AGREEMENT AND PLAN OF MERGER OF WELUND FUND, INC. A NEVADA CORPORATION, and WELUND FUND, INC. A DELAWARE CORPORATION
OF
WELUND FUND, INC.
A
NEVADA CORPORATION,
and
WELUND
FUND, INC.
A
DELAWARE CORPORATION
This
Agreement and Plan of Merger dated as of January 25, 2006 (the “Agreement”)
is
between Welund Fund Inc., a Delaware corporation (“Welund-Delaware”),
and
Welund Fund Inc., a Nevada corporation (Welund-Nevada”).
Welund-Nevada
and Welund-Delaware
are sometimes referred to in this Agreement as the “Constituent
Corporations.”
RECITALS
A. Welund-Nevada
is
a corporation duly organized and existing under the laws of the State of
Nevada
and has an authorized capital of 120,000,000 shares, 100,000,000 of which
are
designated “Common
Stock,”
$0.0001 par value, and 20,000,000 of which are designated “Preferred
Stock,”
$0.0001 par value. As of January 25, 2005, 100 shares of Welund-Nevada
Common Stock were issued and outstanding, all of which are held by
Welund-Delaware,
and no shares of Preferred Stock were issued and outstanding.
B. Welund-Delaware
is a corporation duly organized and existing under the laws of the State
of
Delaware and has an authorized capital of 120,000,000 shares, 100,000,000
of
which are designated “Common
Stock,”
$0.0001 par value and 20,000,000 of which are designated “Preferred
Stock,”
$0.0001 par value. As of January 25, 2005, 3,440,000 shares of Common Stock
were
issued and outstanding and no shares of Preferred Stock were issued and
outstanding. As of January 25, 2005, there were no options, purchase rights,
conversion rights or warrants issued and outstanding relating to any
Welund-Delaware shares.
C. The
Board
of Directors of Welund-Delaware
has determined that, for the purpose of effecting the reincorporation of
Welund-Delaware
in the State of Nevada, it is advisable and in the best interests of
Welund-Delaware
that Welund-Delaware
merge with and into Welund-Nevada
upon the terms and conditions provided in this Agreement.
D. The
respective Boards of Directors of Welund-Nevada
and Welund-Delaware
have approved this Agreement, have received the required consents from their
respective stockholders and have directed that this Agreement be executed
by the
undersigned officers.
AGREEMENT
In
consideration of the mutual agreements and covenants set forth herein,
Welund-Nevada
and Welund-Delaware
hereby agree, subject to the terms and conditions hereinafter set forth,
as
follows:
1. Merger.
1.1 Merger.
In
accordance with the provisions of this Agreement, the Nevada Revised Statutes
and the Delaware General Corporation Law, Welund-Delaware
shall be merged with and into Welund-Nevada
(the “Merger”),
the
separate existence of Welund-Delaware
shall cease and Welund-Nevada
shall be, and is sometimes referred to below as, the “Surviving
Corporation,”
and
the name of the Surviving Corporation shall be Welund Fund, Inc., a Nevada
corporation.
1.2 Filing
and Effectiveness.
The
Merger shall become effective upon completion of the following
actions:
(a) The
satisfaction or waiver of all of the conditions precedent to the consummation
of
the Merger as specified in this Agreement; and
(b) The
filing with the Secretary of State of Nevada of an executed Certificate of
Merger or an executed counterpart of this Agreement meeting the requirements
of
the Nevada Revised Statutes.
The
date
and time when the Merger becomes effective is referred to in this Agreement
as
the “Effective
Date of the Merger.”
1.3 Effect
of the Merger.
Upon the
Effective Date of the Merger, the separate existence of Welund-Delaware
shall cease and Welund-Nevada,
as the Surviving Corporation, (a) shall continue to possess all of its
assets, rights, powers and property as constituted immediately prior to the
Effective Date of the Merger, (b) shall be subject to all actions
previously taken by its and Welund-Delaware’s
Board of Directors, (c) shall succeed, without other transfer, to all of
the assets, rights, powers and property of Welund-Delaware
in the manner more fully set forth in Nevada Revised Statutes 92A.250,
(d) shall continue to be subject to all of the debts, liabilities and
obligations of Welund-Nevada
as
constituted immediately prior to the Effective Date of the Merger, and
(e) shall succeed, without other transfer, to all of the debts, liabilities
and obligations of Welund-Delaware
in the same manner as if Welund-Nevada
had itself incurred them, all as more fully provided under the applicable
provisions of the Nevada Revised Statutes and the Delaware General Corporation
Law.
2. Charter
Documents, Directors and Officers
2.1
Certificate
of Incorporation.
The
Certificate of Incorporation of Welund-Nevada
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 Welund-Nevada
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
2.3
Directors
and Officers.
The
directors and officers of Welund-Nevada
immediately prior to the Effective Date of the Merger shall be the directors
and
officers of the Surviving Corporation until their successors shall have been
duly elected and qualified or as otherwise provided by law, the Certificate
of
Incorporation of the Surviving Corporation or the Bylaws of the Surviving
Corporation.
3. Manner
of Conversion of Stock
3.1
Welund-Delaware
Common Stock.
Upon the
Effective Date of the Merger, each share of Welund-Delaware
Common Stock issued and outstanding immediately prior thereto shall, by virtue
of the Merger and without any action by the Constituent Corporations, the
holder
of such share or any other person, be converted into and exchanged for
one fully
paid and nonassessable share of Common Stock, $0.0001 par value, of the
Surviving Corporation. No fractional share interests of the Surviving
Corporation shall be issued.
3.2
Welund-Nevada
Common Stock.
Upon the
Effective Date of the Merger, each share of Common Stock, $0.0001 par value,
of
Welund-Nevada issued
and outstanding immediately prior thereto shall, by virtue of the Merger
and
without any action by Welund-Nevada,
the holder of such shares or any other person, be canceled and returned to
the
status of authorized but unissued shares.
3.3
Exchange
of Certificates.
After
the Effective Date of the Merger, each holder of an outstanding certificate
representing shares of Welund-Delaware
Common Stock may be asked to surrender the same for cancellation to an exchange
agent, whose name will be delivered to holders prior to any requested exchange
(the “Exchange
Agent”),
and
each such holder shall be entitled to receive in exchange therefor a
cer-tificate or certificates representing the number of shares of the
appropriate class and series of the Surviving Corporation’s capital stock into
which the surrendered shares were converted as herein provided. Until so
surrendered, each outstanding certificate theretofore representing shares
of
Welund-Delaware
capital stock shall be deemed for all purposes to represent the number of
whole
shares of the appropriate class and series of the Surviving Corporation’s
capital stock into which such shares of Welund-Delaware
capital stock were converted in the Merger.
The
registered owner on the books and records of the Surviving Corporation or
the
Exchange Agent of any 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 capital stock of the Surviving
Corporation represented by such outstanding certificate as provided
above.
Each
certificate representing capital stock of the Surviving Corporation so issued
in
the Merger shall bear the same legends, if any, with respect to the restrictions
on transferability as the certificates of Welund-Delaware
so converted and given in exchange therefor, unless otherwise determined
by the
Board of Directors of the Surviving Corporation in compliance with applicable
laws.
3
If
any
certificate for shares of Surviving Corporation’s 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 comply with applicable
securities laws and that the person requesting such transfer pay to 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 the Surviving
Corporation that such tax has been paid or is not payable.
4. General
4.1
Covenants
of Welund-Nevada.
Welund-Nevada
covenants and agrees that it will, on or before the Effective Date of the
Merger:
(a) Irrevocably
appoint an agent for service of process in the State of Delaware as required
under the provisions of Section 252 of the Delaware General Corporation
Law;
(b) File
any
and all documents with the Delaware Franchise Tax Board necessary for the
assumption by Welund-Nevada of all of the franchise tax liabilities of
Welund-Delaware; and
(c) Take
such
other actions as may be required by the Delaware General Corporation
Law.
4.2
Further
Assurances.
From
time to time, as and when required by Welund-Nevada
or
by its successors or assigns, there shall be executed and delivered on behalf
of
Welund-Delaware
such deeds and other instruments, and there shall be taken or caused to be
taken
by it 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
Welund-Nevada
the title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of Welund-Delaware
and otherwise to carry out the purposes of this Agreement, and the officers
and
directors of Welund-Nevada
are fully authorized in the name and on behalf of Welund-Delaware
or otherwise to take any and all such action and to execute and deliver any
and
all such deeds and other instruments.
4.3
Abandonment.
At any
time before the Effective Date of the Merger, this Agreement may be terminated
and the Merger may be abandoned for any reason whatsoever by the Board of
Directors of either Welund-Delaware
or Welund-Nevada,
or both, notwithstanding the approval of this Agreement by the shareholders
of
Welund-Delaware
or by the sole stockholder of Welund
-Nevada,
or by both.
4
4.4
Amendment.
The
Boards of Directors of the Constituent Corporations may amend this Agreement
at
any time prior to the filing of this Agreement (or certificate in lieu thereof)
with the Secretary of State of the State of Nevada, provided that an amendment
made subsequent to the adoption of this Agreement by the stockholders of
either
Constituent Corporation shall not: (a) 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, (b) alter or change any term of the
Certificate of Incorporation of the Surviving Corporation to be effected
by the
Merger, or (c) alter or change any of the terms and conditions of this
Agreement if such alteration or change would adversely affect the holders
of any
class of shares or series of capital stock of such Constituent
Corporation.
4.5
Registered
Office.
The
registered office of the Surviving Corporation in the State of Nevada is
located
at The Corporation Trust Company of Nevada, 0000 Xxxx Xxxx, Xxxxx 000, Xxxx,
XX
00000 and The Corporation Trust Company of Nevada is the registered agent
of the
Surviving Corporation at such address.
4.6
FIRPTA
Notification.
(a) On
the
Effective Date of the Merger, Welund-Delaware
shall deliver to Welund-Nevada,
as agent for the shareholders of Welund-Delaware,
a properly executed statement (the “Statement”)
in
substantially the form attached hereto as Exhibit A.
Welund-Nevada
shall retain the Statement for a period of not less than seven years and,
upon
request, shall provide a copy thereof to any person that was a shareholder
of
Welund-Delaware
immediately prior to the Merger. In consequence of the approval of the Merger
by
the shareholders of Welund-Delaware,
(i) such shareholders shall be considered to have requested that the
Statement be delivered to Welund-Nevada
as
their agent and (ii) Welund-Nevada
shall be considered to have received a copy of the Statement at the request
of
the Welund-Delaware
shareholders for purposes of satisfying Welund-Nevada’s
obligations under Treasury Regulation Section 1.1445-2(c)(3).
(b) Welund-Delaware
shall deliver to the Internal Revenue Service a notice regarding the Statement
in accordance with the requirements of Treasury Regulation Section
1.897-2(h)(2).
4.7
Agreement.
Executed
copies of this Agreement will be on file at the principal place of business
of
the Surviving Corporation at 0000 Xxxxxxxxx Xxxxx, Xxxxx X, Xxxxxx Xxxxxxx,
XX
00000 and
copies thereof will be furnished to any stockholder of either Constituent
Corporation, upon request and without cost.
4.8
Governing
Law.
This
Agreement and all acts and transactions pursuant hereto and the rights and
obligations of the parties hereto shall be governed, construed and interpreted
in accordance with the laws of the State of Nevada, without giving effect
to
principles of conflicts of law
4.9
Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original and all of which together shall constitute one
instrument.
5
The
undersigned authorized representatives of the Constituent Corporation have
executed and acknowledged this Agreement as of the date first set forth
above.
Welund
Fund, Inc.,
a
Nevada corporation
|
|
Xxxxxx
Xxxxxxxx,
|
|
President
and Chief Executive Officer
|
|
Welund
Fund Inc.,
a
Delaware corporation
|
|
Xxxxxx
Xxxxxxxx,
|
|
President
and Chief Executive Officer
|
6
EXHIBIT
A -- FORM OF FIRPTA CERTIFICATE
[Date]
Assistant
Commissioner (International)
Director,
Office of Compliance
OP:I:C:E:666
950
L’Enfant Plaza South, S.W.
COMSAT
Building
Washington,
D.C. 20024
NOTICE
TO
THE INTERNAL REVENUE SERVICE OF WELUND FUND, INC. UNITED STATES REAL PROPERTY
HOLDING CORPORATION STATUS UNDER TREASURY REGULATION 1.897-2(H)(2)
Dear
Sir:
1. This
Notice is being filed by Welund Fund, Inc., a Delaware corporation, (“Target”)
pursuant to section 1.897-2(h)(2) of the Treasury Regulations promulgated
under
the Internal Revenue Code of 1986, as amended (the “Code”).
2. The
undersigned, on behalf of Target hereby declares that stock of Target is
not a
United States real property interest within the meaning of section 897 of
the
Code because Target is not and has not been a United States real property
holding corporation as that term is defined in section 897(c) (2) of the
Code
during the applicable period specified in section 897(c) (1) (A) (ii) of
the
Code.
3. Target’s
United States taxpayer identifying number is: ____________________
4. Target’s
address is:
0000
Xxxxxxxxx Xxxxx, Xxxxx X
Xxxxxx
Xxxxxxx, XX 00000
5. In
connection with the acquisition of Target by Welund Fund, Inc., a Nevada
corporation, (“Acquiror”), the undersigned provided the attached statement to
Acquiror declaring that an interest in Target is not a United States real
property interest. The statement was voluntarily provided in response to
a
request from the transferee, Acquiror under Regulation 1.
1445-2(c) (3) (i).
Acquiror’s
United States taxpayer identifying number is: _______________________
Acquiror’s
address is:
0000
Xxxxxxxxx Xxxxx, Xxxxx X
Xxxxxx
Xxxxxxx, XX 00000
6. No
supplemental statements pursuant to Treasury Regulations section 1.897-2(h)
(5)
are required to be filed herewith.
7. Under
penalties of perjury the undersigned declares that he has examined this
certification, and the attachment hereto, and to the best of his knowledge
and
belief they are true, correct and complete. The undersigned further declares
that he is a responsible officer and that he has authority to sign this document
on behalf of Target.
A
copy of
the statement provided pursuant to Treasury Regulation §§1.897-2(h)(2)
and 1.1445-2(c)(3)(i) is attached.
___________________________
|
|
Xxxxxx
Xxxxxxxx, President
|
2
WELUND
FUND, INC.
A
Delaware Corporation
OFFICERS’
CERTIFICATE OF APPROVAL OF THE MERGER
Xxxxxx
Xxxxxxxx certifies that:
1. He
is the
President of Welund Fund, Inc., a corporation organized under the laws of
the
State of Delaware.
2. The
corporation has authorized two classes of stock, designated “Common Stock” and
“Preferred Stock,” respectively.
3. There
were 3,440,000 shares of Common Stock and
no
shares of Preferred Stock outstanding as of the record date (the “Record Date”)
and entitled to vote by written consent of the shareholders whereby the
Agreement and Plan of Merger attached hereto (the “Merger Agreement”) was
approved.
4. The
principal terms of the Merger Agreement were approved by the Board of Directors
and by the vote of a number of shares of each class and series of stock,
which
equaled or exceeded the vote required.
5. The
percentage vote required was more than 50% of the outstanding shares of Common
Stock.
Xxxxxx
Xxxxxxxx further declares under penalty of perjury under the laws of the
States
of Delaware and Nevada that he has read the foregoing certificate and knows
the
contents thereof and that the same is true and correct of his own
knowledge.
Executed
in Rancho Cordova, California on January 25, 2006.
________________________________________
Xxxxxx
Xxxxxxxx, President
WELUND
FUND, INC.
A
Nevada
Corporation
OFFICERS’
CERTIFICATE OF APPROVAL OF MERGER
Xxxxxx
Xxxxxxxx certifies that:
1. He
is the
President of Welund Fund Inc.,
a
corporation organized under the laws of the State of Nevada.
2. The
corporation has authorized two classes of stock, designated “Common Stock” and
“Preferred Stock,” respectively.
3. There
are
100 shares of Common Stock outstanding and entitled to vote on the Agreement
and
Plan of Merger attached hereto (the “Merger Agreement”). There are no shares of
Preferred Stock outstanding.
4. The
principal terms of the Merger Agreement were approved by the Board of Directors
and by the vote of a number of shares of each class and series of stock which
equaled or exceeded the vote required.
5. The
percentage vote required was more than 50% of the votes entitled to be cast
by
holders of outstanding shares of Common Stock.
Xxxxxx
Xxxxxxxx further declares under penalty of perjury under the laws of the
States
of Nevada and Delaware that he has read the foregoing certificate and knows
the
contents thereof and that the same is true and correct of his own
knowledge.
Executed
in Rancho Cordova, California January 25, 2006.
__________________________________________
Xxxxxx
Xxxxxxxx, President