EXHIBIT 2.2
FLUID MEDIA NETWORKS, INC.
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (the "Merger Agreement") dated as of May
17, 2007, is by and between Fluid Media Networks, Inc., a Delaware corporation
("Parent"), and FMN Merger Co., a Nevada corporation ("Merger Sub").
WHEREAS, the Board of Directors of each of Parent and Merger Sub has
approved this Merger Agreement; and
WHEREAS, the merger is intended to qualify as a tax-free reorganization
under Section 368 of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, the parties hereby agree as follows:
1. THE MERGER. Parent shall be merged with and into Merger Sub (the "Merger"),
in accordance with this Merger Agreement, the Nevada Revised Statutes, as
amended (the "NRS") and the Delaware General Corporation Law (the "DGCL"). From
and after the Effective Time (as defined in Section 2 below), the separate
existence of Parent shall terminate and Merger Sub shall continue in existence
as the surviving corporation (the "Surviving Corporation").
2. EFFECTIVE TIME OF MERGER. The Merger shall become effective upon the later of
(a) the filing with the Secretary of State of the State of Delaware of a
Certificate of Merger executed in accordance with the relevant provisions of the
DGCL or (b) the filing with the Secretary of State of the State of Nevada of
Articles of Merger executed in accordance with the relevant provisions of the
NRS (such later date and time being the "Effective Time").
3. NAME OF SURVIVING CORPORATION. The name of the Surviving Corporation shall be
"Fluid Media Networks, Inc."
4. CERTIFICATE OF INCORPORATION AND BY-LAWS OF SURVIVING CORPORATION. The
Certificate of Incorporation and the By-Laws of Merger Sub as in effect at the
Effective Time shall be the Certificate of Incorporation and the By-Laws of the
Surviving Corporation.
5. DIRECTORS AND OFFICERS. From and after the Effective Time, the directors and
officers of Parent shall continue in office as the directors and officers of the
Surviving Corporation.
6. SUCCESSION. From and after the Effective Time, the Surviving Corporation
shall succeed, in accordance with the DGCL and the NRS, to all of the rights,
assets, liabilities and obligations of Parent; and the title to any real estate
vested by deed or otherwise, in either of Parent and/or the Surviving
Corporation, shall not revert or be in any way impaired by reason of the Merger,
and all rights of creditors and all liens on any property of either of said
corporation shall be reserved unimpaired, and all debts, liabilities and duties
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of said corporations shall, as of the Effective Date, attach to the Surviving
Corporation, and may be enforced against the Surviving Corporation to the same
extent as if said debts, liabilities, and duties had been incurred or contracted
by it, and any claim existing or action or proceeding pending by or against any
of said corporations may be prosecuted as if the Merger had not taken place, or
the Surviving Corporation may be substituted in its place. The employees and
agents of Parent shall become the employees and agents of the Surviving
Corporation and shall continue to be entitled to the same rights and benefits
which they enjoyed as employees and agents of Parent.
7. FURTHER ASSURANCES. From time to time as and when requested by the Surviving
Corporation or by its successors and assigns, there shall be executed and
delivered on behalf of Parent and/or the Surviving Corporation such deeds and
other instruments, and there shall be taken or caused to be taken by it such
further and other action, as shall be appropriate or necessary in order to vest,
protect or confirm, of record or otherwise, in the Surviving Corporation the
title to and possession of all property, interest, assets, right, privileges,
immunities, powers, franchises, and authority of Parent, and otherwise to carry
out the purposes of this Merger Agreement, and the officers and directors of the
Surviving Corporation are fully authorized, in the name and on behalf of Parent,
or otherwise, to take any and all such action and to execute and deliver any and
all such deeds and other instruments.
8. TREATMENT OF SECURITIES.
(a) SHARES OF MERGER SUB COMMON STOCK. As of the Effective Time, automatically
and without further action, all shares of the Common Stock, $0.0001 par value
per share, of Merger Sub issued and outstanding or held in treasury immediately
before the Effective Time, shall be cancelled.
(b) SHARES OF PARENT COMMON STOCK. As of the Effective Time, automatically and
without further action, each share of the Common Stock, $0.0001 par value per
share, of Parent that is issued and outstanding or held in treasury immediately
before the Effective Time shall be converted into one (1) share of the Common
Stock, $0.0001 par value per share, of the Surviving Corporation.
(c) SHARES OF PARENT SERIES A PREFERRED STOCK. As of the Effective Time,
automatically and without further action, there shall be issued to each holder
of a share of the Series A Preferred Stock, $0.0001 par value per share, of
Parent and to each person or entity that has subscribed and paid for a share of
the Series A Preferred Stock, $0.0001 par value per share, of Parent, in full
satisfaction of all obligations with respect to such subscription, one (1) share
of the Series A Preferred Stock, $0.0001 par value per share, of the Surviving
Corporation.
(d) SHARES OF PARENT SERIES B PREFERRED STOCK. As of the Effective Time,
automatically and without further action, there shall be issued to each holder
of a share of the Series B Preferred Stock, $0.0001 par value per share, of
Parent and to each person or entity that has subscribed and paid for a share of
the Series B Preferred Stock, $0.0001 par value per share, of Parent, in full
satisfaction of all obligations with respect to such subscription, one (1) share
of the Series B Preferred Stock, $0.0001 par value per share, of the Surviving
Corporation.
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(e) SHARES OF PARENT SERIES C PREFERRED STOCK. As of the Effective Time,
automatically and without further action, there shall be issued to each holder
of a share of the Series C Preferred Stock, $0.0001 par value per share, of
Parent and to each person or entity that has subscribed and paid for a share of
the Series C Preferred Stock, $0.0001 par value per share, of Parent, in full
satisfaction of all obligations with respect to such subscription, one (1) share
of the Series C Preferred Stock, $0.0001 par value per share, of the Surviving
Corporation.
(f) EXCHANGE OF CERTIFICATES. From and after the Effective Time, the
certificates formerly representing shares of Parent capital stock that have been
converted into shares of the Surviving Corporation's capital stock in accordance
with this Merger Agreement shall thereafter represent the shares of the
Surviving Corporation's capital stock into which the shares of Parent capital
stock have been so converted, regardless of whether such certificates are
surrendered to the Surviving Corporation, PROVIDED, HOWEVER, that the Surviving
Corporation shall not be obligated to issue new certificates evidencing such
shares of its capital stock unless and until the old certificates are either
delivered to the Surviving Corporation, or in any particular case the registered
holder thereof notifies the Surviving Corporation that such certificates have
been lost, stolen, or destroyed and executes an agreement satisfactory to the
Surviving Corporation to indemnify the Surviving Corporation and its officers,
directors, employees, agents, and representatives, including without limitation
its transfer agents, from and against any loss or damage incurred in connection
therewith, which indemnity shall include posting of a bond or other surety
acceptable to the Surviving Corporation when reasonably requested by the
Surviving Corporation.
(g) NO FURTHER OWNERSHIP RIGHTS IN SHARES OF PARENT STOCK. Except for the right
to receive shares of capital stock of the Surviving Corporation as provide in
the Merger Agreement, as of the Effective Time all rights of holders of capital
stock of Parent shall terminate and be of no further force and effect.
(h) OPTIONS, WARRANTS, CONVERTIBLE NOTES AND OTHER RIGHTS. As of the Effective
Time, automatically and without further action, each option, warrant,
convertible note or other security convertible into or exchangeable for shares
of any class of capital stock of Parent, or other right to otherwise acquire
capital stock of Parent, issued and outstanding immediately prior to the
Effective Time (each an "Old Stock Right"), shall remain in full force and
effect, provided, that the holders of such Old Stock Rights shall be entitled to
receive upon exercise or conversion thereof the number of shares of the class or
series of capital stock of the Surviving Corporation to which such holder would
have been entitled had such Old Stock Right been exercised or converted
immediately prior to the Effective Time, adjusted as provided in the agreements
or instruments governing such Old Stock Rights.
9. STOCK OPTION AND GRANT PLAN. Except as otherwise provided herein,
automatically and without further action, as of the Effective Time, the 2005
Fluid Audio Networks, Inc. Incentive Option Plan shall become the Incentive
Option Plan of the Surviving Corporation.
10. SHAREHOLDER APPROVAL. This Merger Agreement shall be submitted to a vote of
the shareholders of Parent in accordance with the DGCL and the NRS and the
Merger shall not be effective unless this Merger Agreement is approved by the
shareholders of Parent.
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11. TAX TREATMENT. It is intended by the parties hereto that, for United States
federal income tax purposes, the Merger shall constitute a reorganization within
the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended
(the "Code") and Parent and Merger Sub each shall be a party, within the meaning
of Section 368(b) of the Code, to the reorganization. The parties hereto hereby
adopt this Merger Agreement as a "plan of reorganization" within the meaning of
Sections 1.368-2(g) and 1.368-3(a) of the U.S. Treasury Regulations.
Accordingly, both prior to and after the Effective Time, each parties' books and
records shall be maintained, and all tax returns and schedules thereto shall be
filed, in a manner consistent with the Merger being qualified as a tax-free
merger under Section 368(a) of the Code.
12. AVAILABILITY OF MERGER AGREEMENT. An original or attested copy of this
Merger Agreement shall be kept on file at the principal executive office of the
Surviving Corporation and shall be available for inspection and copying by any
stockholder of the Surviving Corporation upon request and without charge.
13. AMENDMENT, TERMINATION OR ABANDONMENT. This Merger Agreement may be amended
and the Merger may be terminated, delayed and/or abandoned at any time before
the Effective Time by action of the Board of Directors of Parent,
notwithstanding the approval hereof or thereof by the shareholders of Parent,
except to the extent prohibited by applicable law.
14. TAKING OF NECESSARY ACTION; FURTHER ACTION. Each of Parent and Merger Sub
will take all such reasonable and lawful actions as may be necessary or
appropriate in order to effectuate the Merger in accordance with this Merger
Agreement as promptly as possible. If, at any time after the Effective Time, any
such further action is necessary or desirable to carry out the purposes of this
Merger Agreement and to vest the Surviving Corporation with full right, title
and possession to all assets, property, rights, privileges, powers and
franchises of Parent and Merger Sub, the officers and directors of Parent and
Merger Sub immediately prior to the Effective Time are fully authorized in the
name of their respective corporations or otherwise to take, and will take, all
such lawful and necessary action.
15. MISCELLANEOUS.
(a) PARTIAL INVALIDITY. Wherever possible each provision of this Merger
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Merger Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Merger Agreement.
(b) COUNTERPARTS. This Merger Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same agreement. In pleading or proving this Merger Agreement, it
shall not be necessary to produce or account for more than one counterpart of
this Merger Agreement duly executed by the party to be charged.
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(c) CAPTIONS. The captions of sections of this Merger Agreement are for
convenience of reference only, and shall not affect the interpretation or
construction of this Merger Agreement.
(d) BINDING EFFECT AND BENEFITS; NO THIRD-PARTY BENEFICIARIES. This Merger
Agreement shall bind and inure to the benefit of Parent and Merger Sub and their
respective successors-in-interest. Nothing in this Merger Agreement shall confer
any rights or remedies on any person or entity other than Parent and Merger Sub
and their respective successors-in-interest.
Executed and delivered as an agreement under seal as of the date first
above written.
FMN MERGER CO. FLUID MEDIA NETWORKS, INC.
By:______________________________ By:_______________________________
Xxxxxx Xxxxxxx, Xxxxxx Xxxxxxx,
Chief Executive Officer Chief Executive Officer
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