X-0
Xxxxxxx Xx. 0
Xxxx 00-XX
XXX, Inc.
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Merger Agreement"),
is made as of March 15, 1999, by and between Buyers United
International, Inc., a Utah corporation (the "Company"), and XXX,
Inc., a Delaware corporation ("XXX"). XXX is hereinafter
sometimes referred to as the "Surviving Corporation," and
together with the Company are referred to as the "Constituent
Corporations". The Constituent Corporations have a common
address at 00 X. Xxxxxxxxx Xxxx Xx., Xxxxx 000, Xxxxxx, Xxxx
00000.
The authorized capital stock of the Company consists of
100,000,000 shares of Common Stock, no par value ("Company Common
Stock"), and the authorized capital stock of XXX consists of
20,000,000 shares of Common Stock, $0.0001 par value (the "XXX
Common Stock"), and 5,000,000 shares of Preferred Stock, $0.0001
par value (the "XXX Preferred Stock"). The directors of the
Constituent Corporations deem it advisable and to the advantage
of said corporations that the Company merge into XXX upon the
terms and conditions provided herein.
NOW, THEREFORE, the parties hereby adopt the plan of
reorganization encompassed by this Merger Agreement and hereby
agree that the Company shall merge into XXX on the following
terms, conditions and other provisions:
1. Terms and Conditions.
1.1 Merger. The Company shall be merged with and into XXX,
which shall be the surviving corporation effective at the earlier
of the date when this Merger Agreement is filed as part of the
required Articles of Merger with the Division of Corporations and
Commercial Code of the State of Utah or the date when a
Certificate of Ownership and Merger is filed with the Secretary
of State of the State of Delaware (the "Effective Date").
1.2 Succession. On the Effective Date, XXX shall succeed
to all of the rights, privileges, powers, immunities and
franchises and all the property, real, personal and mixed of the
Company, without the necessity for any separate transfer. XXX
shall thereafter be responsible and liable for all liabilities
and obligations of the Company, and the merger shall impair
neither the rights of creditors nor any liens on the property of
the Company.
1.3 Common Stock and Preferred Stock of the Company and
XXX. Upon the Effective Date, by virtue of the merger and
without any further action on the part of the Constituent
Corporations or their stockholders, each four shares of Company
Common Stock issued and outstanding immediately prior to the
Effective Date shall be changed and converted into and become one
fully paid and nonassessable share of XXX Common Stock;
1.4 Stock Certificates. On and after the Effective Date,
all of the outstanding certificates that prior to that time
represented shares of Company Common Stock shall be deemed for
all purposes to evidence ownership of and to represent the shares
of XXX Common Stock into which the shares of the Company
represented by such certificates have been converted as provided
herein and shall be so registered on the books and records of XXX
or its transfer agent. The registered owner of any such
outstanding stock certificate shall, until such certificate shall
have been surrendered for transfer or conversion or otherwise
accounted for to XXX or its transfer agents, have and be entitled
to exercise any voting and other rights with respect to and to
receive any dividend and other distributions upon the shares of
XXX evidenced by such outstanding certificate as provided above.
1.5 Options and Warrants. On the Effective Date: (a) XXX
will assume and continue the Long-Term Stock Incentive Plan of
the Company and any successor plan or plans, and the number of
shares of XXX Common Stock subject to the existing stock plan
assumed by XXX shall be 600,000 shares; (b) the outstanding and
unexercised portions of all options to buy Company Common Stock
shall become options for that number of shares of XXX Common
Stock equal to 25% of the number of shares purchasable under the
options to buy Company Common Stock, the exercise price for such
options to buy XXX Common Stock shall be 400% of the exercise
price under the options to buy Company Common Stock, there will
be no other changes in the terms and conditions of such options,
and XXX shall assume the outstanding and unexercised portions of
such options and the obligations of the Company with respect
thereto as modified hereby; and (c) the outstanding and
unexercised portions of all warrants to buy Company Common Stock
shall become warrants for that number of shares of XXX Common
Stock equal to 25% of the number of shares purchasable under the
warrants to buy Company Common Stock, the exercise price for such
warrants to buy XXX Common Stock shall be 400% of the exercise
price under the warrants to buy Company Common Stock, there will
be no other changes in the terms and conditions of such warrants,
and XXX shall assume the outstanding and unexercised portions of
such warrants and the obligations of the Company with respect
thereto as modified hereby.
1.6 Fractional Shares. XXX shall not issue any fractional
shares or interests in the XXX Common Stock or options or
warrants to purchase factional shares of XXX Common Stock. If
any stockholder, option holder, or warrant holder of the Company
would otherwise be entitled to a fractional share or the right to
buy a fractional share as a result of the provisions of this
Merger Agreement, XXX shall round the number of shares of the XXX
Common Stock to be issued or subject to the option or warrant up
to the nearest whole share.
1.7 Acts, Plans, Policies, Agreements, Etc. All corporate
acts, plans, policies, agreements, arrangements, approvals and
authorizations of the Company, its stockholders, Board of
Directors and committees thereof, officers and agents which were
valid and effective immediately prior to the Effective Date,
shall be taken for all purposes as the acts, plans, policies,
agreements, arrangements, approvals and authorizations of XXX and
shall be as effective and binding thereon as the same were with
respect to the Company.
2. Charter Documents, Directors and Officers
2.1 Certificate of Incorporation and By-Laws. The
Certificate of Incorporation and Bylaws of XXX as in effect
immediately prior to the Effective Date shall remain the
Certificate of Incorporation and Bylaws of XXX after the
Effective Date.
2.2 Directors and Officers. On the Effective Date, the
Board of Directors of XXX will consist of the members of the
Board of Directors of the Company immediately prior to the
Merger. The directors will continue to hold office as directors
of XXX for the same term for which they would otherwise serve as
directors of the Company. The individuals serving as executive
officers of the Company immediately prior to the Merger will
serve as executive officers of XXX upon the effectiveness of the
Merger.
3. Miscellaneous
3.1 Further Assurances. From time to time, and when
required by XXX or by its successors and assigns, there shall be
executed and delivered on behalf of the Company 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 and
necessary in order to vest or perfect, or to conform of record or
otherwise, in XXX the title to and possession of all the
property, interests, assets, rights, privileges, immunities,
powers, franchises and authority of the Company and otherwise to
carry out the purposes of this Merger Agreement, and the
directors and officers of the Company are fully authorized in the
name and on behalf of the Company or otherwise to take any and
all such action and to execute and deliver any and all such deeds
and other instruments.
3.2 Amendment. At any time before or after approval by the
stockholders of the Company, this Merger Agreement may be amended
in any manner (except that any of the principal terms may not be
amended without the approval of the stockholders of the Company)
as may be determined in the judgment of the respective Boards of
Directors of the Company and XXX to be necessary, desirable or
expedient in order to clarify the intention of the parties hereto
or to effect or facilitate the purpose and intent of this Merger
Agreement.
3.3 Abandonment. At any time before the Effective Date,
this Merger Agreement may be terminated and the merger may be
abandoned by the Board of Directors of the Company,
notwithstanding the approval of this Merger Agreement by the
stockholders of the Company, or the consummation of the merger
may be deferred for a reasonable period if, in the opinion of the
Board of Directors of the Company, such action would be in the
best interests of the Constituent Corporations.
3.4 Governing Law. This Merger Agreement shall be governed
by and construed in accordance with the laws of the State of
Delaware.
**********
IN WITNESS WHEREOF, this agreement has been signed as of the
date first-above written for and on behalf of the corporate
parties hereto by the undersigned thereunto duly authorized.
Buyers United International,
Inc.
(a Utah corporation)
ATTEST
By/s/ Xxxx Xxxxxx, Secretary By /s/ Xxx Xxxxx,
President
XXX, Inc.
(a Delaware corporation)
ATTEST
By/s/ Xxxx Xxxxxx, Secretary By /s/ Xxx Xxxxx,
President
SECRETARY'S CERTIFICATE
The undersigned, Xxxx Xxxxxx, hereby certify: (1) that I am
the duly elected and qualified secretary of XXX, Inc., a Delaware
corporation ("XXX"), and the keeper of the records of XXX; (2)
that the foregoing Agreement and Plan of Merger was adopted by
the Board of Directors of XXX pursuant to Section 251(f) of the
General Corporation Law of the State of Delaware; and (3) that no
shares of the capital stock of XXX were issued prior to the
adoption by the Board of Directors of the resolution approving
the Agreement and Plan of Merger.
/s/ Xxxx Xxxxxx, Secretary
