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AGREEMENT AND PLAN OF MERGER
XXXXXXXXX.XXX, INC.,
A DELAWARE CORPORATION
AND
XXXXXXXXX.XXX CORP.,
A NEVADA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of June 13, 2001 (the
"Agreement") is entered into by and between XxxxxXxxx.xxx, Inc., a Delaware
corporation ("MoneyZone-Delaware") with its principal address at 0000 Xxxxxxxx
Xxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000, and XxxxxXxxx.xxx, a Nevada corporation
("MoneyZone-Nevada") with its principal address at 0000 Xxxxxxxx Xxxx, Xxxxx
0000, Xxxxxxxxx, XX 00000. MoneyZone-Delaware and MoneyZone-Nevada are sometimes
referred to herein as the "Constituent Corporations."
RECITALS
A. MoneyZone-Delaware is a corporation duly organized and existing under the
laws of the State of Delaware and has an authorized capital of 40,000,000
shares, consisting of 25,000,000 shares of common stock, par value $.15 per
share, and 15,000,000 shares of preferred stock, par value $.001 per share.
As of June 12, 2001, 100 shares of MoneyZone-Delaware common stock were
issued and outstanding, all of which are held by MoneyZone-Nevada and no
shares of preferred stock were issued and outstanding.
B. MoneyZone-Nevada is a corporation duly organized and existing under the
laws of the State of Nevada and has an authorized capital of 15,333,333
shares, consisting of 333,333 shares of common stock, par value $.15 per
share and 15,000,000 shares of preferred stock, par value, $.001 per share.
As of June 12, 2001, 100,000 shares of MoneyZone-Nevada common stock were
issued and outstanding and 100,000 shares of preferred stock were issued
and outstanding.
C. The Board of Directors of MoneyZone-Nevada has determined that, for the
purpose of effecting the reincorporation of MoneyZone-Nevada in the State
of Delaware, it is advisable and in the best interests of MoneyZone-Nevada
and its stockholders that MoneyZone-Nevada merge with and into
MoneyZone-Delaware upon the terms and conditions herein provided.
D. The respective Boards of Directors of MoneyZone-Delaware and
MoneyZone-Nevada have approved this Agreement and have directed that this
Agreement be submitted to a vote of their respective stockholders and
executed by the undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, MoneyZone-Delaware and MoneyZone-Nevada hereby agree, subject to
the terms and conditions hereinafter set forth, as follows:
MERGER
1.1 MERGER. In accordance with the provisions of this Agreement, the Delaware
General Corporation Law and the Nevada Revised Statutes, MoneyZone-Nevada
shall be merged with and into MoneyZone-Delaware (the "Reincorporation
Merger"), the separate existence of MoneyZone-Nevada shall cease and
MoneyZone-Delaware shall survive the Reincorporation Merger and shall
continue to be governed by the laws of the State of Delaware, and
MoneyZone-Delaware shall be, and is herein sometimes referred to as, the
"Surviving Corporation," and the name of the Surviving Corporation shall be
"XxxxxXxxx.xxx, Inc."
1.2 FILING AND EFFECTIVENESS. The Reincorporation Merger shall become effective
when the following actions shall have been completed:
(a) This Agreement and the Reincorporation Merger shall have been adopted and
approved by the stockholders of each Constituent Corporation in accordance
with the requirements of the Delaware General Corporation Law and the
Nevada Revised Statutes;
(b) All of the conditions precedent to the consummation of the Reincorporation
Merger specified in this Agreement shall have been satisfied or duly waived
by the party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed, acknowledged and
certified counterpart of this Agreement meeting the requirements of the
Delaware General Corporation Law shall have been filed with the Secretary
of State of the State of Delaware; and
(d) An executed Articles of Merger or an executed counterpart of this Agreement
meeting the requirements of the Nevada Revised Statutes shall have been
filed with the Secretary of State of the State of Nevada. The date and time
when the Reincorporation Merger shall become effective, as aforesaid, is
herein called the "Effective Date of the Merger."
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger, the separate
existence of MoneyZone-Nevada shall cease and MoneyZone-Delaware, as the
Surviving Corporation, (i) shall continue to possess all of its assets,
rights, powers and property as constituted immediately prior to the
Effective Date of the Merger, (ii) shall be subject to all actions
previously taken by its and MoneyZone-Nevada's Boards of Directors, (iii)
shall succeed, without other transfer, to all of the assets, rights, powers
and property of MoneyZone-Nevada in the manner as more fully set forth in
Section 259 of the Delaware General Corporation Law, (iv) shall continue to
be subject to all of its debts, liabilities and obligations as constituted
immediately prior to the Effective Date of the Merger, and (v) shall
succeed, without other transfer, to all of the debts, liabilities and
obligations of MoneyZone-Nevada in the same manner as if MoneyZone-Delaware
had itself incurred them, all as more fully provided under the applicable
provisions of the Delaware General Corporation Law and the Nevada Revised
Statutes.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
MoneyZone-Delaware as in effect immediately prior to the Effective Date of
the Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance
with the provisions thereof and applicable law.
2.2 BYLAWS. The Bylaws of MoneyZone-Delaware as in effect immediately prior to
the Effective Date of the Merger shall continue in full force and effect as
the Bylaws of the Surviving Corporation until duly amended in accordance
with the provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of MoneyZone-Nevada
immediately prior to the Effective Date of the Merger shall be the
directors and officers of the Surviving Corporation until their respective
successors shall have been duly elected and qualified or until as otherwise
provided by law, or the Certificate of Incorporation of the Surviving
Corporation or the Bylaws of the Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 MONEYZONE-NEVADA COMMON, PREFERRED STOCK AND WARRANTS/OPTIONS. Upon the
Effective Date of the Merger, each share of MoneyZone-Nevada common stock,
$0.15 par value, issued and outstanding immediately prior thereto shall, by
virtue of the Reincorporation Merger and without any action by the
Constituent Corporations, the holder of such shares or any other person, be
changed and converted into and exchanged for one fully paid and
nonassessable share of common stock, $0.15 par value, of the Surviving
Corporation. Upon the Effective Date of the Merger, each share of
MoneyZone-Nevada preferred stock, $0.001 par value, issued and outstanding
immediately prior thereto shall, by virtue of the Reincorporation Merger
and without any action by the Constituent Corporations, the holder of such
shares or any other person, be changed and converted into and exchanged for
one fully paid and nonassessable share of common stock, $0.001 par value,
of the Surviving Corporation. Upon the Effective Date of the Merger, each
warrant and/or option to purchase shares of MoneyZone-Nevada common stock
shall automatically be converted into a warrant and or/option (as
applicable) to acquire an equal number of equivalent shares of
MoneyZone-Delaware common stock.
3.2 MONEYZONE-NEVADA BENEFIT PLANS. Upon the Effective Date of the Merger, the
Surviving Corporation shall assume and continue all employee benefit plans
of MoneyZone-Nevada. The execution of this Agreement shall constitute an
amendment to each of the employee benefit plans to reflect the Surviving
Corporation as the corporation referenced in such employee benefit plans
notwithstanding the actual references therein to MoneyZone-Nevada.
3.3 MONEYZONE-DELAWARE COMMON STOCK. Upon the Effective Date of the Merger,
each share of common stock, $0.15 par value, of MoneyZone-Delaware issued
and outstanding immediately prior thereto shall, by virtue of the
Reincorporation Merger and without any action by MoneyZone-Delaware, the
holder of such shares or any other person, be canceled and returned to the
status of authorized but unissued shares.
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the Merger, each
holder of an outstanding certificate representing shares of
MoneyZone-Nevada common stock may be asked to surrender the same for
cancellation to an exchange agent, whose name will be delivered to such
holders prior to any requested exchange (the "Exchange Agent"), and each
such holder shall be entitled to receive in exchange therefor a certificate
or certificates representing the number of shares of the Surviving
Corporation's common stock into which such holders' shares of
MoneyZone-Nevada common stock were converted as herein provided. Unless and
until so surrendered, each outstanding certificate theretofore representing
shares of MoneyZone-Nevada common stock shall be deemed for all purposes to
represent the number of whole shares of the Surviving Corporation's common
stock into which such shares of MoneyZone-Nevada common stock were
converted in the Reincorporation Merger. The registered owner on the books
and records of the Surviving Corporation or the Exchange Agent of any
shares of stock represented by such outstanding certificate shall, until
such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation or the Exchange Agent,
have and be entitled to exercise any voting and other rights with respect
to and to receive dividends and other distributions upon the shares of
common stock of the Surviving Corporation represented by such outstanding
certificate as provided above. Each certificate representing common stock
of the Surviving Corporation so issued in the Reincorporation Merger shall
bear the same legends, if any, with respect to the restrictions on
transferability as the certificates of MoneyZone-Nevada so converted and
given in exchange therefor, unless otherwise determined by the Board of
Directors of the Surviving Corporation in compliance with applicable laws.
If any certificate for shares of MoneyZone-Delaware common stock is to be
issued in a name other than that in which the certificate surrendered in
exchange therefor is registered, it shall be a condition of issuance
thereof that the certificate so surrendered shall be properly endorsed and
otherwise in proper form for transfer, that such transfer otherwise be
proper and that the person requesting such transfer pay to
MoneyZone-Delaware or the Exchange Agent any transfer or other taxes
payable by reason of the issuance of such new certificate in a name other
than that of the registered holder of the certificate surrendered or
establish to the satisfaction of MoneyZone-Delaware that such tax has been
paid or is not payable.
IV. GENERAL
4.1 FURTHER ASSURANCES. From time to time, as and when required by
MoneyZone-Delaware or by its successors or assigns, there shall be executed
and delivered on behalf of MoneyZone-Nevada such deeds and other
instruments, and there shall be taken or caused to be taken by
MoneyZone-Delaware and MoneyZone-Nevada such further and other actions, as
shall be appropriate or necessary in order to vest or perfect in or conform
of record or otherwise by MoneyZone-Delaware the title to and possession of
all the property, interests, assets, rights, privileges, immunities,
powers, franchises and authority of MoneyZone-Nevada and otherwise to carry
out the purposes of this Agreement, and the officers and directors of
MoneyZone-Delaware are fully authorized in the name and on behalf of
MoneyZone-Nevada or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
4.2 COVENANTS OF MONEYZONE-DELAWARE. MoneyZone-Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger take such other
actions as may be required by Delaware Law or Nevada Law to accomplish the
Reincorporation Merger, including appointing an agent for service of
process in the State of Nevada if and to the extent required under
provisions of Nevada law.
4.3 ABANDONMENT. At any time before the filing a Certificate of Merger with the
Secretary of State of the State of Delaware and Articles of Merger with the
Secretary of State of the State of Nevada, this Agreement may be terminated
and the Reincorporation Merger may be abandoned for any reason whatsoever
by the Board of Directors of either MoneyZone-Nevada or MoneyZone-Delaware,
or both, notwithstanding the approval of this Agreement by the stockholders
of MoneyZone-Nevada or by the sole stockholder of MoneyZone-Delaware, or by
both.
4.4 AMENDMENT. The Boards of Directors of the Constituent Corporations may
amend this Agreement at any time prior to the filing of Articles of Merger
and a Certificate of Merger with the Secretaries of State of the States of
Nevada and Delaware, respectively, provided that an amendment made
subsequent to the adoption and approval of this Agreement and the
Reincorporation Merger by the stockholders of either Constituent
Corporation shall not: (1) alter or change the amount or kind of shares,
securities, cash, property and/or rights to be received in exchange for or
on conversion of all or any of the shares of any class or series thereof of
such Constituent Corporation, (2) alter or change any term of the
Certificate of Incorporation of the Surviving Corporation to be effected by
the Reincorporation Merger, or (3) alter or change any of the terms and
conditions of this Agreement, if in the case of clause (2) or (3) such
alteration or change would adversely affect the holders of any class of
shares or series thereof of such Constituent Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving Corporation in
the State of Delaware is located at Corporation Trust Center, 0000 Xxxxxx
Xxxxxx, in the City of Xxxxxxxxxx, Xxxxxxxx 00000, County of New Castle,
and The Corporation Trust Company is the registered agent of the Surviving
Corporation at such address.
4.6 AGREEMENT. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 0000 Xxxxxxxx
Xxxx, Xxxxx 0000, Xxxxxxxxx, XX 00000, and copies thereof will be furnished
to any stockholder and to any creditor of either Constituent Corporation,
upon request and without cost.
4.7 GOVERNING LAW. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
Nevada Revised Statutes.
4.8 COUNTERPARTS. In order to facilitate the filing and recording of this
Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement is hereby executed on behalf of each
of such two corporations and attested by their respective officers
XXXXXXXXX.XXX (a Nevada Corporation)
By: /s/ Xxxxxxx Xxxxxx
------------------
Name: Xxxxxxx Xxxxxx
Title: CEO and President
Attest: /s/ Xxxxxxxxx Xxxxx
-------------------
Name: Xxxxxxxxx Xxxxx
Title: Assistant Secretary
XXXXXXXXX.XXX, INC.
(a Delaware Corporation)
By: /s/ Xxxxxxx Xxxxxx
-------------------
Name: Xxxxxxx Xxxxxx
Title: CEO and President
Attest: /s/ Xxxxxxxxx Xxxxx
-------------------
Name: Xxxxxxxxx Xxxxx
Title: Assistant Secretary
