AGREEMENT AND PLAN OF MERGER OF COMMERCE DEVELOPMENT CORPORATION, LTD. a Maryland corporation AND COMMERCE DEVELOPMENT CORPORATION, LTD. a Delaware corporation
EXHIBIT
10.1
OF
COMMERCE
DEVELOPMENT CORPORATION, LTD.
a
Maryland corporation
AND
COMMERCE
DEVELOPMENT CORPORATION, LTD.
a
Delaware corporation
THIS
AGREEMENT AND PLAN OF MERGER (this “Agreement”)
is
dated as of April 7, 2006, by and between Commerce Development Corporation,
Ltd., a Maryland corporation (“CDPC
Maryland”),
and
Commerce Development Corporation, Ltd., a Delaware corporation (“CDPC
Delaware”),
a
wholly-owned subsidiary of CDPC Maryland. CDPC Delaware and CDPC Maryland are
sometimes referred to herein as the “Constituent
Corporations.”
RECITALS
A. CDPC
Maryland is a corporation duly organized, validly existing and in good standing
under the laws of the State of Maryland and has an authorized capital of
300,000,000 shares, consisting of 300,000,000 shares of common stock with no
par
value per share (“Maryland
Common Stock”).
As of
March 21, 2006, a total of 98,285,596 shares of Maryland Common Stock were
issued and outstanding, and there were no outstanding options or warrants for
the purchase of Maryland Common Stock.
B. It
is
contemplated that CDPC Maryland will conduct a reverse stock split in which
each
two thousand one hundred eighty four (2,184) shares shall be converted into
one
(1) share of Maryland Common Stock, subject to stockholder approval at a special
meeting of the stockholders of CDPC Maryland, to be held April 7, 2006.
C.
CDPC
Delaware is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and the total number of shares of
capital stock which CDPC Delaware has the authority to issue is fifty million
(50,000,000) shares of common stock, $0.001 par value per share (“Delaware
Common Stock”),
and
five million (5,000,000) shares of preferred stock, $0.001 par value
(“Delaware
Preferred Stock”).
As of
April 7, 2006, one hundred (100) shares of Delaware Common Stock and no shares
of Delaware Preferred Stock, were issued and outstanding. Upon the Effective
Date of the Merger, as hereinafter defined, each of said 100 currently
outstanding shares of Delaware Common Stock shall be canceled and returned
to
the status of authorized but unissued shares.
D. The
Board
of Directors of CDPC Maryland has determined that, for the purpose of
effectuating the reincorporation of CDPC Maryland in the State of Delaware,
it
is advisable and in the best interests of CDPC Maryland that CDPC Maryland
merge
with and into CDPC Delaware upon the terms and conditions herein provided.
E. The
respective Boards of Directors of CDPC Delaware and CDPC Maryland have approved
this Agreement, and the Boards of Directors of CDPC Delaware and CDPC Maryland
have directed that this Agreement be submitted for approval by written consent
of their respective stockholders and that it be executed by the undersigned
officer.
NOW,
THEREFORE, in consideration of the mutual agreements and covenants set forth
herein, CDPC Delaware and CDPC Maryland hereby agree, subject to the terms
and
conditions hereinafter set forth, as follows:
| 1. |
EFFECTUATION
OF MERGER
|
1.1
Merger.
In
accordance with the provisions of this Agreement, the Delaware General
Corporation Law and the Corporations and Association Article of the Annotated
Code of Maryland, CDPC Maryland shall be merged with and into CDPC Delaware
(the
“Merger”),
and
the separate existence of CDPC Maryland shall cease. CDPC Delaware shall be,
and
is herein sometimes referred to as, the “Surviving
Corporation”
and
the
name of the Surviving Corporation shall be “Commerce Development Corporation,
Ltd.”
1.2
Filing
and Other Requirements for Effectiveness.
The
Merger shall become effective when the following actions shall have been
completed:
(a) This
Agreement and the Merger shall have been adopted and approved by the
stockholders of each Constituent Corporation in accordance with the requirements
of the Delaware General Corporation Law and the Corporations and Association
Article of the Annotated Code of Maryland;
(b) All
of
the conditions precedent to the consummation of the Merger specified in this
Agreement shall have been satisfied or duly waived by the party entitled to
satisfaction thereof;
(c) An
executed Certificate of Merger and other filings required by state law shall
have been filed with the Secretary of State of the State of Delaware
(“Certificate
of Merger”);
and
(d) Executed
Articles of Merger meeting the requirements of the Corporations and Association
Article of the Annotated Code of Maryland, and other filings required by state
law shall have been filed with the Secretary of State of the State of Maryland
(“Articles
of Merger”).
2
Provided
that the actions set forth in subsections (a) and (b) shall have been fulfilled,
the effective time and date of the Merger (“Effective
Date”)
shall
be at 5 p.m.
EST
on the later of (i) the date of acceptance for filing by the Delaware Secretary
of State of the Certificate of Merger, and (ii) the date of acceptance for
filing by the Maryland Department of Assessments and Taxation of the Articles
of
Merger.
1.3
Succession.
Upon
the Effective Date of Merger, the separate existence of CDPC Maryland shall
cease and CDPC Delaware, as the Surviving Corporation, (i) shall continue
to possess all of its assets, rights, privileges, franchises, powers and
property as constituted immediately prior to the Effective Date of Merger,
shall
be subject to all actions previously taken by CDPC Maryland’s Board of Directors
and shall succeed, without other transfer, to all of the assets, rights,
privileges, franchises, powers and property of CDPC Maryland in the manner
of
and as more fully set forth in Section 259 of the Delaware General
Corporation Law, and (ii) shall continue to be subject to all of its debts,
liabilities and obligations as constituted immediately prior to the Effective
Date of Merger and shall succeed, without other transfer, to all of the debts,
liabilities and obligations of CDPC Maryland in the same manner as if CDPC
Delaware had itself incurred them, all as more fully provided under the
applicable provisions of the Delaware General Corporation Law and the
Corporations and Association Article of the Annotated Code of Maryland.
| 2. |
MANNER
OF CONVERSION OF STOCK
|
2.1
CDPC
Maryland Common Stock.
Upon
the Effective Date of Merger, each share of Maryland Common Stock, issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any further action by the Constituent Corporations, their stockholders, or
any
other person, be converted into and exchanged for one fully paid and
nonassessable share of Delaware Common Stock. No fractional share shall be
issued upon the exchange of any share or shares of Maryland Common Stock for
Delaware Common Stock.
2.2
CDPC
Delaware Capital Stock.
Upon
the Effective Date of Merger, each share of Delaware Common Stock issued and
outstanding immediately prior thereto shall, by virtue of the Merger and without
any action by the holder of such shares or any other person, be canceled and
returned to the status of authorized but unissued shares.
2.3
Exchange
of Certificates.
After
the Effective Date of Merger, each holder of an outstanding certificate
representing capital stock of CDPC Maryland may, at such shareholder’s option,
surrender the same for cancellation to the Secretary of CDPC Delaware, or duly
authorized transfer agent, as exchange agent (the “Exchange
Agent”),
and
each such holder shall be entitled to receive in exchange therefor a certificate
or certificates representing the same number of shares of the Surviving
Corporation’s capital stock into which the surrendered shares were converted as
herein provided. Until so surrendered, each outstanding certificate theretofore
representing shares of CDPC Maryland capital stock shall be deemed for all
purposes to evidence ownership of and to represent the number of shares of
the
Surviving Corporation’s capital stock into which such shares of CDPC Maryland
capital stock were converted in the Merger, after giving effect
to
any reverse stock split, stock split, or similar transaction occurring after
the
date of issuance of such certificate and prior to the Effective Date.
3
The
registered owner on the books and records of the Exchange Agent of any such
outstanding certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to the
Exchange Agent, have and be entitled to exercise any voting and other rights
with respect to and to receive dividends and other distributions upon the shares
of the Surviving Corporation represented by such outstanding certificate as
provided above.
Each
certificate representing capital stock of the Surviving Corporation so issued
in
the Merger shall bear the same legends, if any, with respect to the restrictions
on transferability as the certificates of CDPC Maryland so converted and given
in exchange therefor, unless otherwise determined by the Board of Directors
of
the Surviving Corporation in compliance with applicable laws, and any additional
legends required by applicable Blue Sky laws.
If
any
certificate for shares of CDPC Delaware stock is to be issued in a name other
than that in which the certificate surrendered in exchange therefor is
registered, it shall be a condition of issuance thereof that the certificate
so
surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and that the person requesting
such transfer pay to the Exchange Agent any transfer or other taxes payable
by
reason of the issuance of such new certificate in a name other than that of
the
registered holder of the certificate surrendered or establish to the
satisfaction of CDPC Delaware that such tax has been paid or is not payable.
| 3. |
CHARTER
DOCUMENTS, DIRECTORS AND
OFFICERS
|
3.1
Certificate
of Incorporation.
The
Certificate of Incorporation of CDPC Delaware as in effect immediately prior
to
the Effective Date of Merger shall continue in full force and effect as the
Certificate of Incorporation of the Surviving Corporation until duly amended
in
accordance with the provisions thereof and applicable law.
3.2
Bylaws.
The
Bylaws of PLCDPC
Delaware as in effect immediately prior to the Effective Date of Merger shall
continue in full force and effect as the Bylaws of the Surviving Corporation
until duly amended in accordance with the provisions thereof and applicable
law.
3.3
Directors
and Officers.
The
directors and officers of CDPC Maryland immediately prior to the Effective
Date
of Merger shall be the directors and officers of the Surviving Corporation
until
their successors shall have been duly elected and qualified or until otherwise
as provided by law, the Certificate of Incorporation of the Surviving
Corporation or its Bylaws.
4
| 4. |
MISCELLANEOUS
|
4.1
Covenants
of CDPC Delaware.
CDPC
Delaware covenants and agrees that it will, on or before the Effective Date
of
Merger:
(a) File
any
and all documents with the Maryland State Department of Assessments and Taxation
necessary for the assumption by CDPC Delaware of all of the franchise tax
liabilities of CDPC Maryland; and
(b) Take
such
other actions as may be required by the Corporations and Association Article
of
the Annotated Code of Maryland or the applicable state securities laws.
4.2
Further
Assurances.
From
time to time, as and when required by CDPC Delaware or by its successors or
assigns, there shall be executed and delivered on behalf of CDPC Maryland 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 or perfect in or conform of record or otherwise by CDPC Delaware the
title to and possession of all the property, interests, assets, rights,
privileges, immunities, powers, franchises and authority of CDPC Maryland and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of CDPC Delaware are fully authorized in the name and on behalf of
CDPC Maryland or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
4.3
Abandonment.
At any
time before the Effective Date of Merger, this Agreement may be terminated
and
the Merger may be abandoned for any reason whatsoever by the Board of Directors
of either CDPC Maryland or CDPC Delaware, or both, notwithstanding the approval
of this Agreement by the stockholders of CDPC Maryland.
4.4
Amendment.
The
Boards of Directors of the Constituent Corporations may amend this Agreement
at
any time prior to the filing of this Agreement (or articles of merger in lieu
thereof) with the Secretary of State of the State of Delaware, provided that
an
amendment made subsequent to the adoption of the Agreement by the stockholders
of either Constituent Corporation shall not (a) alter or change the amount
or kind of shares, securities, cash, property and/or rights to be received
in
exchange for or on conversion of all or any of the shares of any class or series
of such Constituent Corporation, (b) alter or change any term of the
Certificate of Incorporation of the Surviving Corporation to be effected by
the
Merger, or (c) alter or change any of the terms and conditions of this
Agreement, if such alteration or change would adversely affect the holders
of
any class or series thereof of such Constituent Corporation.
4.5
Registered
Office.
The
registered office of the Surviving Corporation in the State of Delaware is
located at 0000
Xxxxx Xxxxxx Xxxxxxx, in the City of Dover, County of Xxxx, Xxxxxxxx
00000;
and
Paracorp Incorporated is the registered agent of the Surviving Corporation
at
such address.
4.6
Agreement.
Executed copies of this Agreement shall be on file at the principal place of
business of the Surviving Corporation at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, and copies thereof shall be furnished to any
stockholder of either Constituent Corporation, upon request and without cost.
5
4.7
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 Delaware.
4.8
Counterparts.
In
order to facilitate the filing and recording of this Agreement, the same may
be
executed in any number of counterparts, each of which shall be deemed to be
an
original and all of which together shall constitute one and the same instrument.
4.9
Approval
of CDPC Maryland as Sole Stockholder of CDPC Delaware.
By its
execution and delivery of this Agreement, CDPC Maryland, as sole shareholder
of
CDPC Delaware, consents to, approves and adopts this Agreement and the Plan
of
Merger, a copy of which is attached hereto as Exhibit A,
and
approves the Merger. CDPC Maryland agrees to execute such instruments as may
be
necessary or desirable to evidence its approval and adoption of this Agreement,
the Plan of Merger and the Merger as the sole stockholder of CDPC Delaware.
4.10
Expenses.
The
Surviving Corporation shall pay all expenses of carrying this Agreement into
effect and accomplishing the merger.
[Remainder
of Page Left Blank Intentionally]
6
IN
WITNESS WHEREOF, this Agreement, having first been approved by resolution of
the
Boards of Directors of CDPC Maryland and CDPC Delaware, is hereby executed
as of
the date and year first written above on behalf of each of such two corporations
and attested by their respective officers thereunto duly authorized.
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COMMERCE
DEVELOPMENT
CORPORATION,
LTD.,
a
Maryland corporation
|
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By:
|
/s/
Xxxxx Xxxxxxxx
|
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Xxxxx
Xxxxxxxx
Chief
Executive Officer
|
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COMMERCE
DEVELOPMENT
CORPORATION,
LTD.,
a
Delaware corporation
|
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By:
|
/s/
Xxxxx Xxxxxxxx
|
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Xxxxx
Xxxxxxxx
Chief
Executive Officer
|
7
EXHIBIT
A
PLAN
OF MERGER
The
following corporations are parties to this Plan of Merger: (i) Commerce
Development Corporation, Ltd., a Maryland corporation (“CDPC
Maryland”)
and
(ii) Commerce
Development Corporation, Ltd., a Delaware corporation (“CDPC
Delaware”).
1. CDPC
Maryland owns all of the outstanding shares of CDPC Delaware.
2. CDPC
Maryland shall be merged with and into CDPC Delaware (the “Merger”).
3. All
of
the shares of CDPC Delaware outstanding immediately prior to the Merger shall
thereupon be canceled.
4. Upon
the
Merger, each one (1) outstanding share of common stock, no par value per share,
of CDPC Maryland (“Maryland
Common Stock”)
shall
be converted into one (1) share of common stock, par value of $.001 per share,
of CDPC Delaware (“Delaware
Common Stock”).
5. Each
holder of shares of CDPC Maryland may thereupon surrender the share certificate
or certificates to the Secretary of CDPC Delaware and shall be entitled to
receive in exchange therefor a certificate or certificates representing the
number of shares into which the shares theretofore represented by a certificate
or certificates so surrendered shall have been converted.
6. The
officers and directors of CDPC Maryland immediately preceding the Merger shall
be the officers and directors of CDPC Delaware immediately following the
Merger.
7. The
Certificate of Incorporation of CDPC Delaware as in effect immediately preceding
the Merger shall continue in full force and effect as the Certificate of
Incorporation of the surviving corporation.
8.
The
Bylaws of CDPC Delaware as in effect immediately preceding the Merger shall
continue in full force and effect as the Bylaws of the surviving
corporation.
9. The
name
of the surviving corporation shall be “Commerce Development Corporation, Ltd.”,
a Delaware corporation.
10. The
effective time and date of the Merger shall be at 5 p.m. EST on the later of
(i)
the date of acceptance for filing by the Delaware Secretary of State of the
Certificate of Merger, and (ii) the date of acceptance for filing by the
Maryland Department of Assessments and Taxation of the Articles of Merger.
