plan of Parent provides for the issuance or purchase of, or otherwise relates
2
to, Parent Stock, after the Effective Date of the Merger such plan shall be
deemed to provide for the issuance or purchase of, or otherwise relate to,
Surviving Corporation Stock.
ARTICLE 3
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
3.1 EFFECTS OF THE MERGER
At the Effective Date of the Merger, the Merger shall have the effects specified
in the NRS, the DGCL and this Agreement. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Date of the Merger the
Surviving Corporation shall possess all the rights, privileges, powers and
franchises, of a public as well as a private nature, and shall be subject to all
the restrictions, disabilities and duties of each of the parties to this
Agreement; the rights, privileges, powers and franchises of Parent and
Subsidiary, and all property, real, personal and mixed, and all debts due to
each of them on whatever account, shall be 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 respective constituent entities, and the title to any real
estate, whether by deed or otherwise vested in Parent and Subsidiary 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 any property of the parties hereto
shall be preserved unimpaired, and all debts, liabilities and duties of the
respective constituent entities shall thenceforth 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.
3.2 ADDITIONAL ACTIONS
If, at any time after the Effective Date of the Merger, the Surviving
Corporation shall consider or be advised that any further assignments or
assurances in law or any other acts are necessary or desirable (a) to vest,
perfect or confirm, of record or otherwise, in the Surviving Corporation, title
to and possession of any property or right of Parent acquired or to be acquired
by reason of, or as a result of, the Merger, or (b) otherwise to carry out the
purposes of this Agreement, Parent and its proper officers and directors shall
be deemed to have granted to the Surviving Corporation an irrevocable power of
attorney to execute and deliver all such proper deeds, assignments and
assurances in law and to do all acts necessary or proper to vest, perfect or
confirm title to and possession of such property or rights in the Surviving
Corporation and otherwise to carry out the purposes of this Agreement. The
proper officers and directors of the Surviving Corporation are fully authorized
in the name of Parent or otherwise to take any and all such action.
ARTICLE 4
APPROVAL BY STOCKHOLDERS;
AMENDMENT; EFFECTIVE DATE
4.1 APPROVAL
This Agreement and the Merger contemplated hereby are subject to approval by the
requisite vote of stockholders in accordance with the NRS and the DGCL and
compliance with the requirements of law, including the securities laws of the
United States. As promptly as practicable after approval of this Agreement by
stockholders in accordance with applicable law, duly authorized officers of the
respective parties shall make and execute Articles of Merger and a Certificate
of Merger and shall cause such documents to be filed with the Secretary of State
of Nevada and the Secretary of State of Delaware, respectively, in accordance
with the laws of Nevada and Delaware and with applicable U.S. federal securities
laws. The effective date ("EFFECTIVE DATE") of the Merger shall be the date and
time on and at which the Merger becomes effective under the laws of Nevada or
the date and time on and at which the Merger becomes effective under the laws of
Delaware, whichever occurs later.
3
4.2 AMENDMENTS
The Board of Directors of Parent may amend this Agreement at any time before the
Effective Date, provided, however, that an amendment made subsequent to the
approval of the Merger by the stockholders of Parent shall not (a) alter or
change the amount or kind of shares to be received in exchange for or on
conversion of all or any of the shares of Parent Stock, (b) alter or change any
term of the certificate of incorporation of Subsidiary 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 Parent Stock.
ARTICLE 5
MISCELLANEOUS
5.1 TERMINATION
This Agreement may be terminated and the Merger abandoned at any time before the
filing of this Agreement with the Secretary of State of Nevada and the Secretary
of State of Delaware, whether before or after stockholder approval of this
Agreement, by the consent of the Boards of Directors of Parent and Subsidiary.
5.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be considered to be an original instrument.
5.3 DESCRIPTIVE HEADINGS
The descriptive headings are for convenience of reference only and shall not
control or affect the meaning or construction of any provision of this
Agreement.
5.4 GOVERNING LAW
This Agreement shall be construed in accordance with the laws of Delaware,
except to the extent the laws of Nevada shall apply to the Merger where mandated
by the NRS.
4
IN WITNESS WHEREOF, the undersigned officers of each of the parties to this
Agreement, pursuant to authority duly given by their respective boards of
directors, have caused this Agreement to be duly executed on the date set forth
above.
THE PARENT:
XXXXXX EXPLORATION CORP.
A NEVADA CORPORATION
Per: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Xxxxxxx Xxxxxx
Authorized Signatory
THE SUBSIDIARY:
XXXXXX EXPLORATION CORP.
A DELAWARE CORPORATION
Per: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Xxxxxxx Xxxxxx
Authorized Signatory
5
