Exhibit 2.4
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of May 13, 2005 (this "Agreement"),
between Friends Acquisition, Inc., a Delaware corporation (the "Corporation")
and Friendsand LLC, a Delaware limited liability company (the "LLC").
WITNESSETH:
WHEREAS, the Corporation desires to acquire all the assets, and to assume
all of the liabilities and obligations, of LLC by means of a merger of LLC with
and into the Corporation, with the Corporation being the surviving corporation
(the "Merger");
WHEREAS, the Corporation is a wholly-owned subsidiary of Relationserve,
Inc., a Delaware corporation (the "Parent");
WHEREAS, Xxxxx XxXxxx is the sole member of LLC (the "Member");
WHEREAS, Section 18-209 of the Delaware Limited Liability Company Act, 6
Del.C. ss.18-101, et seq. (the "LLC Act") and Sections 251 and 264 of the
Delaware General Corporation Law (the "DGCL"), authorize the merger of one or
more Delaware limited liability companies into another Delaware corporation;
WHEREAS, simultaneously with the Merger, the Corporation shall change its
name to Friendsand, Inc. (the "Surviving Corporation"), which Surviving
Corporation shall be the surviving entity and continue its existence as a
Delaware corporation and a wholly-owned subsidiary of the Parent; and
WHEREAS, the stockholders and Board of Directors of the Corporation and the
Member have approved this Agreement and the consummation of the Merger.
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01. THE MERGER.
(a) At the Effective Time, LLC shall be merged, the separate existence of
LLC shall cease and the Corporation shall change its name to the Surviving
Corporation, which Surviving Corporation shall be the surviving entity and
continue its existence as a Delaware corporation and a wholly-owned subsidiary
of the Parent;
(b) EFFECTIVE TIME OF MERGER. The Merger shall become effective on the date
that a Certificate of Merger with respect to the Merger is accepted for filing
by the Office of the Secretary of State of Delaware (the "Effective Time") and
make all other filings or recordings required by the Delaware limited liability
company law and the Delaware General Corporation Law in connection with the
Merger.
SECTION 1.02. MERGER CONSIDERATION.
(a) At the Effective Time:
(i) the Member shall receive: cash in the amount of $150,000 from the
Parent ("Cash Payment"); a five-year promissory note, made by the Parent in
favor of the Member, in the principal amount of $700,000, which note shall
accrue interest at a rate of six (6%) percent per annum; and 4,500,000
shares of the common stock, par value $.0001 per share, of the Parent
("Stock") in exchange for 100 membership units of LLC, which constitute all
of the Member's membership interest in LLC.
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.01. BYLAWS; CERTIFICATE OF INCORPORATION. The certificate of
incorporation of the Corporation, as in effect immediately prior to the
Effective Time, shall be the certificate of incorporation of the Surviving
Corporation unless and until thereafter amended in accordance with its terms and
applicable law. The bylaws of the Corporation as in effect immediately prior to
the Effective Time shall be the bylaws of the Surviving Corporation unless and
until thereafter amended in accordance with applicable law.
At the Effective Time the name of the Corporation shall change to the
Surviving Corporation.
ARTICLE III
TRANSFER AND CONVEYANCE OF ASSETS
AND ASSUMPTION OF LIABILITIES
SECTION 3.01. TRANSFER, CONVEYANCE AND ASSUMPTION. At the Effective Time,
the Corporation shall continue in existence as the Surviving Corporation, and
without further transfer, succeed to and possess all of the rights, privileges
and powers of LLC, and all of the assets and property of whatever kind and
character of LLC shall vest in the Surviving Corporation without further act or
deed; thereafter, the Surviving Corporation, shall be liable for all of the
liabilities and obligations of LLC, and any claim or judgment against LLC may be
enforced against the Surviving Corporation in accordance with Section 18-209 of
the LLC Act and Section 264 of the DGCL.
SECTION 3.02. FURTHER ASSURANCES. If at any time the Corporation shall
consider or be advised that any further assignment, conveyance or assurance is
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necessary or advisable to vest, perfect or confirm of record in the Surviving
Corporation the title to any property or right of LLC, or otherwise to carry out
the provisions hereof, the proper representatives of LLC as of the Effective
Time shall execute and deliver any and all proper deeds, assignments, and
assurances and do all things necessary or proper to vest, perfect or convey
title to such property or right in the Surviving Corporation, and otherwise to
carry out the provisions hereof.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. AUTHORIZED PERSON. Xxxxxxxx Xxxxx, the President of the
Corporation, shall be authorized, at such time in his sole discretion as he
deems appropriate to execute, acknowledge, verify, deliver, file and record, for
and in the name of the Corporation any and all documents and instruments
including, without limitation, the certificate of incorporation of the Surviving
Corporation and the Certificate of Merger, and shall do and perform any and all
acts required by applicable law which the Surviving Corporation deems necessary
or advisable, in order to effectuate the Merger.
SECTION 4.02. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties and agreements contained in any certificate or
other writing delivered pursuant hereto shall not survive the Effective Time or
the termination of this Agreement.
SECTION 4.03. AMENDMENTS; NO WAIVERS. (a) Any provision of this Agreement
may, subject to applicable law, be amended or waived prior to the Effective Time
if, and only if, such amendment or waiver is in writing and signed by the
Corporation and by Acquisition.
(b) No failure or delay by any party hereto in exercising any right, power
or privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 4.04. INTEGRATION. All prior or contemporaneous agreements,
contracts, promises, representations, and statements, if any, between
Acquisition and the Corporation, or their representatives, are merged into this
Agreement, and this Agreement shall constitute the entire understanding between
Acquisition and the Corporation with respect to the subject matter hereof.
SECTION 4.05. SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of the other party hereto.
SECTION 4.06. GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of Delaware,
without reference to principles of conflicts of law.
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SECTION 4.07. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
the counterpart hereof signed by the other party hereto.
[Signature Pages Follow.]
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[Signature Page of the Agreement and Plan of Merger
by and between Friends Acquisition, Inc. and Friends LLC]
IN WITNESS WHEREOF, the undersigned have executed this instrument as of the
13th day of May, 2005.
FRIENDS ACQUISITION, INC,
a Delaware corporation
By: /s/ Xxxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxxx Xxxxx
Title: President
FRIENDSAND LLC,
a Delaware limited liability company
By: /s/ Xxxxx XxXxxx
--------------------------------
Name: Xxxxx XxXxxx
Title: Sole Member
