AGREEMENT OF MERGER AND
PLAN OF MERGER AND REORGANIZATION
Agreement of Merger and Plan of Merger and Reorganization dated March
10, 2000 by and between Cheshire Holdings, Inc. a Delaware corporation
("Cheshire"), and Pacific Development Corporation, a Colorado corporation
("Pacific") (hereinafter, the "Constituent Corporations").
WHEREAS:
1. The Board of Directors of Cheshire and Pacific have
resolved that Cheshire be merged (hereinafter called the
"merger") under and pursuant to the Colorado Corporation
Law and the Delaware General Corporation Law into a
single corporation existing under the laws of the State
of Delaware, to wit, Cheshire, which shall be the
surviving corporation (such corporation in its capacity
as such surviving corporation being sometimes referred to
herein as the "Surviving Corporation") in a transaction
qualifying as a reorganization within the meaning of
Section 368(a)(1)(F) of the Internal Revenue Code of
1986, as amended;
2. The authorized capital stock of Cheshire consists of
100,000,000 shares of capital stock with a par value of
$.001 per share (hereinafter called "Cheshire Stock"),
1,000 shares of which are issued and outstanding;
3. The authorized capital stock of Pacific consists of
100,000,000 shares of capital stock with a par value of
$.001 per share (hereinafter called "Pacific Stock")
10,365,000 shares of which are issued and outstanding;
4. The respective Boards of Directors of Cheshire and Pacific
have approved the Merger upon the terms and conditions
hereinafter set forth and have approved this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, provisions and covenants herein contained, the parties hereto hereby
agree, in accordance with the Colorado Corporation Law and the Delaware General
Corporation Law, that Pacific shall be, at the Effective Date (as hereinafter
defined), merged into a single corporation existing under the laws of the State
of Delaware, to wit, Cheshire, which shall be the Surviving Corporation, and
which simultaneously with filing as part of the Certificate of Merger, shall
change its name to Cheshire Distributors, Inc., and the parties hereto adopt and
agree to the following agreements, terms and conditions relating to the Merger
and the mode of carrying the same into effect.
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1. SHAREHOLDERS' CONSENTS; FILINGS; EFFECTS OF MERGER
1.1 Action by Shareholders of Pacific. Pacific shall obtain the
approval of its shareholders, in accordance with the Colorado Corporation Law,
at the earliest practicable date, which written consent shall, among other
matters, adopt and ratify this Agreement.
1.2 Action by Pacific as Sole Shareholder of Cheshire. At the earliest
practicable date, Pacific, as the sole shareholder of Cheshire, shall adopt this
Agreement in accordance with the Colorado Revised Statutes.
1.3 Filing of Articles of Merger, Effective Date. If (a) this Agreement
is adopted by the shareholders of Cheshire, in accordance with the Delaware
General Corporation Law, (b) this Agreement has been adopted by Pacific as the
sole shareholder of Cheshire, in accordance with the Colorado Corporation Law,
and (c) this Agreement is not thereafter, and has not theretofore been
terminated or abandoned as permitted by the provisions hereof, then an Articles
of Merger shall be filed and recorded in accordance with the Colorado
Corporation Law and Articles of Merger shall be filed and recorded in accordance
with the Delaware General Corporation Law. Such filings shall be made on the
same day. The Merger shall become effective at 9:00 A.M. on the calendar day
following the day of such filing in Delaware, which date and time is herein
referred to as the "Effective Date."
1.4 Certain Effects of Merger. On the Effective Date, the separate
existence of Pacific shall cease, and Pacific shall be merged into Cheshire,
which, as the Surviving Corporation, shall possess all the rights, privileges,
powers and franchises, of a public as well as of a private nature, and be
subject to all the restrictions, disabilities and duties of each of the
Constituent Corporations; and all and singular, the rights, privileges, powers
and franchises of the Constituent Corporations, and all property, real, personal
and mixed, and all debts due to the Constituent Corporations on whatever
account, as well as for stock subscriptions and all other things in action or
belonging to such Constituent Corporations, shall be vested in the Surviving
Corporation; and all property, rights, privileges, powers and franchises, and
all and every other interest shall be thereafter as effectually the property of
the Surviving Corporation as they were of the Constituent Corporations, and the
title to any real estate vested by deed or otherwise, under the laws of Delaware
or any other jurisdiction, in any of the Constituent Corporations, shall not
revert or be in any way impaired; but all rights of creditors and all liens upon
any property of any of the Constituent Corporations shall be preserved
unimpaired, and all debts, liabilities and duties of the Constituent
Corporations shall thenceforth attach to the Surviving Corporation and may be
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enforced against it to the same extent as if said debts, liabilities and duties
had been incurred or contracted by it. At any time, or from time to time, after
the Effective Date, the last acting officers of Pacific, or the corresponding
officers of the Surviving Corporation may, in the name of Pacific, execute and
deliver all such proper deeds, assignments and other instruments and take or
cause to be taken all such further or other action as the Surviving Corporation
may deem necessary or desirable in order to vest, perfect or confirm in the
Surviving Corporation title to and possession of all of the Constituent
Corporations property, rights, privileges, powers, franchises, immunities and
interests and otherwise to carry out the purposes of this Agreement.
II. NAME OF SURVIVING CORPORATION; ARTICLES OF INCORPORATION; BYLAWS;
2.1 Name of Surviving Corporation. The name of the Surviving
Corporation from and after the Effective Date shall be Cheshire Distributors,
Inc.
2.2 Articles of Incorporation. The Articles of Incorporation of
Cheshire as in effect on the date hereof, shall, from and after the Effective
Date, be and continue to be the Articles of Incorporation of the Surviving
Corporation, until changed or amended as provided by law.
2.3 Bylaws. The Bylaws of Cheshire, as in effect immediately before the
Effective Date shall, from and after the Effective Date, be and continue to be
the Bylaws of the Surviving Corporation, until amended as provided therein.
III STATUS AND CONVERSION OF SECURITIES
3.1 Pacific Stock. Each share of Pacific Stock which shall be issued
and outstanding immediately before the Effective Date shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted at
the Effective Date into one (1) fully paid share of Cheshire Stock.
3.2 Cheshire Stock held by Pacific. All issued and outstanding shares
of Cheshire Stock held by Pacific immediately before the Effective Date shall,
by virtue of the Merger and at the Effective Date, cease to exist and the
certificate(s) representing such shares shall be canceled.
3.3 Surrender of Certificates. After the Effective Date, certificates
evidencing outstanding shares of Pacific Stock shall evidence the right of the
holder thereof to receive a certificate(s) for shares of Cheshire Stock as
aforesaid. Holders of certificates representing shares of Pacific Stock, upon
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surrender of such certificates to the transfer agent of the Cheshire Stock to
effect the exchange of certificates, shall be entitled to receive, upon such
surrender, a certificate or certificates representing a like number of shares of
Cheshire Stock. Until so surrendered, outstanding certificates for shares of
Pacific Stock shall be deemed for all corporate purposes, including voting
rights, subject to the further provisions of this Article 3, to evidence the
ownership of the shares of Cheshire Stock into which such shares of Pacific
Stock have been so converted. No dividends or distributions will be paid to the
person entitled to receive certificates for shares of Cheshire Stock pursuant
hereto until such person shall have surrendered his Pacific Stock certificates;
but there shall be paid to the record holder of such certificate, with respect
to the number of shares of Cheshire Stock issued in exchange therefor (i) upon
such surrender, the amount of any dividends or distributions with a record date
after the Effective Date and before surrender which shall have become payable
thereon since the Effective Date, without interest; and (ii) after such
surrender, the amount of any dividends thereon with a record date after the
Effective Date and before surrender and the payment date of which shall be after
surrender, such amount to be paid on such payment date. If any certificate for
shares of Cheshire 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 the issuance thereof that the certificate so surrendered shall be
properly endorsed and otherwise be in proper form for transfer and that the
person requesting such exchange pay to the transfer agent any transfer or other
taxes required by reason of the issuance of a certificate for shares of Cheshire
Stock in any name other than that of the registered holder of the certificate
surrendered, or establish to the satisfaction of the transfer agent that such
tax has been paid or is not payable. At the Effective Date of the Merger, all
shares of Cheshire Stock which shall then be held in its treasury, if any, shall
cease to exist, and all certificates representing such shares shall be canceled.
3.4 Fractional Shares. Cheshire will not issue certificates
representing fractional shares of Cheshire Stock, upon the Merger. Rather,
fractional interests, if any, shall be rounded up to the nearest whole share.
IV. MISCELLANEOUS
4.1 This Agreement may be terminated and the proposed Merger abandoned
at any time before the Effective Date of the Merger, and whether before or after
approval of this Agreement of Merger and Plan of Merger and Reorganization by
the mutual agreement of the Board of Directors of the Constituent Corporations
abandoning this Agreement of Merger and Plan of Merger and Reorganization.
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4.2 On and after the Effective Date of the Merger, the officers and
directors of Pacific shall remain in such positions until their earlier
resignation or removal.
4.3 For the convenience of the parties hereto and to facilitate the
filing of this Agreement of Merger and Plan of Merger and Reorganization, any
number of counterparts hereof may be executed; and each such counterpart shall
be deemed to be an original instrument.
IN WITNESS WHEREOF, this Agreement has been executed by Cheshire
Holdings, Inc., a Delaware corporation, and Pacific Development Corporation, a
Colorado corporation, all on the date first above written.
Pacific Development Corporation
(a Colorado corporation)
s/ Gilad Gat
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Gilad Gat, Vice-President
Cheshire Holdings, Inc.
(a Delaware corporation)
s/ Xxxxxx Xxxx-Xxxxxxxx
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Xxxxxx Xxxx-Xxxxxxxx,
Chief Executive Officer
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