EX 10.2
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER,
dated as of JULY 1, 2015 (the "Merger Agreement"), between PERVASIP, CORP., a New York corporation
("PVSP"), and PLAID CANARY CORPORATION, a Delaware corporation and wholly-owned subsidiary of the PVSP
("PCC" and, together with the PVSP, the “Parties”).
WHEREAS, PVSP has authority to
issue 8,978,999,990 shares of common stock, par value $0.00001 per share (the "PVSP Common Stock"), of which 4,702,630,209
shares are issued and outstanding;
WHEREAS, PCC has authority to
issue 10,000,000 shares of Common Stock, par value $0.00001 per share (the "PCC Common Stock"), of which 10,000,000
shares are issued and outstanding;
WHEREAS, the respective boards
of directors of PVSP and PCC have determined that it is advisable and in the best interests of each company that PVSP merge with
and into PCC upon the terms and subject to the conditions set forth herein, and whereby the transaction is intended to qualify
as a tax free reorganization pursuant to Section 368(a) of the Internal Revenue Code of 1986, as amended (the “IRC”),
to the extent permitted by applicable law;
WHEREAS, in
furtherance of such combination, the boards of directors of the Parties have each approved the merger of PVSP with and into PCC
(the “Merger”), upon the terms and subject to the conditions set forth herein, in accordance with the applicable
provisions of the Delaware General Corporation Law (the “DGCL”); and,
WHEREAS, the Parties have obtained
any approvals required under the DGCL for the completion of the Merger as described above and subject to the terms and conditions
hereof.
NOW, THEREFORE, in consideration
of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the parties
agree as follows:
| 1. | Merger. At the Effective Time (as hereinafter defined) and subject to and upon the terms
and conditions of this Agreement and the DGCL, the Merging shall be merged with and into the PCC. Following the Merger, PCC shall
continue as the surviving corporation (the “Surviving Corporation”) and the separate corporate existence of
PVSP shall cease. As part of the Merger and as more fully described Section 3 below, the issued and outstanding PVSP Common Stock
and PVSP Preferred Stock shall be exchanged for PCC Common Stock at the relevant exchange ratios. The Merger shall be consummated
as promptly as practicable after satisfaction of all conditions to the Merger set forth herein, by filing with the Secretary of
State of the State of Delaware of a certificate of merger or similar document (the “Certificate of Merger”),
and all other appropriate documents, executed in accordance with the relevant provisions of the DGCL. The Merger shall become effective
upon the filing of the Certificate of Merger with the Secretary of the State of the State of Delaware. The time of such filing
shall be referred to herein as the “Effective Time.” |
| 2. | Effects of Merger. At the Effective Time, all the rights, privileges, immunities, powers
and franchises of PVSP and all property, real, personal and mixed, and every other interest of, or belonging to or due to each
of PVSP shall vest in the Surviving Corporation, and all debts, liabilities, obligations and duties of PVSP shall become the debts,
liabilities, obligations and duties of the Surviving Corporation without further act or deed, all in the manner and to the full
extent provided by the DGCL. Whenever a conveyance, assignment, transfer, deed or other instrument or act is necessary to vest
any property or right in the Surviving Corporation, the directors and officers of the respective constituent corporations shall
execute, acknowledge and deliver such instruments and perform such acts, for which purpose the separate existence of the constituent
corporations and the authority of their respective directors and officers shall continue, notwithstanding the Merger. The Certificate
of Incorporation of PCC, as in effect immediately prior to the Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation and thereafter may be amended or repealed in accordance with its terms and applicable law. The parties intend
that the Merger shall be treated as a tax-free reorganization pursuant to Section 368(a) of the IRC, to the extent permitted by
applicable law. |
| 3. | Capital Stock. As of the Effective Time, by virtue of the Merger and without any action
on the part of any Party or the holders of any shares of the capital stock of PVSP or PCC: |
| a. | Preferred Stock. Each share of PVSP Series H Preferred Stock issued and outstanding immediately
prior to the Effective Time shall be converted on a ONE (1) to ONE (1) basis (the “SH Stock Exchange Ratio”),
or into ONE (1) validly issued, fully paid and nonassessable share of PCC Series A Preferred Stock. As of the Effective Time, each
share of PVSP Series H Preferred Stock shall no longer be outstanding and shall automatically be canceled and cease to exist, and
each holder of a certificate representing any share of PVSP Series H Preferred Stock shall cease to have any rights with respect
thereto other than the right to receive PCC Series A Preferred Stock to be issued in exchange therefor upon the surrender of such
certificate, properly endorsed to PCC. |
| b. | Common Stock. Each share of PVSP Common Stock issued and outstanding immediately prior to
the Effective Time shall be converted on a ONE (1) to ONE (1) basis (the “Common Stock Exchange Ratio”),
or into ONE (1) validly issued, fully paid and nonassessable share of PCC Common Stock. As of the Effective Time, each share of
PVSP Common Stock shall no longer be outstanding and shall automatically be canceled and cease to exist, and each holder of a certificate
representing any share of PVSP Common Stock shall cease to have any rights with respect thereto other than the right to receive
PCC Common Stock to be issued in exchange therefor upon the surrender of such certificate, properly endorsed to PCC. |
| c. | No Fractional Shares. No certificates or scrip representing fractional shares of PCC Common
Stock shall be issued upon the surrender for exchange of certificates and such fractional share shall not entitle the record or
beneficial owner thereof to vote or to any other rights as a stockholder of the Company. Any fractional shares held by a shareholder
of PVSP as a result of the Merger shall be rounded up to one full PCC Common Stock share. |
| d. | Further Assurances. If at any time after the Effective Time the Surviving Corporation shall
consider or be advised that any deeds, bills of sale, assignments or assurances or any other acts or things are necessary, desirable
or proper (a) to vest, perfect or confirm, of record or otherwise, in the Surviving Corporation, its right, title or interest in,
to or under any of the rights, privileges, powers, franchises, properties or assets of PVSP or (b) otherwise to carry out the purposes
of this Agreement, the Surviving Corporation and its proper officers and directors or their designees shall be authorized (to the
fullest extent allowed under applicable law) to execute and deliver, in the name and on behalf of PVSP, all such deeds, bills of
sale, assignments and assurances and do, in the name and on behalf of PVSP, all such other acts and things necessary, desirable
or proper to vest, perfect or confirm its right, title or interest in, to or under any of the rights, privileges, powers, franchises,
properties or assets of PVSP, as applicable, and otherwise to carry out the purposes of this Agreement. |
| 4. | Directors. The directors and the members of the various committees of the Board of the PVSP
immediately prior to the Effective Time shall be the directors and members of such committees of the Surviving Corporation at and
after the Effective Time to serve until the expiration of their respective terms and until their successors are duly elected and
qualified. |
| 5. | Officers. The officers of the PVSP immediately preceding the Effective Time shall resign
upon completion of the Merger without further action. The officers of the Surviving Corporation shall be the officers at and after
the Effective Time until their successors are duly elected and qualified. |
| 6. | Employee Option and Benefit Plans. Each option or other right to purchase or otherwise acquire
shares of Merging evidenced by an option agreement (an "Option") or granted under any employee option, stock purchase
or other benefit plan of the PVSP (collectively, the "Plans") which is outstanding immediately prior to the Effective
Time shall, by virtue of |
the Merger and without any action
on the part of the holder thereof, be converted into and become an option or right to acquire (and the PCC hereby assumes the obligation
to deliver) 1/20th number of shares of Surviving Common Stock, at an exercise price equal to twenty times the exercise
price specified before the Merger, resulting in approximately the same aggregate price being required to be paid thereof upon exercise
as immediately preceding the Merger, and upon the same terms, and subject to the same conditions, as set forth in the respective
Plan as in effect immediately prior to the Effective Time. The same number of shares of Surviving Common Stock shall be reserved
for purposes of the Plans as is equal to the proportional number of shares of Merging so reserved immediately prior to the Effective
Time. The PCC hereby assumes, as of the Effective Time, (i) the Plans and all obligations of the PVSP under the Plans, including
the outstanding options, stock purchase rights or awards or portions thereof granted pursuant to the Plans and the right to grant
additional options and stock purchase rights thereunder, (ii) all obligations of the PVSP under all other benefit plans in effect
as of the Effective Time with respect to which employee rights or accrued benefits are outstanding as of the Effective Time and
(iii) all obligations of the PVSP under any Options.
| 7. | Conditions to the Merger. The consummation of the Merger and the other transactions herein
provided is subject to receipt prior to the Effective Time of the requisite approval of the Merger by the holders of Merging pursuant
to the DGCL. |
| 8. | Certificates. At and after the Effective Time, all of the outstanding certificates which
immediately prior thereto represented shares of Merging Common Stock or other securities of the PVSP shall be deemed for all purposes
to evidence ownership of and to represent the shares of Surviving Common Stock or other securities of the PCC, as the case may
be, into which the shares of Merging or other securities of the PVSP represented by such certificates have been converted as herein
provided and shall be so registered on the books and records of the Surviving Corporation or its transfer agent. The registered
owner of any such outstanding certificate shall, until such certificate shall have been surrendered for transfer or otherwise accounted
for to the Surviving Corporation or its transfer agent, have and be entitled to exercise any voting and other rights with respect
to, and to receive any dividends and other distributions upon, the shares of Surviving Common Stock or other securities of the
PCC, as the case may be, evidenced by such outstanding certificate, as above provided. |
| 9. | Amendment. The parties hereto, by mutual consent of their respective boards of directors,
may amend, modify or supplement this Merger Agreement prior to the Effective Time; provided, however, that no amendment, modification
or supplement may be made after the adoption of this Merger Agreement by the stockholders of the PVSP which changes this Merger
Agreement in a way which, in the judgment of the Board of Directors of the PVSP, would have a material adverse effect on the stockholders
of the PVSP, unless such amendment, modification or supplement is approved by such stockholders. |
| 10. | Termination. This Merger Agreement may be terminated, and the Merger and the other transactions
provided for herein may be abandoned, at any time prior to the Effective Time, whether before or after approval of this Merger
Agreement by the stockholders of the PVSP, by action of the Board of Directors of the PVSP if the Board of Directors of the PVSP
determines for any reason, in its sole judgment and discretion, that the consummation of the merger would be inadvisable or not
in the best interests of the PVSP and its stockholders. |
| 11. | Governing Law. This Merger Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware. |
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IN WITNESS WHEREOF the parties have duly executed, or caused
their duly authorized representative, to execute this Securities Purchase Agreement.
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PLAID CANARY CORPORATION |
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By: /s/ Xxxxx Xxxxxxxx |
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Name: Xxxxx Xxxxxxxx |
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Title: Chief Executive Officer |
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| PERVASIP CORP. |
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| By: /s/ Xxxx Xxxx |
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| Name: Xxxx Xxxx |
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| Title: Chief Executive Officer |
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