AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
OF
▇▇▇▇▇▇▇▇▇.▇▇▇ GROUP, INC.
(A DELAWARE CORPORATION)
WITH AND INTO
▇▇▇▇▇▇▇▇▇.▇▇▇ GROUP, INC.
(A NEVADA CORPORATION)
This AGREEMENT AND PLAN OF MERGER (this “Agreement”) dated this day 8th of May 2020, by and between ▇▇▇▇▇▇▇▇▇.▇▇▇ GROUP, INC., a Delaware corporation (“▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware”), and ▇▇▇▇▇▇▇▇▇.▇▇▇ GROUP, INC., a Nevada corporation, a wholly-owned subsidiary of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware (“▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada”), is made with respect to the following facts.
RECITALS
WHEREAS, ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware is a corporation duly organized and existing under the laws of the State of Delaware;
WHEREAS, ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada is a corporation duly organized and existing under the laws of the State of Nevada;
WHEREAS, the respective Boards of Directors for ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware and ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada have determined that, for purposes of effecting the reincorporation of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware in the State of Nevada, it is advisable and in the best interest of said two corporations and their stockholders that ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware merge with and into ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada so that ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada is the surviving corporation on the terms provided herein (the “Merger”); and
WHEREAS, the respective Board of Directors ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware and ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada, and the stockholders of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware, have adopted and approved this Agreement.
NOW THEREFORE, based upon the foregoing, and in consideration of the mutual promises and covenants contained herein and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties to this Agreement agree as follows.
ARTICLE I — THE MERGER
1.1 The Merger; Surviving Corporation. Subject to the terms and conditions set forth in this Agreement, at the Effective Time (as defined in Section 1.5 below), ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware shall be merged with and into ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada, subject to and upon the terms and conditions provided in this Agreement, the applicable provisions of the Nevada Revised Statutes (the “NRS”) and the applicable provisions of the General Corporation Law of the State of Delaware (the “DGCL”), and the separate existence of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware shall cease. ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada shall be the surviving entity (the “Surviving Corporation”) and shall continue to be governed by the NRS.
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1.2 Constituent Corporations. The name, address, jurisdiction of organization and governing law of each of the constituent corporations is as follows:
(a) ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware: ▇▇▇▇▇▇▇▇▇.▇▇▇ Group, Inc., a corporation organized under and governed by the laws of the State of Delaware with an address of __________; and
(b) ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada: ▇▇▇▇▇▇▇▇▇.▇▇▇ Group, Inc., a corporation organized under and governed by the laws of the State of Nevada with an address of __________.
1.3 Surviving Corporation. ▇▇▇▇▇▇▇▇▇.▇▇▇ Group, Inc., a corporation organized under and governed by the laws of the State of Nevada, shall be the surviving corporation.
1.4 Address of Principal Office of the Surviving Corporation. The address of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada, as the Surviving Corporation, shall be _________.
1.5 Effective Time. The Merger shall become effective (the “Effective Time”), on the date upon which the last to occur of the following shall have been completed:
(a) This Agreement and the Merger shall have been adopted and submitted for approval to the stockholders of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware by the Board of Directors of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware and approved by a majority of the voting power of the outstanding stock of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware entitled to vote thereon, in accordance with the requirements of the DGCL;
(b) This Agreement and the Merger shall have been adopted by the Board of Directors of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada in accordance with the requirements of the NRS;
(c) The effective date of the Merger as stated in the executed Articles of Merger (the “Articles of Merger”) filed with the Secretary of State for the State of Nevada; and
(d) Executed Articles of Merger or an executed counterpart to this Agreement meeting the requirements of the NRS shall have been filed with the Secretary of State of the State of Nevada.
1.6 Effect of the Merger. The effect of the Merger shall be as provided in this Agreement, the Articles of Merger, and the applicable provisions of the NRS and the DGCL. Without limiting the foregoing, from and after the Effective Time, all the property, rights, privileges, powers and franchises of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware shall vest in ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada, as the Surviving Corporation, and all debts, liabilities and duties of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware shall become the debts, liabilities and duties of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada, as the Surviving Corporation.
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1.7 Articles of Incorporation; Bylaws.
(a) From and after the Effective Time, the Articles of Incorporation of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada shall be the Articles of Incorporation of the Surviving Corporation.
(b) From and after the Effective Time, the Bylaws of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada as in effect immediately prior to the Effective Time shall be the Bylaws of the Surviving Corporation.
1.8 Officers and Directors. The officers of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware immediately prior to the Effective Time shall continue as officers of the Surviving Corporation and remain officers until their successors are duly appointed or their prior resignation, removal or death. The directors of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware immediately prior to the Effective Time shall continue as directors of the Surviving Corporation and shall remain directors until their successors are duly elected and qualified or their prior resignation, removal or death.
ARTICLE II — CONVERSION OF SHARES
2.1 Conversion of Common Stock of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware. At the Effective Time by virtue of the Merger, and without any action on part of the holders of any outstanding shares of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware:
(a) each share of common stock, par value of $0.0001 per share, of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware issued and outstanding immediately prior to the Effective Time shall be converted (without the surrender of stock certificates or any other action) into one (1) fully paid and non- assessable share of common stock, par value $0.0001 per share, of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada; and
(b) the one share of common stock of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada owned by ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware shall be canceled.
2.2 Conversion of Preferred Stock of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware. At the Effective Time by virtue of the Merger, and without any action on part of the holders of any outstanding shares of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware:
(a) each share of Series B Redeemable Convertible Preferred Stock, par value $0.0001 per share (the “Series B Preferred Stock”), of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware issued and outstanding immediately prior to the Effective Time shall be converted (without the surrender of stock certificates or any other action) into one (1) fully paid and non-assessable share of Series B Redeemable Convertible Preferred Stock, par value $0.0001 per share, of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada;
(b) each share of Series D Convertible Preferred Stock, par value $0.0001 per share (the “Series D Preferred Stock”), of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware issued and outstanding immediately prior to the Effective Time shall be converted (without the surrender of stock certificates or any other action) into one (1) fully paid and non-assessable share of Series D Convertible Preferred Stock, par value $0.0001 per share, of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada;
(c) each share of Series E Convertible Preferred Stock, par value $0.0001 per share (the “Series E Preferred Stock”), of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware issued and outstanding immediately prior to the Effective Time shall be converted (without the surrender of stock certificates or any other action) into one (1) fully paid and non-assessable share of Series D Convertible Preferred Stock, par value $0.0001 per share, of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada; and
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(d) each share of Series F Convertible Preferred Stock, par value $0.0001 per share (the “Series F Preferred Stock”), of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware issued and outstanding immediately prior to the Effective Time shall be converted (without the surrender of stock certificates or any other action) into one (1) fully paid and non-assessable share of Series F Convertible Preferred Stock, par value $0.0001 per share, of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada.
2.3 Options, Warrants, Stock Purchase Rights, Convertible Securities.
(a) From and after the Effective Time, the Surviving Corporation shall assume the obligations of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware under, and continue, the option plans and all other employee benefit plans of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware. Each outstanding and unexercised option, regardless of whether or not issued under any option plan or any other employee benefit plans of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware, other right to purchase, or security convertible into or exercisable for, ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware common stock, including the Series B Preferred Stock, the Series D Preferred Stock, Series E Preferred Stock, and the Series F Preferred Stock, (each a “Right”), regardless of whether or not issued under any option plan or any other employee benefit plans of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware, shall become, an option, right to purchase or a security convertible into the common stock of the Surviving Corporation, on the basis of one share of common stock of the Surviving Corporation for each one share of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware common stock issuable pursuant to any such Right, on the same terms and conditions and at an exercise price equal to the exercise price applicable to any such ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware Right from and after the Effective Time. This paragraph 2.2(a) shall not apply to currently issued and outstanding common stock of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware. Such common stock is subject to paragraph 2.1 hereof.
(b) A number of shares of common stock of the Surviving Corporation shall be reserved for issuance upon the exercise of options and convertible securities equal to the number of shares of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware common stock so reserved immediately prior to the Effective Time.
2.4 Certificates. At and after the Effective Time, all of the outstanding certificates that immediately prior thereto represented shares of common stock, options, warrants or other securities of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware shall be deemed for all purposes to evidence ownership of and to represent the shares of the respective common stock, options, warrants or other securities of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada, as the case may be, into which the shares of common stock, options, warrants or other securities of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware represented by such certificates have been converted as herein provided and shall be so registered on the books and records of the Surviving Corporation or its transfer agent. The registered owner of any such outstanding certificate shall, until such certificate shall have been surrendered for transfer or otherwise accounted for to the Surviving Corporation or its transfer agent, have and be entitled to exercise any voting and other rights with respect to, and to receive any dividends and other distributions upon, the shares of common stock, options, warrants or other securities of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada, as the case may be, evidenced by such outstanding certificate, as above provided.
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ARTICLE III —
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
3.1 Transfer, Conveyance and Assumption. At the Effective Time, ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada shall continue in existence as the Surviving Corporation, and without further action on the part of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware or ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada, succeed to and possess all the rights, privileges and powers of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada, and all the assets and property of whatever kind and character of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware shall vest in ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada without further act or deed. Thereafter, ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada, as the Surviving Corporation, shall be liable for all of the liabilities and obligations of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware in accordance with Section NRS 92A.250 of the NRS.
3.2 Further Assurances. If at any time ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada shall consider or be advised that any further assignment, conveyance or assurance is necessary or advisable to vest, perfect or confirm of record in it the title to any property or right of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware, or otherwise to carry out the provisions hereof, officers of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware as of the Effective Time shall execute and deliver any and all proper deeds, assignments and assurances, and do all things necessary and proper to vest, perfect or convey title to such property or right in ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada and otherwise to carry out the provisions hereof.
ARTICLE IV —
REPRESENTATIONS AND WARRANTIES
OF ▇▇▇▇▇▇▇▇▇.▇▇▇ DELAWARE
▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware represents and warrants to ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada as follows:
4.1 Validity of Actions. ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware (a) is a corporation duly formed, validly existing and in good standing under the laws of the State of Delaware, and (b) has full power and authority to enter into this Agreement and to carry out all acts contemplated thereby. This Agreement has been duly executed and delivered in the name and on behalf of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware. ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware has received all necessary authorization to enter into this Agreement, and this Agreement is a legal, valid and binding obligation of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware, enforceable against ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware in accordance with its terms. The execution and delivery of this Agreement and consummation of the transactions contemplated thereby will not violate any provision of the Certificate of Incorporation or Bylaws of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware, nor violate, conflict with or result in any breach of any of the terms, provisions or conditions of, or constitute a default or cause acceleration of, any indebtedness under any agreement or instrument to which ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware is a party or by which it or its assets may be bound, or cause a breach of any applicable Federal or state law or governmental regulation, or any applicable order, judgment, writ, award, injunction or decree of any court or governmental instrumentality.
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ARTICLE V —
REPRESENTATIONS AND WARRANTIES
OF ▇▇▇▇▇▇▇▇▇.▇▇▇ NEVADA
▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada represents and warrants to ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware as follows:
5.1 Validity of Actions. ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada (a) is duly organized, validly existing and in good standing under the laws of the State of Nevada, and (b) has full power and authority to enter into this Agreement and to carry out all acts contemplated thereby. This Agreement has been duly executed and delivered on behalf of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada, and ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada has received all necessary authorizations. This Agreement is a legal, valid and binding obligation of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada, enforceable against ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada in accordance with its terms. The execution and delivery of this Agreement and consummation of the transactions contemplated thereby will not violate any provision of the Articles of Incorporation or Bylaws of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada nor violate, conflict with or result in any breach of any of the terms, provisions or conditions of, or constitute a default or cause acceleration of, any indebtedness under any agreement or instrument to which ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada is a party or by which it or its assets may be bound, or cause a breach of any applicable federal or state law or regulation, or any applicable order, judgment, writ, award, injunction or decree of any court or governmental instrumentality.
ARTICLE VI — FURTHER ACTIONS
6.1 Additional Documents. At the request of any party, each party will execute and deliver any additional documents and perform in good faith such acts as reasonably may be required in order to consummate the transactions contemplated by this Agreement.
ARTICLE VII — CONDITIONS TO THE MERGER
The obligation of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware and of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada to consummate the Merger shall be subject to the satisfaction or waiver of the following conditions:
7.1 Bring Down. The representations and warranties set forth in this Agreement shall be true and correct in all material respects at, and as of, the Effective Time as if then made as of the Effective Time.
7.2 No Statute, Rule or Regulation Affecting. At the Effective Time, there shall be no statute, or regulation enacted or issued by the United States or any State, or by a court, which prohibits or challenges the consummation of the Merger.
7.3 Satisfaction of Conditions. All other conditions to the Merger set forth herein shall have been satisfied.
ARTICLE VIII — TERMINATION; AMENDMENT; WAIVER
8.1 Termination. This Agreement and the transactions contemplated hereby may be terminated at any time prior to the filing of the Articles of Merger with the Secretary of State of the State of Nevada, by mutual consent of the Board of Directors of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada and the Board of Directors of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware.
8.2 Amendment. The parties hereto may, by written agreement, amend this Agreement at any time prior to the filing of the Articles of Merger with the Secretary of State of the State of Nevada, such amendment to be approved by the Board of Directors of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada agreeing to such amendment with ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware.
8.3 Waiver. At any time prior to the Effective Time, any party to this Agreement may extend the time for the performance of any of the obligations or other acts of any other party hereto, or waive compliance with any of the agreements of any other party or with any condition to the obligations hereunder, in each case only to the extent that such obligations, agreements and conditions are intended for its benefit.
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ARTICLE IX — MISCELLANEOUS
9.1 Expenses. If the Merger becomes effective, all of the expenses incurred in connection with the Merger shall be paid by ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada.
9.2 Notice. Except as otherwise specifically provided, any notices to be given hereunder shall be in writing and shall be deemed given upon personal delivery or upon mailing thereof, if mailed by certified mail, return receipt requested, to the following addresses (or to such other address or addresses shall be specified in any notice given) or by e-mail delivery (in which case a copy shall immediately be sent by certified mail, return receipt requested):
In the case of ▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada:
▇▇▇▇▇▇▇▇▇.▇▇▇ Nevada
___________________
___________________
In the case of ▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware:
▇▇▇▇▇▇▇▇▇.▇▇▇ Delaware
___________________
___________________
9.3 Non-Assignability. This Agreement shall not be assignable by either party hereto.
9.4 Entire Agreement. This Agreement contains the entire understanding and agreement of the parties with respect to its subject matter, and any and all conflicting or inconsistent discussions, agreements, promises, representations and statements, if any, between the parties or their representatives that are not incorporated in this Agreement shall be null and void and are merged into this Agreement.
9.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without giving effect to conflicts of law principles.
9.6 Headings. The various section headings are inserted for purposes of reference only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.
9.7 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
[Signature page follows]
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IN WITNESS WHEREOF the parties hereto have set their hand and seals the day and year first above written.
| ▇▇▇▇▇▇▇▇▇.▇▇▇ GROUP, INC., a Delaware corporation | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Chief Executive Officer | ||
| ▇▇▇▇▇▇▇▇▇.▇▇▇ GROUP, INC., a Nevada corporation | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
| Chief Executive Officer | ||
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