AGREEMENT AND PLAN OF MERGER OF STEWART CONTRACTING. INC. WITH AND INTO UNITED MINE SERVICES, INC.
Exhibit
2.1
AGREEMENT
AND PLAN OF MERGER OF
XXXXXXX
CONTRACTING. INC.
WITH
AND INTO UNITED MINE SERVICES, INC.
THIS AGREEMENT AND PLAN OF MERGER is made
and entered into as of June 30, 2007, by and between XXXXXXX CONTRACTING, INC.
("SCI"), a corporation organized and existing under the laws of the State of
Idaho (SCI being hereinafter sometimes referred to as the "Merging Corporation")
and UNITED MINE SERVICES, INC. ("UMS"), a corporation organized and existing
under the laws of the State of Idaho (UMS being hereinafter sometimes referred
to as the "Surviving Corporation"). said two corporations being hereinafter
sometimes referred to collectively as the “Constituent
Corporations";
WHEREAS, the Board of Directors and
Shareholders of each of the Constituent Corporations deem it advisable and in
the best interests of the Constituent Corporations that SCI be merged with and
into UMS, with UMS, with UMS being the Surviving Corporation, under and pursuant
to the laws of the State of Idaho and on the terms and conditions set forth
herein;
NOW THEREFORE, the parties hereto agree
as follows:
ARTICLE
I
MERGER
1.1 SCI
shall be merged with and into UMS in accordance with the laws of the State of
Idaho. The separate corporate existence of SCI shall thereby cease, and UMS
shall be the Surviving Corporation.
1.2 The
name which the Surviving Corporation is to have after the merger shall be
“UNITED MINE SERVICES, INC."
1.3 In
the Effective Time (as defined in Section 2.1 below), the separate existence of
the Merging Corporation shall cease. Except as herein otherwise specifically set
forth, from and after the Effective Time the Surviving Corporation shall possess
all of the rights, privileges, immunities and franchises, to the extent
consistent with its Articles of Incorporation, of the Constituent Corporations.
All the rights,
privileges, powers and franchises of the Merging
AGREEMENT
AND PLAN OF MERGER, Page 1
Corporation,
of a public as well as of a private nature, and all property, real, personal and
mixed of the Merging Corporation, and all debts due on whatever account to it,
including all choses in action and all and every other interest of or belonging
to it, shall be taken by and deemed to be transferred to and vested in the
Surviving Corporation without further act or deed; and all such property,
rights, privileges, immunities and franchises, of a public as well as of a
private nature, and all and every other interest of the Merging Corporation
shall be thereafter as effectually the property of the Surviving Corporation as
they were of the Merging Corporation.
1.4 From and after the Effective Time, the Surviving
Corporation shall be subject to all
the duties and liabilities of a corporation organized under the Idaho Business
Corporation Act and shall be liable and responsible for all the liabilities and
obligations of the Constituent Corporations. The rights of the creditors of the
Constituent Corporations, or of any person dealing with such corporations, or
any liens upon the property of such corporations, shall not be impaired by this
merger, and any claim existing or action or proceeding pending by or against
either of such corporations may be prosecuted to judgment as if this merger had
not taken place, or the Surviving Corporation may be proceeded against or
substituted in place of the Merging Corporation. Except as otherwise
specifically provided to the contrary herein, the identity, existence, purposes,
powers, franchises, rights immunities and liabilities of the Surviving
Corporation shall continue unaffected and unimpaired by the merger.
ARTICLE
II
TERMS AND CONDITIONS OF THE
MERGER
The terms
and conditions of the merger shall be as
follows:
2.1 The
merger shall become effective at 11:30 p.m., on June 30, 2007, pursuant
to the
Idaho Business Corporation Act. The time and date of such effectiveness is
referred to in this Agreement as the "Effective Time."
2.2 Prior
to the Effective Time, the Constituent Corporations shall take all such action
as shall be necessary or appropriate in order to effect the merger. If at any
time after the Effective Time, the Surviving Corporation shall determine that
any further conveyance, assignment or other documents or any further action is
necessary or desirable in order to vest in, or confirm to, the Surviving
Corporation full title to all of the property, assets,
rights, privileges and franchises of the Constituent Corporations, or either of
them, the officers and directors of the Constituent Corporations shall execute
and deliver all such instruments and take all such further actions as the
Surviving Corporation may determine to be necessary or desirable in order to
vest in and confirm to the Surviving
AGREEMENT
AND PLAN OF MERGER, Page 2
Corporation
title to and possession of all such property, assets, rights, privileges,
immunities and franchises, and otherwise to carry out the purposes of this
Agreement and Plan.
ARTICLE
III
CHARTER
AND BYLAWS;
DIRECTORS AND
OFFICERS
3.1 The
Articles of incorporation of UMS, as in effect immediately
prior to the Effective Time, shall, after the merger, continue to be the
Articles of Incorporation of the Surviving Corporation until duly amended in
accordance with law, and no change to such Articles of Incorporation shall be
effected by the merger.
3.2 The
Bylaws of UMS, as in effect immediately prior to the Effective Time, shall,
after the merger, continue to be the Bylaws of the Surviving Corporation until
duly amended in accordance with law, and no change to such Bylaws shall be
effected by the merger.
3.3 The
persons who are the Directors and officers of UMS immediately prior to the
Effective Time shall, after the merger, continue as the Directors and officers
of the Surviving Corporation without change, to serve, subject to the provisions
of the Bylaws of the Surviving Corporation, until their successors have been
duly elected and
qualified in accordance with the laws of the State of Idaho and the Articles of
Incorporation and Bylaws of the Surviving Corporation.
ARTICLE
IV
CONVERSION OF
SHARES
4.1 The
Surviving Corporation presently has issued an outstanding four million five
hundred sixteen thousand (4,516,000) shares of $0.01 par value class A common
stock ("UMS Class A Common"), which shares of Class A Common are the only
outstanding shares of the Surviving Corporation.
4.2 The
Merging Corporation presently has issued an outstanding one thousand (1,000)
shares of $1 par value Class A common Stock ("SCI Class A Common").
4.3 At
the Effective Time, each issued and outstanding share of SCI Class A Common
shall be converted into five thousand (5,000) shares of UMS Class A Common.
After the Effective Time, each holder of an outstanding
AGREEMENT
AND PLAN OF MERGER, Page 3
certificate
or certificates theretofore representing shares of SCI Class A Common may, but
shall not be required to, surrender the same to the Surviving Corporation for
cancellation or transfer, and each such holder or transferee will be entitled to
receive certificates representing, respectively, five thousand (5,000) shares of
UMS Class A Common for every one (1) share of SCI Class A Common previously
represented by the
stock certificates surrendered. Until so surrendered or presented for transfer,
each outstanding certificates which prior to the Effective Time represented SCI
Class A Common shall be deemed and treated for all corporate purposes to
represent the ownership of five thousand (5,000) shares of UMS Class A Common.
No other cash, shares, securities or obligations will be distributed or issued
upon conversion of SCI Class A Common.
ARTICLE
V
MISCELLANEOUS
5.1 Notwithstanding
anything herein to the contrary, the Board of Directors of either of the
Constituent Corporations may, in their sole discretion and at any time prior to
the filing with the Secretary of State of Idaho of the necessary Articles of
Merger giving effect to the merger, by resolution duly adopted. abandon the
merger if it shall deem such action necessary, desirable and in the best
interests of the respective Constituent Corporation. In the event of such
determination and the abandonment of this Agreement and Plan pursuant to the
provisions of this Paragraph 5.1, the same shall became
null and void and shall have no further effect. Such termination shall not give
rise to any liability on the part of either of the Constituent Corporations or
its Directors, officers or shareholders in respect of this Agreement and
Plan.
5.2 The
Shareholders of SCI and UMS dissenting to the Agreement and Plan shall be
entitled, pursuant to the Idaho Business Corporation Act, to be paid the fair
value of their shares upon compliance with such statutory sections.
5.3 This
Agreement and Plan embodies the entire agreement between the parties hereto and
there are no agreements. understandings, restrictions or warranties between the
parties hereto other than those set forth herein or herein provided
for.
IN WITNESS WHEREOF, this Agreement and
Plan has been signed by the duly authorized officers of the Constituent
Corporations pursuant to the authorization by the Board of Directors and
Shareholders of the Constituent Corporations, all as of the day and year first
above written.
AGREEMENT
AND PLAN OF MERGER, Page 4
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By:
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XXXX
XXXXXXX
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XXXX
XXXXXXX, President
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XXXXXXX
CONTRACTING, INC.
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By:
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XXXX X.
XXXXXXX
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XXXX
X. XXXXXXX, President
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AGREEMENT
AND PLAN OF MERGER, Page 5
