Agreement and Plan of Merger, dated October 21, 2009, by and between the Registrant and Constitution Mining Corp., a Nevada corporation and the Registrants predecessor in interest

 

 

 

 

This Agreement and Plan of Merger (the “Agreement”), dated as of October 21, 2009, by and between Constitution Mining Corp., a Nevada corporation (“CMC-Nevada”), and Constitution Mining Corp., a Delaware corporation and a wholly-owned subsidiary of CMC-Nevada (“CMC-Delaware”), is made with respect to the following facts.

 

Whereas, CMC-Nevada is a corporation duly organized and existing under the laws of the State of Nevada;

 

Whereas, CMC-Delaware is a corporation duly organized and existing under the laws of the State of Delaware;

 

Whereas, the respective boards of directors for CMC-Nevada and CMC-Delaware have determined that, for purposes of effecting the reincorporation of CMC-Nevada in the State of Delaware, it is advisable and to the advantage of said two corporations and their stockholders that CMC-Nevada merge with and into CMC-Delaware so that CMC-Delaware is the surviving corporation on the terms provided herein (the “Merger”); and

 

1.1         The Merger; Surviving Corporation.  Subject to the terms and conditions set forth in this Agreement, at the Effective Time (as defined in Section 1.5 below), CMC-Nevada shall be merged with and into CMC-Delaware, subject to and upon the terms and conditions provided in this Agreement and the applicable provisions of the General Corporation Law of the State of Delaware (the “DGCL”) and the applicable provisions of the Nevada Revised Statutes (the “NRS”), and the separate existence of CMC-Nevada shall cease. C MC-Delaware shall be the surviving entity (the “Surviving Corporation”) and shall continue to be governed by the DGCL.

 

 

 

1.2         Constituent Corporations.  The name, address, jurisdiction of organization and governing law of each of the constituent corporations is as follows:

 

(a)         CMC-Nevada:  Constitution Mining Corp., a corporation organized under and governed by the laws of the State of Nevada with an address of Pasaje Mártir Olaya 129, Oficina 1203, Centro Empresarial José Pardo Torre A, Miraflores, Lima, Perú; and

 

 (b)         CMC-Delaware:  Constitution Mining Corp., a corporation organized under and governed by the laws of the State of Delaware with an address of Pasaje Mártir Olaya 129, Oficina 1203, Centro Empresarial José Pardo Torre A, Miraflores, Lima, Perú.

 

 (a)         This Agreement and the Merger shall each have been adopted and recommended to the stockholders of CMC-Nevada by the board of directors of CMC-Nevada and approved by a majority of the voting power of the outstanding stock of CMC-Nevada entitled to vote thereon, in accordance with the requirements of the NRS;

 

 (b)         This Agreement and the Merger shall each have been adopted by the board of directors of CMC-Delaware in accordance with the requirements of the DGCL;

 

 (c)         The effective date of the Merger as stated in the executed Articles of Merger (the “Articles of Merger”) filed with the Secretary of State for the State of Nevada; and

 

 (d)         An executed Certificate of Merger (the “Certificate of Merger”) or an executed counterpart to this Agreement meeting the requirements of the DGCL shall have been filed with the Secretary of State of the State of Delaware.

 

 (a)         From and after the Effective Time, the Certificate of Incorporation of CMC-Delaware shall be the Certificate of Incorporation of the Surviving Corporation.

 

 (b)         From and after the Effective Time, the Bylaws of CMC-Delaware as in effect immediately prior to the Effective Time shall be the Bylaws of the Surviving Corporation.

 

 

 

 1.8         Officers and Directors.  The officers of CMC-Nevada immediately prior to the Effective Time shall continue as officers of the Surviving Corporation and remain officers until their successors are duly appointed or their prior resignation, removal or death.  The directors of CMC-Nevada immediately prior to the Effective Time shall continue as directors of the Surviving Corporation and shall remain as directors until their successors are duly elected and qualified or their prior resignation, removal or death.

 

 

(a)         From and after the Effective Time, the Surviving Corporation shall assume the obligations of CMC-Nevada under, and continue, the option plans and all other employee benefit plans of CMC-Nevada. Each outstanding and unexercised option, other right to purchase, or security convertible into or exercisable for, CMC-Nevada common stock (a “Right”) shall become, an option, right to purchase or a security convertible into the Surviving Corporation’s Common Stock, on the basis of one share of the Surviving Corporation’s Common Stock for each one share of CMC-Nevada common stock issuable pursuant to any such Right, on the same terms and conditions and at an exercise price equal to the exercise price applicable to any such CMC-Nevada Right from and after the Effective Time.  This paragraph 2.2(a) shall not apply to currently issued and outstanding CMC-Nevada common stock. Such common stock is subject to paragraph 2.1 hereof.

 

 (b)         A number of shares of the Surviving Corporation’s Common Stock shall be reserved for issuance upon the exercise of options and convertible securities equal to the number of shares of CMC-Nevada common stock so reserved immediately prior to the Effective Time.

 

 2.3         Certificates.  At and after the Effective Time, all of the outstanding certificates that immediately prior thereto represented shares of common stock, options, warrants or other securities of CMC-Nevada shall be deemed for all purposes to evidence ownership of and to represent the shares of the respective common stock, options, warrants or other securities of CMC-Delaware, as the case may be, into which the shares of common stock, options, warrants or other securities of CMC-Nevada represented by such certificates 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 shall, until such certificate 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 shares of common stock, options, warrants or other securities of CMC-Delaware, as the case may be, evidenced by such outstanding certificate, as above provided.

 

 

 3.2         Further Assurances.  If at any time CMC-Delaware shall consider or be advised that any further assignment, conveyance or assurance is necessary or advisable to vest, perfect or confirm of record in it the title to any property or right of CMC- Nevada, or otherwise to carry out the provisions hereof, officers of CMC-Nevada as of the Effective Time shall execute and deliver any and all proper deeds, assignments and assurances, and do all things necessary and proper to vest, perfect or convey title to such property or right in CMC-Delaware and otherwise to carry out the provisions hereof.  

 

 

 4.1         Validity of Actions.  CMC-Nevada (a) is a corporation duly formed, validly existing and in good standing under the laws of the State of Nevada, and (b) has full power and authority to enter into this Agreement and to carry out all acts contemplated by it.  This Agreement has been duly executed and delivered on behalf of CMC- Nevada.  CMC-Nevada has received all necessary authorization to enter into this Agreement, and this Agreement is a legal, valid and binding obligation of CMC-Nevada, enforceable against CMC-Nevada in accordance with its terms.  The execution and delivery of this Agreement and consummation of the transactions contemplated by it will not violate any provision of CMC-Nevada’s Articles of Incorporation or Bylaws, nor violate, conflict with or result in any breach of any of the terms, provisions or conditions of, or constitute a default or cause acceleration of, any indebtedness under any agreement or instrument to which CMC-Nevada is a party or by which it or its assets may be bound, or cause a breach of any applicable Federal or state law or governmental regulation, or any applicable order, judgment, writ, award, injunction or decree of any court or governmental instrumentality.

 

 5.1         Validity of Actions.  CMC-Delaware (a) is duly organized, validly existing and in good standing under the laws of the State of Delaware, and (b) has full power and authority to enter into this Agreement and to carry out all acts contemplated by it.  This Agreement has been duly executed and delivered on behalf of CMC-Delaware.  CMC- Delaware has received all necessary authorization to enter into this Agreement, and this Agreement is a legal, valid and binding obligation of CMC-Delaware, enforceable against CMC-Delaware in accordance with its terms.  The execution and delivery of this Agreement and consummation of the transactions contemplated by it will not violate any provision of the Certificate of Incorporation or Bylaws of CMC-Delaware nor violate, conflict with or result in any breach of any of the terms, provisions or conditions of, or constitute a default or cause acceleration of, any indebtedness under any agreement or instrument to which CMC-Delaware is a party or by which it or its assets may be bound, or cause a breach of any applicable federal or state law or regulation, or any applicable order, judgment, writ, award, injunction or decree of any court or governmental instrumentality.

 

 

 

7.1         Bring Down.  The representations and warranties set forth in this Agreement shall be true and correct in all material respects at, and as of, the Effective Time as if then made as of the Effective Time.

 

7.2         No Statute, Rule or Regulation Affecting.  At the Effective Time, there shall be no statute, or regulation enacted or issued by the United States or any State, or by a court, which prohibits or challenges the consummation of the Merger.

 

 7.3         Satisfaction of Conditions.  All other conditions to the Merger set forth herein shall have been satisfied.

 

 

 8.2         Amendment.  The parties hereto may, by written agreement, amend this Agreement at any time prior to the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, provided that any such amendment must first be approved by the Board of Directors of CMC-Nevada.

 

 

 

 8.3         Waiver.  At any time prior to the Effective Time, any party to this Agreement may extend the time for the performance of any of the obligations or other acts of any other party hereto, or waive compliance with any of the agreements of any other party or with any condition to the obligations hereunder, in each case only to the extent that such obligations, agreements and conditions are intended for its benefit.

 

 

 9.2         Notice.  Except as otherwise specifically provided, any notices to be given hereunder shall be in writing and shall be deemed given upon personal delivery or upon mailing thereof, if mailed by certified mail, return receipt requested, to the following addresses (or to such other address or addresses shall be specified in any notice given):

 

 In the case of CMC-Delaware:

 

CONSTITUTION MINING CORP.

Pasaje Mártir Olaya 129, Oficina 1203

Centro Empresarial José Pardo Torre A

Miraflores, Lima

Perú

 

 In the case of CMC-Nevada:

 

Pasaje Mártir Olaya 129, Oficina 1203

Centro Empresarial José Pardo Torre A

Miraflores, Lima

Perú

 9.5         Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to conflicts of law principles.

 

 9.6         Headings.  The various section headings are inserted for purposes of reference only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.

 

 

 

 9.7         Gender; Number.  All references to gender or number in this Agreement shall be deemed interchangeably to have a masculine, feminine, neuter, singular or plural meaning, as the sense of the context requires.

 

 9.8         Severability.  The provisions of this Agreement shall be severable, and any invalidity, unenforceability or illegality of any provision or provisions of this Agreement shall not affect any other provision or provisions of this Agreement, and each term and provision of this Agreement shall be construed to be valid and enforceable to the full extent permitted by law.