AGREEMENT AND PLAN OF MERGER OF TRI-MARK MFG., INC., A CALIFORNIA CORPORATION AND TRI-MFG., INC. , A DELAWARE CORPORATION
OF
TRI-XXXX
MFG., INC., A CALIFORNIA CORPORATION
AND
TRI-MFG.,
INC. , A DELAWARE CORPORATION
THIS
AGREEMENT AND PLAN OF MERGER (the "Agreement") dated as of
October 15th, 2010, made and entered into by and between Tri-Xxxx
MFG, Inc., a California ("TRI-Xxxx California”), and Tri-Xxxx MFG, Inc., a
Delaware corporation ("Tri-Xxxx Delaware"), which corporations are sometimes
referred to herein as the "Constituent
Corporations."
WITNESSETH:
WHEREAS,
TRI-Xxxx California is a corporation organized and existing under the
laws of the State of California, having been incorporated on December 18, 2006,
under the laws of the State of California under the California Corporation
Code (the “CCC”); and
WHEREAS,
TRI-Xxxx Delaware is a wholly-owned subsidiary corporation of Tri-Xxxx
California, having been incorporated under the laws of the State of Delaware
under the Delaware General Corporation Law (the “DGCL”) on August 10, 2010;
and
WHEREAS,
the respective Boards of Directors of TRI-Xxxx California and TRI-Xxxx Delaware
have determined that it is desirable to merge
TRI-Xxxx California with and into TRI-Xxxx Delaware and
that TRI-Xxxx Delaware shall be the surviving corporation (the "Merger"); and
WHEREAS,
the parties intend by this Agreement to effect a reorganization under Section
368 of the Internal Revenue Code of 1986, as amended;
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained in
this Agreement, and for other valuable consideration, the receipt and adequacy
of which are hereby acknowledged, and intending to be legally bound, TRI-Xxxx California and TRI-Xxxx
Delaware hereto agree as follows:
ARTICLE
I
MERGER
1.1 On
the effective date of the Merger (the "Effective Date"), as provided
herein, TRI-Xxxx California shall be merged with and into
TRI-Xxxx Delaware,the separate existence of
TRI-Xxxx California shall cease and TRI-Xxxx Delaware (hereinafter
sometimes referred to as the "Surviving Corporation") shall
continue to exist under the name of FTOH Corp. by virtue of, and shall be
governed by, the laws of the State of Delaware. The address of the registered
office of the Surviving Corporation in the State of Delaware will be National
Corporate Research, Ltd., 000 Xxxxx XxXxxx Xxxxxxx, Xxxxx, Xxxxxxxx
00000.
ARTICLE
II
CERTIFICATE
OF INCORPORATION OF SURVIVING CORPORATION
2.1 The name of the Surviving
Corporation shall be "FTOH Corp." The Certificate of Incorporation of
the Surviving Corporation, attached hereto as Exhibit
A, as in effect on the
date hereof, shall be the Certificate of Incorporation of
TRI-Xxxx Delaware (the "
TRI-Xxxx Delaware Charter") without change, unless and until
amended in accordance with this Agreement or otherwise amended in accordance
with applicable law.Article First of the Certificate of Incorporation of
Tri-Xxxx – Del shall be amended as follows:
FIRST:
The name of the Corporation is FTOH Corp.
SIXTH: Article
Fourth of the Certificate of Incorporation of Tri-Xxxx – Del is hereby amended
as follows:
FOURTH:
A.
Classes and Number of
Shares. The total number of shares of stock that the Corporation
shall have authority to issue is Two HundredMillion (200,000,000). The
classes and aggregate number of shares of each class which the Corporation shall
have authority to issue are as follows:
1.
One Hundred Ninety Million
(190,000,000) shares of common stock, par value $0.0001 per share (the “Common Stock”);
and
2.
Ten Million (10,000,000)
shares of preferred stock, par value $0.0001 per share (the “Preferred
Stock”).
B.
Blank Check
Powers. The Corporation may issue any class of the Preferred Stock
in any series. The Board of Directors shall have authority to establish
and designate series, and to fix the number of shares included in each such
series and the variations in the relative rights, preferences and limitations as
between series, provided that, if the stated dividends and amounts payable on
liquidation are not paid in full, the shares of all series of the same class
shall share ratably in the payment of dividends including accumulations, if any,
in accordance with the sums which would be payable on such shares if all
dividends were declared and paid in full, and in any distribution of assets
other than by way of dividends in accordance with the sums which would be
payable on such distribution if all sums payable were discharged in full.
Shares of each such series when issued shall be designated to distinguish the
shares of each series from shares of all other series.
ARTICLE
III
BYLAWS
OF THE SURVIVING CORPORATION
3.1 The
Bylaws of the Surviving Corporation, as in effect on the date hereof shall be
the Bylaws of TRI-Xxxx Delaware (the "TRI-MarkBylaws") without
change, unless and until amended in accordance with Article VIII of this
Agreement or otherwise amended in accordance with applicable law.
ARTICLE
IV
EFFECT
OF MERGER ON STOCK OF CONSTITUENT CORPORATIONS
4.1 On
the Effective Date, the holders of the common stock of Tri-Xxxx California shall
receive 8.344159089 shares of common stock of Tri-Xxxx Delaware (“Tri-Xxxx Xxxxxx Stock”)as
consideration and in exchange for each one share of common stock of Tri-Xxxx
California and shall have no further claims of any kind or nature; and all of
the common stock of Tri-Xxxx Delaware held by Tri-Xxxx California shall be
surrendered and canceled.
ARTICLE
V
CORPORATE
EXISTENCE, POWERS AND LIABILITIES OF THE SURVIVING
CORPORATION
5.1 On
the Effective Date, the separate existence of Tri-Xxxx
California shall cease. Tri-Xxxx California shall be merged
with and into Tri-Xxxx Delaware, the Surviving Corporation, in accordance with
the provisions of this Agreement. Thereafter, Tri-Xxxx Delaware shall possess
all the rights, privileges, powers and franchises of a public as well as of a
private nature, and shall be subject to all the restrictions, disabilities and
duties of each of the parties to this Agreement; all singular rights,
privileges, powers and franchises of Tri-Xxxx California and Tri-Xxxx Delaware,
and all property, real, personal and mixed and all debts due to each of them on
whatever account, shall be vested in Tri-Xxxx Delaware; and all property,
rights, privileges, powers and franchises, and all and every other interest
shall be thereafter the property of Tri-Xxxx Delaware, the Surviving
Corporation, as they were of the respective constituent entities, and the title
to any real estate, whether by deed or otherwise, vested in Tri-Xxxx California
and Tri-Xxxx Delaware, or either of them, shall not revert or be in any way
impaired by reason of the Merger, but all rights of creditors and all liens upon
the property of the parties hereto, shall be preserved unimpaired, and all
debts, liabilities and duties of Tri-Xxxx California shall thenceforth attach to
Tri-Xxxx Delaware, and may be enforced against it to the same extent as if said
debts, liabilities and duties had been incurred or contracted by
it.
5.2
Tri-Xxxx California agrees that it will execute and deliver, or cause to be
executed and delivered, all such deeds and other instruments and will take or
cause to be taken such further or other action as the Surviving Corporation may
deem necessary in order to vest in and confirm to the Surviving Corporation
title to and possession of all the property, rights, privileges, immunities,
powers, purposes and franchises, and all and every other interest of
Tri-Xxxx California and otherwise to carry out the intent and
purposes of this Agreement.
ARTICLE
VI
OFFICERS
AND DIRECTORS OF SURVIVING CORPORATION
6.1 Upon
the Effective Date, the officers and directors of Tri-Xxxx California shall
resign and shall not be officers and directors of Tri-Xxxx California
or Tri-Xxxx Delaware.
6.2 If
upon the Effective Date, a vacancy shall exist in the Board of Directors of the
Surviving Corporation, such vacancy shall be filled in the manner provided by
the Tri-Xxxx Delaware Bylaws.
ARTICLE
VII
DISSENTING
SHARES
7.1
Holders of shares of Tri-Xxxx California Common Stock who have
complied with all requirements for perfecting their rights of appraisal as
required in the CCC shall be entitled to their rights under
California law with payments to be made by the Surviving
Corporation.
ARTICLE
VIII
APPROVAL
BY SHAREHOLDERS, EFFECTIVE DATE, CONDUCT OF BUSINESS
PRIOR
TO EFFECTIVE DATE
8.1
Promptly after the approval of this Agreement by the requisite number of
shareholders of Tri-Xxxx California, the respective Boards of Directors of
Tri-Xxxx California and Tri-Xxxx Delaware will cause their duly authorized
officers to make and execute Certificate of Ownership and Merger or other
applicable certificates or documentation effecting this Agreement and shall
cause the same to be filed with the Secretaries of State of California and
Delaware, respectively, in accordance with the CCC and the DGCL. The Effective
Date shall be the date on which the Certificate of Merger is filed with the
Secretary of State of Delaware and the Secretary of State of
California.
8.2 The
Boards of Directors of Tri-Xxxx California and Tri-Xxxx Delaware may amend this
Agreement and the Tri-Xxxx Delaware Charter or Tri-Xxxx Delaware Bylaws at any
time prior to the Effective Date, provided that an amendment made subsequent to
the approval of the Merger by the shareholders of Tri-Xxxx California
may not (i) change the amount or kind of shares to be received in exchange for
the Tri-Xxxx California Common Stock; or (ii) alter or change any of the terms
and conditions of this Agreement or the Tri-Xxxx Delaware Charter or Tri-Xxxx
Delaware Bylaws if such change would adversely affect the holders of the EGT
Common Stock.
ARTICLE
IX
TERMINATION
OF MERGER
9.1 This
Agreement may be terminated and the Merger abandoned at any time prior to the
Effective Date, whether before or after shareholder approval of this Agreement,
by the consent of the Board of Directors of
Tri-Xxxx California and
Tri-Xxxx Delaware.
ARTICLE
X
MISCELLANEOUS
10.1
GOVERNING LAW. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without reference to its principles of
conflicts of law.
10.2
EXPENSES. If the Merger becomes effective, the Surviving Corporation shall
assume and pay all expenses in connection therewith not theretofore paid by the
respective parties. If for any reason the Merger shall not become effective,
Tri-Xxxx California shall pay all expenses incurred in connection
with all the proceedings taken in respect of this Merger Agreement or relating
thereto.
10.3
AGREEMENT. An executed copy of this Merger Agreement will be on file at the
principal place of business of the Surviving Corporation at 000
Xxxxxxxxx Xxxxxxxx, Xxxxxxxxxx, XX 00000 and, upon request and without cost, a
copy thereof will be furnished to any shareholder.
10.4
COUNTERPARTS. This Merger Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the day and year
first above written.
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TRI-XXXX
MFG, INC. ,
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a
Delaware corporation
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By:
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/s/ Xxxxx Xxxxxx
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Xxxxx
Xxxxxx, Chief Executive Officer
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TRI-XXXX
MFG, INC.,
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a
California corporation
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By:
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/s/ Xxxxx Xxxxxx
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Xxxxx
Xxxxxx, Chief Executive
Officer
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