AGREEMENT AND PLAN OF MERGER
THIS PLAN AND AGREEMENT OF MERGER, dated as of July 20, 1999 (the
"Agreement"), is entered into between CENTURY SILVER MINES, INC., an Idaho
corporation ("IDAHO"), and SENSE HOLDINGS, INC., a Florida corporation
("FLORIDA").
A. IDAHO has an aggregate authorized capital of 10,000,000 shares of
capital stock, consisting of 10,000,000 shares of common stock, $.10 par value
per share (the "Idaho Common Stock").
B. FLORIDA has an aggregate authorized capital of 10,000,000 shares of
capital stock, consisting of 10,000,000 shares of common stock, $.10 par value
per share (the "Florida Common Stock").
C. The respective Boards of Directors of IDAHO and FLORIDA believe that
it is in the best interests of IDAHO and FLORIDA and their respective
shareholders to merge IDAHO with and into FLORIDA under and pursuant to the
provisions of this Agreement, the Idaho Business Corporation Act and the Florida
Business Corporation Act.
AGREEMENT
In consideration of the Recitals and of the mutual agreements contained
in this Agreement, the parties hereto agree as set forth below.
1. MERGER. IDAHO shall be merged with and into FLORIDA (the "Merger").
2. EFFECTIVE DATE. The Merger shall become effective immediately upon
the filing of articles of merger with the Secretary of State of Idaho in
accordance with the Idaho Business Corporation Act ("IBCA") and the filing of
articles of merger with the Secretary of State of Florida in accordance with the
Florida Business Corporation Act (the "FBCA"); PROVIDED, HOWEVER, that if such
articles of merger specify a later time, then the Merger shall become effective
upon such specified later time. The time of such effectiveness is hereinafter
called the "Effective Date."
3. SURVIVING CORPORATION. FLORIDA shall be the surviving corporation of
the Merger and shall continue to be governed by the laws of the State of
Florida. On the Effective Date, the separate corporate existence of IDAHO shall
cease.
4. ARTICLES OF INCORPORATION. The Articles of Incorporation of FLORIDA
as they exist on the Effective Date (including any amendments thereto
implemented on the Effective Date) shall be the Articles of Incorporation of
FLORIDA following the Effective Date, unless and until the same shall thereafter
be amended or repealed in accordance with the laws of the State of Florida.
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5. BYLAWS. The Bylaws of FLORIDA as they exist on the Effective Date
shall be the Bylaws of FLORIDA following the Effective Date, unless and until
the same shall be amended or repealed in accordance with the provisions thereof
and the laws of the State of Florida.
6. BOARD OF DIRECTORS AND OFFICERS. The members of the Board of
Directors and the officers of IDAHO immediately prior to the Effective Date
shall be the members of the Board of Directors and the officers of FLORIDA
following the Effective Date, and such persons shall serve in such offices for
the terms provided by law or in FLORIDA's Articles of Incorporation and Bylaws,
or until their respective successors are elected and qualified.
7. RETIREMENT OF OUTSTANDING IDAHO STOCK. Upon the Effective Date, each
of the shares of the IDAHO Common Stock presently issued and outstanding shall
be retired, and no shares of IDAHO Common Stock or other securities of IDAHO
shall be issued in respect thereof.
8. CONVERSION OF OUTSTANDING IDAHO STOCK. Upon the Effective Date, each
issued and outstanding share of IDAHO Common Stock and all rights in respect
thereof shall be converted into one fully-paid and non-assessable share of
FLORIDA Common Stock, and each certificate representing shares of IDAHO Common
Stock shall on the Effective Date for all purposes be deemed to evidence the
ownership of the same number of shares of FLORIDA Common Stock as are set forth
in such certificate. After the Effective Date, each holder of an outstanding
certificate representing shares of IDAHO Common Stock may, at such shareholder's
option, surrender the same to FLORIDA's registrar and transfer agent for
cancellation, and each such holder shall be entitled to receive in exchange
therefor a certificate evidencing the ownership of the same number of shares of
FLORIDA Common Stock as are represented by the IDAHO certificate surrendered to
FLORIDA's registrar and transfer agent.
9. CONDITIONS TO CONSUMMATION OF THE MERGER. Consummation of the
Merger is subject to the satisfaction prior to the Effective Date of the
following conditions: (a) This Agreement and the Merger shall have been adopted
and approved by the affirmative vote of the holders of a majority of the votes
represented by the shares of IDAHO Common Stock outstanding on the record date
fixed for determining the shareholders of IDAHO entitled to vote thereon; and
(b) IDAHO and FLORIDA shall have received all consents, orders and approvals and
satisfaction of all other requirements prescribed by law that are necessary for
the consummation of the Merger.
10. STOCK OPTIONS, WARRANTS AND CONVERTIBLE DEBT. Upon the
Effective Date, each stock option, stock warrant, convertible debt instrument
and other right to subscribe for or purchase shares of IDAHO Common Stock shall
be converted into a stock option, stock warrant, convertible debt instrument or
other right to subscribe for or purchase the same number of shares of FLORIDA
Common Stock and each certificate, agreement, note or other document
representing such stock option, stock warrant, convertible debt instrument or
other right to subscribe for or purchase shares of IDAHO Common Stock shall for
all purposes be deemed to
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evidence the ownership of a stock option, stock warrant, convertible debt
instrument or other right to subscribe for or purchase shares of FLORIDA Common
Stock.
11. RIGHTS AND LIABILITIES OF FLORIDA. At and after the Effective Date,
and all in the manner of and as more fully set forth in Section 607.1106 of the
FBCA and Section 30-1- 1106 of the IBCA, the title to all real estate and other
property, or any interest therein, owned by each of IDAHO and FLORIDA shall be
vested in FLORIDA without reversion or impairment; FLORIDA shall succeed to and
possess, without further act or deed, all estates, rights, privileges, powers
and franchises, both public and private, and all of the property, real, personal
and mixed, of each of IDAHO and FLORIDA without reversion or impairment; FLORIDA
shall thenceforth be responsible and liable for all the liabilities and
obligations of each of IDAHO and FLORIDA; any claim existing or action or
proceeding pending by or against IDAHO or FLORIDA may be continued as if the
Merger did not occur or FLORIDA may be substituted for IDAHO in the proceeding;
neither the rights of creditors nor any liens upon the property of IDAHO or
FLORIDA shall be impaired by the Merger; and FLORIDA shall indemnify and hold
harmless the officers and directors of each of the parties hereto against all
such debts, liabilities and duties and against all claims and demands arising
out of the Merger.
12. TERMINATION. This Agreement may be terminated and abandoned by
either or both of the parties hereto, subject to any contractual rights, without
further shareholder action, in the manner determined by the respective Board of
Directors of IDAHO and FLORIDA at any time prior to the Effective Date.
13. AMENDMENT. The Boards of Directors of the parties hereto may amend
this Agreement at any time prior to the Effective Date; provided, that an
amendment made subsequent to the approval of this Agreement by the shareholders
of either of the parties hereto shall not: (a) change the amount or kind of
shares, securities, cash, property or rights to be received in exchange for or
on conversion of all or any of the shares of the parties hereto, (b) change any
term of the Articles of Incorporation of FLORIDA, or (c) change any other terms
or conditions of this Agreement if such change would adversely affect the
holders of any capital stock of either party hereto.
14. INSPECTION OF AGREEMENT. Executed copies of this Agreement will be
on file at the principal place of business of FLORIDA at 00000 X.X. 00xx Xxxxxx,
Xxxxxxx, XX 00000. A copy of this Agreement shall be furnished by FLORIDA, on
request and without cost, to any shareholder of either IDAHO or FLORIDA.
15. GOVERNING LAW. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Florida.
16. SERVICE OF PROCESS. On and after the Effective Date, FLORIDA agrees
that it may be served with process in IDAHO in any proceeding for enforcement of
any obligation of IDAHO or FLORIDA arising from the Merger.
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17. DESIGNATION OF IDAHO SECRETARY OF STATE AS AGENT FOR SERVICE OF
PROCESS. On and after the Effective Date, FLORIDA irrevocably appoints the
Secretary of State of Idaho as its agent to accept service of process in any
suit or other proceeding to enforce the rights of any shareholders of IDAHO or
FLORIDA arising from the Merger. The Idaho Secretary of State is requested to
mail a copy of any such process to FLORIDA at 00000 X.X. 00xx Xxxxxx, Xxxxxxx,
XX 00000, Attention: President.
18. REMEDIES. Any rights and remedies belonging to IDAHO or FLORIDA and
arising in connection with the actions contemplated by this Agreement shall be
pursued solely against IDAHO or FLORIDA, and not against their respective
officers, directors or employees. In the event that any officer, director or
employee of IDAHO or FLORIDA becomes involved in any capacity in any action,
proceeding or investigation in connection with the Merger or this Agreement,
IDAHO and/or FLORIDA shall advance to such person(s) all reasonable legal and
other expenses incurred in connection therewith and shall also indemnify such
person(s) against any losses, claims, damages or liabilities to which such
person(s) may become subject in connection with the Merger or this Agreement,
except to the extent that such indemnification is prohibited by law.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement and Plan of Merger to be executed on its behalf by its officers duly
authorized, all as of the date first above written.
CENTURY SILVER MINES, INC.,
an Idaho corporation
By: /s/ Xxxx Xxxxx Perler
---------------------
Xxxx Xxxxx Perler, President
SENSE HOLDINGS, INC., a Florida
corporation
By: /s/ Xxxx Xxxxx Perler
---------------------
Xxxx Xxxxx Perler, President
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