AGREEMENT AND PLAN OF MERGER
EXHIBIT
2.1
AGREEMENT
AND PLAN OF MERGER
This
Agreement and Plan of Merger (this “Merger
Agreement”),
is
entered into as of December 15, 2005, between Cape Coastal Trading Corporation,
a New York corporation (“CCTR”),
and
Cape
Coastal Trading Corporation, a
Delaware corporation and wholly-owned subsidiary of CCTR (“Subsidiary”).
WITNESSETH:
WHEREAS,
CCTR is a corporation duly organized, validly existing and in good standing
under the laws of the State of New York with authorized capital stock consisting
of 50 million shares of common stock, $.001 par value per share (the
“New
York Common Stock”);
WHEREAS,
CCTR has no options or warrants issued and outstanding;
WHEREAS,
Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware with authorized capital stock
consisting of 225 million shares of which 200 million shares are common stock,
$.001 par value per share (the “Delaware
Common Stock”),
and
25 million shares of “blank check” preferred stock, $.001 par value per share
(the “Preferred
Stock”);
WHEREAS,
Subsidiary has no options or warrants issued and outstanding;
WHEREAS,
the Board of Directors of CCTR has determined that, for purposes of effecting
the reincorporation of CCTR in the State of Delaware, it is advisable and in
the
best interests of CCTR and the holders of shares of New York Common Stock (the
“CCTR
Shareholders”)
for
CCTR to merge with and into Subsidiary upon the terms and conditions set forth
herein;
WHEREAS,
the respective Boards of Directors of CCTR and Subsidiary have authorized and
approved the merger of CCTR with and into Subsidiary subject to and upon the
terms and conditions of this Merger Agreement, and have approved the terms
of
this Merger Agreement and directed that it be executed by the undersigned
officers and submitted to the CCTR Shareholders and the stockholder of the
Subsidiary for their approval;
WHEREAS,
the CCTR Shareholders and CCTR, sole stockholder of the Subsidiary, have
approved the merger and the Merger Agreement; and
WHEREAS,
it is the intention of CCTR and Subsidiary that the merger be a tax-free
reorganization within the meaning of Section 368 of the Internal Revenue Code
of
1986, as amended (the “Code”).
NOW,
THEREFORE, for and in consideration of the mutual premises contained herein
and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
ARTICLE
I.
THE
MERGER
Section
1.1. Merger
of CCTR into Subsidiary.
At the
Effective Time (as defined in Section 2.1), CCTR shall merge with and into
Subsidiary in accordance with the New York Business Corporation Law (the
“New
York Law”)
and
the General Corporation Law of the State of Delaware (the “Delaware
Law”).
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The
separate existence of CCTR shall thereupon cease and Subsidiary shall be the
surviving corporation (hereinafter referred to as the “Surviving
Corporation”)
and
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 and duties of each of CCTR and Subsidiary (together referred to
as
the “Constituent
Corporations”);
and
all the rights, privileges, powers and franchises of each of the Constituent
Corporations, and all property, real, personal and mixed, and all debts due
to
either of the Constituent Corporations, on whatever account, as well as for
stock subscriptions and all other things in action or belonging to each of
the
Constituent Corporations, 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 had been of the several and respective Constituent
Corporations, and the title to any real estate vested by deed or otherwise,
under the laws of the State of Delaware, in either of such Constituent
Corporations shall not revert or be in any way impaired by reason of the
Delaware Law; but all rights of creditors and all liens upon any property of
any
of the Constituent Corporations shall be preserved unimpaired, and all debts,
liabilities and duties of the respective Constituent Corporations shall
thereafter attach to the Surviving Corporation and may be enforced against
it to
the same extent as if those debts, liabilities and duties had been incurred
or
contracted by it. All corporate acts, plans, policies, agreements, arrangements,
approvals and authorizations of CCTR, the CCTR shareholders, Board of Directors
of CCTR and committees thereof, officers and agents which were valid and
effective immediately prior to the Effective Time, shall be taken for all
purposes as acts, plans, policies, agreements, arrangements, approvals and
authorizations of the Surviving Corporation and shall be as effective and
binding thereon as the same were with respect to CCTR. The employees and agents
of CCTR shall become the employees and agents of Subsidiary and continue to
be
entitled to the same rights and benefits which they enjoyed as employees and
agents of CCTR. The requirements of any plans or agreements of CCTR involving
the issuance or purchase by CCTR of certain shares of its capital stock shall
be
satisfied by the issuance or purchase of a like number of shares of the
Surviving Corporation. The subsidiaries of CCTR shall become the subsidiaries
of
the Surviving Corporation.
ARTICLE
II.
EFFECTIVE
TIME; EFFECT OF MERGER
Section
2.1. Effective
Time.
The
Merger shall become effective on the date the Certificate of Merger is filed
by
with the Department of State of the State of New York, or the date a Certificate
of Ownership and Merger is filed with the Secretary of State of the State of
Delaware, whichever filing occurs last (the “Effective
Time”).
Section
2.2. Effects
of the Merger.
At the
Effective Time, the Merger shall have the effects specified in the New York
Law,
the Delaware Law and this Merger Agreement.
Section
2.3. Certificate
of Incorporation and Bylaws.
At the
Effective Time, the Certificate of Incorporation and the Bylaws of Subsidiary,
as in effect immediately prior to the Effective Time, shall be the Certificate
of Incorporation and Bylaws of the Surviving Corporation.
Section
2.4. Directors
and Officers.
At the
Effective Time, the directors and officers of CCTR in office at the Effective
Time shall retain their positions as the directors and officers, respectively,
of the Surviving Corporation, each of such directors and officers to hold
office, subject to the applicable provisions of the Certificate of Incorporation
and Bylaws of the Surviving Corporation and the Delaware law, until his or
her
successor is duly elected or appointed and shall qualify, or until his or her
earlier death, incompetency or removal.
Section
2.5. Change
of Name.
At the
Effective Time, Cape
Coastal Trading Corporation,
the name
set forth in Paragraph First of the Subsidiary’s Certificate of Incorporation,
shall be the name of the Surviving Corporation.
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ARTICLE
III.
CONVERSION
AND EXCHANGE OF STOCK
Section
3.1. Conversion.
(a) Shares.
At the
Effective Time, each share of New York Common Stock issued and outstanding
immediately prior to the Effective Time shall, by virtue of the merger and
without any action on the part of the holder thereof, be converted into and
become one share of Delaware Common Stock.
(b) Cancellation.
At the
Effective Time, each share of Delaware Common Stock issued and outstanding
immediately prior to the Effective Time and held by CCTR shall be canceled
without any consideration being issued or paid therefor.
Section
3.2. Exchange
of Certificates.
At the
Effective Time, stock certificates representing New York Common Stock will
automatically represent an equal number of shares of Delaware Common Stock.
At
any time after the Effective Time, the holders of Delaware Common Stock
represented by certificates issued prior to the Effective Time, will be
entitled, upon request, and surrender of such certificates, to the Surviving
Corporation, to receive in exchange therefor a new stock certificate evidencing
ownership of the same number of shares of Delaware Common Stock. If any new
certificate is to be issued in a name other than that in which the certificate
surrendered in exchange therefor is registered, it shall be a condition of
the
issuance thereof that the certificate or other writing so surrendered shall
be
properly endorsed and otherwise in proper form for transfer and that the person
requesting such exchange shall pay to the Surviving Corporation or its transfer
agent any transfer or other taxes required by reason of the issuance of a
certificate representing shares of Delaware Common Stock in any name other
than
that of the registered holder of the certificate surrendered, or otherwise
required, or shall establish to the satisfaction of the transfer agent that
such
tax has been paid or is not payable.
ARTICLE
IV.
MISCELLANEOUS
Section
4.1. Amendment.
This
Merger Agreement may be amended, modified or supplemented, in whole or in part,
at any time prior to the Effective Time with the mutual consent of the
respective Board of Directors of CCTR and Subsidiary to the full extent
permitted under applicable law.
Section
4.2. Abandonment;
Postponement.
At any
time prior to the Effective Time, this Merger Agreement may be terminated and
the Merger may be abandoned by the respective Board of Directors of CCTR or
Subsidiary, or the consummation of the Merger may be postponed for a reasonable
period of time, without any action of the CCTR Shareholders or stockholders
of
Subsidiary, notwithstanding the approval of this Merger Agreement by the CCTR
Shareholders or Board of Directors of either CCTR or Subsidiary.
Section
4.3. Further
Assurances.
If at
any time after the Effective Time of the Merger, the Surviving Corporation
shall
consider that any assignments, transfers, deeds or other assurances in law
are
necessary or desirable to vest, perfect or confirm, of record or otherwise,
in
the Surviving Corporation, title to any property or rights of CCTR, CCTR and
its
directors and officers holding office at the Effective Time
shall execute and deliver such documents and do all things necessary and proper
to vest, perfect or confirm title to such property or rights in the Surviving
Corporation, and the officers and directors of the Surviving Corporation are
fully authorized in the name of CCTR or otherwise to take any and all such
action.
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Section
4.4. Counterparts.
This
Merger Agreement may be executed in any number of counterparts, for each of
which shall be deemed to be an original and all of which together shall be
deemed to be one and the same instrument. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature
is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
Section
4.5. Governing
Law.
This
Merger Agreement shall be construed in accordance with the laws of the State
of
Delaware, without regard to the principles of conflicts of laws of such State.
Section
4.6. Notices.
All
communication hereunder shall be in writing and, sent by mail, or by
facsimile.
If
to
CCTR to:
Cape
Coastal Trading Corporation
000
Xxxxx
Xxxx Xxxxxxxxx
Xxxxx
000
Xxxxx
Xxxxxx, XX 00000
If
to
Subsidiary to:
Cape
Coastal Trading Corporation
c/o
Cape
Coastal Trading Corporation
000
Xxxxx
Xxxx Xxxxxxxxx
Xxxxx
000
Xxxxx
Xxxxxx, XX 00000
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties to this Merger Agreement have executed this Merger
Agreement on and as of the day first written above.
CCTR
Cape
Coastal Trading Corporation,
a
New York corporation
By:
/s/
XXXXXXXX XXXXXX
Name:
Xxxxxxxx Alison
Title: President
SUBSIDIARY
Cape
Coastal Trading Corporation,
a
Delaware corporation
By:
/s/
XXXXXXXX XXXXXX
Name:
Xxxxxxxx Alison
Title:
President
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