GPL Holdings, Inc 8-K, filed May 31, 2022
GPL Holdings, Inc. (GPLL)
About this 8-K
GPL Holdings, Inc filed this 8-K on May 31, 2022, reporting on events of May 23, 2022.
Items reported
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): May 23, 2022
GPL HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
| Nevada | 000-56350 | 00-0000000 |
|
(State or other jurisdiction of incorporation or organization) |
(Commission File Number) | (I.R.S. Employer Identification No.) |
433 Estudillo Avenue, Suite 206
San Leandro, CA
(Address of Principal Executive Offices)
Issuer's telephone number: (888)-437-3432
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
| None | None | None |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards providing pursuant to Section 13(a) of the Exchange Act. ☐
-1-
FORWARD LOOKING STATEMENTS
References to “We,” “Our,” and “the Company,” refer to GPL Holdings, Inc., a Nevada Company.
This Form 8-K and other reports filed by Registrant from time to time with the Securities and Exchange Commission (collectively the "Filings") contain or may contain forward looking statements and information that are based upon beliefs of, and information currently available to, Registrant's management as well as estimates and assumptions made by Registrant's management. When used in the filings the words "anticipate", "believe", "estimate", "expect", "future", "intend", "plan" or the negative of these terms and similar expressions as they relate to Registrant or Registrant's management identify forward looking statements. Such statements reflect the current view of Registrant with respect to future events and are subject to risks, uncertainties, assumptions and other factors relating to Registrant's industry, Registrant's operations and results of operations and any businesses that may be acquired by Registrant. Should one or more of these risks or uncertainties materialize, or should the underlying assumptions prove incorrect, actual results may differ significantly from those anticipated, believed, estimated, expected, intended or planned.
Although Registrant believes that the expectations reflected in the forward looking statements are reasonable, Registrant cannot guarantee future results, levels of activity, performance or achievements. Except as required by applicable law, including the securities laws of the United States, Registrant does not intend to update any of the forward-looking statements to conform these statements to actual results.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The Company filed amended and restated articles of incorporation with Nevada Secretary of State on May 12, 2022. The authorized capital stock changed as follows and as further disclosed in Exhibit 99.1.
ARTICLE IV
CAPITAL STOCK
The aggregate number of shares which this Corporation shall have authority to issue is: Five Hundred Million (500,000,000) shares of $0.001 par value each, which Four Hundred Eighty Million (480,000,000) shares shall be designated "Common Stock"; and Twenty Million (20,000,000) shares of $0.001 par value each, which shares shall be designated "Preferred Stock".
Preferred Stock. The Preferred Stock of the Corporation shall be issuable by authority of the Board of Director(s) of the Corporation in one or more classes or one or more series within any class and such classes or series shall have such voting powers, full or limited, or no voting powers, and such designations, preferences, limitations, or restrictions as the Board of Directors of the Corporation may determine, from time to time. The authority of the Board of Directors with respect to each class or series shall include all designation rights conferred by Nevada Laws upon directors, including, but not limited to, determination of the following:
| (a) | The number of shares constituting of that class or series and the distinctive designation of that class or series; |
| (b) | The dividend rate on the share of that class or series, whether dividends shall be cumulative, and, if so, from which date or dates, and the relative rights or priorities, if any, of payment of dividends on shares of that class or series; |
| (c) | Whether the shares of that class or series shall have conversion privileges, and, if so, the terms and conditions of such privileges, including provision for adjustment of conversion rate(s) in relation to such events as the Board of Directors shall determine; |
(d) Whether the shares of that class or series shall be redeemable, and, if so, the terms and conditions of such redemption, including the date or dates upon or after which amount they shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates;
(e) Whether there shall be a sinking fund for the redemption or purchase of shares of that class or series, and, if so, the terms and amount of such sinking fund;
(f) The rights of the shares of that class or series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of that class or series; and
(g) Any other relative rights, preferences and limitations of that class or series now or hereafter permitted by law.
Designation of Preferred Series Z Stock. One Million (1,000,000) shares of the Company’s preferred stock shall be designated as Series Z Preferred Stock, $0.001 par value per share. Initially, there will be no dividends due or payable on the Series Z Preferred Stock. Holders of Series Z Preferred Stock shall have no right to convert those shares into Common Stock or any other class of securities of the Corporation. Each one share of the Series Z Preferred Stock shall have voting rights equal to one million (1,000,000) votes of Common Stock. With respect to all matters upon which stockholders are entitled to vote or to which stockholders are entitled to give consent, the holders of the outstanding shares of Series Z Preferred Stock shall vote together with the holders of Common Stock without regard to class, except as to those matters on which separate class voting is required by applicable law or the Corporation’s Articles of Incorporation or by-laws.
ARTICLE V
VOTING
Holders of shares of Common Stock shall be entitled to cast one vote for each share held at all stockholders' meetings for all purposes, including the election of directors. The Common Stock does not have cumulative voting rights.
No holder of shares of stock of any class or series shall be entitled as a matter of right to subscribe for or purchase or receive any part of any new or additional issue of shares of stock of any class or series, or of securities convertible into shares of stock of any class or series, whether now hereafter authorized or whether issued for money, for consideration other than money, or by way of dividend.
Item 8.01. Other Events.
On May 23, 2022, GPL Holdings, Inc. (the “Company” or “Successor”) transmuted its business plan from that of a blank check shell company to a business combination related shell company with a holding company formation pursuant to a reorganization with Benchmark Energy Corporation (“BMRK” or “Predecessor” ). The reason for the change in the nature of our business plan is due to the fact that our sole director believed it to be in the best interest of the Company to complete a holding company reorganization (“Reorganization”) with BMRK pursuant to NRS 92A.180, NRS A.200, NRS 92A.230 and NRS 92A.250. The “Articles of Merger” pursuant to the Reorganization were filed on March 23, 2022 with the Nevada Secretary of State, with an equivalent effective date. The Articles of Merger are attached as Exhibit 99.2.
The constituent corporations in the Reorganization were Benchmark Energy Corporation (“BMRK” or “Predecessor”), the Company and GPL Merger Sub, Inc. (“Merger Sub”). Our director is and was the sole director/officer of each constituent corporation in the Reorganization.
Pursuant to the reorganization, the Company issued 1,000 common shares of its common stock to Predecessor and Merger Sub issued 1,000 shares of its common stock to the Company immediately prior to the Reorganization. Immediately prior to the merger, the Company was a wholly owned direct subsidiary of BMRK and Merger Sub was a wholly owned and direct subsidiary of the Company. The legal effective date of the Reorganization was May 23, 2022 (the “Effective Time”). At the Effective Time, Predecessor was merged with and into Merger Sub (the “Merger), and Predecessor was the surviving corporation. Each share of Predecessor common stock (BMRK) issued and outstanding immediately prior to the Effective Time shall be (and subsequently was) converted into one validly issued, fully paid and non-assessable share of Successor common stock.
Each share of Predecessor’s common stock issued and outstanding immediately prior to the Effective Time was converted into one validly issued, fully paid and non-assessable share of Successor common stock. The control shareholder of Successor is GPL Holdings, LLC, a Nevada limited liability company. Sylvester L. Crawford, our sole director is the sole member of GPL Holdings, LLC and is therefore deemed to be the indirect and beneficial holder of a total of 150,000,000 shares of Common Stock of the Company representing approximately 85.81% voting control of the Company. Mr. Crawford is the same officer/director of the Predecessor and Merger Sub. Yantis Family Trust owns 5.673 % voting control. There are no other shareholders not already disclosed or any officer/director holding at least 5% of the outstanding voting shares of the Company. Currently, there are approximately 176,285,321 shares of Common Stock issued and outstanding of the issuer.
Immediately prior to the Effective Time, and under the respective articles of incorporation of Predecessor and Successor, the Successor Capital Stock had the same designations, rights, and powers and preferences, and the qualifications, limitations and restrictions thereof, as the Predecessor Capital Stock which was automatically converted pursuant to the reorganization.
Immediately prior to the Effective Time, the articles of incorporation and bylaws of Successor, as the holding company, contain provisions identical to the Articles of Incorporation and Bylaws of Predecessor immediately prior to the merger, other than as permitted by NRS 92A.200.
Immediately prior to the Effective Time, the articles of incorporation of Predecessor stated that any act or transaction by or involving the Predecessor, other than the election or removal of directors of the Predecessor, that requires for its adoption under the NRS or the Articles of Incorporation of Predecessor the approval of the stockholders of the Predecessor, shall require in addition the approval of the stockholders of Successor (or any successor thereto by merger), by the same vote as is required by the articles of Incorporation and/or the bylaws of the Predecessor.
Immediately prior to the Effective Time, the articles of incorporation and bylaws of Successor and Merger Sub were identical to the articles of incorporation and bylaws of Predecessor immediately prior to the merger, other than as permitted by NRS 92A.200;
The Boards of Directors of Predecessor, Successor, and Merger Sub approved the Reorganization, shareholder approval not being required pursuant to NRS 92A.180;
The Reorganization constituted a tax-free organization pursuant to Section 368(a)(1) of the Internal Revenue Code;
Effects of Merger
The Merger shall have the effects set forth in the Agreement and Plan of Merger (attached herein as Exhibit 99.2) pursuant to the applicable provisions set forth in NRS 92A.250. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, (i) right and title to all assets (including real estate and other property, if any) owned by, and every contract right possessed by, the Predecessor and Merger Sub shall vest in Predecessor, and (ii) all liabilities and obligations of the Predecessor and Merger Sub shall become the liabilities and obligations of Predecessor. The vesting of such rights, title, liabilities, and obligations in the Predecessor shall not be deemed to constitute an assignment or an undertaking or attempt to assign such rights, title, liabilities and obligations.
The conversion of securities of Predecessor into the identical and equivalent securities of Successor will not constitute a sale, resale or different security. Securities issued by Successor pursuant to the merger shall be deemed to have been acquired at the same time as the securities of the Predecessor exchanged in the merger. Successor securities issued solely in exchange for the securities of Predecessor as part of a reorganization of the Predecessor into a holding company structure. Stockholders received securities of the same class evidencing the same proportional interest in the holding company as they held in the Predecessor, and the rights and interests of the stockholders of such securities are substantially the same as those they possessed as stockholders of the Predecessor’s securities. Immediately following the merger, Successor has no significant assets other than securities of the Predecessor and its existing subsidiary(s) and has the same assets and liabilities on a consolidated basis as the Predecessor had before the merger. Stockholders of Predecessor shall be and now are the stockholders of Successor.
Successor common stock is listed in the OTC Expert Market under the Predecessor ticker symbol “BMRK” under which the common stock of Predecessor previously listed and traded until a new ticker symbol is released by the Financial Industry Regulatory Authority (“FINRA”). Our Predecessor applied for a new ticker symbol with FINRA but there is no market effective date at this time. The Company applied to the CUSIP bureau for its own CUSIP Number on May 26, 2022. The CUSIP Bureau issued us CUSIP number 3621MX103. The CUSIP number for Predecessor’s common stock will be suspended at the market effective date of the release of ticker symbol if Predecessor’s corporate action is successfully approved and processed by FINRA.
The Company’s transfer agent is Mountain Share Transfer with an address of 2030 Powers Ferry Road, Suite 212, Atlanta, GA 30339.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
|
99.1
|
Amended and Restated Articles of Incorporation |
| 99.2 | Agreement and Plan of Merger |
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
GPL Holdings, Inc.
Dated: May 27, 2022
By: /s/ Sylvester L. Crawford
Sylvester L. Crawford
President and Director
-2-
Exhibit 99.1
AMENDED AND RESTATED ARTICLES OF INCORPORATION OF
GPL HOLDINGS, INC.
The undersigned, Sylvester L. Crawford, as Director of GPL Holdings, Inc. hereby certifies that:
1. He is the Director of GPL Holdings, Inc., a Nevada Corporation.
2. The Articles of Incorporation of this corporation was originally filed with the Secretary of State of Nevada on July 30, 2021.
3. The Amended and Restated Articles of Incorporation of the corporation which restates, integrates and further amends the provisions of the Articles of Incorporation of this corporation as heretofore amended and/or restated, has been duly adopted by the corporation’s Board of Directors in accordance with NRS 78.380, 78.403, NRS 78.315 with the approval of the corporation’s directors having been given written consent without a meeting in accordance with Nevada Revised Statutes, (“NRS”).
4. The Certificate of Incorporation of this corporation shall be amended and restated to read in full as follows:
ARTICLE I
NAME
The name of the Corporation shall be GPL Holdings, Inc.
ARTICLE II
PERIOD OF DURATION
The Corporation shall exist in perpetuity from and after the date of filing these Articles of Incorporation with the Secretary of State of the State of Nevada unless dissolved according to law.
ARTICLE III
PURPOSES AND POWERS
1 Purposes Except as restricted by these Articles of Incorporation, the Corporation is organized for the purpose of transacting all lawful business for which corporations may be incorporated pursuant to the Nevada Business Corporation Act.
2 General Powers Except as restricted by these Articles of Incorporation, the Corporation shall have and may exercise all powers and rights which a corporation may exercise legally pursuant to the Nevada Business Corporation Act.
3. Issuance of Shares The board of directors of the Corporation may divide and issue any class of stock of the Corporation in series pursuant to a resolution properly filed with the Secretary of State of the State of Nevada.
ARTICLE IV
CAPITAL STOCK
The aggregate number of shares which this Corporation shall have authority to issue is: Five Hundred Million (500,000,000) shares of $0.001 par value each, which Four Hundred Eighty Million (480,000,000) shares shall be designated "Common Stock"; and Twenty Million (20,000,000) shares of $0.001 par value each, which shares shall be designated "Preferred Stock".
Preferred Stock. The Preferred Stock of the Corporation shall be issuable by authority of the Board of Director(s) of the Corporation in one or more classes or one or more series within any class and such classes or series shall have such voting powers, full or limited, or no voting powers, and such designations, preferences, limitations, or restrictions as the Board of Directors of the Corporation may determine, from time to time. The authority of the Board of Directors with respect to each class or series shall include all designation rights conferred by Nevada Laws upon directors, including, but not limited to, determination of the following:
| (a) | The number of shares constituting of that class or series and the distinctive designation of that class or series; |
| (b) | The dividend rate on the share of that class or series, whether dividends shall be cumulative, and, if so, from which date or dates, and the relative rights or priorities, if any, of payment of dividends on shares of that class or series; |
| (c) | Whether the shares of that class or series shall have conversion privileges, and, if so, the terms and conditions of such privileges, including provision for adjustment of conversion rate(s) in relation to such events as the Board of Directors shall determine; |
(d) Whether the shares of that class or series shall be redeemable, and, if so, the terms and conditions of such redemption, including the date or dates upon or after which amount they shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates;
(e) Whether there shall be a sinking fund for the redemption or purchase of shares of that class or series, and, if so, the terms and amount of such sinking fund;
(f) The rights of the shares of that class or series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Corporation, and the relative rights of priority, if any, of payment of shares of that class or series; and
(g) Any other relative rights, preferences and limitations of that class or series now or hereafter permitted by law.
Designation of Preferred Series Z Stock. One Million (1,000,000) shares of the Company’s preferred stock shall be designated as Series Z Preferred Stock, $0.001 par value per share. Initially, there will be no dividends due or payable on the Series Z Preferred Stock. Holders of Series Z Preferred Stock shall have no right to convert those shares into Common Stock or any other class of securities of the Corporation. Each one share of the Series Z Preferred Stock shall have voting rights equal to one million (1,000,000) votes of Common Stock. With respect to all matters upon which stockholders are entitled to vote or to which stockholders are entitled to give consent, the holders of the outstanding shares of Series Z Preferred Stock shall vote together with the holders of Common Stock without regard to class, except as to those matters on which separate class voting is required by applicable law or the Corporation’s Articles of Incorporation or by-laws.
ARTICLE V
VOTING
Holders of shares of Common Stock shall be entitled to cast one vote for each share held at all stockholders' meetings for all purposes, including the election of directors. The Common Stock does not have cumulative voting rights.
No holder of shares of stock of any class or series shall be entitled as a matter of right to subscribe for or purchase or receive any part of any new or additional issue of shares of stock of any class or series, or of securities convertible into shares of stock of any class or series, whether now hereafter authorized or whether issued for money, for consideration other than money, or by way of dividend.
ARTICLE VI
TRANSACTIONS WITH INTERESTED DIRECTORS OR OFFICERS
No contract or other transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any corporation, firm or association in which one or more of its directors or officers are directors or officers or are financially interested, shall be either void or voidable solely because of such relationship or interest or solely because such director or officer is present at the meeting of the board of directors or a committee thereof which authorizes, approves or ratifies such contract or transaction or solely because their votes are counted for such purpose, if;
(a) The fact of such relationship or interest is disclosed or known to the board of directors or committee and noted in the minutes and the board or committee authorizes, approves, or ratifies the contract or transaction in good faith by vote or consent sufficient for the purpose without counting the votes or consents of such interested directors, or
(b) The fact of such relationship or interest is disclosed or known to the shareholders entitled to vote and they authorize, approve, or ratify such contract or transaction in good faith by a majority vote or written consent. The votes of the common or interest directors or officers must be counted in any such vote of stockholders, or
(c) The fact of such relationship or interest is not disclosed or known to the director or officer at the time the transaction is brought before the board of directors of the corporation for action, or
(d) The contract or transaction is fair and reasonable as to the Corporation at the time it is authorized or approved
Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or a committee thereof which authorizes, approves, or ratifies such contract or transaction and if the votes of the common or interested directors are not counted at the meeting, then a majority of the disinterred directors may authorize, approve or ratify the contract or transaction.
ARTICLE VII
INDEMNIFICATION
The Corporation is authorized to provide indemnification of its directors, officers, employees and agents whether by bylaw agreement, vote of shareholders or disinterested directors or otherwise, in excess of the indemnification expressly permitted by Section 78.751 of the Nevada Business Corporation Act for breach of duty to the Corporation and its shareholders subject only to the applicable limits upon such indemnification as set forth in the Nevada Business Corporation Act. Any repeal or modification of this Articles VII or Article XI shall not adversely affect any right or protection of a director or officer of the Corporation existing at the time of such repeal or modification.
ARTICLE VIII
ADOPTION AND AMENDMENT OF BYLAWS
The initial Bylaws or the Corporation shall be adopted by its board of directors. Subject to repeal or change by action of the shareholders, the power to alter, amend or repeal the Bylaws or adopt new Bylaws shall be vested in the board of directors. The Bylaws may contain any provisions for the regulation and management of the affairs of the Corporation not inconsistent with law or these Articles of Incorporation.
ARTICLE IX
RESIDENT AGENT
The name of the Corporation's resident agent and the street address is Registered Agents Inc., 401 Ryland Street, Suite 200-A, Reno, NV 89502.
The resident agent may be changed in the manner permitted by law.
ARTICLE X
BOARD OF DIRECTORS
The number of directors of the Corporation shall be fixed by the Bylaws of the Corporation, and the number of directors of the Corporation may be changed from time to time by consent of the Corporation's directors. The board of directors of the Corporation shall consist of one (1) director. The name and address of the person(s) who shall serve as director(s) until the next annual meeting of shareholders and until his successor(s) are elected and shall qualify is:
Sylvester L. Crawford
433 Estudillo Avenue, Suite 206
San Leandro, CA 94577
ARTICLE XI
LIMITATION OF LIABILITY OF DIRECTORS AND
OFFICERS TO CORPORATION AND SHAREHOLDERS
No director or officer shall be liable to the Corporation or any shareholder for damages for breach of fiduciary duty as a director or officer, except for any matter in respect of which such director or officer (a) shall be liable under Section 78.300 of the Nevada Business Corporation Act or any amendment thereto or successor provision thereto or (b) shall have acted or faded to act in a manner involving intentional misconduct fraud or a knowing violation of law. Neither the amendment nor repeal of this Article, nor the adoption of any provision in the Articles of Incorporation inconsistent with this Article, shall eliminate or reduce the effect of this Article in respect of any matter occurring prior to such amendment, repeal or adoption of an inconsistent provisions. This Article shall apply to the full extent now permitted by Nevada law or as may be permitted in the future by changes or enactments in Nevada law, including without limitation Section 78.300 and/or the Nevada Business Corporation Act.
IN WITNESS WHEREOF, the foregoing Amended and Restated Articles of Incorporation has been duly adopted and ratified by this corporation’s Board of Directors in accordance with the applicable provisions of NRS 78.380, 78.403, NRS 78.315 and signed by its duly authorized officer this 11th day of May, 2022.
GPL HOLDINGS, INC.
By: /s/ Sylvester L. Crawford
Name: Sylvester L. Crawford
Title: President and Chief Executive Officer
Exhibit 99.2
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the “Agreement”), entered into as of May 18, 2022, by and among Benchmark Energy Corporation, a Nevada corporation (“Predecessor”), GPL Holdings, Inc., a Nevada corporation (“Successor”), and a direct wholly owned subsidiary of Predecessor, and GPL Merger Sub, Inc., a Nevada corporation (“Merger Sub”), and a direct wholly owned subsidiary of Successor.
RECITALS
WHEREAS, on the date hereof, Predecessor has the authority to issue 500,000,000 shares, consisting of: (i) 480,000,000 shares of Common Stock, par value $0.001 per share (the “Predecessor Common Stock”), of which 176,285,321 common shares are issued and outstanding; (ii) 20,000,000 shares of Preferred Stock, par value $0.001 per share (the “Predecessor Preferred Stock”), of which 1,000,000 preferred shares are designated as Series Z Preferred Stock with no shares issued and outstanding. Together with the Predecessor Common Stock, the (“Predecessor Capital Stock”).
WHEREAS, on the date hereof, Successor has the authority to issue 500,000,000 shares, consisting of: (i) 480,000,000 shares of Common Stock, par value $0.001 per share (the “Successor Common Stock”), of which 1,000 common shares are issued and outstanding and held by Predecessor; (ii) 20,000,000 shares of Preferred Stock, par value $0.001 per share (the “Successor Preferred Stock”) of which 1,000,000 preferred shares are designated as Series Z Preferred Stock with no shares issued and outstanding. Together, with the Successor Common Stock, the (“Successor Capital Stock”).
WHEREAS, on the date hereof, Merger Sub has the authority to issue 500,000,000 shares, consisting of: (i) 480,000,000 shares of Common Stock, par value $0.001 per share (the “Merger Sub Common Stock”), of which 1,000 common shares are issued and outstanding and held by Successor; (ii) 20,000,000 shares of Preferred Stock, par value $0.001 (the “Merger Sub Preferred Stock”), of which 1,000,000 shares are designated as Series Z Preferred Stock with no shares issued and outstanding. Together, with the Merger Sub Common Stock, the (“Merger Sub Capital Stock”).
WHEREAS, Successor and Merger Sub are newly formed corporations and organized for the purpose of participating in the transactions herein contemplated and actions related thereto, own no assets and have taken no actions other than those necessary or advisable to organize the corporations and to affect the transactions herein contemplated and actions related thereto.
WHEREAS, Predecessor desires to reorganize into a holding company structure pursuant to NRS 92A.180, 92A.200, NRS 92A.230 and NRS 92A.250 under which Successor would become a holding company by the merger of Predecessor with and into Merger Sub with each share of Predecessor Capital Stock being converted in the Merger (as defined below) into a share of Successor Capital Stock with each share or fraction of a share of the Capital Stock of the Predecessor outstanding at the Effective Time of the merger converted in the merger into a share or equal fraction of share of Capital Stock of the Successor having the same designations, rights, powers and preferences, and the qualifications, limitations and restrictions thereof, as the share of stock of the Predecessor being converted in the merger.
WHEREAS, the respective boards of directors of Predecessor, Successor and Merger Sub have approved and declared advisable and in the best interests of each of such corporations and its shareholders this Agreement and the transactions contemplated hereby, including without limitation, the Merger.
WHEREAS, under the respective Articles of incorporation of Predecessor and Successor, the Successor Capital Stock has the same designations, rights, and powers and preferences, and the qualifications, limitations and restrictions thereof, as the Predecessor Capital Stock which will be automatically converted pursuant to the holding company reorganization;
WHEREAS, the Articles of Incorporation and Bylaws of Successor, as the holding company, at the Effective Time (as defined below) of the merger contain provisions identical to the Articles of Incorporation and Bylaws of Predecessor immediately prior to the merger, other than as permitted by NRS 92A.200.
The Articles of Incorporation of Predecessor state that any act or transaction by or involving the Predecessor, other than the election or removal of directors of the Predecessor, that requires for its adoption under the NRS or the Articles of Incorporation of Predecessor the approval of the stockholders of the Predecessor, shall require in addition the approval of the stockholders of GPL Holdings, Inc. (or any successor thereto by merger), by the same vote as is required by the Articles of Incorporation and/or the Bylaws of the Predecessor.
WHEREAS, the Articles of Incorporation and Bylaws of Merger Sub are identical to the Articles of Incorporation and Bylaws of Predecessor immediately prior to the merger, other than as permitted by NRS 92A.200.
WHEREAS, the Boards of Directors of Predecessor, Successor, and Merger Sub have each approved this Agreement, shareholder approval not being required pursuant to NRS 92A.180;
WHEREAS, the parties hereto intend that the reorganization contemplated by this Agreement shall constitute a tax-free organization pursuant to Section 368(a)(1) of the Internal Revenue Code;
NOW, THEREFORE, in consideration of the mutual agreements and covenants herein contained, Predecessor, Successor, and Merger Sub hereby agree as follows:
1. Merger. At the Effective Time and in accordance with this Agreement and the provisions set forth in NRS 92A.180, 92A.200, NRS 92A.230 and NRS 92A.250, Predecessor shall be merged with and into Merger Sub, (the “Merger”), and Predecessor shall be the surviving corporation, (hereinafter sometimes referred to as the (“Surviving Corporation”). At the Effective Time, the separate corporate existence of Merger Sub shall cease, and Predecessor shall become the wholly owned subsidiary of Successor, and Successor shall become the publicly traded company, as the successor issuer.
2. Effective Time. As soon as practicable on or after the date hereof, the Surviving Corporation shall file this Agreement with the Articles of Merger in accordance with the relevant provisions of the NRS, and with the Secretary of State of the State of Nevada (the “Secretary of State”) and shall make all other filings or recordings required under the NRS, if any to effectuate the Merger. The Merger shall become effective on the effective date and time specified in the Articles of Merger duly filed with the Secretary of State of Nevada, (the date and time the Merger becomes effective being referred to herein as the “Effective Time”).
3. Effects of Merger. The Merger shall have the effects set forth in this Agreement and in the applicable provisions set forth in NRS 92A.250. Without limiting the generality of the foregoing, and subject thereto, at the Effective Time, (i) right and title to all assets (including real estate and other property) owned by, and every contract right possessed by, the Predecessor and Merger Sub shall vest in the Surviving Corporation, and (ii) all liabilities and obligations of the Predecessor and Merger Sub shall become the liabilities and obligations of the Surviving Corporation. The vesting of such rights, title, liabilities, and obligations in the Surviving Corporation shall not be deemed to constitute an assignment or an undertaking or attempt to assign such rights, title, liabilities and obligations. The conversion of securities of Predecessor into the identical and equivalent securities of Successor will not constitute a sale, resale or different security. Securities issued by Successor pursuant to the merger shall be deemed to have been acquired at the same time as the securities of the Predecessor exchanged in the merger. Successor securities issued solely in exchange for the securities of Predecessor as part of a reorganization of the Predecessor into a holding company structure. Stockholders receive securities of the same class evidencing the same proportional interest in the Successor as they held in the Predecessor, and the rights and interests of the stockholders of such securities are substantially the same as those they possessed as stockholders of the Predecessor’s securities. Immediately following the merger, Successor has no significant assets other than securities of the Predecessor and its existing subsidiary(s) and has the same assets and liabilities on a consolidated basis as the Predecessor had before the merger. Stockholders of Predecessor shall be the stockholders of Successor. Successor common stock will trade in the OTC Markets under the Predecessor ticker symbol “BMRK” under which the common stock of Predecessor previously listed and traded until a new ticker symbol has been released into the marketplace by the Financial Industry Regulatory Authority.
4. Articles of Incorporation. As of the date hereof and immediately prior to the Effective time, the articles of incorporation of the Predecessor shall be the articles of incorporation of the Surviving Corporation until thereafter amended as provided therein or by the NRS.
5. Bylaws. From and after the Effective Time, the bylaws of the Predecessor, as in effect immediately prior to the Effective Time, shall constitute the bylaws of the Surviving Corporation until thereafter amended as provided therein or by applicable law.
6. Directors. The directors of Predecessor in office immediately prior the Effective Time shall be the Directors of the Surviving Corporation and will continue to hold office from the Effective Time until the earlier of their resignation or removal or until their successors are duly elected or appointed and qualified.
7. Officers. The officers of Predecessor in office immediately prior to the Effective Time shall be the officers of the Surviving Corporation and will continue to hold office from the Effective Time until the earlier of their resignation or removal or until their successors are duly elected or appointed and qualified.
8. Conversion of Securities. At the Effective Time, by virtue of the merger and without any action on the part of the holder thereof;
(a) Conversion of Predecessor Common Stock. Each share of Predecessor Common Stock issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and non-assessable share of Successor Common Stock;
(b) Conversion of Predecessor Common Stock Held as Treasury Stock. Each share of Predecessor Common Stock issued and outstanding held in the Predecessor’s treasury shall be cancelled and retired.
(c) Conversion of Predecessor Preferred Stock. Each share of Predecessor Preferred Stock issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid and non-assessable share of Successor Preferred Stock having the same designations, rights, power, and preferences, and the qualifications, limitations, and restrictions thereof, as the corresponding share of the Predecessor Preferred Stock.
(d) Conversion of Predecessor Preferred Stock Held as Treasury Stock. Each share of Predecessor Preferred Stock issued and outstanding held in the Predecessor’s treasury shall be cancelled and retired.
(e) Convertible Notes, Options, Warrants, Purchase Rights, Units or Other Securities of Predecessor. Each unconverted Note, or unexercised portion of any option, warrant, purchase right, unit or other security of Predecessor shall not be convertible into shares of Successor Capital Stock pursuant to NRS 78.242 and the bylaws of Predecessor.
(f) Conversion of Successor Common Stock. Each share of Successor Common Stock issued and outstanding held in the name of Predecessor at the Effective Time shall be cancelled and retired and resume the status of authorized and unissued shares of Successor Common Stock.
(g) Conversion of Merger Sub Common Stock. Each share of Merger Sub common Stock will be converted into one validly issued, fully paid and non-assessable share of common stock of the Surviving Corporation.
(h) Rights of Certificate Holders. Upon conversion thereof in accordance with this Section 8, all shares of Predecessor Capital Stock shall no longer be outstanding and shall cease to exist, and each holder of a certificate representing any such shares except, in all cases, as set forth in Section 11 herein. In addition, each outstanding book-entry that, immediately prior to the Effective Time, evidenced shares of Predecessor Capital Stock shall, from and after the Effective Time, be deemed and treated for all corporate purposes to evidence the ownership of the same number of shares of Successor Capital Stock.
9. Other Agreements. At the Effective Time, Successor shall not assume any obligation of Predecessor to deliver or make available shares of Predecessor Capital Stock under any other agreement or employee benefit plan.
10. Further Assurances. From time to time, as and when required by the Surviving Corporation or by its successors or assigns, there shall be executed and delivered on behalf of Predecessor such deeds and other instruments, and there shall be taken or caused to be taken by it all such further and other action, as shall be appropriate, advisable or necessary in order to vest perfect or conform, of record or otherwise, in the Surviving Corporation, the title to and possession of all property, interests, assets, rights, privileges, immunities, powers, franchises and authority of Predecessor, and otherwise to carry out the purposes of this Agreement, and the officers and directors of the Surviving Corporation are fully authorized, in the name and on behalf of Predecessor or otherwise, to take any and all such action and to execute and deliver any and all such deeds and other instruments.
11. Certificates. At and after the Effective Time until thereafter surrendered for transfer or exchange in the ordinary course, each outstanding certificate which immediately prior thereto represented shares of Predecessor Capital Stock shall be deemed for all purposes to evidence ownership of and to represent the shares of Successor Capital Stock into which the shares of Predecessor Capital Stock represented by such certificate have been converted as herein provided and shall be so registered on the books and records of Successor and its transfer agent. At and after the Effective Time, the shares of capital stock of Successor shall be uncertificated; provided, that, any shares of capital stock of Successor that are represented by outstanding certificates of Predecessor pursuant to the immediately preceding sentence shall continue to be represented by certificates as provided therein and shall not be uncertificated unless and until a valid certificate representing such shares pursuant to the immediately preceding sentence is delivered to Successor’s transfer agent at which time such certificate shall be canceled and in lieu of the delivery of a certificate representing the applicable shares of capital stock of Successor, Successor shall (i) issue to such holder the applicable uncertificated shares of capital stock of Successor by registering such shares in Successor’s books and records as book-entry shares, upon which such shares shall thereafter be uncertificated and (ii) take all action necessary to provide such holder with evidence of the uncertificated book-entry shares, including any action necessary under applicable law in accordance therewith, including in accordance with NRS.
12. Amendment. The parties hereto, by mutual consent of their respective boards of directors, may amend, modify or supplement this Agreement prior to the Effective Time. Surviving Corporation shall cause to be filed with the Nevada Secretary of State such certificates or documents required to give effect thereto.
13. Termination. This Agreement may be terminated, and the Merger and the other transactions provided for herein may be abandoned, at any time prior to the Effective Time, whether before or after approval of this Agreement by the board of directors of Predecessor, Successor, and Merger Sub, or by action of the board of directors of Predecessor if it determines for any reason, in its sole judgment and discretion, that the consummation of the Agreement would be advisable or not and in the best interests of Predecessor and its stockholders.
14. Counterparts. This Agreement may be executed in one or more counterparts, and each such counterpart hereof shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.
15. Descriptive Headings. The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.
16. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, Predecessor, Successor, and Merger Sub have caused this Agreement to be executed and delivered as of the date first written above.
BENCHMARK ENERGY CORPORATION (“PREDECESSOR”)
By: /s/ Sylvester L. Crawford
Name: Sylvester L. Crawford
Title: President, Secretary and Director
GPL HOLDINGS, INC. (“SUCCESSOR”)
By: /s/ Sylvester L. Crawford
Name: Sylvester L. Crawford
Title: President, Secretary and Director
GPL MERGER SUB, INC. (“MERGER SUB”)
By: /s/ Sylvester L. Crawford
Name: Sylvester L. Crawford
Title: President, Secretary and Director