AGREEMENT AND PLAN OF MERGER
Exhibit
99.1
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (this “Merger
Agreement”)
is
entered into as of the 5th day of October, 2007 by and between General Moly,
Inc., a Delaware corporation (the “Surviving
Corporation”),
and
Idaho General Mines, Inc., an Idaho corporation (“Merging
Corporation”).
Surviving Corporation and Merging Corporation are sometimes collectively
referred to hereinafter as the “Constituent
Corporations.”
RECITALS
WHEREAS,
Surviving Corporation is a corporation organized and existing under the laws
of
Delaware and is a wholly-owned subsidiary of Merging Corporation;
WHEREAS,
Merging Corporation is a corporation organized and existing under the laws
of
Idaho; and
WHEREAS,
Surviving Corporation and Merging Corporation and their respective Boards of
Directors deem it advisable and in the best interests of the corporations and
their respective stockholders to merge Merging Corporation with and into
Surviving Corporation pursuant to the Idaho
Business Corporation Act and
the
Delaware General Corporate Law upon the terms and conditions set forth
herein;
NOW
THEREFORE, in consideration of the premises, the mutual covenants, herein
contained, and other valuable consideration the receipt and sufficiency of
which
is hereby acknowledged, the parties hereto agree that Merging Corporation shall
be merged with and into Surviving Corporation (the “Merger”)
pursuant to the terms and conditions herein set forth.
AGREEMENT
1. General.
1.1 The
Merger.
At 5:00
p.m. Pacific time on the Effective Date (as herein defined) of the Merger,
Merging Corporation shall be merged with and into Surviving Corporation and
the
separate existence of Merging Corporation shall cease and Surviving Corporation
shall survive such Merger. The name of Surviving Corporation shall be General
Moly, Inc.
1.2 Certificate
of Incorporation and Bylaws.
The
certificate of incorporation of Surviving Corporation as in effect immediately
prior to the Effective Date shall be the certificate of incorporation of
Surviving Corporation after consummation of the Merger. The
Bylaws of Surviving Corporation as in effect immediately prior to the Effective
Date shall be the Bylaws of Surviving Corporation after consummation of the
Merger.
1.3 Directors
and Officers.
The
directors and officers of Surviving Corporation as in office immediately prior
to the Effective Date shall, from and after the Effective Date, be the directors
and officers of Surviving Corporation, until
the earlier of their resignation or removal or until their respective successors
are duly elected or appointed and qualified.
1.4 Property
and Liabilities of Constituent Corporations.
On the
Effective Date, the separate existence of Merging Corporation shall cease and
Merging Corporation shall be merged into Surviving Corporation. Surviving
Corporation, from and after the Effective Date, shall possess all the rights,
privileges, powers and franchises of whatsoever nature and description, of
a
public as well as of a private nature, and be subject to all the restrictions,
disabilities and duties of each of the Constituent Corporations; all rights,
privileges, powers and franchises of each of the Constituent Corporations,
and
all property, real, personal and mixed, of and debts due to either of the
Constituent Corporations on whatever account as well for stock subscriptions
as
all other things in action or belonging to each of the Constituent Corporations
shall be vested in Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all other interests shall be thereafter as
effectually the property of Surviving Corporation as they were of the several
and respective 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. All rights of creditors
and
all liens upon the property of the Constituent Corporations shall be preserved
unimpaired, and all debts, liabilities and duties of the Constituent
Corporations thenceforth shall attach to 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. Any claim existing or action or
proceeding, whether civil, criminal or administrative, pending by or against
either Constituent Corporation may be prosecuted to judgment or decree as if
the
Merger had not taken place, or Surviving Corporation may be substituted in
such
action or proceeding.
1.5 Further
Assurances.
Merging
Corporation agrees that, at any time, or from time to time, as and when
requested by Surviving Corporation, or by its successors and assigns, it will
execute and deliver, or cause to be executed and delivered in its name by its
last acting officers, or by the corresponding officers of Surviving Corporation,
all such conveyances, assignments, transfers, deeds or other instruments, and
will take or cause to be taken such further or other action as Surviving
Corporation, its successors or assigns may deem necessary or desirable in order
to evidence the transfer, vesting or devolution of any property, right,
privilege or franchise or to vest or perfect in or confirm to Surviving
Corporation, its successors and assigns, title to and possession of all the
property, rights, privileges, powers, franchises and interests referred to
in
this Section 1 herein and otherwise to carry out the intent and purposes
hereof.
1.6 Effective
Date.
The
Merger shall become effective on October 8, 2007 or if later, the later of
(a) the day on which an executed copy of a Certificate of Ownership and
Merger is filed with the Secretary of State of the State of Delaware in the
manner required by the Delaware General Corporation Law and (b) the day on
which an executed copy of Articles of Merger are filed with the Secretary of
State of the State of Idaho in the manner required by the Idaho
Business Corporation Act
(the
“Effective
Date”).
2. Conversion
of Securities on Merger.
2.1
Effect
of Merger on Capital Stock.
Each
share of Merging Corporation’s common stock, $0.001 par value per share, 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
into and become one (1) validly issued, fully paid and nonassessable share
of
Surviving Corporation’s common stock, $0.001 par value per share (the
“Surviving
Corporation Stock”).
Each
share of Surviving Corporation’s common stock issued and outstanding immediately
before the Effective Date of the Merger shall be canceled without any
consideration being issued or paid therefore, without any further action on
the
part of the holder thereof.
2.2
Effect
of Merger on Options and Warrants.
Each option, warrant or other security convertible into or exercisable for
shares of common stock of the Merging
Corporation
(collectively, “Convertible
Securities”)
issued and outstanding immediately prior to the Effective Date shall be
converted into the right to acquire the same number of shares of common stock
of
Surviving
Corporation Stock
as the number of shares of common stock of the Merging Corporation that were
acquirable pursuant to such Convertible Security immediately prior to the
Effective Date and each such Convertible Security shall be an identical security
of the Surviving Corporation subject to the same agreement and terms as exist
with respect thereto immediately prior to the Effective Date. Each stock option
and other equity incentive plan (collectively, the “Equity
Incentive Plans”)
adopted by Merging Corporation and in effect immediately prior to the Effective
Date shall be adopted and assumed by Surviving Corporation. As of the Effective
Date, the number of shares of common stock issuable by the Surviving Corporation
upon exercise of any such outstanding Convertible Security or issuable under
any
such Equity Incentive Plan shall be deemed reserved by the Surviving Corporation
solely for purposes of the exercise of such Convertible Security or issuance
pursuant to such Equity Incentive Plan.
2.3
Certificates.
At and after the Effective Date, all of the outstanding certificates which
immediately prior thereto represented shares of Merging
Corporation stock,
or options, warrants or other securities of the Merging
Corporation, shall be
deemed for all purposes to evidence ownership of and to represent the shares
of
Surviving Corporation Stock, or options, warrants or other securities of
Surviving Corporation, as the case may be, into which the shares of Merging
Corporation stock, or options, warrants or other securities of the Surviving
Corporation, as the case may be, 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 Surviving Corporation Stock, or options, warrants or other
securities of Surviving Corporation, as the case may be, evidenced by such
outstanding certificate, as above provided.
3. Foreign
Qualification.
Surviving Corporation covenants and agrees, to the extent required by applicable
law, to register or qualify, as applicable, to do business as a foreign
corporation in those states in which Merging Corporation is qualified to do
business immediately prior to the Effective Date.
4.1
Approval
by Stockholders.
The
stockholders of Merging Corporation shall have approved the Merger and this
Merger Agreement in accordance with Idaho law.
4.2
Governmental
Approvals; No Restraints.
No
statute, rule, regulation, executive order, decree, ruling, injunction or other
order (whether temporary, preliminary or permanent) shall have been enacted,
entered, promulgated or enforced by any court or governmental authority of
competent jurisdiction that prohibits, restrains, enjoins or restricts the
consummation of the Merger.
5. Amendment.
The
respective Boards of Directors of the Constituent Corporations may amend this
Merger Agreement at any time prior to the Effective Date, provided that an
amendment made subsequent to the approval of the Merger by the stockholders
of
Merging Corporation shall not (a) alter or change the amount or kind of shares,
securities, cash, property or rights to be received under this Merger Agreement
by the shareholders of Merging Corporation; (b) alter or change any term of
the
Certificate of Incorporation of Surviving Corporation; or (c) alter or change
any of the terms and conditions of this Merger Agreement if such alteration
or
change would adversely affect the shareholders of Merging Corporation.
6. Miscellaneous.
6.1 Counterparts.
This
Merger Agreement may be executed in any number of counterparts and via facsimile
or other similar electronic transmission, each of which shall be deemed to
be an
original, and all of which taken together shall constitute one Merger
Agreement.
6.2 Termination.
This
Merger Agreement may be terminated and the Merger abandoned at any time prior
to
the effective time on the Effective Date, whether before or after stockholder
approval of this Merger Agreement, by the consent of the Board of Directors
of
either of the Constituent Corporations.
6.3
Governing
Law. The
Merger and this Merger Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware.
6.4 No
Third Party Beneficiaries.
This
Merger Agreement is for the sole benefit of the parties hereto and is not
intended to and shall not confer upon any person other than the parties hereto
any rights or remedies hereunder.
6.5 Severability.
If
any provision of this Merger Agreement (or any portion thereof) or the
application of any such provision (or any portion thereof) to any person or
circumstance shall be held invalid, illegal or unenforceable in any respect
by a
court of competent jurisdiction, such invalidity, illegality or unenforceability
shall not affect any other provision hereof (or the remaining portion thereof)
or the application of such provision to any other person or
circumstances.
[Signature
page follows]
IN
WITNESS WHEREOF, the Constituent Corporations have executed this Agreement
and
Plan of Merger as of the date and year first above written.
MERGING
CORPORATION:
|
MERGING
CORPORATION:
|
||
|
IDAHO
GENERAL MINES, INC.
an
Idaho corporation
0000
Xxxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
|
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxx | |
|
Xxxxx
X. Xxxxxx
|
||
|
Chief
Executive Officer
|
||
| SURVIVING CORPORATION: | ||
|
GENERAL
MOLY, INC.,
a
Delaware corporation,
0000
Xxxx Xxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxxx 00000
|
||
| |
|
|
| By: | /s/ Xxxxx X. Xxxxxx | |
|
Xxxxx
X. Xxxxxx
|
||
|
Chief
Executive Officer
|
||
