AGREEMENT OF MERGER AND PLAN OF MERGER AND REORGANIZATION
Exhibit
2.1
AGREEMENT
OF MERGER AND
PLAN
OF MERGER AND REORGANIZATION
THIS
AGREEMENT OF MERGER AND PLAN OF MERGER AND REORGANIZATION entered into as of
the
13th day of February, 2007, by and between XXXXXXXXX MOBILE FUELING, INC.,
a
Florida corporation (“STR”), and SMF ENERGY CORPORATION, a Delaware corporation
(“SMF”).
WHEREAS,
the Board of Directors of STR and SMF have resolved that STR be merged, pursuant
to the Florida Business Corporation Act (“FBCA”) and Delaware General
Corporation Law (“DGCL”), into a single corporation existing under the laws of
the State of Delaware, to wit, SMF, which shall be the surviving corporation
(such corporation in its capacity as such surviving corporation being sometimes
referred to herein as the “Surviving Corporation”);
NOW,
THEREFORE, in consideration of the covenants and agreements herein made, and
other good and valuable consideration, the adequacy and receipt of which is
hereby acknowledged by the parties hereto, the parties agree as
follows:
1. Merger.
STR
shall, at the Effective Date (defined below), merge (“Merger”) with and into
SMF, which shall be the Surviving Corporation, and the parties hereto adopt
and
agree to the following agreements, terms, and conditions relating to the Merger
and the mode of carrying the same into effect
2. Filings;
Effects of Merger.
2.1 Approval
by Shareholders of STR.
This
Agreement has been approved by the shareholders of STR in the manner provided
by
the applicable laws of the State of Florida.
2.2 Filing
of Articles of Merger; Effective Date.
If this
Agreement is not thereafter, and has not theretofore been, terminated or
abandoned as permitted by the provisions hereof, then duly authorized officers
of the respective parties shall make and execute Articles of Merger and a
Certificate of Merger and shall cause such documents to be filed with the State
of Florida and the State of Delaware, respectively, in accordance with the
laws
of such States. The Merger shall become effective at 12:01 a.m., Eastern Time,
on February 14, 2007 (the “Effective Date”).
2.3 Certain
Effects of Merger.
On the
Effective Date, the separate existence of STR shall cease, and STR shall be
merged into SMF which, as the Surviving Corporation, shall possess all the
rights, privileges, powers, and franchises, of a public as well as of a private
nature, and be subject to all the restrictions, disabilities, duties and
liabilities of STR; and all and singular, the rights, privileges, powers, and
franchises of STR, and all property, real, personal, and mixed, and all debts
due to STR on whatever account, as well as stock subscriptions, liens and all
other things in action or belonging to STR, shall be vested in the Surviving
Corporation; and all property, rights, privileges, powers, and franchises,
and
all and every other interest shall be thereafter as effectually the property
of
the Surviving Corporation as they were of STR, and the title to any real estate
vested by deed or otherwise, under the laws of Florida or any other
jurisdiction, shall not revert or be in any way impaired; but all rights of
creditors and all liens upon any property of STR shall be preserved, unimpaired,
and all debts, liabilities, and duties of STR shall thenceforth attach to the
Surviving Corporation and may be enforced against it to the same extent as
if
said debts, liabilities, and duties had been incurred or contracted by it.
At
any time, or from time to time, after the Effective Date, the last acting
officers of STR or the corresponding officers of the Surviving Corporation,
may,
in the name of STR execute and deliver all such proper deeds, assignments,
and
other instruments and take or cause to be taken all such further or other action
as the Surviving Corporation may deem necessary or desirable in order to vest,
perfect, or confirm in the Surviving Corporation title to and possession of
all
STR’s property, rights, privileges, powers, franchises, immunities, and
interests and otherwise to carry out the purposes of this
Agreement.
3. Name
of Surviving Corporation; Certificate of Incorporation; Bylaws; Directors;
Officers.
3.1 Name
of Surviving Corporation.
The
name of the Surviving Corporation from and after the Effective Date shall be
SMF
Energy Corporation.
3.2 Certificate
of Incorporation.
The
Certificate of Incorporation of SMF in effect on the date hereof shall from
and
after the Effective Date be, and continue to be, the Certificate of
Incorporation of the Surviving Corporation until changed or amended as provided
by law.
3.3 Bylaws.
The
Bylaws of SMF, as in effect immediately before the Effective Date, shall from
and after the Effective Date be, and continue to be, the Bylaws of the Surviving
Corporation until amended as provided therein.
3.4 Directors
and Officers.
At the
Effective Date of the Merger, the members of the board of directors, the board
committees, and the officers of STR in office at the Effective Date of the
Merger shall become the members of the board of directors, board committees
and
the officers, respectively, of the Surviving Corporation, each of such
directors, committee members 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.
4. Status
and Conversion of Securities.
The
manner and basis of converting the shares of the capital stock of STR and the
nature and amount of securities of SMF which the holders of shares of STR common
stock are to receive in exchange for such shares are as follows:
4.1 STR
Common Stock.
Each
one share of STR common stock which shall be issued and outstanding immediately
before the Effective Date shall, by virtue of the Merger and without any action
on the part of the holder thereof, be converted at the Effective Date into
one
fully paid share of SMF common stock, and outstanding certificates representing
shares of STR common stock shall thereafter represent shares of SMF common
stock. Such certificates may, but need not be, exchanged by the holders thereof
after the Merger becomes effective for new certificates for the appropriate
number of shares bearing the name of the Surviving Corporation.
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4.2 Options.
Each
option to acquire shares of STR’s common stock outstanding immediately prior to
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 an
equivalent option to acquire, upon the same terms and conditions, the number
of
shares of the Surviving Corporation’s common stock, which is equal to the number
of shares of STR’s common stock that the optionee would have received had the
optionee exercised such option in full immediately prior to the Effective Date
of the Merger (whether or not such option was then exercisable) and the exercise
price per share under each of said options shall be equal to the exercise price
per share thereunder immediately prior to the Effective Date of the Merger,
unless otherwise provided in the instrument granting such option.
4.3 Other
Rights.
Any
other right, including warrants, by contract or otherwise, to acquire shares
of
STR’s common stock outstanding immediately prior to 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 the Surviving Corporation’s common
stock which is equal to the number of shares of STR’s common stock that the
right holder would have received had the right holder exercised such right
in
full immediately prior to the Effective Date of the Merger (whether or not
such
right was then exercisable) and the exercise price per share under each of
said
rights shall be equal to the exercise price per share thereunder immediately
prior to the Effective Date of the Merger, unless otherwise provided in the
agreement granting such right.
5. Abandonment
of Merger.
At any
time before the Effective Date of the Merger and before filing the Certificate
of Merger or Articles of Merger, this Agreement of Merger and Plan of Merger
and
Reorganization may be terminated and the Merger abandoned by the shareholders
of
STR.
IN
WITNESS WHEREOF,
this
Agreement has been executed by the parties hereto on the date first above
written.
| XXXXXXXXX MOBILE FUELING, INC., | ||
| a Florida corporation | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
|
Xxxxxxx X. Xxxxxxxxx, President and Chief |
||
| Executive Officer | ||
| SMF ENERGY CORPORATION, | ||
| a Delaware corporation | ||
| |
|
|
| By: | /s/ Xxxxxxx X. Xxxxxxxxx | |
|
Xxxxxxx X. Xxxxxxxxx, President and Chief |
||
| Executive Officer | ||
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