AGREEMENT AND PLAN OF MERGER
Exhibit 2.2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of September 4, 2009, by and
between Xxxxxxxx, Inc., a Delaware corporation (“Xxxxxxxx-Delaware”), and Xxxxxxxx, Inc., a
Nevada corporation (“Xxxxxxxx-Nevada”).
R E C I T A L S:
WHEREAS, Xxxxxxxx-Delaware is a corporation duly organized and in good standing under the laws
of the State of Delaware;
WHEREAS, Xxxxxxxx-Nevada is a corporation duly organized and in good standing under the laws
of the State of Nevada; and
WHEREAS, the Board of Directors and the holder of a majority of the outstanding shares of
voting capital stock of Xxxxxxxx-Nevada have determined that it is advisable and in the best
interests of Xxxxxxxx-Nevada that it merge with and into Xxxxxxxx-Delaware upon the terms and
subject to the conditions herein provided, and have approved this Agreement.
WHEREAS, the Board of Directors of Xxxxxxxx-Delaware has determined that it is advisable and
in the best interests of Xxxxxxxx-Delaware that Xxxxxxxx-Nevada merge with and into it upon the
terms and subject to the conditions herein provided, and have approved this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants herein contained and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that Xxxxxxxx-Nevada shall be merged with and into
Xxxxxxxx-Delaware on the terms and conditions hereinafter set forth.
ARTICLE I
THE MERGER
THE MERGER
SECTION 1.01. The Merger.
(a) Upon the terms and subject to the conditions set forth in this Agreement, at the Effective
Time (as defined below), Xxxxxxxx-Nevada shall be merged with and into Xxxxxxxx-Delaware (the
“Merger”), the separate existence of Xxxxxxxx-Nevada shall cease and Xxxxxxxx-Delaware
shall be the corporation surviving the Merger (hereinafter referred to as the “Surviving
Corporation”), which shall continue to exist under, and be governed by, the laws of the State
of Delaware. The Merger shall have the effects specified in the General Corporation Law of the
State of Delaware (the “DGCL”), the Nevada Revised Statutes (the “NRS”) and this
Agreement.
(b) The Merger shall become effective on the date and time specified in a Certificate of
Merger to be filed with the Secretary of State of the State of Delaware (the “Certificate of
Merger”) and Articles of Merger to be filed with the Secretary of State of the State of Nevada
(the “Articles of Merger”), which shall be the later of (i) the date of filing of the
Certificate of Merger and Articles of Merger, or (ii) the date and time determined by the
Presidents of Xxxxxxxx-Nevada and Xxxxxxxx-Delaware (the “Effective Time”).
SECTION 1.02. Effect of Merger on Capital Stock.
(a) At the Effective Time, each share of common stock, $0.001 par value per share, of
Xxxxxxxx-Nevada outstanding immediately prior to the Effective Time shall be converted into and
become one share of common stock, $0.001 par value per share, of the Surviving Corporation.
(b) At the Effective Time, each option, warrant or other security of Xxxxxxxx-Nevada issued
and outstanding immediately prior to the Effective Time shall be converted into and shall be an
identical security of the Surviving Corporation and shares of common stock of the Surviving
Corporation shall be reserved for purposes of the exercise of such options, warrants or other
securities for each share of common stock of Xxxxxxxx-Nevada so reserved prior to the Effective
Time.
(c) As of the Effective Time, there are no issued and outstanding shares of capital stock of
Xxxxxxxx-Delaware.
(d) At and after the Effective Time, all of the outstanding certificates or other documents
that immediately prior thereto evidenced ownership of securities of Xxxxxxxx-Nevada shall be deemed
for all purposes to evidence ownership of and to represent the securities of Xxxxxxxx-Delaware into
which such securities of Xxxxxxxx-Nevada 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 or other document evidencing ownership of
securities of Xxxxxxxx-Nevada shall, until such certificate or other document 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 securities evidenced by such certificate or other
document, as above provided.
ARTICLE II
THE SURVIVING CORPORATION
THE SURVIVING CORPORATION
SECTION 2.01. Certificate of Incorporation; By-Laws. At the Effective Time, the
Certificate of Incorporation of Xxxxxxxx-Delaware, as in effect immediately prior to the Effective
Time, shall be amended to change the stated par value of common stock from $0.01 to $0.001, and
shall be the Certificate of Incorporation of the Surviving Corporation. At the Effective Time, the
Bylaws of Xxxxxxxx-Nevada, as in effect immediately prior to the Effective Time, shall be the
Bylaws of the Surviving Corporation.
SECTION 2.02. Directors; Officers. From and after the Effective Time, the directors
of Xxxxxxxx-Nevada immediately prior to the Effective Time shall be the directors of the Surviving
Corporation. From and after the Effective Time, the officers of Xxxxxxxx-Nevada immediately prior
to the Effective Time shall be the officers of the Surviving Corporation. These directors and
officers shall hold office in accordance with the Certificate of Incorporation and By-Laws of the
Surviving Corporation and the DGCL.
ARTICLE III
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
SECTION 3.01. Transfer, Conveyance and Assumption. Without limiting the generality of
the foregoing, at the Effective Time, (a) the Surviving Corporation shall, without further
transfer, succeed to and possess all of the rights, privileges, franchises, immunities and powers
of Xxxxxxxx-Nevada; (b) all of the assets and property of whatever kind and character of
Xxxxxxxx-Nevada shall vest in the Surviving Corporation without further act or deed; and (c) the
Surviving Corporation, shall, without further act or deed, assume and be subject to all of the
duties, liabilities, obligations and restrictions of every kind and description of Xxxxxxxx-Nevada.
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SECTION 3.02. Further Assurances. From time to time, as and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed and delivered on
behalf of Xxxxxxxx-Nevada such deeds and other instruments, and there shall be taken or caused to
be taken by the Surviving Corporation all such further and other actions, as shall be appropriate
or necessary in order to vest, perfect or confirm in the Surviving Corporation the title to and
possession of all property, interests, assets, rights, privileges, immunities, powers and authority
of Xxxxxxxx-Nevada, and otherwise to carry out the purposes of this Agreement. The directors and
officers of the Surviving Corporation are fully authorized, on behalf of the Surviving Corporation
and Xxxxxxxx-Nevada, to take any and all such actions and to execute and deliver any and all such
deeds, documents and other instruments.
ARTICLE IV
MISCELLANEOUS
MISCELLANEOUS
SECTION 4.01. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns, provided that no party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other party hereto.
SECTION 4.02. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Delaware, without reference to principles of conflicts of law.
SECTION 4.03. Waivers. No failure or delay by any party hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
SECTION 4.04. Counterparts; Effectiveness. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all of which taken
together shall be deemed to constitute one and the same. Signatures delivered by facsimile
transmission or by e-mail delivery of a “.pdf” format data file, will be given the same legal force
and effect as original signatures.
SECTION 4.05. Termination. This Agreement may be terminated, and the Merger may be
abandoned, at any time prior to the Effective Time if the Board of Directors of Xxxxxxxx-Nevada
determines for any reason, in its sole judgment and discretion, that the consummation of the Merger
would be inadvisable or not in the best interests of Xxxxxxxx-Nevada and its shareholders. In the
event of the termination and abandonment of this Agreement, this Agreement shall become null and
void and have no effect, without any liability on the part of either Xxxxxxxx-Nevada or
Xxxxxxxx-Delaware, or any of their respective shareholders, directors or officers.
| XXXXXXXX, INC., a Nevada corporation |
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| By: | /s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx | ||||
| President | ||||
| XXXXXXXX, INC., a Delaware corporation |
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| By: | /s/ Xxxxxx Xxxxx | |||
| Xxxxxx Xxxxx | ||||
| President | ||||
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