EXHIBIT 2.1.4.1
MERGER AGREEMENT UNDERLYING ARTICLES OF MERGER FOR MERGER
OF SUBSIDIARY AND PARENT AND CONCURRENT NAME CHANGE
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
TRAFFIC TECHNOLOGY, INC. (NEVADA)
AND
CALBATECH, INC. (NEVADA)
This Agreement and Plan of Merger ("Agreement") between Traffic
Technology, Inc., a Nevada corporation ("TNevada" or "Surviving
Corporation") and CalbaTech, Inc., a Nevada corporation ("CTI"), the
two corporations acting by their respective boards of directors and
sometimes collectively referred to as the "Constituent Corporations,"
is entered into this 20th day of March 2003 in Irvine, California, and
will have an effective date, as set forth in Article I, Section 2
hereafter.
WHEREAS, TNevada is a corporation organized and existing under
the laws of the State of Nevada, with its principal business office
located at 00000 Xxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000;
WHEREAS, the authorized capital stock of TNevada consists of Two
Hundred Million (200,000,000) shares of common stock, par value of
One Tenth of One Cent ($0.001) per share, of which as of March 20,
2003, there were Ninety Seven Million Five Hundred Twenty-Seven
Thousand Seven Hundred and Fifty (97,527,750) shares are presently
issued and outstanding;
WHEREAS, CTI is a Nevada corporation that is a wholly-owned
subsidiary of TNevada, with TNevada owning all of the outstanding
shares of CTI under the laws of the State of Nevada;
WHEREAS, Nevada Revised Statutes confers upon TNevada the power
to merge with a Nevada corporation and to issue its own shares in
exchange for shares of any corporation to be merged into TNevada;
WHEREAS, the respective boards of directors of TNevada and CTI
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 merging the wholly-owned operating subsidiary
of TNevada into TNevada; and
WHEREAS, in order to consummate this merger and in consideration
of the mutual benefits to be derived and the mutual agreements
contained herein, TNevada and CTI 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, TNevada and CTI shall be, and they
are, as of the Effective Date (as defined in Article I, Section 2
hereafter) merged into a single surviving corporation, which shall be
and is TNevada, 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 below.
ARTICLE I
MERGER
1. Shareholder Approval.
This Agreement has been submitted, approved and thereby adopted
by the shareholders of each of the Constituent Corporations, where
necessary, pursuant to and in accordance with the applicable
provisions of the laws of the State of Nevada.
2. Filings After Shareholder Approval.
Pursuant and in conformance with the Nevada Statutes, CTI will
cease to exist and TNevada will possess all of the powers and
property formerly possessed by CTI upon the filing with each of the
Constituent Corporations respective states. As such, TNevada shall
file with the Nevada Secretary of State a duly executed Articles of
Merger, and take such other and future actions as may be required by
Nevada law to make the merger effective. The merger of CTI into
TNevada shall become effective upon the filing of the Articles of
Merger with the Nevada Secretary of State ("Effective Date").
3. Effect of Merger.
TNevada shall succeed to, without other transfer, and shall
possess and enjoy all rights, privileges, powers and franchises as
well of a public and of a private nature, and be subject to all
restrictions, disabilities and duties of each of the two Constituent
Corporations, and all and singular, the rights, privileges, powers
and franchises of each of the 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 the Constituent Corporations, provided,
that all rights of creditors and all liens on any property of each of
the Constituent Corporations shall be preserved unimpaired, limited
to property affected by the liens at time of merger, and all debts,
liabilities and duties of the 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 the 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 AS CALBATECH, INC.
TNevada, the Constituent Corporation whose corporate existence
is to survive this merger and continue thereafter as the Surviving
Corporation shall hereafter be known as CalbaTech, Inc., 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 CTI shall be wholly
merged into TNevada. Accordingly, on the Effective Date the separate
existence of CTI, 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 Effective Date, the
certificate of incorporation of TNevada 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 its Articles of
Incorporation and be governed by those provisions.
ARTICLE IV
BYLAWS OF SURVIVING CORPORATION
From and after the Effective Date, the present bylaws of TNevada
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 TNevada or its bylaws, shall be five (5) 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:
Xxxxxx X. Xxxxx
Xxxxx XxXxxxx
Xxxx Xxxxxx
Xxxxx Xxxxxxx
Xxxxxxx Xxxxxx
If, on or after the Effective 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 TNevada or in its bylaws.
2. Annual Meeting.
The first annual meeting of the shareholders of the Surviving
Corporation after the Effective Date shall be the annual meeting
provided by the bylaws of TNevada for the year 2003.
3. Officers.
The first officers of the Surviving Corporation, having been
duly elected, are as follows:
President: Xxxxxx X. Xxxxx
Vice President: Xxxx Xxxxxx
Treasurer Xxxxxx X. Xxxxx
Secretary: Xxxxx XxXxxxx
ARTICLE VI
CAPITAL STOCK OF SURVIVING CORPORATION
The capitalization of the Surviving Corporation upon the
Effective Date shall be as set forth in the certificate of
incorporation of TNevada.
ARTICLE VII
ASSETS AND LIABILITIES
On the Effective 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 VIII
CONDUCT OF BUSINESS BY CONSTITUENT CORPORATIONS
Prior to the Effective Date, CTI 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, CTI shall not, except as otherwise consented to by TNevada 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 Effective 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 IX
WARRANTIES OF THE CONSTITUENT CORPORATIONS
1. Representations and Warranties of CTI.
CTI covenants, represents and warrants to TNevada that:
a. It is on the date of this Agreement, and will be on the
Effective Date, (a) a corporation duly organized and existing and in
good standing under the laws of the jurisdiction of the State of
Nevada, (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 Nevada;
b. It will use its best efforts to collect the accounts receivable
owned by it on or prior to the Effective Date and will follow its
past practices in connection with the extension of any credit prior
to the Effective Date;
c. 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 Effective Date;
d. All leases now held by it are now and will be on the Effective
Date in good standing and not voidable or void by reason of any
default whatsoever;
e. It has not been represented by any broker in connection with the
transaction contemplated, except as it has advised TNevada in
writing; and
f. Its Board of Directors has authorized and approved the execution
and delivery of this Agreement, and the performance of the
transactions contemplated by this Agreement.
g. CTI, in addition to other action which is has covenanted,
represented, and warranted to TNevada that it shall take, shall also:
(1) Use its best efforts to preserve its business organization
intact, to keep available to TNevada the present officers and
employees of CTI, and to preserve for TNevada the relationships
of CTI with suppliers and customers and others having business
relations with CTI; and
(2) Not increase the compensation, wages, or other benefits payable
to its officers or employees, other than increases that TNevada has
approved in writing.
ARTICLE X
2. Representations and Warranties of TNevada.
TNevada covenants, represents and warrants to CTI that:
a. TNevada 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
MISCELLANEOUS
1. Access to Books and Records.
To enable TNevada to coordinate the activities of CTI into those
of TNevada on and after the Effective Date, CTI shall, before the
Effective Date, afford to the officers and authorized representatives
of TNevada free and full access to the plants, properties, books and
records of CTI, and the officers of CTI will furnish TNevada with
financial and operating data and other information as to the business
and properties of CTI as TNevada shall from time to time reasonably
request. TNevada shall also, before the Effective Date, afford to the
officers and authorized representatives of CTI such access, and
TNevada's officers will furnish such data and information to CTI.
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.
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 Effective 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.
Traffic Technology, Inc. (Nevada): CalbaTech, Inc. (Nevada):
By:__________________________ By:__________________________
Xxxxxx X. Xxxxx, President Xxxxxx X. Xxxxx, President
By:__________________________ By:__________________________
Xxxxx XxXxxxx, Secretary Xxxxx XxXxxxx, Secretary
