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Exhibit
2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (hereinafter
called this " Agreement "),
dated as of February 9, 2007, is entered into between SMI Products,
Inc., a Nevada corporation, Inc., a public company incorporated in
the State of Nevada (the " Company
") and SMI Products Inc., a Delaware corporation and
a wholly owned subsidiary of the Company ("
SMI-Delaware ").
RECITALS
WHEREAS, the board of directors of each of the
Company and SMI-Delaware deems it advisable, upon the terms and
subject to the conditions herein stated, that the Company be merged
with and into SMI-Delaware and that SMI-Delaware be the surviving
corporation (the " Reincorporation Merger
"); and
WHEREAS, the Company will submit this Agreement
for approval by written consent of the holders of shares of common
stock, $0.001 par value, of the Company (" common
stock ").
NOW, THEREFORE, in consideration of the premises
and of the agreements of the parties hereto contained herein, the
parties hereto agree as follows:
ARTICLE I
THE REINCORPORATION MERGER;
EFFECTIVE TIME
1.1. The Reincorporation Merger.
Upon the terms and subject to the conditions
set forth in this Agreement, at the Effective Time (as defined in
Section 1.2), the Company shall be merged with and into
SMI-Delaware whereupon the separate existence of the Company shall
cease. SMI-Delaware shall be the surviving corporation
(sometimes hereinafter referred to as the " Surviving
Corporation ") in the Reincorporation
Merger and shall continue to be governed by the laws of the State
of Delaware. The Reincorporation Merger shall have the
effects specified in the General Corporation Law of the State of
Delaware, as amended (the " DGCL "), and in the General Corporation Law of the State of Nevada,
as amended (the " NGCL "),
and the Surviving Corporation shall succeed, without other
transfer, to all of the assets and property (whether real, personal
or mixed), rights, privileges, franchises, immunities and powers of
the Company, and shall assume and be subject to all of the duties,
liabilities, obligations and restrictions of every kind and
description of the Company, including, without limitation, all
outstanding indebtedness of the Company.
1.2. Effective Time. Provided that the condition set forth in
Section 5.1 has been fulfilled or waived in accordance with
this Agreement and that this Agreement has not been terminated or
abandoned pursuant to Section 6.1, on the date of the closing
of the Reincorporation Merger, the Company and SMI-Delaware shall
cause Articles of Merger to be executed and filed with the
Secretary of State of Nevada (the " Nevada Articles
of Merger ") and a Certificate of Merger to
be executed and filed with the Secretary of State of Delaware (the
" Delaware Certificate of Merger "). The Reincorporation Merger shall become effective
upon the date and time specified in the Nevada Articles of Merger
and the Delaware Certificate of Merger (the "
Effective Time ").
ARTICLE II
CHARTER AND BYLAWS OF THE
SURVIVING CORPORATION
2.1. The Certificate of
Incorporation. The certificate of
incorporation of SMI-Delaware in effect at the Effective Time shall
be the certificate of incorporation of the Surviving Corporation,
until amended in accordance with the provisions provided therein or
applicable law.
2.2. The Bylaws. The bylaws of SMI-Delaware in effect at the Effective
Time shall be the bylaws of the Surviving Corporation, until
amended in accordance with the provisions provided therein or
applicable law.
ARTICLE III
OFFICERS AND DIRECTORS OF THE
SURVIVING CORPORATION
3.1. Officers. The officers of the Company at the Effective Time shall,
from and after the Effective Time, be the officers of the Surviving
Corporation, until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation
or removal.
3.2. Directors. The directors of the Company at the Effective Time
shall, from and after the Effective Time, be the directors of the
Surviving Corporation, until their successors have been duly
elected or appointed and qualified or until their earlier death,
resignation or removal.
ARTICLE IV
EFFECT OF MERGER ON CAPITAL
STOCK
4.1. Effect of Merger on Capital
Stock. At the Effective Time, as a
result of the Reincorporation Merger and without any action on the
part of the Company, SMI-Delaware or the shareholders of the
Company:
(a) Each ten (10) shares of common stock
(other than shares (" Dissenting Shares
") that are owned by shareholders ("
Dissenting Shareholders ")
exercising dissenters’ rights pursuant to the relevant
provisions of Sections 92A.300 through 92A.500 of the NGCL) issued
and outstanding immediately prior to the Effective Time shall be
converted (without the surrender of stock certificates or any other
action) into one (1) fully paid and non-assessable shares of common
stock, par value $0.001, of SMI-Delaware (" Delaware
common stock "), with the same rights,
powers and privileges as the shares so converted and all shares of
common stock shall be cancelled and retired
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