AGREEMENT AND PLAN OF
MERGER AND REORGANIZATION
THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this "Merger
Agreement") is made as of August 8, 2003 by and between Synergy Technologies
Corporation, a Colorado corporation ("Synergy"), and Australian Oil & Gas
Corporation, a Delaware corporation ("AOG"). Synergy and AOG are hereinafter
sometimes collectively referred to as the "Constituent Corporations."
Capitalized terms not defined herein shall have the meaning ascribed to
them in the Plan of Reorganization (as defined below), a copy of which is
appended hereto as Exhibit A.
R E C I T A L S
WHEREAS, Synergy was incorporated on February 10, 1997 under the name
Automated Transfer Systems Corporation; and
WHEREAS, on November 13, 2002, Synergy filed a petition for relief
under Chapter 11 (the "Chapter 11 Filing") of the United States Bankruptcy Code
in the United States Bankruptcy Court, Southern District of New York (the
"Bankruptcy Court"); and
WHEREAS, during March 2003, Synergy sold substantially all of assets to
World Energy Systems Corporation; and
WHEREAS, on July 30, 2003, the Bankruptcy Court confirmed Synergy's
Plan of Reorganization, a copy of which is appended hereto as Exhibit A (the
"Plan of Reorganization"), as accepted by the corporation's creditors and equity
interest holders in accordance with the provisions of the Bankruptcy Code, which
is to become effective on August 9, 2003 (the "Effective Date"); and
WHEREAS, the Plan of Reorganization provides, for, among other things,
(i) the reincorporation of Synergy into a corporation organized under the laws
of the State of Delaware named Australian Oil & Gas Corporation ("AOG"); (ii)
the settlement of Allowed Unsecured Claims against Synergy by the payment of a
pro rata portion of approximately $90,000 in cash to such creditors and the
issuance of one share of the common stock of AOG ("AOG Common Stock") for each
dollar owed by Synergy to each such creditor, up to no more than 3,000,000
shares of AOG Common Stock; (iii) the cancellation of all outstanding securities
of Synergy and the issuance of one (1) share of the AOG Common Stock for every
ten (10) shares of the common stock of Synergy ("Synergy Common Stock") held by
Equity Interest Holders, equal, in the aggregate to approximately 4,800,550
shares of AOG Common Stock; and (iv) the issuance of 19,500,000 shares of AOG
Common to Xxxxxx Management and Consulting, a Division of Great Missenden
Holdings Pty Ltd. or its designees for funding the Plan of Reorganization
(herein referred to as the "Plan Funder"); and
WHEREAS, AOG was incorporated on August 6, 2003, and, as provided in
the Plan of Reorganization, is authorized to issue 75,000,000 shares of common
stock, par value $0.001 per share, none of which have been issued as of the date
hereof; and
WHEREAS, pursuant to the Plan of Reorganization, upon the Effective
Date, all matters provided for in the Plan of Reorganization that would
otherwise require the approval of the stockholders or directors of the
Constituent Corporations, including, without limitation, (i) the authorization
to issue or cause to be issued the common stock of AOG, (ii) the effectiveness
of the Certificate of Incorporation or By-Laws of AOG, (iii) all restructuring
transactions effectuated pursuant to the Plan of Reorganization, (iv) the
election or appointment, as the case may be, of directors and officers of AOG,
and (v) the qualification of AOG as a foreign corporation wherever the conduct
of business by such corporation requires such qualification, shall be deemed to
have occurred and shall be in effect from and after the Effective Date pursuant
to the applicable general corporation law of the states in which the Constituent
Corporations are incorporated, without any requirement of further action by the
stockholders or directors of either such corporation; and
WHEREAS, the merger of Synergy with and into AOG and this Merger
Agreement are ordered and authorized, respectively, by and under the auspices of
the Plan of Reorganization and the Bankruptcy Court.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
set forth in this Merger Agreement and do hereby agree that Synergy shall merge
with and into AOG on the following terms, conditions and other provisions:
1. MERGER AND EFFECTIVE TIME. At the Effective Time (as defined below), Synergy
Colorado shall be merged with and into AOG (the "Merger"), and AOG shall be the
surviving corporation of the Merger (the "Surviving Corporation").
The Merger shall become effective on the close of business on August
11, 2003, as provided in the Plan of Reorganization (the "Effective Time").
2. EFFECT OF MERGER. At the Effective Time, the separate corporate existence of
Synergy shall cease; the corporate identity, existence, powers, rights and
immunities of AOG as the Surviving Corporation shall continue unimpaired by the
Merger; and AOG shall succeed to and shall possess all the assets, properties,
rights, privileges, powers, franchises, immunities and purposes, and be subject
to all the lawful debts, liabilities, obligations, restrictions and duties of
Synergy on the Effective Time, all without further act or deed.
3. GOVERNING DOCUMENTS. At the Effective Time, the Certificate of Incorporation
of AOG in effect immediately prior to the Effective Time shall become the
Certificate of Incorporation of the Surviving Corporation and the By-laws of AOG
in effect immediately prior to the Effective Time shall become the By-laws of
the Surviving Corporation. These documents are annexed hereto as Exhibits B and
C, respectively.
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4. DIRECTORS, OFFICERS AND COMMITTEES OF THE BOARD. At the Effective Time, the
directors, officers and committee members of AOG shall be the directors,
officers and committee members (holding the same titles and positions) of the
Surviving Corporation and after the Effective Time shall serve in accordance
with the Certificate of Incorporation and By-laws of the Surviving Corporation.
5. CONVERSION OF SHARES OF SYNERGY AND ISSUANCE OF AOG COMMON STOCK. (a) Subject
to the terms and conditions of this Agreement and the Plan of Reorganization, at
the Effective Time, every ten (10) shares of Synergy Common Stock outstanding
immediately prior thereto shall be automatically changed and converted into one
fully-paid and nonassessable, issued and outstanding share of AOG Common Stock,
deliverable as described in Section 6, below. After the Effective Time, until so
surrendered as described in Section 6, below, each outstanding certificate
which, prior to the Effective Time, represented shares of Synergy Common Stock
shall be deemed for all purposes to evidence only the ownership of the full
shares of AOG Common Stock as the same shall have been continued or into which
the same shall have been converted in accordance with the provisions of this
Section 5.
(b) At the Effective Time, the Surviving Corporation shall issue one
share of AOG Common Stock to holders of Allowed Unsecured Claims against Synergy
for each dollar owed by Synergy to each such creditor, as calculated by the
attorneys representing Synergy in its Chapter 11 Filing, up to no more than
3,000,000 shares of AOG Common Stock.
(c) At the Effective Time, AOG shall issue 19,500,000 shares of AOG
Common Stock to the Plan Funder or its designee(s) in accordance with its
written instructions.
(d) At the Effective Time, all other outstanding securities of Synergy,
including all warrants and options to purchase shares of Synergy Common Stock,
shall be cancelled.
6. EXCHANGE OF STOCK CERTIFICATES. (a) On and after the Effective Time, each
holder of a certificate or certificates theretofore representing outstanding
Synergy Common Stock shall be entitled, upon the surrender of such certificate
or certificates at the office or the agency of the Surviving Corporation
designated for such purpose, to receive in exchange therefor a certificate or
certificates representing the number of full shares of AOG Common Stock which
the shares of Synergy Common Stock shall have been converted as provided in
Section 5 hereof. After the Effective Time, outstanding certificates evidencing
shares of Synergy Common Stock, until so surrendered, shall have only the rights
described in Section 5(a), above.
(b) If a certificate for any share or shares of stock of the Surviving
Corporation is to be issued in a name other than that in which the certificate
for shares surrendered for exchange shall be registered, it shall be a condition
of such exchange that the certificate so surrendered shall be properly endorsed
for transfer.
(c) The registered owner on the books and records of Synergy of any
such outstanding stock certificate for Synergy Common Stock shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to AOG or its transfer agent, be entitled to
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exercise any voting and other rights with respect to, and to receive any
dividend and or other distributions upon, the shares of AOG Common Stock
evidenced by such outstanding certificate as above provided.
(d) All Equity Interest Holders other than directors, officers and
"affiliates" [as such term is defined in the Securities Act of 1933, as amended
(the "Securities Act)] of AOG and persons holding in excess of ten percent (10%)
of the outstanding shares of AOG Common Stock after giving effect to the
issuance of AOG Common Stock as provided herein, shall be entitled to sell,
transfer, convey or assign their shares of AOG Common Stock without restriction
and shall receive certificates without any restrictive legend. All directors,
officers and "affiliates" of AOG and persons holding in excess of ten percent
(10%) of the outstanding shares of AOG Common Stock after giving effect to the
issuance of AOG Common Stock as provided herein shall receive "restricted
securities" as such term is defined under the Securities Act.
7. EMPLOYEE BENEFIT PLANS OF SYNERGY. At the Effective Time, each and every
plan, trust, program and benefit then in effect or administered by Synergy for
the benefit of the directors, officers and employees of Synergy or any of its
subsidiaries shall terminate and cease to exist and the Surviving Corporation
shall have no obligations or liabilities under any of said plans, trusts,
programs or benefits.
8. CONSENT TO SERVICE OF PROCESS. The Surviving Entity hereby consents and
agrees that it may be served with process in the State of Delaware in any
proceeding for enforcement of any such lawful obligation of any Constituent
Corporation, as well as for enforcement of any obligation of either such
corporation arising from this merger, and irrevocably appoints the Secretary of
State of Delaware as its agent to accept service of process in any such suit or
proceeding. The Secretary of State shall mail any such process to the Surviving
Entity at 0000 Xxxxx Xxxxxxx Xxx, Xxxxxxxx, Xxxxxxx 00000.
9. FURTHER ASSURANCES. From time to time, as and when required by the Surviving
Corporation or by its successors or assigns, there shall be executed and
delivered on behalf of Synergy such deeds, assignments and other instruments,
and there shall be taken or caused to be taken by it all such further action as
shall be appropriate, advisable or necessary in order to vest, perfect or
confirm, of record or otherwise, in the Surviving Corporation the title to and
possession of all property, interests, assets, rights, privileges, immunities,
powers, franchises and authority of Synergy, and otherwise to carry out the
purposes of this Merger Agreement and the Plan of Reorganization.
The officers and directors of the Surviving Corporation are fully
authorized in the name of and on behalf of Synergy, or otherwise, to take any
and all such actions and to execute and deliver any and all such deeds and other
instruments as may be necessary or appropriate to accomplish the foregoing.
10. AMENDMENT. At any time before the Effective Time, this Merger Agreement may
be amended, modified or supplemented by the Boards of Directors of the
Constituent Corporations, provided, however, that any amendment made subsequent
to the adoption of this Agreement shall not: (i) contravene the Plan of
Reorganization in any manner, (ii) alter or change the
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amount or kind of shares, securities, cash, property and/or rights to be
received in exchange for or upon conversion of any shares of any class or series
of Synergy; (iii) alter or change any of the terms of the Certificate of
Incorporation of the Surviving Corporation to be effected by the Merger; or (iv)
alter or change any of the terms or conditions of this Merger Agreement if such
alteration or change would adversely affect the holders of any shares of
Synergy.
11. GOVERNING LAW. This Agreement shall be governed by and construed under the
internal laws of the State of Delaware, without reference to the principles of
conflicts of law or choice of laws thereof.
12. COUNTERPARTS. In order to facilitate the filing and recording of this Merger
Agreement, it may be executed in any number of counterparts, each of which shall
be deemed to be an original.
IN WITNESS WHEREOF, this Merger Agreement is hereby executed on behalf of each
of the Constituent Corporations and attested by their respective officers
hereunto duly authorized.
SYNERGY TECHNOLOGIES CORPORATION
a Colorado corporation
By: /s/ E. Xxxxxxxx Xxxxxx
------------------------------------------------
E. Xxxxxxxx Xxxxxx Chairman and President
AUSTRALIAN OIL & GAS CORPORATION
a Delaware corporation
By: /s/ Xxx Xxxx
------------------------------------------------
Xxx Xxxx, Vice President
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