EXHIBIT 2.1
FORM OF AGREEMENT AND PLAN OF MERGER
OF XXXXXX XXXXXX MARINE, INC., A DELAWARE CORPORATION,
AND XXXXXX XXXXXX MARINE, INC., A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER, effective as of ________________
(the "Agreement"), is between Xxxxxx Xxxxxx Marine, Inc., a Delaware corporation
("DWM Delaware") and Xxxxxx Xxxxxx Marine, Inc., a California corporation ("DWM
California"). DWM Delaware and DWM California are sometimes referred to herein
as the "Constituent Corporations".
RECITALS
A. DWM Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of fifty million
(50,000,000) shares of "Common Stock," $.001 par value and two million
(2,000,000) shares of "Preferred Stock," $.001 par value. As of _______________,
2002, 100 shares of Common Stock were issued and outstanding, all of which are
held by DWM California.
B. DWM California is a corporation duly organized and existing under
the laws of the State of California and has an authorized capital of 50,000,000
shares of "Common Stock," no par value. As of December 31, 2001, 4,600,000
shares of Common Stock were issued and outstanding.
C. The Board of Directors of DWM California has determined that, for
the purpose of effecting the reincorporation of DWM California in the State of
Delaware, it is advisable and in the best interests of DWM California that DWM
California merge with and into DWM Delaware upon the terms and conditions herein
provided.
D. The respective Boards of Directors of DWM Delaware and DWM
California have approved this Agreement and have directed that this Agreement be
submitted to a vote of their respective stockholders and executed by the
undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, DWM Delaware and DWM California hereby agree, subject to the
terms and conditions hereinafter set forth, as follows:
I.
MERGER
1.1 MERGER. In accordance with the provisions of this Agreement, the
Delaware General Corporation Law and the California General Corporation Law, DWM
California shall be merged with and into DWM Delaware (the "Merger"), the
separate existence of DWM California shall cease and DWM Delaware shall be, and
is herein sometimes referred to as, the "Surviving Corporation," and the name of
the Surviving Corporation shall be Xxxxxx Xxxxxx Marine, Inc.
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1.2 FILING AND EFFECTIVENESS. The Merger shall become effective when
the following actions shall have been completed:
(a) This Agreement and the Merger shall have been adopted and
approved by the stockholders of each Constituent Corporation in accordance with
the requirements of the Delaware General Corporation Law and the California
General Corporation Law;
(b) All of the conditions precedent to the consummation of the
Merger specified in this Agreement shall have been satisfied or duly waived by
the party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the Delaware General
Corporation Law shall have been filed with the Secretary of State of the State
of Delaware; and
(d) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the California General
Corporation Law shall have been filed with the Secretary of State of the State
of California.
The date and time when the Merger shall become effective, as aforesaid,
is herein called the "Effective Date of the Merger."
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the
separate existence of DWM California shall cease and DWM Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets, rights,
powers and property as constituted immediately prior to the Effective Date of
the Merger, (ii) shall be subject to all actions previously taken by its and DWM
California's Board of Directors, (iii) shall succeed, without other transfer, to
all of the assets, rights, powers and property of DWM California in the manner
as more fully set forth in Section 259 of the Delaware General Corporation Law,
(iv) shall continue to be subject to all of its debts, liabilities and
obligations as constituted immediately prior to the Effective Date of the
Merger, and (v) shall succeed, without other transfer, to all of the debts,
liabilities and obligations of DWM California in the same manner as if DWM
Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the California
General Corporation Law.
II.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
DWM Delaware as in effect immediately prior to the Effective Date of the Merger
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 DWM Delaware as in effect immediately prior
to the Effective Date of the Merger shall continue in full force and effect as
the Bylaws of the
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Surviving Corporation until duly amended in accordance with the provisions
thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of DWM Delaware
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their successors shall have been
duly elected and qualified or until as otherwise provided by law, the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
III.
MANNER OF CONVERSION OF STOCK
3.1 DWM CALIFORNIA COMMON STOCK. Upon the Effective Date of the Merger,
each share of DWM California Common Stock, no par value, 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
or entity, be converted into and exchanged for one fully paid and nonassessable
share of Common Stock, $.001 par value, of the Surviving Corporation.
3.2 DWM CALIFORNIA OPTIONS. Upon the Effective Date of the Merger, the
Surviving Corporation shall assume and continue, on the terms provided therein,
the Xxxxxx Xxxxxx Marine, Inc. Equity Incentive Plan and any other employee
benefit plans of DWM California.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the conversion or exercise of options equal to the
number of shares of DWM California Common Stock so reserved, if any, immediately
prior to the Effective Date of the Merger.
3.3 DWM DELAWARE COMMON STOCK. Upon the Effective Date of the Merger,
each share of Common Stock, $.001 par value, of DWM Delaware issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by DWM Delaware, the holder of such shares or any other person or
entity, be cancelled and returned to the status of authorized but unissued
shares.
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger,
each holder of an outstanding certificate representing shares of DWM California
Common Stock may, at such stockholder's option, surrender the same for
cancellation to Corporate Stock Transfer, as exchange agent (the "Exchange
Agent"), 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
herein provided. Until so surrendered, each outstanding certificate theretofore
representing shares of DWM California Common Stock shall be deemed for all
purposes to represent the number of shares of the Surviving Corporation's Common
Stock into which such shares of DWM California Common Stock were converted in
the Merger.
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The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent 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 or the Exchange Agent, 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 DWM California so
converted and given in exchange therefor, unless otherwise determined by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws.
If any certificate for shares of DWM Delaware 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 under any and all applicable
federal, state and local securities laws to the satisfaction of counsel for DWM
Delaware, and that the person requesting such transfer pay to the Exchange Agent
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 DWM Delaware that
such tax has been paid or is not payable.
IV.
GENERAL
4.1 COVENANTS OF DWM DELAWARE. DWM Delaware covenants and agrees that
it will, on or before the Effective Date of the Merger:
(a) Qualify to do business as a foreign corporation in the
State of California and in connection therewith irrevocably appoint an agent for
service of process as required under the provisions of Section 2105 of the
California General Corporation Law.
(b) File any and all documents with the California Franchise
Tax Board necessary for the assumption by DWM Delaware of all of the franchise
tax liabilities of DWM California.
(c) Take such other actions as may be required by the
California General Corporation Law.
4.2 FURTHER ASSURANCES. From time to time, as and when required by DWM
Delaware or by its successors or assigns, there shall be executed and delivered
on behalf of DWM California 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 DWM Delaware the title to
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and possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of DWM California and otherwise to
carry out the purposes of this Agreement, and the officers and directors of DWM
Delaware are fully authorized in the name and on behalf of DWM California 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 Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either DWM California or of DWM
Delaware, or of both, notwithstanding the approval of this Agreement by the
shareholders of DWM California or by the sole stockholder of DWM Delaware, or by
both.
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: (1)
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, (2) alter
or change any term of the Certificate of Incorporation of the Surviving
Corporation to be effected by the Merger, or (3) 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 or series thereof of such Constituent
Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving
Corporation in the State of Delaware is located at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000, and The Corporation Trust Company 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 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxx 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 shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
California General Corporation Law.
4.8 COUNTERPARTS. In order to facilitate the filing and recording of
this Agreement, the same 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.
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IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Boards of Directors of DWM Delaware and DWM California, is
hereby executed effective as of the date first written above on behalf of each
of such two corporations and attested by their respective officers thereunto
duly authorized.
XXXXXX XXXXXX MARINE, INC.,
a Delaware corporation
ATTEST:
By:
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Xxxxxx Xxxxx, Secretary Xxxxxx X. Xxxxxxx, Chairman of
the Board and CEO
XXXXXX XXXXXX MARINE, INC.,
a California corporation
ATTEST:
By:
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Xxxxxx Xxxxx, Secretary Xxxxxx X. Xxxxxxx, Chairman of
the Board and CEO
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