AGREEMENT AND PLAN OF MERGER TO REDOMICILE
Exhibit 2.01
This AGREEMENT AND PLAN OF MERGER TO REDOMICILE ("AGREEMENT") dated as of December 30, 2016, is made and entered into by and between AMMO, Inc., a Delaware corporation ("PARENT") and Retrospettiva, Inc., a California corporation ("RTRO").
WHEREAS:
A. RTRO is a corporation organized and existing under the laws of California; and
B. PARENT is a corporation organized and existing under the laws of Delaware; and
C. RTRO and PARENT 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 redomiciled and reincorporate RTRO with and into PARENT pursuant to the provisions of California Corporation Law ("CCL") and the Delaware General Corporation Law ("DGCL") upon the terms and conditions set forth in this Agreement; and
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 RTRO shall be reincorporated into PARENT by way of merger (the "MERGER") upon the terms and conditions set forth below.
ARTICLE 1
PRINCIPAL TERMS OF THE MERGER/REDOMICILE
1.1 MERGER/REDOMICLE
On the Effective Date (as defined in Section 4.1 below), RTRO shall be redomiciled into PARENT and the separate existence of RTRO shall cease. PARENT shall be the surviving corporation (sometimes hereinafter referred to as the "SURVIVING CORPORATION") in the Merger and shall operate under the name "AMMO, Inc." 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 113 Xxxxxxxxx Professional Center, Newark, Xxx Xxxxxx, XX, 00000, and the registered agent in charge thereof shall be Delaware Intercorp, Inc.
1.2 CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION
The certificate of incorporation of the Surviving Corporation shall be the certificate of incorporation of PARENT 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Corporation shall be the bylaws of PARENT as in effect on the date hereof without change unless and until amended or repealed in accordance with applicable law.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 RTRO 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. RTRO is effectuating a 1 for 25 reverse-split of the common stock and each share of RTRO's common stock, zero par value per share ("RTRO 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 on a post reverse split basis (the "SURVIVING CORPORATION STOCK").
1
(b) PREFERRED STOCK. Each share of RTRO's preferred stock, zero par value per share ("RTRO PREFERRED 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 preferred stock, $0.001 par value per share (the "SURVIVING CORPORATION PREFERRED STOCK").
(c) OTHER RIGHTS. Any other right, by contract or otherwise, to acquire shares of RTRO 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 RTRO 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) OTC MARKET EXCHANGE. Our common stock is listed on the OTC Pink Sheets and will continue to be listed on the OTC Pink Sheets after the reincorporation. Following the Merger, each share of common stock of RTRO will be automatically converted into one share of common stock of PARENT Delaware. RTRO stock certificates will be deemed automatically to represent an equal number of shares of PARENT Delaware common stock. Following the reincorporation, previously outstanding RTRO California stock certificates may be delivered in effecting sales through a broker, or otherwise, of shares of PARENT Delaware stock. IT WILL NOT BE NECESSARY FOR SHAREHOLDERS TO EXCHANGE THEIR EXISTING RTRO STOCK CERTIFICATES FOR STOCK CERTIFICATES OF PARENT DELAWARE.
2.2 STOCK CERTIFICATES
After the Effective Date of the Merger, each certificate theretofore representing issued and outstanding shares of RTRO Stock will thereafter be deemed to represent the same number of shares of the same class and series of capital stock of PARENT. The holders of outstanding certificates theretofore representing RTRO Stock will not be required to surrender such certificate to RTRO 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 RTRO 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 RTRO provides for the issuance or purchase of, or otherwise relates to, RTRO 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 CCL, 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 RTRO and PARENT, 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 otherwise vested in RTRO and PARENT 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.
2
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 RTRO 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, RTRO 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 RTRO 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 consent of the Board of Directors and, if necessary, vote of stockholders in accordance with the CCL, specifically Title 1, Chapter 12, Sections 1200(e) and 1201(b), and the DGCL, specifically Title 8, Chapter 1, Section 252, 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 Certificate of Merger and a Certificate of Merger and shall cause such documents to be filed with the Secretary of State of California and the Secretary of State of Delaware, respectively, in accordance with the laws of California 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 California or the date and time on and at which the Merger becomes effective under the laws of Delaware, whichever occurs later.
4.2 AMENDMENTS
The Board of Directors of RTRO may amend this Agreement at any time before the Effective Date, provided, however, the stockholders of RTRO 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 RTRO Stock, (b) alter or change any term of the certificate of incorporation of PARENT 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 RTRO 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 California 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 RTRO and PARENT.
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 California shall apply to the Merger where mandated by the CCL.
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.
3
RTRO:
RETROSPETTIVA, INC.
A CALIFORNIA CORPORATION
Per: /s/ Xxxx X. Xxxxxxxxx
Authorized Signatory
THE PARENT:
A DELAWARE CORPORATION
Per: /s/ Xxxx X. Xxxxxxxxx
Authorized Signatory
4
