Exhibit 10.1
REINCORPORATION AGREEMENT AND
PLAN OF MERGER
This
Reincorporation Agreement and Plan of Merger (this " Merger
Agreement "), is entered into as of June 20, 2008, by and
between Terra Nova Financial Group, Inc., a Texas corporation ("TN
Texas"), and Terra Nova Newco, Inc., an Illinois corporation and a
wholly owned subsidiary of TN Texas (" TN Illinois ") .
RECITALS:
A.
TN Texas is a
corporation duly incorporated, validly existing and in good
standing under the laws of the State of Texas. As of the date
hereof, the authorized capital stock of TN Texas consists of
150,000,000 shares of common stock, par value $.01 per share, of
which 26,017,057 shares are issued and outstanding, and 5,000,000
shares of preferred stock, par value $10.00 per share, none of
which are outstanding;
B.
TN Illinois is a
corporation duly incorporated, validly existing and in good
standing under the laws of the State of Illinois. As of the date
hereof, the authorized capital stock of TN Illinois consists of
150,000,000 shares of common stock, par value $.01 per share, and
5,000,000 shares of preferred stock, par value $10.00 per share. As
of the date hereof and prior to giving effect to the transactions
contemplated hereby, no shares of preferred stock of TN Illinois
are outstanding and 100 shares of common stock of TN Illinois are
issued and outstanding, all of which are held by TN Texas;
C.
The board of directors of TN Texas has determined that it is
advisable and in the best interests of TN Texas and the
shareholders of TN Texas (the " TN Texas Shareholders ") to
effect the reincorporation of TN Texas in the State of Illinois and
has approved a plan of merger providing for the merger of TN Texas
with and into TN Illinois on the terms and subject to the
conditions set forth herein;
D.
The board of
directors of TN Illinois has determined that it is advisable and in
the best interests of TN Illinois and the sole stockholder of TN
Illinois that TN Illinois enter into, and has accordingly approved,
a plan of merger providing for the merger of TN Texas with and into
TN Illinois on the terms and subject to the conditions set forth
herein;
E.
The TN Texas
Shareholders have approved this Merger Agreement at the regular
annual meeting thereof held on May 23, 2008 in accordance with TN
Texas' articles of incorporation and bylaws and the Texas Business
Corporation Act (the " Texas BCA ");
F.
The sole
stockholder of TN Illinois has approved this Merger Agreement by a
duly adopted written consent in accordance with TN Illinois'
articles of incorporation and bylaws and the Illinois Business
Corporation Act (the " Illinois BCA ");
G.
The respective
boards of directors of TN Texas and TN Illinois have authorized and
approved the plan of merger of TN Texas with and into TN Illinois
upon the terms and subject to the conditions set forth herein, and
have directed that this Merger Agreement be executed by the
undersigned officers; and
H.
It is the intention
of TN Texas and TN Illinois that the Merger (as defined herein) 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 in this Merger Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are
acknowledged, the parties, intending to be legally bound, agree as
follows:
ARTICLE I
THE MERGER
Section
1.1 Merger of TN
Texas into TN Illinois . At the Effective Time (as defined in
Section 2.1), TN Texas shall merge (the " Merger ") with and
into TN Illinois in accordance with the Texas BCA and Illinois
BCA.
Section
1.2 Effects of
Merger . At the Effective Time, the separate existence of TN
Texas shall cease and TN Illinois 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 TN Texas and TN Illinois (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 in either of
such Constituent Corporations by deed or otherwise under the laws
of the States of Illinois or Texas, as the case may be, shall not
revert or be in any way impaired for any reason whatsoever; 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 TN Texas, the TN Texas
Shareholders, the board of directors of TN Texas and any committee
thereof, and officers and agents of TN Texas which were valid and
effective immediately prior to the Effective Time shall be taken
for all purposes as corporate 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 TN Texas. Each employee or agent of TN
Texas shall become an employee or agent of TN Illinois, as
applicable, and continue to be entitled to the same rights and
benefits which she or he enjoyed as an employee or agent of TN
Texas, as applicable. The requirements of any plans or agreements
of TN Texas involving the issuance or purchase by TN Texas 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.
2
ARTICLE II
EFFECTIVE TIME; EFFECTS OF MERGER
Section
2.1. Effective
Time . The Merger shall become effective on the date articles
of merger are filed with the Secretary of State of the State of
Texas and the articles of merger are filed with the Secretary of
State of the State of Illinois (the " Effective Time "). At
the Effective Time, the Merger shall have the effects specified in
the Illinois BCA, the Texas BCA and this Merger Agreement.
Section
2.2. Articles of
Incorporation and Bylaws . At the Effective Time, the articles
of incorporation and the bylaws of TN Illinois, as in effect
immediately prior to the Effective Time, shall remain the articles
of incorporation and bylaws of the Surviving Corporation, with the
exception that Item 1 of the articles of incorporation relating to
the name of the Surviving Corporation shall be amended upon the
Effective Time to read as follows:
1.
Corporate Name: Terra Nova Financial Group, Inc.
and
said articles of incorporation, as herein amended, and bylaws shall
continue in full force and effect until the same shall be altered,
amended or repealed in accordance with the Illinois BCA.
Section
2.3. Directors
and Officers . At the Effective Time, the directors and
officers of TN Texas in office at the Effecti
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