AGREEMENT AND PLAN OF MERGER OF NICKLEBYS.COM, INC. (A COLORADO CORPORATION) WITH AND INTO FIIC HOLDINGS, INC. (A DELAWARE CORPORATION)
EXHIBIT
2.3
OF
XXXXXXXXX.XXX,
INC.
(A
COLORADO CORPORATION)
WITH
AND INTO
FIIC
HOLDINGS, INC.
(A
DELAWARE CORPORATION)
This
AGREEMENT AND PLAN OF MERGER (this “Agreement”) dated this 28th day of February
2006, by and between XXXXXXXXX.XXX, INC., a Colorado corporation (“NBYS”) and
FIIC HOLDINGS, INC., a Delaware corporation (“FHI”), is made with respect to the
following facts.
RECITALS
WHEREAS,
NBYS is a corporation duly organized and existing under the laws of the State
of
Colorado;
WHEREAS,
FHI is a corporation duly organized and existing under the laws of the State
of
Delaware;
WHEREAS,
the respective Boards of Directors for NBYS and FHI have determined that, for
purposes of effecting the reincorporation of NBYS in the State of Delaware,
it
is advisable and to the advantage of said two corporations and their
stockholders that NBYS merge with and into FHI so that FHI is the surviving
corporation on the terms provided herein (the “Merger”); and
WHEREAS,
the respective Board of Directors for NBYS and FHI, the stockholders of NBYS,
and the sole stockholder of FHI have adopted and approved this
Agreement.
NOW
THEREFORE, based upon the foregoing, and in consideration of the mutual promises
and covenants contained herein and other good and valuable consideration, the
receipt which is hereby acknowledged, the parties to this Agreement agree as
follows.
ARTICLE
I - THE MERGER
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 1.2 below), NBYS shall be merged with and into FHI,
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 Colorado
Business Corporation Act
(the
“CBCA”), and the separate existence of NBYS shall cease. FHI 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) NBYS,
a
corporation organized under and governed by the laws of the State of Colorado
with an address of 000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000;
and
(b) FHI,
a
corporation organized under and governed by the laws of the State of Delaware
with an address of 0000 Xxxxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxx, Xxxx
00000.
1.3 Surviving
Corporation.
FHI, a
corporation organized under the laws of the State of Delaware, shall be the
surviving corporation.
1.4 Address
of Principal Office of the Surviving Corporation.
The
address of FHI, as the Surviving Corporation, shall be 0000 Xxxxxx Xxxx, Xxxxx
Xxxxx, Xxxxxxxx, Xxxx 00000.
1.5 Effective
Time.
The
Merger shall become effective (the “Effective Time”), on the date upon which the
last of the following shall have been completed:
(a) This
Agreement and the Merger shall have been adopted and recommended to the
stockholders of NBYS by the Board of Directors of NBYS and approved by a
majority voting power of NBYS, in accordance with the requirements of
CBCA;
(b) This
Agreement and the Merger shall have been adopted and recommended to the sole
stockholder of FHI by the Board of Directors of FHI and approved by the sole
stockholder of FHI, in accordance with the requirements of DGCL;
(c) The
effective date of the Merger as stated in the executed Statement of Merger
filed
with the Secretary of State for the State of Colorado; and
(d)
An
executed Certificate of Merger (the “Certificate of Merger”) or an executed
counterpart to this Agreement meeting the requirements of DGCL shall have been
filed with the Secretary of State of the State of Delaware.
1.6
Effect
of the Merger.
The
effect of the Merger shall be as provided in this Agreement, the Certificate
of
Merger and the applicable provisions of the DGCL and the CBCA. Without limiting
the foregoing, from and after the Effective Time, all the property, rights,
privileges, powers and franchises of NBYS shall vest in FHI, as the Surviving
Corporation, and all debts, liabilities and duties of NBYS shall become the
debts, liabilities and duties of FHI, as the Surviving Corporation.
1.7 Certificate
of Incorporation; Bylaws.
(a) From
and
after the Effective Time, the Certificate of Incorporation of FHI shall be
the
Certificate of the Incorporation of the Surviving Corporation; and
(b) From
and
after the Effective Time, the Bylaws of FHI, 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 FHI 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 resignation, removal or death. The directors of
FHI
immediately prior to the Effective Time shall continue as directors of the
Surviving Corporation and shall remain directors until their successors are
duly
elected and qualified or their prior resignation, removal or death.
ARTICLE
II- CONVERSION OF SHARES
2.1 Conversion
of Common Stock of NBYS.
At the
Effective Time by virtue of the Merger and without any action on part of the
holders of any outstanding shares of NBYS, each share of common stock of NBYS,
par value of $.0001 per share, issued and outstanding immediately prior to
the
Effective Time shall be converted into one share of FHI’s common stock, $.001
par value per share (the “Common Stock”).
2.2 NBYS
Options, Stock Purchase Rights, Convertible Securities
(a) From
and
after the Effective Time, the Surviving Corporation shall assume the obligations
of NBYS under, and continue, the option plans and all other employee benefit
plans of NBYS Each outstanding and unexercised option, other right to purchase,
or security convertible into or exercisable for, NBYS Common Stock (a “Right”)
shall become, subject to the provisions in paragraph (c) hereof, 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 NBYS common stock issuable pursuant to any such
Right, on the same terms and condition and at an exercise price equal to the
exercise price applicable to any such NBYS from and after the Effective Time.
This paragraph 2.2(a) shall not apply to currently issued and outstanding NBYS
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 NBYS Common Stock so reserved immediately prior to the
Effective Time. In addition, no “additional benefits” (within the meaning of
Section 424(a)(2) of the Internal Revenue Code of 1986, as amended) shall be
accorded to the optionees pursuant to the assumption of their
options.
2.3 Characterization
of Merger.
For
federal income tax purposes, the conversion of interests in NBYS pursuant to
this Article III shall be deemed a reorganization and mere change in place
of
organization pursuant to section 368 (a)(1) (F) of the Internal
Revenue Code of 1986.
ARTICLE
III - TRANSFER AND CONVEYANCE OF ASSETS
AND
ASSUMPTION OF LIABILITIES
3.1 Transfer,
Conveyance and Assumption.
At the
Effective Time, FHI shall continue in existence as the Surviving Corporation,
and without further action on the part of NBYS or FHI, succeed to and possess
all the rights, privileges and powers of NBYS, and all the assets and property
of whatever kind and character of NBYS shall vest in FHI without further act
or
deed. Thereafter, FHI, as the Surviving Corporation, shall be liable for all
of
the liabilities and obligations of NBYS, and any claim or judgment against
NBYS
may be enforced against FHI as the Surviving Corporation, in accordance with
Section 259 of the DGCL.
3.2 Further
Assurances.
If at
any time FHI 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 NBYS, or otherwise to carry
out the provisions hereof, officers of NBYS 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 FHI and otherwise to carry out the provisions
hereof.
ARTICLE
IV - REPRESENTATIONS AND WARRANTIES
OF
NBYS
NBYS
represents and warrants to FHI as follows:
4.1 Validity
of Actions.
NBYS
(a) is a corporation duly formed, validly existing and in good standing under
the laws of the State of Colorado, 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 NBYS. NBYS has received all
necessary authorization to enter into this Agreement, and this Agreement is
a
legal, valid and binding obligation of NBYS, enforceable against NBYS 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 NBYS’s Articles of Incorporation, as amended, 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 NBYS 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.
ARTICLE
V - REPRESENTATIONS AND WARRANTIES
OF
FHI
FHI
represents and warrants to NBYS as follows:
5.1 Validity
of Actions.
FHI (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 FHI, and FHI has received all necessary
authorization. This Agreement is a legal, valid and binding obligation of FHI,
enforceable against FHI 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
FHI
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 FHI 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.
ARTICLE
VI - FURTHER ACTIONS
6.1 Additional
Documents.
At the
request of any party, each party will execute and deliver any additional
documents and perform in good faith such acts as reasonably may be required
in
order to consummate the transactions contemplated by this
Agreement.
ARTICLE
VII - CONDITIONS TO THE MERGER
The
obligation of FHI and of NBYS to consummate the Merger shall be subject to
compliance with or satisfaction of the following conditions:
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 (except for those representations and warranties made as of a given date,
which shall continue to be true and correct as of such given date) 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.
ARTICLE
VIII - TERMINATION; AMENDMENT; WAIVER
8.1 Termination.
This
Agreement and the transactions contemplated hereby may be terminated at any
time
prior to the filing of the Certificate of Merger with the Secretary of State
of
the State of Delaware, by mutual consent of the Board of Directors of FHI and
the Board of Directors of NBYS
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, such amendment to be approved by the respective Boards of
Directors of NBYS and FHI.
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.
ARTICLE
IX - MISCELLANEOUS
9.1 Expenses.
If the
Merger becomes effective, all of the expenses incurred in connection with the
Merger shall be paid by FHI
9.2 Non-Assignability.
This
Agreement shall not be assignable by any of the parties hereto.
9.3 Entire
Agreement.
This
Agreement contains the parties’ entire understanding and agreement with respect
to its subject matter, and any and all conflicting or inconsistent discussions,
agreements, promises, representations and statements, if any, between the
parties or their representatives that are not incorporated in this Agreement
shall be null and void and are merged into this Agreement.
9.4 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.
9.5 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.
9.6 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.
9.7 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.
*****
IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be executed
by an
officer duly authorized to do so, all as of the day and year first above
written.
XXXXXXXXX.XXX,
INC., a Colorado Corporation
By:
/s/ Xxxxx Xxxxxx
Name: Xxxxx
Xxxxxx
Title: Executive
Vice President and Chief Operating Officer
FIIC
HOLDINGS, INC., a Delaware Corporation
By:
/s/ Xxxxx X. France
Name: Xxxxx
X.
France
Title: President
and Chief Executive Officer
