AGREEMENT AND PLAN OF MERGER AMONG MASON HILL HOLDINGS, INC., MH 09122007, INC., AND ATTITUDE DRINK COMPANY, INC.
(2)(1)
Agreement and Plan of Merger dated September 14, 2007
AMONG
XXXXX
XXXX HOLDINGS, INC.,
MH
09122007, INC.,
AND
ATTITUDE
DRINK COMPANY, INC.
AGREEMENT
AND PLAN OF MERGER (“Agreement”), dated as of September 14 2007, among XXXXX
XXXX HOLDINGS, INC., a Delaware corporation, [the parent corporation after
the
Merger] (“MHHI”), MH 09122007, Inc., a Delaware corporation and a wholly-owned
subsidiary of MHHI (“Acquisition”), and Attitude Drink Company, Inc., a Delaware
corporation [the corporation to be acquired] (“ADCI”), such corporation in its
capacity as the surviving corporation being herein sometimes called the
“Surviving Corporation,” and Acquisition and ADCI being herein sometimes called
the “Constituent Corporations.”
I.
NAME OF SURVIVING CORPORATION; CERTIFICATE OF INCORPORATION AND BY-LAWS; BOARD
OF DIRECTORS; OFFICERS
§
1.01 Name of Surviving Corporation
The
corporation which shall survive the merger (the “Merger”) contemplated hereby is
Attitude Drink Company, Inc., a Delaware corporation. The name of the Surviving
Corporation shall continue to be Attitude Drink Company, Inc.
§
1.02 Certificate of Incorporation and By-laws
The
certificate of incorporation (as defined in Section 104 of the General
Corporation Law of the State of Delaware) and the by-laws of ADCI as in effect
at the Effective Time (as defined in Section 3.02) shall from and after the
Effective Time be the certificate of incorporation and the by-laws of the
Surviving Corporation until they are amended.
The
certificate of incorporation of MHHI as in effect at the Effective Time shall
from and after the Effective Time be the certificate of incorporation of MHHI
until it is amended.
§
1.03 Board of Directors and Officers
The
directors and officers of ADCI at the Effective Time shall be the directors
and
the officers of the Surviving Corporation, each to serve, in each case (subject
to the Surviving Corporation's by-laws), until his respective successor shall
have been elected and qualified.
II.
STATUS AND CONVERSION OF SECURITIES
§
2.01 Stock of ADCI
ADCI
Common Stock. Each share of common stock, par value $.001 per share, of ADCI
(“ADCI Common Stock”) outstanding at the Effective Time shall be converted into
and exchanged for 40 shares of common stock, par value $.001 per share, of
MHHI
(“MHHI Common Stock”).
Surrender
and Exchange of ADCI Common Stock. Immediately after the Effective Time, each
holder of an outstanding certificate or certificates (the “Old Certificates”)
theretofore representing shares of ADCI Common Stock, upon surrender thereof
to
Weed & Co. LLP (the “Exchange Agent”), shall be entitled to receive in
exchange therefore a certificate or certificates (the “New Certificates”), which
MHHI agrees to make available to the Exchange Agent as soon as practicable
after
the Effective Time, representing the number of whole shares of MHHI Common
Stock
into and for which the shares of ADCI Common Stock theretofore represented
by
such surrendered Old Certificates have been converted. No certificates or scrip
for fractional shares of MHHI Common Stock will be issued, no MHHI stock split
or dividend shall relate to any fractional share interest, and no such
fractional share interest shall entitle the owner thereof to vote or to any
rights of a stockholder of MHHI.
§
2.06 Capital Stock of MHHI
All
issued shares of MHHI Common Stock, whether outstanding or held in the treasury
of MHHI, shall continue unchanged as shares of capital stock of MHHI. All
outstanding MHHI warrants and MHHI stock options shall continue unchanged as
securities of MHHI.
§
2.07 Capital Stock of Acquisition
All
shares of capital stock of Acquisition outstanding at the Effective Time shall
be converted into and exchanged for 100,000 shares of common stock of the
Surviving Corporation, except that shares of capital stock of Acquisition held
in Acquisition's treasury shall be cancelled.
III.
STOCKHOLDER APPROVALS; BOARD OF DIRECTORS' RECOMMENDATIONS; FILING; EFFECTIVE
TIME
§
3.01 Stockholder Approvals; Board of Directors'
Recommendations
Meetings
of the stockholders of MHHI and of ADCI shall be held in accordance with the
General Corporation Law of the State of Delaware.
Subject
to its fiduciary duty to stockholders, the Board of Directors of MHHI shall
recommend to its stockholders that this Agreement, the Merger, and the other
transactions contemplated hereby be adopted and approved. Subject to its
fiduciary duty to stockholders, the Board of Directors of ADCI shall recommend
to its stockholders that this Agreement, the Merger, and the other transactions
contemplated hereby be adopted and approved.
Approval
of this Agreement, the Merger, and the other transactions contemplated hereby
may be approved by written consent of the stockholders holding a majority of
the
voting power of MHHI and ADCI.
MHHI,
as
the sole stockholder of Acquisition, shall, prior to the Effective Time, vote
all shares of capital stock of Acquisition in favor of the adoption and approval
of this Agreement, the Merger, and the other transactions contemplated
hereby.
§
3.02 Filing; Effective Time
As
soon
as practicable after the adoption and approval of this Agreement, the Merger,
and the other transactions contemplated hereby by the respective stockholders
of
each of MHHI, Acquisition, and ADCI (unless one or more of the conditions
contained in Articles VII and VIII have not then been fulfilled or waived,
then
as soon as practicable after the fulfillment or waiver of all such conditions),
an appropriate certificate of merger in the form required by the General
Corporation Law of the State of Delaware, shall be executed and filed in the
office of the Secretary of State of the State of Delaware, at which time the
Merger shall become effective (the “Effective Time”).
IV.
CERTAIN EFFECTS OF MERGER
When
the
Merger becomes effective, the separate existence of Acquisition shall cease,
Acquisition shall be merged into ADCI, and the Surviving Corporation shall
possess all the rights, privileges, powers, and franchises as well of a public
as of a private nature, and shall be subject to all the restrictions,
disabilities, and duties of each of the Constituent Corporations; and all and
singular, 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
for stock subscriptions as 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 were 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 or any other jurisdiction, in either of the Constituent
Corporations, shall not revert or be in any way impaired by reason of the
Merger; but all rights of creditors and all liens upon any property of either
of
the Constituent Corporations shall be preserved unimpaired, and all debts,
liabilities, and duties of the respective Constituent Corporations shall
thenceforth attach to the Surviving Corporation, and may be enforced against
it
to the same extent as if such debts, liabilities, and duties had been incurred
or contracted by it.
§
5.01 Covenants of ADCI
ADCI
agrees that, unless MHHI otherwise agrees in writing:
(a)
Certificate of Incorporation and By-laws. Until the earlier of the Effective
Time and the rightful abandonment or termination of the Merger (the “Release
Time”), no amendment will be made in the certificate of incorporation or by-laws
of ADCI or of any ADCI Subsidiary (as defined in Section 6.01(a)).
(b)
Shares and Options. Until the Release Time, no shares of capital stock of ADCI
or any ADCI Subsidiary, options or warrants for such shares, rights to subscribe
to or purchase such shares, or securities convertible into or enchangeable
for
such shares, shall be issued or sold by ADCI or any ADCI
Subsidiary.
(c)
Dividends and Purchases of Stock. Until the Release Time, no dividend or
liquidating or other distribution or stock split shall be authorized, declared,
paid, or effected by ADCI in respect of the outstanding shares of ADCI Common
Stock.
(d)
Borrowing of Money. Until the Release Time, neither ADCI nor any ADCI Subsidiary
shall borrow money, guarantee the borrowing of money, engage in any transaction,
or enter into any material agreement, except in the ordinary course of
business.
(e)
Access. Until the Release Time, ADCI will afford the officers, directors,
employees, counsel, agents, investment bankers, accountants, and other
representatives of MHHI or any MHHI Subsidiary (as defined in Section 6.02(a))
and lenders, investors, and prospective lenders and investors free and full
access to the plants, properties, books, and records of ADCI and the ADCI
Subsidiaries, will permit them to make extracts from and copies of such books
and records, and will from time to time furnish MHHI with such additional
financial and operating data and other information as to the financial
condition, results of operations, business, properties, assets, liabilities,
or
future prospects of ADCI and the ADCI Subsidiaries as MHHI from time to time
may
request. Until the Release Time, ADCI will cause the independent certified
public accountants of ADCI and the ADCI Subsidiaries to make available to MHHI
and its independent certified public accountants the work papers relating to
the
audits of ADCI and the ADCI Subsidiaries referred to in Section
6.01(c).
(f)
Conduct of Business. Until the Release Time, ADCI will conduct its affairs
and
the affairs of the ADCI Subsidiaries so that at the Effective Time no
representation or warranty of ADCI will be inaccurate, no covenant or agreement
of ADCI will be breached, and no condition in this Agreement will remain
unfulfilled by reason of the actions or omissions of ADCI or any ADCI
Subsidiary. Except as otherwise requested by MHHI in writing, until the Release
Time, ADCI and the ADCI Subsidiaries will use their best efforts to preserve
the
business operations of ADCI and the ADCI Subsidiaries intact, to keep available
the services of their present personnel, to preserve in full force and effect
the contracts, agreements, instruments, leases, licenses, arrangements, and
understandings of ADCI and the ADCI Subsidiaries, and to preserve the good
will
of their suppliers, customers, and others having business relations with any
of
them. Until the Release Time, ADCI and the ADCI Subsidiaries will conduct their
business and operations in all respects only in the ordinary
course.
(g)
Advice of Changes. Until the Release Time, ADCI will immediately advise MHHI
in
a detailed written notice of any fact or occurrence or any pending or threatened
occurrence of which it obtains knowledge and which (if existing and known at
the
date of the execution of this Agreement) would have been required to be set
forth or disclosed.
(h)
Indemnification. ADCI agrees to indemnify and hold harmless MHHI's and
Acquisition's officers, directors, employees, agents, and counsel against any
and all losses, liabilities, claims, damages, and expenses
whatsoever.
§
5.02 Covenants of MHHI and Acquisition
MHHI
and
Acquisition each agrees that, unless ADCI otherwise agrees in
writing:
(a)
Certificate of Incorporation and By-laws. Until the Release Time, no amendment
will be made in the certificate of incorporation or by-laws of MHHI or of any
MHHI Subsidiary.
(b)
Shares and Options. Until the Release Time, no shares of capital stock of MHHI
or any MHHI Subsidiary, options or warrants for such shares, rights to subscribe
to or purchase such shares, or securities convertible into or exchangeable
for
such shares, shall be issued or sold by MHHI or any MHHI
Subsidiary.
(c)
Dividends and Purchases of Stock. Until the Release Time, no dividend or
liquidating or other distribution or stock split shall be authorized, declared,
paid, or effected by MHHI in respect of the outstanding shares of MHHI Common
Stock.
(d)
Borrowing of Money. Until the Release Time, neither MHHI nor any MHHI Subsidiary
shall borrow money, except in the ordinary course of business.
(e)
Access. Until the Release Time, MHHI and Acquisition will afford the officers,
directors, employees, counsel, agents, investment bankers, accountants, and
other representatives of ADCI or any ADCI Subsidiary free and full access to
the
plants, properties, books, and records of MHHI and the MHHI Subsidiaries, will
permit them to make extracts from and copies of such books and records, and
will
from time to time furnish ADCI with such additional financial and operating
data
and other information as to the financial condition, results of operations,
business, properties, assets, liabilities, or future prospects of MHHI and
the
MHHI Subsidiaries as ADCI from time to time may request. Until the Release
Time,
MHHI and Acquisition will cause the independent certified public accountants
of
MHHI and the MHHI Subsidiaries to make available to ADCI and its independent
certified public accountants the work papers relating to the audits of MHHI
and
the MHHI Subsidiaries referred to in Section 6.02(c).
(f)
Conduct of Business. Until the Release Time, MHHI will conduct its affairs
and
the affairs of the MHHI Subsidiaries, and Acquisition will conduct its affairs,
so that at the Effective Time no representation or warranty of MHHI or
Acquisition will be inaccurate, no covenant or agreement of MHHI or Acquisition
will be breached, and no condition in this Agreement will remain unfulfilled
by
reason of the actions or omissions of MHHI or any MHHI Subsidiary. Except as
otherwise requested by ADCI in writing, until the Release Time, MHHI and the
MHHI Subsidiaries will use their best efforts to preserve the business
operations of MHHI and the MHHI Subsidiaries intact, to keep available the
services of their present personnel, to preserve in full force and effect the
contracts, agreements, instruments, leases, licenses, arrangements, and
understandings of MHHI and the MHHI Subsidiaries, and to preserve the good
will
of their suppliers, customers, and others having business relations with any
of
them. [Until the Release Time, MHHI and the MHHI Subsidiaries other than
Acquisition will conduct their business and operations in all respects only
in
the ordinary course.] Until the Release Time, Acquisition will conduct no
business or operations except in connection with this Agreement, the Merger,
or
any of the other transactions contemplated by this Agreement.
(g)
Advice of Changes. Until the Release Time, MHHI will immediately advise ADCI
in
a detailed written notice of any fact or occurrence or any pending or threatened
occurrence of which it obtains knowledge and which (if existing and known at
the
date of the execution of this Agreement) would have been required to be set
forth or disclosed.
(h)
The
Surviving Corporation agrees to indemnify and hold harmless ADCI's officers,
directors, employees, agents, and counsel against any and all losses,
liabilities, claims, damages, and expenses whatsoever.
VI.
REPRESENTATIONS AND WARRANTIES
§
6.01 Certain Representations and Warranties of ADCI
ADCI
represents and warrants to MHHI and Acquisition as follows:
(a)
Organization and Qualification. ADCI is a corporation duly organized, validly
existing, and in good standing under the laws of its jurisdiction of
incorporation, with all requisite power and authority, and all necessary
consents, authorizations, approvals, orders, licenses, certificates, and permits
of and from, and declarations and filings with, all federal, state, local,
and
other governmental authorities and all courts and other tribunals, to own,
lease, license, and use its properties and assets and to carry on the business
in which it is now engaged and the business in which it contemplates
engaging.
(b)
Capitalization. The authorized capital stock of ADCI consists of 50,000,000
shares of ADCI Common Stock, of which 100,000 shares are outstanding. Each
of
such outstanding shares of ADCI Common Stock and each outstanding share of
capital stock of each ADCI Subsidiary is validly authorized, validly issued,
fully paid, and nonassessable, has not been issued and is not owned or held
in
violation of any preemptive right of stockholders, and is owned of record and
beneficially by the following persons in the case of ADCI in accordance with
the
following table:
Name
of
Stockholder Number of Shares
Xxx
X.
Xxxxxx 97,500
Xxxxxxx
Xxxxxxx 2,500
(c)
Financial Condition. ADCI has delivered to MHHI true and correct copies of
the
audited balance sheets of ADCI as of August 31, 2007; the audited statements
of
income, statements of retained earnings, and statements of cash flows of ADCI
for the period ended August 31, 2007.
(d)
Tax
and Other Liabilities. Neither ADCI nor any ADCI Subsidiary has any liability
of
any nature, accrued or contingent, including without limitation liabilities
for
federal, state, local, or foreign taxes and penalties, interest, and additions
to tax (“Taxes”), and liabilities to customers or suppliers, other than the
following:
(1)
That
certain Consulting Agreement with Xxxxx Xxxxx dated July 15, 2007.
(e)
Litigation and Claims. There is no litigation, arbitration, claim, governmental
or other proceeding (formal or informal), or investigation pending, threatened,
or in prospect (or any basis therefor known to ADCI or any ADCI Subsidiary),
with respect to ADCI or any ADCI Subsidiary or any of their respective
businesses, properties, or assets.
§
6.02 Certain Representations and Warranties of MHHI and
Acquisition
MHHI
and
Acquisition each represents and warrants to ADCI as follows:
(a)
Organization and Qualification. MHHI and each of the MHHI Subsidiaries is a
corporation duly organized, validly existing, and in good standing under the
laws of its jurisdiction of incorporation, with all requisite power and
authority, and all necessary consents, authorizations, approvals, orders,
licenses, certificates, and permits of and from, and declarations and filings
with, all federal, state, local, and other governmental authorities and all
courts and other tribunals, to own, lease, license, and use its properties
and
assets and to carry on the business in which it is now engaged and the business
in which it contemplates engaging.
(b)
Capitalization. The authorized capital stock of MHHI consists of 100,000,000
shares of MHHI Common Stock, of which 1,000,000 shares are outstanding and
20,000,000 shares of MHHI Preferred Stock, of which 75,000 shares of Series
A
Convertible Preferred Stock are outstanding. Each of such outstanding shares
of
MHHI and each outstanding share of capital stock of each MHHI Subsidiary is
validly authorized, validly issued, fully paid, and non-assessable, has not
been
issued and is not owned or held in violation of any preemptive right of
stockholders
(c)
Financial Condition. MHHI has delivered to or made available to ADCI true and
correct copies of its financial statements.
(d)
Tax
and Other Liabilities. Neither MHHI nor any MHHI Subsidiary has any liability
of
any nature, accrued or contingent, including without limitations liabilities
for
Taxes and liabilities to customers or suppliers
(e)
Litigation and Claims. There is no litigation, arbitration, claim, governmental
or other proceeding (formal or informal), or investigation pending, threatened,
or in prospect (or any basis therefor known to MHHI or any MHHI Subsidiary)
with
respect to MHHI or any MHHI Subsidiary or any of their respective businesses,
properties, or assets.
VII.
ABANDONMENT AND TERMINATION
§
7.01 Right of MHHI and Acquisition to Abandon
MHHI's
and Acquisition's Board of Directors shall have the right to abandon or
terminate the Merger at any time prior to the Effective Date.
§
7.02 Right of ADCI to Abandon
ADCI's
Board of Directors shall have the right to abandon or terminate the Merger
at
any time prior to the Effective Date.
VIII.
ADDITIONAL TERMS OF ABANDONMENT
§
8.01 Mandatory Abandonment
The
Merger shall be abandoned or terminated if all parties agree in
writing.
IX.
OMITTED
X.
MISCELLANEOUS
§
10.01 Further Actions
At
any
time and from time to time, each party agrees, at its expense, to take such
actions and to execute and deliver such documents as may be reasonably necessary
to effectuate the purposes of this Agreement.
§
10.02 Availability of Equitable Remedies
Since
a
breach of the provisions of this Agreement could not adequately be compensated
by money damages, any party shall be entitled, either before or after the
Effective Time, in addition to any other right or remedy available to it, to
an
injunction restraining such breach or threatened breach and to specific
performance of any such provision of this Agreement, and, in either case, no
bond or other security shall be required in connection therewith, and the
parties hereby consent to the issuance of such an injunction and to the ordering
of specific performance.
§
10.03 Survival
The
covenants, agreements, representations, and warranties contained in or made
pursuant to this Agreement shall not survive the Effective Time.
§
10.04 Modification
This
Agreement sets forth the entire understanding of the parties with respect to
the
subject matter hereof and supersedes all existing agreements among them
concerning such subject matter.
§
10.05 Notices
Any
notice or other communication required or permitted to be given hereunder shall
be in writing and shall be mailed by certified mail, return receipt requested
or
by Federal Express, Express Mail, or similar overnight delivery or courier
service or delivered (in person or by telecopy, telex, or similar
telecommunications equipment) against receipt to the party to which it is to
be
given at the address of such party.
§
10.06 Waiver
Any
waiver by any party of a breach of any term of this Agreement shall not operate
as or be construed to be a waiver of any other breach of that term or of any
breach of any other term of this Agreement. The failure of a party to insist
upon strict adherence to any term of this Agreement on one or more occasions
will not be considered a waiver or deprive that party of the right thereafter
to
insist upon strict adherence to that term or any other term of this Agreement.
Any waiver must be in writing and be authorized by a resolution of the Board
of
Directors [or by an officer] of the waiving party. No party shall have the
right
to waive compliance with Section 8.01, the second sentence of Section 10.04,
or
this sentence.
§
10.07 Binding Effect
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
MHHI, Acquisition, and ADCI and their respective successors and assigns and
shall inure to the benefit of each MHHI Indemnitee and each ADCI Indemnitee
and
its successors and assigns (if not a natural person) and his assigns, heirs,
and
personal representatives (if a natural person).
§
10.08 No Third-Party Beneficiaries
This
Agreement does not create, and shall not be construed as creating, any rights
enforceable by any person not a party to this Agreement.
§
10.09 Separability
If
any
provision of this Agreement is invalid, illegal, or unenforceable, the balance
of this Agreement shall remain in effect, and if any provision is inapplicable
to any person or circumstance, it shall nevertheless remain applicable to all
other persons and circumstances.
§
10.10 Headings
The
headings in this Agreement are solely for convenience of reference and shall
be
given no effect in the construction or interpretation of this
Agreement.
§
10.11 Counterparts; Governing Law
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. It shall be governed by and construed in accordance with the laws
of
Delaware, without giving effect to conflict of laws.
IN
WITNESS WHEREOF, this Agreement has been approved by resolution duly adopted
by
the Board of Directors of each of the parties hereto and has been executed
by
duly authorized officers of each of the parties hereto, and each of the parties
hereto has caused its corporate seal to be hereunto affixed and attested by
the
signature of its Secretary or an Assistant Secretary, all as of the date first
above written.
XXXXX
XXXX HOLDINGS, INC.
By:
/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
President
MH
09122007, INC.
By:
/s/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
President
ATTITUDE
DRINK COMPANY, INC.
By:
/s/
Xxx X. Xxxxx
Name:
Xxx
X. Xxxxxx
Title:
President
