EX-2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. (NEVADA)
AND
▇▇▇▇▇▇▇.▇▇▇, INC. (DELAWARE)
This Agreement and Plan of Merger ("Agreement") between
▇▇▇▇▇▇▇.▇▇▇, Inc. ("Syconet Nevada" or "Surviving Corporation")
and ▇▇▇▇▇▇▇.▇▇▇, Inc. ("Syconet Delaware"), the two corporations
acting by their respective boards of directors and sometimes
collectively referred to as the "Constituent Corporations," is
entered into this 1st day of December, 2001 in Santa Ana,
California, and will have an effective date, if approved as set
forth in Article I, Section 1 hereafter, of January 15, 2002
("Effective Date").
WHEREAS, ▇▇▇▇▇▇▇.▇▇▇ Nevada is a corporation organized and
existing under the laws of the State of Nevada, having been
incorporated on December 19, 2001, with its principal business
office to be located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
WHEREAS, the authorized capital stock of ▇▇▇▇▇▇▇.▇▇▇ Nevada
is Five Hundred Million (500,000,000) shares of common stock, par
value of One Tenth of One Cent ($0.001) per share, none of which
have been issued;
WHEREAS, Nevada Revised Statutes 92A.190 confers upon
▇▇▇▇▇▇▇.▇▇▇ Nevada the power to merge with a foreign corporation,
and Nevada Revised Statutes 92A.250 confers upon ▇▇▇▇▇▇▇.▇▇▇ Group
Nevada the right to issue its own shares in exchange for shares of
any corporation to be merged into ▇▇▇▇▇▇▇.▇▇▇ Nevada;
WHEREAS, ▇▇▇▇▇▇▇.▇▇▇ Delaware is a corporation organized and
existing under the laws of the State of Delaware, having been
originally incorporated on June 30, 1997.
WHEREAS, the authorized capital stock of ▇▇▇▇▇▇▇.▇▇▇ Delaware
consists of Eighty Five Million (85,000,000) shares of common
stock, par value of $0.0001 per share, of which Forty Six
Million, Seven Hundred and Eighteen Thousand, Eight Hundred and
Forty Eight (46,718,848) shares are presently issued and
outstanding, and One Million (1,000,000) shares of preferred
stock, par value of .0001 per share, of which no shares are
presently issued and outstanding. Section 252 of the Delaware
Statutes provides that a foreign corporation and a domestic
corporation may be merged and the foreign corporation can be the
surviving entity.
WHEREAS, the respective boards of directors of ▇▇▇▇▇▇▇.▇▇▇
Nevada and ▇▇▇▇▇▇▇.▇▇▇ Delaware deem it desirable and in the best
interests of the corporations and their stockholders that the
corporations enter into this Agreement and merge pursuant to the
terms and conditions contained herein and for the sole purpose of
redomiciling the corporation into the State of Nevada; and
WHEREAS, in order to consummate this merger and in
consideration of the mutual benefits to be derived and the mutual
agreements contained herein, ▇▇▇▇▇▇▇.▇▇▇ Group Nevada and
▇▇▇▇▇▇▇.▇▇▇ Delaware approve and adopt this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual
agreements, provisions and covenants herein contained, it is
agreed by and between the parties that, in accordance with the
provisions of the laws of the State of Nevada, ▇▇▇▇▇▇▇.▇▇▇ Nevada
and ▇▇▇▇▇▇▇.▇▇▇ Delaware shall be, and they are, as of the merger
date (as defined in Article I, Section 2 hereafter) merged into a
single surviving corporation, which shall be and is ▇▇▇▇▇▇▇.▇▇▇
Nevada, one of the Constituent Corporations, which shall continue
its corporate existence and remain a Nevada corporation governed
by the laws of that state, all on the terms and conditions set
forth as follows:
ARTICLE I
MERGER
1. Shareholder Approval.
Within thirty (30) days from the date of this Agreement, or
such longer period as the parties hereto shall agree upon in
writing, this Agreement shall be submitted for approval and
adoption, pursuant to and in accordance with the applicable
provisions of the laws of the State of Nevada and the State of
Delaware, to the holders of common stock of ▇▇▇▇▇▇▇.▇▇▇ Nevada and
to the holders of common shares of ▇▇▇▇▇▇▇.▇▇▇ Delaware at duly
held shareholders' meetings or by unanimous written consent.
This Agreement shall be approved and adopted upon receiving the
affirmative vote of the holders of a majority of the common stock
of ▇▇▇▇▇▇▇.▇▇▇ Nevada outstanding on the record date established
for determining the holders of ▇▇▇▇▇▇▇.▇▇▇ Nevada common stock
entitled to vote at such ▇▇▇▇▇▇▇.▇▇▇ Nevada shareholders' meeting,
and the affirmative vote of a majority of the common shares of
▇▇▇▇▇▇▇.▇▇▇ Delaware outstanding on the record date established
for determining the holders of common shares entitled to vote at
such ▇▇▇▇▇▇▇.▇▇▇ Delaware shareholders' meeting. If this
Agreement shall be so approved and adopted, ▇▇▇▇▇▇▇.▇▇▇ Nevada and
▇▇▇▇▇▇▇.▇▇▇ Delaware shall immediately proceed to effectuate the
merger of ▇▇▇▇▇▇▇.▇▇▇ Delaware into ▇▇▇▇▇▇▇.▇▇▇ Nevada. If this
Agreement shall not be so approved and adopted, it shall, without
any further action by the parties, other than certification to the
other Constituent Corporation of the results of the vote by the
Secretary or Clerk, as the case may be, of the Constituent
Corporation the shareholders of which shall not have approved or
adopted this Plan, be cancelled without liability from either
party to the other.
2. Filings After Shareholder Approval.
Under Section 252 of the Delaware Statutes, ▇▇▇▇▇▇▇.▇▇▇
Delaware will cease to exist and ▇▇▇▇▇▇▇.▇▇▇ Nevada will possess
all the powers and property formerly possessed by ▇▇▇▇▇▇▇.▇▇▇
Delaware upon approval of this Agreement by its shareholders, and
the filing with the Delaware Secretary of State the following (A)
an agreement that ▇▇▇▇▇▇▇.▇▇▇, Inc. may be served with process in
Delaware, in any proceeding for enforcement of any obligation of
any constituent corporation of Delaware, as well as for
enforcement of any obligation of the surviving or resulting
corporation arising from the merger or consolidation, including
any suit or other proceedings pursuant to section 262 of the
Delaware Statutes, and shall irrevocably appoint the Secretary of
State as its agent to accept service of process in any such suit
or other proceedings and shall specify the address to which a
copy of such process shall be mailed by the Secretary of State.
Under Section 251 of the Delaware Statutes, the effective date of
the merger is the date on which the merger becomes effective in
the State of Nevada.
As soon as practicable after the approval of the merger by
the shareholders of ▇▇▇▇▇▇▇.▇▇▇ Nevada has been obtained and all
other conditions to the obligations of the parties to this
agreement to the effect the merger shall have been satisfied or
waived, ▇▇▇▇▇▇▇.▇▇▇ Nevada shall file with the Nevada Secretary
of State a duly executed Articles of Merger, as required by
Nevada Revised Statutes 92A.200, and take such other and future
actions as may be required by Nevada law to make the merger
effective. The merger of ▇▇▇▇▇▇▇.▇▇▇ Delaware into ▇▇▇▇▇▇▇.▇▇▇
Nevada shall become effective upon the filing of the Articles of
Merger with the Nevada Secretary of State ("Merger Date").
3. Effect of Merger.
▇▇▇▇▇▇▇.▇▇▇ Nevada shall succeed to, without other transfer,
and shall possess and enjoy all rights, privileges, powers and
franchises as well of a public as of a private nature, and be
subject to all restrictions, disabilities and duties of each of
two Constituent Corporations, and all and singular, the rights,
privileges, powers and franchises of each of corporations, and all
property, real, personal and mixed, and all debts to either of
Constituent Corporations on whatever account, as well for stock
subscriptions as all other things in action or belonging to each
of the corporations shall be vested in the Surviving Corporation;
and all property, rights, privileges, powers and franchises, and
all and every other interest shall be as effectually property of
the Surviving Corporation as they were of Constituent
Corporations, provided, that all rights of creditors and all liens
on any property of each of Constituent Corporations shall be
preserved unimpaired, limited to property affected by the liens at
time of merger, and all debts, liabilities and duties of
Constituent Corporations shall attach to the Surviving
Corporation, and may be enforced against it to the same extent as
if debts, liabilities and duties had been incurred or contracted
by it. If at any time the Surviving Corporation shall deem or be
advised that any further assignments or assurances in law or
things are necessary or desirable to vest, or to perfect or
confirm, of record or otherwise, in the Surviving Corporation the
title to any property acquired or to be acquired by reason of or
as a result of merger provided for by this agreement, proper
officers and directors of each of Constituent Corporations shall
execute and deliver all proper deeds, assignments and assurances
in law and do all things necessary or proper to vest, perfect or
confirm title to property in the Surviving Corporation and
otherwise to carry out the purpose of this Agreement.
ARTICLE II
NAME AND CONTINUED CORPORATE EXISTENCE
OF SURVIVING CORPORATION
The corporate name of ▇▇▇▇▇▇▇.▇▇▇ Nevada, the Constituent
Corporation whose corporate existence is to survive this merger
and continue thereafter as the Surviving Corporation, and its
identity, existence, purposes, powers, objects, franchises, rights
and immunities shall continue unaffected and unimpaired by the
merger, and the corporate identity, existence, purposes, powers,
objects, franchises, rights and immunities of ▇▇▇▇▇▇▇.▇▇▇ Delaware
shall be wholly merged into ▇▇▇▇▇▇▇.▇▇▇ Nevada. Accordingly, on
the Merger Date the separate existence of ▇▇▇▇▇▇▇.▇▇▇ Delaware,
except insofar as continued by statute, shall cease.
ARTICLE III
GOVERNING LAW
CERTIFICATE OF INCORPORATION
As stated, the laws of State of Nevada shall govern the
Surviving Corporation. From and after the Merger Date, the
Articles of Incorporation of ▇▇▇▇▇▇▇.▇▇▇ Nevada attached as
Appendix A (which Appendix A represents the certificate of
incorporation of ▇▇▇▇▇▇▇.▇▇▇ Nevada filed in the office of the
Secretary of State of the State of Nevada on April 12, 2002)
shall be and become the certificate of incorporation of the
Surviving Corporation. In addition to the powers conferred upon
it by law, the Surviving Corporation shall have the powers set
forth in Appendix A and be governed by those provisions. From and
after the Merger Date, and until further amended as provided by
law, Appendix A may be certified, separate and apart from this
agreement, as the certificate of incorporation of the Surviving
Corporation.
ARTICLE IV
BYLAWS OF SURVIVING CORPORATION
From and after the Merger Date the present bylaws of
▇▇▇▇▇▇▇.▇▇▇ Nevada shall be and become the bylaws of the Surviving
Corporation until they shall be altered, amended or repealed, or
until new bylaws shall be adopted, in accordance with the
provisions of law, the bylaws and the certificate of incorporation
of the Surviving Corporation.
ARTICLE V
DIRECTORS AND OFFICERS
1. Directors.
The number of directors of the Surviving Corporation, who
shall hold office until their successors have been duly elected
and shall have qualified, or as otherwise provided in the
certificate of incorporation of ▇▇▇▇▇▇▇.▇▇▇ Nevada or its bylaws,
shall be three (4) until changed by action of the Board of
Directors of the Surviving Corporation pursuant to its bylaws; and
the respective names of the first directors of the Surviving
Corporation are as follows:
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
If, on or after the Merger Date, a vacancy shall for any reason
exist in the Board of Directors of the Surviving Corporation, or
in any of the offices, the vacancy shall be filled in the manner
provided in the certificate of incorporation of ▇▇▇▇▇▇▇.▇▇▇ Nevada
or in its bylaws.
2. Annual Meeting.
The first annual meeting of the shareholders of the Surviving
Corporation after the Merger Date shall be the annual meeting
provided by the bylaws of ▇▇▇▇▇▇▇.▇▇▇ Nevada for the year 2001.
3. Officers.
The first officers of the Surviving Corporation, who shall
hold office until their successors have been elected or appointed
and shall have qualified, or as otherwise provided in its bylaws,
are as follows:
▇▇▇▇ ▇▇▇▇▇▇▇▇, President
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Secretary
▇▇▇▇ ▇▇▇▇▇▇▇▇, Treasurer
ARTICLE VI
CAPITAL STOCK OF SURVIVING CORPORATION
The capitalization of the Surviving Corporation upon the
Merger Date shall be as set forth in the certificate of
incorporation of ▇▇▇▇▇▇▇.▇▇▇ Nevada.
ARTICLE VII
CONVERSION OF SHARES ON MERGER
Each of the shares of common stock, par value of One Tenth
Cent ($0.001) per share, of ▇▇▇▇▇▇▇.▇▇▇ Delaware outstanding on
the Merger Date ("▇▇▇▇▇▇▇.▇▇▇ Delaware Stock"), and all rights
shall upon the Merger Date be converted into one share of common
stock, par value One Tenth of One Cent ($0.001) per share of
▇▇▇▇▇▇▇.▇▇▇ Nevada ("▇▇▇▇▇▇▇.▇▇▇ Nevada Stock"). At any time and
from time to time after the Merger Date, each holder of an
outstanding certificate or certificates representing shares of
▇▇▇▇▇▇▇.▇▇▇ Delaware Stock shall be entitled, upon the surrender
of the certificate or certificates at the office of an transfer
agent of ▇▇▇▇▇▇▇.▇▇▇ Nevada to be designated by the Board of
Directors of ▇▇▇▇▇▇▇.▇▇▇ Nevada to receive in exchange a
certificate or certificates representing the number of shares of
▇▇▇▇▇▇▇.▇▇▇ Nevada Stock into which the shares of ▇▇▇▇▇▇▇.▇▇▇
Delaware Stock represented by the certificate or certificates
surrendered shall have been converted. No dividend shall be paid
by ▇▇▇▇▇▇▇.▇▇▇ Nevada to the holders of outstanding certificates
expressed to represent shares of ▇▇▇▇▇▇▇.▇▇▇ Delaware Stock, but,
upon surrender and exchange as provided, there shall be paid to
the record holder of the certificate or certificates for
▇▇▇▇▇▇▇.▇▇▇ Nevada Stock issued in exchange therefor an amount
with respect to each such share of ▇▇▇▇▇▇▇.▇▇▇ Nevada Stock equal
to all dividends which shall have been paid or become payable to
holders of record of ▇▇▇▇▇▇▇.▇▇▇ Nevada Stock between the Merger
Date and the date of exchange.
ARTICLE VIII
ASSETS AND LIABILITIES
On the Merger Date, all property, real, personal and mixed,
and all debts due to either of the Constituent Corporations on
whatever account, as well for stock subscriptions as all other
choses in action, and all and every other interest of or belonging
to either of Constituent Corporations shall be taken by and deemed
to be transferred to and vested in the Surviving Corporation
without further act or deed; and all property and every other
interest shall be as effectually the property of the Surviving
Corporation as it was of the respective Constituent Corporations,
and the title to any real estate or any interest, whether vested
by deed or otherwise, in either of the Constituent Corporations
shall not revert or be in any way impaired by reason of the
merger; provided, however, that all rights of creditors and all
liens upon the property of either of the Constituent Corporations
shall be preserved unimpaired, and all debts, liabilities,
obligations and duties of the respective Constituent Corporations
shall attach to the Surviving Corporation, and may be enforced
against it to the same extent as if the debts, liabilities,
obligations and duties had been incurred or contracted by it. Any
action or proceeding pending by or against either of the
Constituent Corporations may be prosecuted to judgment as if the
merger had not taken place, or the Surviving Corporation may be
submitted in place of either of the Constituent Corporations. The
parties respectively agree that from time to time, when requested
by the Surviving Corporation or by its successors or assigns, they
will execute and deliver or cause to be executed and delivered all
deeds and instruments, and will take or cause to be taken all
further or other action, as the Surviving Corporation may deem
necessary or desirable in order to vest in and confirm to the
Surviving Corporation or its successors or assigns title to and
possession of all the property and rights and otherwise carry out
the intent and purposes of this Agreement.
ARTICLE IX
CONDUCT OF BUSINESS BY CONSTITUENT CORPORATIONS
Prior to the Merger Date ▇▇▇▇▇▇▇.▇▇▇ Delaware shall conduct
its business in its usual and ordinary manner, and shall not enter
into any transaction other than in the usual and ordinary course
of such business except as provided. Without limiting the
generality of the above, ▇▇▇▇▇▇▇.▇▇▇ Delaware shall not, except as
otherwise consented to in writing by ▇▇▇▇▇▇▇.▇▇▇ Nevada or as
otherwise provided in this agreement:
1. Issue or sell any shares of its capital stock in addition to
those outstanding on this date, except shares issued pursuant to
rights or options outstanding at that date;
2. Issue rights to subscribe to or options to purchase any
shares of its stock in addition to those outstanding on this date;
3. Amend its certificate of incorporation or its bylaws;
4. Issue or contract to issue funded debt;
5. Declare or pay any dividend or make any other distribution
upon or with respect to its capital stock.
6. Repurchase any of its outstanding stock or by any other means
transfer any of its funds to its shareholders either selectively
or rateably, in return for value or otherwise, except as salary or
other compensation in the ordinary or normal course of business;
7. Undertake or incur any obligations or liabilities except
current obligations or liabilities in the ordinary course of
business and except for liabilities for fees and expenses in
connection with the negotiation and consummation of the merger in
amounts to be determined after the Merger Date;
8. Mortgage, pledge, subject to lien or otherwise encumber any
realty or any tangible or intangible personal property;
9. Sell, assign or otherwise transfer any tangible assets of
whatever kind, or cancel any claims, except in the ordinary course
of business;
10. Sell, assign, or otherwise transfer any trademark, trade
name, patent or other intangible asset;
11. Default in performance of any material provision of any
material contract or other obligation;
12. Waive any right of any substantial value; or
13. Purchase or otherwise acquire any equity or debt security of
another corporation except to realize on an otherwise worthless debt.
ARTICLE X
WARRANTIES OF THE CONSTITUENT CORPORATIONS
1. Representations and Warranties of ▇▇▇▇▇▇▇.▇▇▇ Delaware.
▇▇▇▇▇▇▇.▇▇▇ Delaware covenants, represents and warrants to
▇▇▇▇▇▇▇.▇▇▇ Nevada that:
a. It is on the date of this Agreement, and will be on the
Merger Date, (a) a corporation duly organized and existing and in
good standing under the laws of the jurisdiction of the State of
Delaware (b) duly authorized under its articles, and under
applicable laws, to engage in the business carried on by it, and
(c) it is fully qualified to do business in the State of Delaware;
b. All federal, state and local tax returns required to be filed
by it on or before the Merger Date will have been filed, and all
taxes shown to be required to be paid on or before the Merger Date
will have been paid;
c. It will use its best efforts to collect the accounts
receivable owned by it on or prior to the Merger Date and will
follow its past practices in connection with the extension of any
credit prior to the Merger Date;
d. All fixed assets owned by it and employed in its business are
of the type, kind and condition appropriate for its business and
will be operated in the ordinary course of business until the
Merger Date;
e. All leases now held by it are now and will be on the Merger
Date in good standing and not voidable or void by reason of any
default whatsoever;
f. During the period between December 1, 2001, and the date of
this Agreement, except as disclosed in writing to ▇▇▇▇▇▇▇.▇▇▇
Nevada, it has not taken any action, or suffered any conditions to
exist, to any material or substantial extent in the aggregate,
which it has agreed in Article IX or this Article X of this
Agreement not to take or to permit to exist during the period
between the date of this agreement and the Merger Date;
g. It has not been represented by any broker in connection with
the transaction contemplated, except as it has advised ▇▇▇▇▇▇▇.▇▇▇
Nevada in writing; and
h. Its Board of Directors has, subject to the authorization and
approval of its stockholders, authorized and approved the
execution and delivery of this Agreement, and the performance of
the transactions contemplated by this Agreement.
i. ▇▇▇▇▇▇▇.▇▇▇ Delaware, in addition to other action which is
has covenanted, represented, and warranted to ▇▇▇▇▇▇▇.▇▇▇ Nevada
that it shall take, shall also:
(1) Use its best efforts to preserve its business
organization intact, to keep available to ▇▇▇▇▇▇▇.▇▇▇ Nevada
the present officers and employees of ▇▇▇▇▇▇▇.▇▇▇ Delaware,
and to preserve for ▇▇▇▇▇▇▇.▇▇▇ Nevada the relationships of
▇▇▇▇▇▇▇.▇▇▇ Delaware with suppliers and customers and others
having business relations with ▇▇▇▇▇▇▇.▇▇▇ Delaware; and
(2) Not increase the compensation, wages, or other benefits
payable to its officers or employees, other than increases
which ▇▇▇▇▇▇▇.▇▇▇ Nevada has approved in writing.
2. Representations and Warranties of ▇▇▇▇▇▇▇.▇▇▇ Nevada.
▇▇▇▇▇▇▇.▇▇▇ Nevada covenants, represents and warrants to
▇▇▇▇▇▇▇.▇▇▇ Delaware that:
a. ▇▇▇▇▇▇▇.▇▇▇ Nevada is a corporation duly organized and
existing and in good standing under the laws of the State of
Nevada and has the corporate power to own its properties and to
carry on its business as now being conducted; and
b. Its Board of Directors has, subject to the authorization and
approval of its stockholders, authorized and approved the execution and
delivery of this Agreement, and the performance of the transactions
contemplated by this Agreement.
ARTICLE XI
CONSUMMATION OF MERGER
If the merger contemplated is completed, all expenses
incurred in consummating the plan of merger shall, except as
otherwise agreed in writing between the Constituent Corporations,
be borne by ▇▇▇▇▇▇▇.▇▇▇ Nevada. If the merger is not completed,
each of the Constituent Corporations shall be liable for, and
shall pay, the expenses incurred by it.
Notwithstanding shareholder authorization and at any time
prior to the filing, the filing and recording of this agreement
may be deferred from time to time by mutual consent of the
respective boards of directors of each of the Constituent
Corporations, and, to the extent provided in (a), (b), (c) and (d)
below, the merger may be abandoned:
1. By the mutual consent of the respective Boards of Directors
of each of the Constituent Corporations;
2. At the election of the Board of Directors of ▇▇▇▇▇▇▇.▇▇▇
Nevada, if (a) demands by shareholders for appraisal of their
shares of ▇▇▇▇▇▇▇.▇▇▇ Delaware Stock have been received from the
holders of twenty-five percent (25%) or more of the outstanding
shares, or (b) in the judgment of the Board any judgment is
rendered relating to any legal proceeding not commenced and the
existence of the judgment will or may materially affect the rights
of either Constituent Corporation to sell, convey, transfer or
assign any of its assets or materially interfere with the
operation of its business, renders the merger impracticable,
undesirable or not in the best interests of its shareholders;
3. By the Board of Directors of ▇▇▇▇▇▇▇.▇▇▇ Nevada if there
shall not have been submitted to ▇▇▇▇▇▇▇.▇▇▇ Nevada the opinion of
counsel for ▇▇▇▇▇▇▇.▇▇▇ Delaware, in form and substance
satisfactory to ▇▇▇▇▇▇▇.▇▇▇ Nevada, to the effect that (1)
▇▇▇▇▇▇▇.▇▇▇ Delaware is a validly organized and duly existing
corporation, (2) this Agreement has been duly authorized by, and
is binding upon, ▇▇▇▇▇▇▇.▇▇▇ Delaware in accordance with its
terms, and (3) all the properties, estate, rights, privileges,
powers and franchises of ▇▇▇▇▇▇▇.▇▇▇ Delaware and all debts due to
▇▇▇▇▇▇▇.▇▇▇ Delaware shall be transferred to and vested in
▇▇▇▇▇▇▇.▇▇▇ Nevada, as the Surviving Corporation, without further
act or deed, subject only to any legal requirements for recording
or filing any instruments of conveyance, assignment or transfer,
the giving of notice of any such conveyance, assignment or
transfer, consents of third parties and governmental authorities
to assignment of any contract or lease, and other specified
exceptions acceptable to ▇▇▇▇▇▇▇.▇▇▇ Nevada;
4. At the election of the Board of Directors of ▇▇▇▇▇▇▇.▇▇▇
Delaware if there shall not have been submitted to ▇▇▇▇▇▇▇.▇▇▇
Delaware the opinion of counsel for ▇▇▇▇▇▇▇.▇▇▇ Nevada, in form
and substance satisfactory to ▇▇▇▇▇▇▇.▇▇▇ Delaware, to the effect
that (1) ▇▇▇▇▇▇▇.▇▇▇ Nevada is a validly organized and duly
existing corporation, (2) this Agreement has been duly authorized
by, and is binding upon, ▇▇▇▇▇▇▇.▇▇▇ Nevada in accordance with its
terms, (3) when Articles of Merger shall have been filed as
provided in this Agreement, the merger will become effective and
all liabilities and obligations of ▇▇▇▇▇▇▇.▇▇▇ Delaware will
become the liabilities and obligations of ▇▇▇▇▇▇▇.▇▇▇ Nevada, as
the surviving corporation, fully and without any further action by
either Constituent Corporation, (4) the ▇▇▇▇▇▇▇.▇▇▇ Delaware Stock
will be converted into ▇▇▇▇▇▇▇.▇▇▇ Nevada Stock, (5) the
▇▇▇▇▇▇▇.▇▇▇ Nevada Stock into which the ▇▇▇▇▇▇▇.▇▇▇ Delaware Stock
will be converted as provided herein will be legally and validly
authorized, exempt from the registration requirements of Section 5
of the Securities Act of 1933, as amended, ("Act'), provided by
Section 3(a)(10) thereof, exempt from the registration
requirements of Nevada Revised Statutes 90.460, as amended,
provided by Nevada Revised Statutes 90.530(11), and may be issued
without a restrictive legend pursuant to Rule 145(a)(2) under the
Act if the shares of ▇▇▇▇▇▇▇.▇▇▇ Delaware are otherwise
unrestricted, and (6) when issued will be validly issued, fully
paid and nonassessable stock of the surviving corporation;
5. At the election of the Board of Directors of either
Constituent Corporation if:
a. The warranties and representations of the other Constituent
Corporation contained in this Agreement shall not be substantially
accurate in all material respects on and as of the date of
election; or the covenants contained of the other Constituent
Corporation shall not have been performed or satisfied in all
material respects;
b. This agreement shall not have been approved by the requisite
votes of shareholders of the Constituent Corporations on or before
December 1, 2001;
c. Prior to the merger (1) there shall have been filed in any
court or agency having jurisdiction a complaint or other
proceeding seeking to restrain or enjoin the merger contemplated
hereby, or (2) there shall have been presented to ▇▇▇▇▇▇▇.▇▇▇
Delaware or ▇▇▇▇▇▇▇.▇▇▇ Nevada or any director or officer of
either of them any process, demand or request which, in the
opinion of counsel for either Constituent Corporation, offers
reasonable ground to believe that a complaint or ▇▇▇▇ in equity
may be forthcoming which, if successful, would restrain, enjoin or
dissolve the merger, and if, in either case, such Board of
Directors determines that abandonment and cancellation of this
Agreement is advisable in the best interests of the Constituent
Corporations, their shareholders, employees and customers;
d. If the Merger Date shall not have occurred by December 31,
2002, then, at the option of the Board of Directors of either
Constituent Corporation, it may be deferred to a date on or after
June 30, 2003. If the Merger Date shall not have occurred by June
30, 2003, then, at the option of the Board of Directors of either
Constituent Corporation the merger may be abandoned. In the event
of the abandonment of the merger pursuant to the foregoing
provisions, this Agreement shall become void and have no effect,
without any liability on the part of either of the Constituent
Corporations or its shareholders or directors or officers in
respect of this merger except the obligation of each Constituent
Corporation to pay its own expenses as provided in this Article XI.
ARTICLE XII
RESIDENT AGENT
The respective names of the county and the city within the
county in which the principal office of the surviving corporation
is to be located in the State of Nevada, the street and number of
this office, the name of the registered agent will, as of the
Merger Date, be as set forth in Article Second of the Articles of
Incorporation of the Surviving Corporation.
ARTICLE XIII
RIGHT TO AMEND ARTICLES OF INCORPORATION
The Surviving Corporation reserves the right to amend, alter,
change or repeal its Articles of Incorporation in the manner now
or later prescribed by statute or otherwise authorized by law; and
all rights and powers conferred in the certificate of
incorporation on shareholders, directors or officers of
▇▇▇▇▇▇▇.▇▇▇ Nevada, or any other person, are subject to this
reserved power.
ARTICLE XIV
MISCELLANEOUS
1. Access to Books and Records.
To enable ▇▇▇▇▇▇▇.▇▇▇ Nevada to coordinate the activities of
▇▇▇▇▇▇▇.▇▇▇ Delaware into those of ▇▇▇▇▇▇▇.▇▇▇ Nevada on and after
the Merger Date, ▇▇▇▇▇▇▇.▇▇▇ Delaware shall, before the Merger
Date, afford to the officers and authorized representatives of
▇▇▇▇▇▇▇.▇▇▇ Nevada free and full access to the plants, properties,
books and records of ▇▇▇▇▇▇▇.▇▇▇ Delaware, and the officers of
▇▇▇▇▇▇▇.▇▇▇ Delaware will furnish ▇▇▇▇▇▇▇.▇▇▇ Nevada with
financial and operating data and other information as to the
business and properties of ▇▇▇▇▇▇▇.▇▇▇ Delaware as ▇▇▇▇▇▇▇.▇▇▇
Nevada shall from time to time reasonably request. ▇▇▇▇▇▇▇.▇▇▇
Nevada shall, before the Merger Date, afford to the officers and
authorized representatives of ▇▇▇▇▇▇▇.▇▇▇ Delaware such access,
and ▇▇▇▇▇▇▇.▇▇▇ Nevada's officers will furnish such data and
information to ▇▇▇▇▇▇▇.▇▇▇ Delaware, as may be reasonably required
by ▇▇▇▇▇▇▇.▇▇▇ Delaware for the preparation of its proxy statement
in connection with the meeting of shareholders to be called
pursuant to section 1 of Article I of this Agreement. ▇▇▇▇▇▇▇.▇▇▇
Nevada and ▇▇▇▇▇▇▇.▇▇▇ Delaware agree that, unless and until the
merger contemplated by this Agreement has been consummated,
▇▇▇▇▇▇▇.▇▇▇ Nevada and ▇▇▇▇▇▇▇.▇▇▇ Delaware and their officers and
representatives will hold in strict confidence all data and
information obtained from one another as long as it is not in the
public domain, and if the merger provided for is not consummated
as contemplated, ▇▇▇▇▇▇▇.▇▇▇ Nevada and ▇▇▇▇▇▇▇.▇▇▇ Delaware will
each return to the other party all data as the other party may
reasonably request.
2. Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall
not be capable of being waived or varied other than by an express
waiver or variation in writing. Any failure to exercise or any
delay in exercising any of such rights shall not operate as a
waiver or variation of that or any other such right. Any
defective or partial exercise of any of such rights shall not
preclude any other or further exercise of that or any other such
right. No act or course of conduct or negotiation on the part of
any party shall in any way preclude such party from exercising
any such right or constitute a suspension or any variation of any
such right.
3. Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions,
provisions, obligations, undertakings, rights, and benefits
hereof, shall be binding upon, and shall inure to the benefit of,
the undersigned parties and their heirs, executors,
administrators, representatives, successors, and permitted assigns.
4. Entire Agreement.
This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof. There are no
promises, agreements, conditions, undertakings, understandings,
warranties, covenants or representations, oral or written,
express or implied, between them with respect to this Agreement
or the matters described in this Agreement, except as set forth
in this Agreement. Any such negotiations, promises, or
understandings shall not be used to interpret or constitute this Agreement.
5. Assignment.
Neither this Agreement nor any other benefit to accrue
hereunder shall be assigned or transferred by either party,
either in whole or in part, without the written consent of the
other party, and any purported assignment in violation hereof
shall be void.
6. Amendment.
This Agreement may be amended only by an instrument in
writing executed by all the parties hereto.
7. Severability.
Each part of this Agreement is intended to be severable. In
the event that any provision of this Agreement is found by any
court or other authority of competent jurisdiction to be illegal
or unenforceable, such provision shall be severed or modified to
the extent necessary to render it enforceable and as so severed
or modified, this Agreement shall continue in full force and effect.
8. Section Headings.
The Section headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
9. Construction.
Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall
be deemed to include each of the singular, and pronouns of one or
no gender shall be deemed to include the equivalent pronoun of
the other or no gender.
10. Further Assurances.
In addition to the instruments and documents to be made,
executed and delivered pursuant to this Agreement, the parties
hereto agree to make, execute and deliver or cause to be made,
executed and delivered, to the requesting party such other
instruments and to take such other actions as the requesting
party may reasonably require to carry out the terms of this
Agreement and the transactions contemplated hereby.
11. Notices.
Any notice which is required or desired under this Agreement
shall be given in writing and may be sent by personal delivery or
by mail (either a. United States mail, postage prepaid, or b.
Federal Express or similar generally recognized overnight
carrier), addressed as follows (subject to the right to designate
a different address by notice similarly given):
To ▇▇▇▇▇▇▇.▇▇▇ Nevada:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Attorney at Law
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To ▇▇▇▇▇▇▇.▇▇▇ Delaware
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12. Governing Law.
This Agreement shall be construed and enforced under, in
accordance with, and governed by, the laws of the State of Nevada.
13. Consents.
The person signing this Agreement on behalf of each party
hereby represents and warrants that he has the necessary power,
consent and authority to execute and deliver this Agreement on
behalf of such party.
14. Termination of Agreement.
This Agreement shall terminate on the Effective Date unless
all actions required under this Agreement have not been fully performed.
15. Survival of Provisions.
The representations and warranties contained in Article X of
this agreement and any liability of one Constituent Corporation to
the other for any default under the provisions of Articles IX or X
of this agreement, shall expire with, and be terminated and
extinguished by, the merger under this agreement on the Merger Date.
16. Execution in Counterparts.
This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all
of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered as of the date first above written.
▇▇▇▇▇▇▇.▇▇▇ NEVADA:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, President
▇▇▇▇▇▇▇.▇▇▇ DELAWARE:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, President
