AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of July 25, 2006 (the "PLAN OF
MERGER"), between Aerobic Creations, Inc. (the "SURVIVING CORPORATION"), a
corporation organized under the laws of the State of Delaware and Aerobic
Creations, Inc. (the "NON-SURVIVOR"), a corporation organized under the laws of
the State of Nevada. The Surviving Corporation and the Non-Survivor are
collectively referred to herein as the "CORPORATIONS."
WHEREAS, the Surviving Corporation is a corporation duly
organized and existing under the laws of the State of Delaware, having been
formed on July 13, 2006, pursuant to a Certificate of Incorporation filed with
the State of Delaware;
WHEREAS, the Non-Survivor is a corporation duly organized and
existing under the laws of the State of Nevada, having been formed on February
25, 2004, pursuant to Articles of Incorporation filed with the State of Nevada;
and
WHEREAS, the Board of Directors of each of the Corporations
has determined that it is in the best interests of the Corporations to merge
into a single corporation (the "MERGER") and that the Surviving Corporation be
the surviving corporation to the Merger on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, representations and warranties contained herein, it is agreed that:
1. Upon the Effective Time of the Merger (as defined in Section 12 below), the
Non-Survivor shall, pursuant to the applicable provisions of the Nevada
Revised Statutes (the "NRS"), be merged with and into the Surviving
Corporation, which shall (a) be the surviving corporation upon the
Effective Time of the Merger and (b) continue to exist as said surviving
corporation under the name Aerobic Creations, Inc., its present name,
pursuant to the applicable provisions of the General Corporation Law of the
State of Delaware (the "DGCL"). The separate existence of the Non-Survivor
shall cease upon the Effective Time of the Merger in accordance with the
applicable provisions of the NRS.
2. The Certificate of Incorporation of the Surviving Corporation upon the
Effective Time of the Merger shall be the Certificate of Incorporation of
the Surviving Corporation following the Merger, and said Certificate of
Incorporation shall continue in full force and effect until amended and
changed in the manner prescribed by the provisions of the laws of the State
of Delaware.
3. The Bylaws of the Surviving Corporation upon the Effective Time of the
Merger shall be the Bylaws of the Surviving Corporation following the
Merger, and said Bylaws shall continue in full force and effect until
changed, altered, or amended as therein provided and in the manner
prescribed by the provisions of the laws of the State of Delaware.
4. The directors and officers of the Surviving Corporation upon the Effective
Time of the Merger shall be the directors and officers of the Surviving
Corporation following the Merger, all of whom shall hold their
directorships and offices until the election and qualification of their
respective successors or until their tenure is otherwise terminated in
accordance with the Bylaws of the Surviving Corporation.
5. At the Effective Time of the Merger, the separate existence of the
Non-Survivor shall cease, and the Surviving Corporation shall continue in
existence and, without transfer, shall succeed to and possess all of the
properties, rights, privileges, immunities, powers, purposes and
franchises, of a public and private nature, and shall be subject to all of
the obligations, restrictions, disabilities and duties, of the
Non-Survivor, all without further act or deed, as provided in the
applicable statutes of the State of Delaware.
6. If at any time the Surviving Corporation shall consider or be advised that
any further assignments, conveyances or assurances in law are necessary or
desirable to carry out the provisions hereof, the proper officers and
directors of the Non-Survivor as of the Effective Time of the Merger shall
execute and deliver any and all proper deeds, assignments and assurances in
law, and do all things necessary or proper to carry out the provisions
hereof.
7. One (1) share of common stock of the Surviving Corporation ("Survivor
Shares") shall be issued in exchange for each five (5) shares of issued and
outstanding common stock of the Non-Survivor ("Non-Survivor Shares") upon
the Effective Time of the Merger (the "Exchange Ratio"). The issued shares
of the Surviving Corporation, if any, at the Effective Time of the Merger,
shall not be converted or exchanged in any manner, but each said share
which is issued as of the Effective Time shall be canceled without
consideration.
8. Immediately following the Effective Time of the Merger, any and all issued
and outstanding options, warrants or other rights to acquire any of the
Non-Survivor Shares shall be converted into an option, warrant or other
right, as the case may be, to purchase Survivor Shares on the same terms,
at the Exchange Ratio and at a price equal to five (5) times the current
exercise price. (i.e., a Class A Warrant of the Non-Survivor exercisable at
$1.00 per share, to purchase 1,000,000 Non-Survivor shares, will be
converted into a Class A Warrant of the Surviving Corporation, exercisable
at $5.00 per share, to purchase 200,000 Survivor Shares following the
Effective Time of the Merger.)
9. This Plan of Merger, as approved by the Corporations, shall be submitted to
the stockholders of the Non-Survivor for their approval or rejection in the
manner prescribed by the provisions of the NRS.
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10. In the event that the Plan of Merger shall have been (x) approved by the
stockholders of the Non-Survivor and (y) otherwise duly authorized in the
manner prescribed by the applicable provisions of the DGCL and the NRS,
each of the Corporations hereby stipulates that it will cause to be
executed and filed and/or recorded any document or documents prescribed by
the laws of the State of Delaware and Nevada, and that each of the
Corporations will cause to be performed all necessary acts therein and
elsewhere to effectuate the Merger.
11. The Board of Directors and the proper officers of each of the Corporations,
are hereby authorized, empowered and directed to do any and all acts and
things, and to make, execute, deliver, file and/or record any and all
instruments, papers and documents which shall be or become necessary,
proper or convenient to carry out or put into effect any of the provisions
of this Plan of Merger or of the Merger herein provided for.
12. The effective date of the Merger shall (i) in the State of Nevada be the
date the Articles of Merger are filed with the Secretary of State of Nevada
and (ii) in the State of Delaware be the date the Certificate of Merger is
filed by the Secretary of State of Delaware (the "EFFECTIVE TIME OF THE
Merger");
13. Notwithstanding the approval of the Plan of Merger by the stockholders of
the Non-Survivor, the Merger herein provided for may be abandoned at any
time prior to the Effective Time of the Merger, notwithstanding favorable
action on the Merger by the stockholders of one or both of the
Corporations, but not later than the Effective Time of the Merger, by the
mutual consent of the Board of Directors of the Corporations.
14. The Corporations, by mutual consent of their respective Board of Directors,
may amend or modify this Plan of Merger in such manner as may be agreed
upon by them in writing at any time before or after approval or adoption
thereof by the stockholders of the Non-Survivor. Either of the Corporations
may, pursuant to action by its Board Directors, by an instrument in
writing, extend the time for or waive compliance by the other with any of
the covenants or conditions contained herein; provided, however, that no
such waiver or extension shall affect the rights of the stockholders of
either of the Corporations in a manner which is materially adverse to such
stockholders in the judgment of its respective Board of Directors so
acting.
15. This Plan of Merger may be executed in counterparts, each of which when so
executed shall be deemed to be an original, and such counterparts shall
together constitute but one and the same instrument.
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IN WITNESS WHEREOF, pursuant to the general approval and
authority duly given by resolutions adopted by their respective Boards of
Directors, each of the Corporations has caused this Plan of Merger to be
executed by a duly authorized officer.
AEROBIC CREATIONS, INC., A NEVADA CORPORATION
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Secretary
AEROBIC CREATIONS, INC., A DELAWARE CORPORATION
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Secretary
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CERTIFICATE OF SECRETARY OF AEROBIC CREATIONS, INC.
The undersigned, being the Secretary of Aerobic Creations, Inc., a
Delaware corporation, does hereby certify that the foregoing Agreement and Plan
of Merger has been adopted upon behalf of said corporation pursuant to the
provisions of Subsection (f) of Section 251 of the Delaware General Corporation
Law, and that, as of the date of this Certificate, the outstanding shares of
said corporation were such as to render the provisions of said Subsection (f)
applicable.
Executed on this 15th day of August, 2006.
/s/ Xxxx X. Xxxxxxx
-------------------------------------
Secretary
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