Exhibit 2.1
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
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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.
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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:
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▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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
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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;
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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;
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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 that ▇▇▇▇▇▇▇.▇▇▇ Nevada has
approved in writing.
2. Representations and Warranties of ▇▇▇▇▇▇▇.▇▇▇ Nevada.
▇▇▇▇▇▇▇.▇▇▇ Nevada covenants, represents and warrants to ▇▇▇▇▇▇▇.▇▇▇
Delaware that:
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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;
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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
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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.
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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.
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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.
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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/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇, President
▇▇▇▇▇▇▇.▇▇▇ DELAWARE:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇, President
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