EXHIBIT 10.2
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this "Agreement") is made and entered
into as of the 29th day of January, 2001, by and among Pontotoc Holdings,
Inc., an Oklahoma corporation ("Holdings"); Pontotoc Merger Company, an
Oklahoma corporation ("Newco"); and Pontotoc Production, Inc., a Nevada
corporation and the parent corporation of Newco ("Pontotoc").
RECITALS
A. Newco believes it is desirable and in the best interests of Newco and
its shareholder that Newco merge with and into Holdings as provided herein.
B. Holdings believes it is desirable and in the best interests of
Holdings and its shareholders that Newco merge with and into Holdings as
provided herein.
In consideration of the premises and the mutual promises herein
contained, Holdings and Newco hereby agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time of the Merger (as hereinafter
defined), in accordance with the provisions of Oklahoma law and the terms of
this Agreement, Newco shall be merged with and into Holdings, with Holdings
surviving such merger as the surviving corporation (the "Merger").
1.2 Effective Time of the Merger. The Merger shall be effective upon
the filing of a Certificate of Merger, in accordance with the requirements of
Oklahoma law, in the office of the Secretary of State of Oklahoma (the
"Effective Time of the Merger").
1.3 Manner and Basis of Converting Securities. At the Effective Time of
the Merger:
(a) each share of Newco capital stock which is outstanding
immediately prior to the Effective Time of the Merger shall, by virtue of the
Merger and without any action on the part of the holder thereof, be cancelled;
(b) each share of Holdings common stock, par value $1.00 per share,
which is outstanding immediately prior to the Effective Time of the Merger
(other than shares of Holdings common stock held by Pontotoc or any of its
subsidiaries) shall, by virtue of the Merger and without any action on the
part of the holder thereof, be cancelled and converted into the right to
receive 200 shares of common stock of Pontotoc, par value $.0001 per share;
and
(c) each share of Holdings capital stock which is outstanding
immediately prior to the Effective Time of the Merger and held by Pontotoc or
any of its subsidiaries shall, following the Merger, continue to be
outstanding as a share of capital stock of Holdings.
From and after the Effective Time of the Merger, the holders of certificates
representing shares of capital stock of Holdings shall cease to have any
rights with respect to such certificates, except the right to receive the
appropriate shares of Pontotoc common stock upon surrender of such
certificates. No new shares of capital stock shall be issued by Holdings as a
result of the Merger.
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1.4 Certain Effects of the Merger. At the Effective Time of the Merger:
(a) the separate existence and the corporate organization of Newco, except
insofar as it may be continued by law, shall cease, and thereupon Newco and
Holdings shall be a single corporation, to wit, Holdings, the surviving
corporation (the "Surviving Corporation"); (b) the Surviving Corporation shall
thereupon and thereafter possess all the rights, privileges, immunities and
franchises, as well of a public as of a private nature, and shall be subject
to all the restrictions, disabilities and duties, of both Newco and Holdings
(the "Constituent Corporations"); (c) all the property, real, personal and
mixed, and all debts due on whatever account, including without limitation
subscriptions to shares, and all other choses in action, and all and every
other interest of or belonging to or due to either of the Constituent
Corporations, shall be taken and deemed to be transferred to and vested in the
Surviving Corporation without further act or deed; (d) the Surviving
Corporation shall thenceforth be responsible and liable for all liabilities
and obligations of each of the Constituent Corporations; (e) any claim or
action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted as if the Merger had not taken place, or the
Surviving Corporation may be substituted in the place of either Constituent
Corporation for purposes thereof; and (f) neither the rights of the creditors
nor any liens upon the property of either of the Constituent Corporations
shall be impaired by the Merger.
1.5 Certificate of Incorporation, Etc.
(a) The Certificate of Incorporation and the Bylaws of Holdings, as
in effect immediately prior to the Effective Time of the Merger, shall be the
Certificate of Incorporation and Bylaws of the Surviving Corporation, from and
after the Effective Time of the Merger, until amended in accordance with
Oklahoma law.
(b) The officers and directors of Holdings in office immediately
prior to the Effective Time of the Merger shall be the officers and directors
of the Surviving Corporation, from and after the Effective Time of the Merger,
until changed in accordance with Oklahoma law.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF HOLDINGS
Holdings hereby represents and warrants to Newco and Pontotoc as follows:
2.1 Organization, Good Standing, Power, Etc. Holdings is a corporation,
duly organized, validly existing and in good standing under the laws of the
State of Oklahoma and has all requisite power and authority to own, operate
and lease its properties and assets and to carry on its business as the same
now being conducted. Holdings is duly qualified to do business and is in good
standing as a foreign corporation in each other jurisdiction in which the
ownership, operation or leasing of its properties or assets or the nature of
its business requires such qualification.
2.2 Subsidiary. The only subsidiary of Holdings is Pontotoc Gathering,
L.L.C., an Oklahoma limited liability company ("Gathering"). Holdings is the
record and beneficial owner of all of the outstanding equity of the Gathering
and no equity of Gathering is or may become required to be issued by reason of
any warrants, rights, options, calls, commitments, convertible securities or
other agreements. Such equity is owned free and clear of any claim, lien,
encumbrance or agreement with respect thereto.
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2.3 Authorization of Agreement. Holdings has all requisite corporate
power and authority to enter into and perform all of its obligations under
this Agreement. The execution and delivery of this Agreement by Holdings and
the consummation by Holdings of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of Holdings.
This Agreement has been duly executed and delivered by Holdings and
constitutes the legal, valid and binding obligation of Holdings, enforceable
against Holdings in accordance with its terms.
2.4 No Conflicting Agreements. Neither the execution and delivery of
this Agreement by Holdings, nor the consummation of the transactions
contemplated hereby, will (a) violate or conflict with any provision of the
Certificate of Incorporation or Bylaws of Holdings, as currently in effect;
(b) violate or conflict with any provision of any law, rule, regulation,
order, permit, certificate, writ, judgment, injunction, decree, determination,
award or other decision of any governmental authority, other regulatory or
self-regulatory body or association or arbitrator binding upon Holdings or
Gathering or any of their respective properties; (c) result in a breach of or
constitute a default (or, with notice or lapse of time or both, result in a
breach of or constitute a default) under, or give rise to a right of
termination, cancellation, acceleration or repurchase of any obligation or a
right of first refusal with respect to any material property or asset or a
loss of a material benefit or the imposition of a material penalty under, any
of the terms, conditions or provisions of any mortgage, indenture, loan or
credit agreement or any other agreement or instrument to which Holdings or
Gathering is a party; or (d) result in, or require, the creation or imposition
of any mortgage, deed of trust, pledge, lien, security interest or other
charge or encumbrance of any nature upon or with respect to any of the
properties now or hereafter owned by Holdings or Gathering.
2.5 Consents and Approvals. No consent, approval, order, certificate or
authorization of, or registration, declaration or filing with, any
governmental authority is required by or with respect to Holdings or Gathering
in connection with the execution and delivery of this Agreement by Holdings or
the consummation by Holdings of the transactions contemplated hereby, other
than in compliance with any applicable provisions of corporate law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PONTOTOC AND NEWCO
Pontotoc and Newco hereby represent and warrant to Holdings as follows:
3.1 Organization, Good Standing, Power, Etc. Pontotoc is a corporation,
duly organized, validly existing and in good standing under the laws of the
State of Nevada and has all requisite power and authority to own, operate and
lease its properties and assets and to carry on its businesses as the same is
now being conducted. Newco is a corporation, duly organized, validly existing
and in good standing under the laws of the State of Oklahoma. Parent is duly
qualified to do business and is in good standing as a foreign corporation in
each other jurisdiction in which the ownership, operation or leasing of its
properties or assets or the nature of its business requires such
qualification.
3.2 Authorization of Agreement. Each of Pontotoc and Newco has all
requisite corporate power and authority to enter into and perform all of its
obligations under this Agreement. The execution and delivery of this
Agreement by Pontotoc and Newco and the consummation by Pontotoc and Newco of
the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of Pontotoc and Newco. This Agreement
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has been duly executed and delivered by Pontotoc and Newco and constitutes the
legal, valid and binding obligation of Pontotoc and Newco, enforceable against
Pontotoc and Newco in accordance with its terms.
3.3 No Conflicting Agreements. Neither the execution and delivery of
this Agreement by Pontotoc and Newco, nor the consummation of the transactions
contemplated hereby, will (a) violate or conflict with any provision of the
Certificate of Incorporation or Bylaws of Pontotoc or Newco, as currently in
effect; (b) violate or conflict with any provision of any law, rule,
regulation, order, permit, certificate, writ, judgment, injunction, decree,
determination, award or other decision of any governmental authority, other
regulatory or self-regulatory body or association or arbitrator binding upon
Pontotoc or any of its subsidiaries or any of their respective properties; or
(c) result in a breach of or constitute a default (or, with notice or lapse of
time or both, result in a breach of or constitute a default) under, or give
rise to a right of termination, cancellation, acceleration or repurchase of
any obligation or a right of first refusal with respect to any material
property or asset or a loss of a material benefit or the imposition of a
material penalty under, any of the terms, conditions or provisions of any
mortgage, indenture, loan or credit agreement or any other agreement or
instrument to which Pontotoc or any of its subsidiaries is a party.
3.4 Consents and Approvals. No consent, approval, order or
authorization of, or registration, declaration or filing with, any
governmental authority is required by or with respect to Pontotoc or Newco in
connection with the execution and delivery of this Agreement by Pontotoc and
Newco or the consummation by Pontotoc and Newco of the transactions
contemplated hereby, other than in compliance with any applicable provisions
of corporate law.
3.5 Business of Newco. Prior to the Effective Time of the Merger, Newco
will have engaged only in the transactions contemplated by this Agreement and
will have incurred no material obligations except those arising out of its
performance of this Agreement and related agreements.
ARTICLE IV
MISCELLANEOUS
4.1 Amendment. This Agreement may be amended only by an instrument in
writing signed on behalf of each of the parties hereto.
4.2 Waiver. Any term or provision of this Agreement may be waived in
writing at any time by Pontotoc, if it and/or Newco is entitled to the
benefits thereof, or by Holdings, if it is entitled to the benefits thereof.
No such waiver shall, unless explicitly stated, be a continuing waiver. No
failure to exercise or delay in exercising any right hereunder shall
constitute a waiver thereof.
4.3 No Survival. The representations, warranties, covenants and
agreements respectively made by Holdings, Pontotoc and Newco in this Agreement
shall expire with, and be terminated by, the Merger.
4.4 Expenses. If the Merger is not consummated, each of Pontotoc and
Holdings will pay its own costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby. If the Merger is
consummated, Pontotoc or the Surviving Corporation shall bear all of the costs
and expenses incurred in connection with this Agreement, including without
limitation fees and expenses of counsel, and the shareholders of Holdings
(other than Pontotoc) shall not bear any such costs or expenses whatsoever.
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4.5 Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed to have been given when
delivered personally, or on the next day after being sent by facsimile
transmission or a nationally recognized overnight delivery service, or on the
third day after being sent by registered or certified mail (return receipt
requested), postage prepaid, to a party to this Agreement at the address set
forth below:
If to Pontotoc or Newco:
Pontotoc Production, Inc.
000 Xxxx Xxxx Xxxxxx
Xxx, Xxxxxxxx 00000
If to Holdings:
Pontotoc Holdings, Inc.
0000 X. 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000-0000
4.6 Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all prior
agreements and undertakings, written and oral.
4.7 Binding Effect; Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties to this Agreement and their respective
successors and permitted assigns. Neither this Agreement nor any right,
remedy, obligation or liability hereunder or by reason hereof shall be
assignable by any party to this Agreement without the prior written consent of
the other parties.
4.8 Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Oklahoma applicable to contracts
made and to be performed within that State.
4.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be a single agreement.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed as of the date first written above.
Pontotoc Merger Company Pontotoc Holdings, Inc.
By:/s/ Xxxxx X. Xxxxxx, Xx. By:/s/ Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxx, Xx., President Xxxxxxx X. Xxxxx, President
Pontotoc Production, Inc.
By:/s/ Xxxxx X. Xxxxxx, Xx.
Xxxxx X. Xxxxxx, Xx., President
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