AGREEMENT AND PLAN OF MERGER
OF
0-XXXXXXXX.XXX, INC., A TEXAS CORPORAITON
AND
AIRNEXUS, INC., A TEXAS CORPORATION
THIS AGREEMENT AND PLAN OF MERGER, dated as of January 27, 2000 ("Merger
Agreement") is entered into by and between AirNexus, Inc., a Texas corporation
("AirNexus"), and 0-Xxxxxxxx.xxx, Inc., a Texas corporation ("2-Infinity"),
which corporations are sometimes referred to herein as the "Constituent
Corporations."
R E C I T A L S
A. AirNexus is a corporation duly organized and existing under the laws of
the State of Texas and has authorized capital of 50,000,000 shares of Class A
Common Stock, par value $1.00 per share (the "AirNexus Common Stock"). As of
January 27, 2000, 3,000 shares of AirNexus Common Stock were issued and
outstanding, all of which were held by Lakota Technologies, Inc.
B. 2-Infinity is a corporation duly organized and existing under the laws
of the State of Texas and has authorized capital of 2,000 shares of Common
Stock, par value $0.01 per share (the "2-Infinity Common Stock"). As of January
27, 2000, 2,000 shares of 2-Infinity Common Stock were issued and outstanding,
all of which were held by Lakota Technologies, Inc.
C. The Board of Directors of AirNexus has determined that it is advisable
and in the best interests of AirNexus and its shareholders that AirNexus merge
with and into 2-Infinity upon the terms and subject to the conditions of this
Merger Agreement for the purpose of consolidating operations of the two
companies.
D. The respective Boards of Directors of AirNexus and 2-Infinity have
adopted and approved the terms and conditions of this Merger Agreement.
E. The parties intend by this Merger Agreement to effect a reorganization
under Section 368 of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements contained herein, the parties hereto agree, subject to the terms
and conditions set forth herein, as follows:
I.
MERGER
1.1 Merger. In accordance with the provisions of this Merger Agreement
and the Texas Business Corporation Act, AirNexus shall be merged with and into
2-Infinity (the "Merger"), the separate existence of AirNexus shall cease and
2-Infinity shall be, and is herein sometimes referred to as, the "Surviving
Corporation," and the name of the Surviving Corporation shall be
"0-Xxxxxxxx.xxx, Inc."
1.2 Filing and Effectiveness. The Merger shall become effective when
the following actions have been completed:
(a) All of the conditions precedent to the consummation of the
Merger specified in this Merger Agreement and required under the Texas Business
Corporation Act have been satisfied or duly waived by the party entitled to
satisfaction thereof;
(b) An executed Articles of Merger, Certificate of Merger, or an
executed counterpart of this Merger Agreement meeting the requirements of the
Texas Business Corporation Act has been filed with the Secretary of State of the
State of Texas; and
The date and time when the Merger shall become effective is herein called
the "Effective Time of the Merger."
1.3 Effect of the Merger. At the Effective Time of the Merger, the
separate existence and corporate organization of AirNexus shall cease and
2-Infinity, as the Surviving Corporation, (i) shall continue to possess all of
its assets, rights, powers and property as constituted immediately before the
Effective Time of the Merger, (ii) shall be subject to all actions previously
taken by its and AirNexus's Board of Directors, (iii) shall succeed, without
other transfer, to all of the assets, rights, powers and property of AirNexus,
(iv) shall continue to be subject to all of its debts, liabilities and
obligations as constituted immediately before the Effective Time of the Merger
and (v) shall succeed, without other transfer, to all of the debts, liabilities
and obligations of AirNexus in the same manner as if 2-Infinity had itself
incurred them, all as more fully provided under the applicable provisions of the
Texas Business Corporation Act.
II.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of Incorporation of
2-Infinity as in effect immediately before the Effective Time of the Merger
shall continue in full force and effect as the Certificate of Incorporation of
the Surviving Corporation until duly amended or repealed in accordance with the
provisions thereof and applicable law.
2.2 Bylaws. The Bylaws of 2-Infinity as in effect immediately before
the Effective Time of the Merger shall continue in full force and effect as the
Bylaws of the Surviving Corporation until duly amended or repealed in accordance
with the provisions thereof and applicable law.
2.3 Officers and Directors. The persons who are officers and directors
of 2-Infinity immediately prior to the Effective Time of the Merger shall, after
the Effective Time of the Merger, be the officers and directors of the Surviving
Corporation, without change until their successors have been duly elected or
appointed and qualified or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Certificate of Incorporation, Bylaws
and applicable law.
III.
MANNER OF CONVERSION OF STOCK
3.1 AirNexus Shares.
(a) Upon the Effective Time of the Merger, each share of AirNexus
Common Stock issued and outstanding immediately before the Effective Time of the
Merger shall by virtue of the Merger and without any action by the Constituent
Corporations, by the holder of such shares or by any other person, be cancelled.
3.2 AirNexus Options, Warrants and Convertible Securities. At the
Effective Time of the Merger, any stock option plans of AirNexus and all
options, warrants and rights to purchase or acquire shares of AirNexus Common
Stock, shall be cancelled.
3.3 2-Infinity Shares.
(a) No shares of 2-Infinity Common Stock shall be issued, authorized,
or reserved for issuance as a result of the Merger.
IV.
GENERAL
4.1 Covenants of 2-Infinity. 2-Infinity covenants and agrees that it
will, on or before the Effective Time of the Merger, take such actions as may be
required by the Texas Business
Corporation Act in order to effectuate the Merger.
4.2 Further Assurances. From time to time, as and when required by
2-Infinity or by its successors or assigns, there shall be executed and
delivered on behalf of AirNexus such deeds and other instruments, and there
shall be taken or caused to be taken by it such further and other actions as
shall be appropriate or necessary in order to vest or perfect in or conform of
record or otherwise by 2-Infinity the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of AirNexus and otherwise to carry out the purposes of this Merger
Agreement, and the officers and directors of 2-Infinity are fully authorized in
the name and on behalf of AirNexus or otherwise to take all such actions and to
execute and deliver all such deeds and other instruments.
4.3 Deferral. Consummation of the Merger may be deferred by the Board
of Directors of AirNexus for a reasonable period of time if the Board of
Directors determines that deferral would be in the best interests of AirNexus
and its shareholders.
4.4 Amendment. The parties hereto, by mutual consent of their
respective Boards of Directors, may amend, modify or supplement this Merger
Agreement in such manner as may be agreed upon by them in writing at any time
before or after approval of this Merger Agreement by the shareholders of
AirNexus and 2-Infinity, but not later than the Effective Time of the Merger;
provided, however, that no such amendment, modification or supplement not
approved by the shareholders of AirNexus and 2-Infinity shall adversely affect
the rights of such shareholders or change any of the principal terms of this
Merger Agreement.
4.5 Abandonment. At any time before the Effective Time of the Merger,
this Merger Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either AirNexus or of 2-Infinity,
or of both, notwithstanding the approval of this Merger Agreement by the
shareholders of AirNexus or 2-Infinity, or by both, if circumstances arise which
make the Merger inadvisable. In the event of abandonment of this Merger
Agreement, as above provided, this Merger Agreement shall become wholly void and
of no effect, and no liability on the part of the Board of Directors or
shareholders of AirNexus or 2-Infinity shall arise by virtue of such
termination.
4.6 Expenses. If the Merger becomes effective, the Surviving
Corporation shall assume and pay all expenses in connection therewith not
theretofore paid by the respective parties.
4.8 Registered Office. The registered office of the Surviving
Corporation in the State of Texas is located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX
00000, and Business Filings Incorporated is the registered agent of the
Surviving Corporation at such address.
4.9 Agreement. An executed copy of this Merger Agreement will be on
file at the principal place of business of the Surviving Corporation and, upon
request and without cost, a copy thereof will be furnished to any shareholder.
4.10 Governing Law. This Merger Agreement shall in all respects be
construed, interpreted and enforced in accordance with and governed by the laws
of the State of Texas and, so far as applicable, the Merger provisions of the
Texas Business Corporation Act.
4.11 Counterparts. This Merger Agreement 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.
IN WITNESS WHEREOF, AirNexus and 2-Infinity have caused this Merger
Agreement to be signed by their respective duly authorized officers.
0-Xxxxxxxx.xxx, Inc. AirNexus, Inc.
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx "Cody" Xxxxxx
By: Xxxxx Xxxxxx By: Xxxxxxx "Xxxx" Xxxxxx
Its: President Its: President
ATTESTED: ATTESTED:
/s/ Xxxxx Xxxxxx /s/ Xxxxxx Xxxxxx
By: Xxxxx Xxxxxx By: Xxxxxx Xxxxxx
Its: Secretary Its: Secretary
