AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made as of February 24, 2004 by and between The Electric Xxxxxxx.xxx, Inc., a Nevada corporation (the "Nevada Company"), and The Electric Xxxxxxx.xxx, Inc., a Delaware corporation (the "Delaware Company"); (the Nevada Company and the Delaware Company collectively, the "Constituent Corporations").
WHEREAS, the authorized capital stock of the Nevada Company consists of one hundred million (100,000,000) shares of Common Stock, $0.001 par value per share and an unlimited number of shares of Preferred Stock $0.001 par value per share;
WHEREAS, the authorized capital stock of the Delaware Company consists of one hundred million (100,000,000) shares of Common Stock, $0.001 par value per share, and five million (5,000,000) shares of Preferred Stock, $0.001 par value per share; and
WHEREAS, the directors of the Constituent Corporations deem it advisable and to the advantage of the Constituent Corporations that the Nevada Company merge with and into the Delaware Company upon the terms and conditions provided herein.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization encompassed by this Merger Agreement and do hereby agree that the Nevada Company shall merge with and into the Delaware Company on the following terms, conditions and other provisions:
| 1. | TERMS AND CONDITIONS. |
| 1.1 | MERGER. the Nevada Company shall be merged with and into the Delaware Company (the "Merger"), and the Delaware Company shall be the surviving corporation (the "Surviving Corporation") effective at 12:01 a.m., on the day following the date the appropriate certificate reflecting the Merger is filed with the Secretary of State of the State of Delaware (the "Effective Date"). |
| 1.2 | SUCCESSION. On the Effective Date, the Delaware
Company shall continue its corporate existence under the laws of the State
of Delaware, and the separate existence and corporate organization of
the Nevada Company, except insofar as it may be continued by operation
of law, shall be terminated and cease. |
| 1.3 | TRANSFER OF ASSETS AND LIABILITIES. On the
Effective Date (i) the rights, privileges, powers and franchises, both
of a public as well as of a private nature, of each of the Constituent
Corporations shall be vested in and possessed by the Surviving Corporation,
subject to all of the disabilities, duties and restrictions of or upon
each of the Constituent Corporations; (ii) all and singular rights, privileges,
powers and franchises of each of the Constituent Corporations, and all
property, real, personal and mixed, of each of the Constituent Corporations,
and all debts due to each of the Constituent Corporations on whatever
account, and all things in action or belonging to each of the Constituent
Corporations shall be transferred to and vested in the Surviving Corporation;
and (iii) all property, rights, privileges, powers and |
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franchises, and all and every other interest, thereafter
shall be the property of the Surviving Corporation as they were of the
Constituent Corporations, and the title to any real estate vested by deed
or otherwise in either of the Constituent Corporations shall not revert
or be in any way impaired by reason of the Merger; provided, however,
that the liabilities of the Constituent Corporations and of their stockholders,
directors and officers shall not be affected and all rights of creditors
and all liens upon any property of either of the Constituent Corporations
shall be preserved unimpaired, and any claim existing or action or proceeding
pending by or against either of the Constituent Corporations may be prosecuted
to judgment as if the Merger had not been consummated, except as they
may be modified with the consent of such creditors, and all debts, liabilities
and duties of or upon each of the Constituent Corporations shall 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. |
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| 1.4 | COMMON STOCK OF THE NEVADA COMPANY AND THE DELAWARE
COMPANY. On the Effective Date, by virtue of the Merger and without
any further action on the part of the Constituent Corporations or their
respective stockholders, |
| 1.4.1 | each share of Common Stock of the Nevada Company
issued and outstanding immediately prior thereto shall be combined, changed
and converted into one (1) share of Common Stock of the Delaware Company,
in each case fully paid and nonassessable, and |
| 1.4.2 | each share of Common Stock of the Delaware Company
issued and outstanding immediately prior thereto shall be canceled and
returned to the status of authorized but unissued shares. |
| 1.5 | STOCK CERTIFICATES. On and after the Effective
Date, all of the outstanding certificates that, prior to that time, represented
shares of Common Stock of the Nevada Company shall be deemed for all purposes
to evidence ownership of and to represent the shares of the Delaware Company
into which the shares of the Nevada Company 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 agents.
The registered owner of any such outstanding stock certificate shall,
until such certificate shall have been surrendered for transfer or conversion
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 dividend and other distribution upon the
shares of the Delaware Company evidenced by such outstanding certificate
as above provided. |
| 1.6 | PURCHASE RIGHTS. On the Effective Date, the
Surviving Corporation will assume the outstanding obligations of the Nevada
Company, if any, to issue Common Stock or other capital stock pursuant
to contractual purchase rights granted by the Nevada Company, and the
outstanding and unexercised portions of all outstanding contractual rights
to purchase Common Stock or other capital stock of the Nevada Company
shall be changed and converted into contractual rights to purchase Common
Stock or other capital stock, |
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respectively, of the Delaware Company such that a
contractual right to purchase one (1) share of Common Stock or other capital
stock of the Nevada Company shall be converted into a contractual right
to purchase one (1) share of Common Stock or other capital stock, respectively,
of the Delaware Company. No other changes in the terms and conditions
of such contractual purchase rights will occur. |
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| 1.7 | EMPLOYEE BENEFIT PLANS. On the Effective Date,
the Surviving Corporation shall assume all obligations of the Nevada Company
under any and all employee benefit plans in effect as of such date with
respect to which employee rights or accrued benefits are outstanding as
of such date. On the Effective Date, the Surviving Corporation shall adopt
and continue in effect all such employee benefit plans upon the same terms
and conditions as were in effect immediately prior to the Merger. |
| 2 | CHARTER DOCUMENTS, DIRECTORS AND OFFICERS.
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| 2.1 | CERTIFICATE OF INCORPORATION AND BYLAWS. The
Certificate of Incorporation of the Delaware Company in effect on the
Effective Date shall continue to be the Certificate of Incorporation of
the Surviving Corporation without change or amendment until further amended
in accordance with the provisions thereof and applicable law. The Bylaws
of the Delaware Company in effect on the Effective Date shall continue
to be the Bylaws of the Surviving Corporation without change or amendment
until further amended in accordance with the provisions thereof and applicable
law. |
| 2.2 | DIRECTORS. The directors of the Nevada Company
immediately preceding the Effective Date shall become the directors of
the Surviving Corporation on and after the Effective Date to serve until
the expiration of their terms and until their successors are elected and
qualify. |
| 2.3 | OFFICERS. The officers of the Nevada Company
immediately preceding the Effective Date shall become the officers of
the Surviving Corporation on and after the Effective Date to serve at
the pleasure of its Board of Directors. |
| 3 | MISCELLANEOUS. |
| 3.1 | FURTHER ASSURANCES. From time to time, and
when required by the Surviving Corporation or by its successors and assigns,
the Surviving Corporation shall execute and deliver, or cause to be executed
and delivered, such deeds and other instruments, and the Surviving Corporation
shall take or cause to be taken such further and other action as shall
be appropriate or necessary in order to vest or perfect in or to conform
of record or otherwise, in the Surviving Corporation the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of the Delaware Company and
otherwise to carry out the purposes of this Merger Agreement, and the
officers and directors of the Surviving Corporation are authorized fully
in the name and on behalf of the Delaware Company or otherwise to take
any and all such action and to execute and deliver any and all such deeds
and other instruments. |
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| 3.2 | AMENDMENT. At any time before or after approval
by the stockholders of the Nevada Company, this Merger Agreement may be
amended in any manner (except that, after the approval of the Merger Agreement
by the stockholders of the Nevada Company, the principal terms may not
be amended without the further approval of the stockholders of the Nevada
Company) as may be determined in the judgment of the respective Board
of Directors of the Delaware Company and the Nevada Company to be necessary,
desirable, or expedient in order to clarify the intention of the parties
hereto or to effect or facilitate the purpose and intent of this Merger
Agreement. |
| 3.3 | CONDITIONS TO MERGER. The obligation of the
Constituent Corporations to effect the transactions contemplated hereby
is subject to satisfaction of the following conditions (any or all of
which may be waived by either of the Constituent Corporations in its sole
discretion to the extent permitted by law): |
| 3.3.1 | the Merger shall have been approved by the stockholders
of the Nevada Company in accordance with applicable provisions of the
Nevada General Corporation Law; and |
| 3.3.2 | the Nevada Company, as sole stockholder of the Delaware
Company, shall have approved the Merger in accordance with the Delaware
General Corporation Law; and |
| 3.3.3 | any and all consents, permits, authorizations, approvals,
and orders deemed in the sole discretion of the Nevada Company to be material
to consummation of the Merger shall have been obtained. |
| 3.4 | ABANDONMENT OR DEFERRAL. Notwithstanding the
approval of this Merger Agreement by the stockholders of the Nevada Company
or the Delaware Company, at any time before the Effective Date, (a) this
Merger Agreement may be terminated and the Merger may be abandoned by
the Board of Directors of either the Nevada Company or the Delaware Company
or both or (b) the consummation of the Merger may be deferred for a reasonable
period of time if, in the opinion of the Boards of Directors of the Nevada
Company and the Delaware Company, such action would be in the best interests
of such corporations. In the event of termination of this Merger Agreement,
this Merger Agreement shall become void and of no effect and there shall
be no liability on the part of either Constituent Corporation or their
respective Board of Directors or stockholders with respect thereto, except
that the Nevada Company shall pay all expenses incurred in connection
with the Merger or in respect of this Merger Agreement or relating thereto.
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| 3.5 | COUNTERPARTS. In order to facilitate the filing
and recording of this Merger Agreement, the same may be executed in any
number of counterparts, each of which shall be deemed to be an original.
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IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved by the Board of Directors of the Nevada Company and the Delaware Company, hereby is executed on behalf of each such corporation and attested by their respective officers thereunto duly.
THE ELECTRIC XXXXXXX.XXX, INC.
A NEVADA CORPORATION
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
THE ELECTRIC XXXXXXX.XXX, INC.
A DELAWARE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: President
