EXHIBIT 4
PLAN AND AGREEMENT OF MERGER
PLAN AND AGREEMENT OF MERGER
OF
ENDOVASC LTD., INC.
(A DELAWARE CORPORATION)
AND
ENDOVASC, INC.
(A NEVADA CORPORATION)
PLAN AND AGREEMENT OF MERGER entered into on February 24, 2003, by and between
ENDOVASC LTD., INC., a Delaware corporation ("ENDV-Delaware"), and ENDOVASC,
INC., a Nevada corporation ("ENDV-Nevada").
WHEREAS, ENDV-Delaware is a business corporation of the State of Delaware
with its registered office therein located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxx of Newcastle, Delaware; and
WHEREAS, the total number of shares of stock which ENDV-Delaware has
authority to issue is 220,000,000, of which 200,000,000 are common stock, $.001
par value per share, and 20,000,000 are preferred stock, $.001 par value per
share; and
WHEREAS, ENDV-Nevada is a business corporation of the State of Nevada with
its registered office therein located at 000 Xxxx Xxxx Xxxxxx, Xxxx xx Xxxxxx
Xxxx; and
WHEREAS, the total number of shares of stock which ENDV-Nevada has
authority to issue is 220,000,000, of which 200,000,000 are common stock, $.001
par value per share, and 20,000,000 are preferred stock, $.001 par value per
share; and
WHEREAS, the Delaware General Corporation Law Act permits a merger of a
business corporation of the State of Delaware with and into a business
corporation of another jurisdiction; and
WHEREAS, the General Corporation Law of the State of Nevada permits the
merger of a business corporation of another jurisdiction with and into a
business corporation of the State of Nevada; and
WHEREAS, ENDV-Delaware and ENDV-Nevada and the respective Boards of
Directors thereof declare it advisable and to the advantage, welfare, and best
interests of said corporations and their respective stockholders to merge
ENDV-Delaware with and into ENDV-Nevada pursuant to the provisions of the
Delaware General Corporation Law and pursuant to the provisions of the General
Corporation Law of the State of Nevada upon the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement of the parties hereto hereby determine and agree as follows.
ARTICLE I
MERGER
1.1. CONSTITUENT CORPORATIONS. The name, address and jurisdiction of
organization of each of the constituent corporations are set forth below.
A. Endovasc Ltd., Inc., a corporation organized under and governed by
the laws of the State of Delaware with a principal place of business
at 00000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx (the "terminating
corporation").
B. Endovasc, Inc., a corporation organized under and governed by the
laws of the State of Nevada with a principal place of business at
00000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx (the "surviving
corporation").
1.2. SURVIVING CORPORATION. Endovasc, Inc. shall be the surviving
corporation. The principal place of business, Articles of Incorporation,
bylaws, officers and directors of Endovasc, Inc. shall survive the merger
without amendment or revision and be the principal place of business, Articles
of Incorporation, bylaws, officers and directors of the surviving corporation.
1.3. MERGER. On the Effective Date (as hereinafter set forth) and subject
to the terms and conditions of this Agreement, the applicable provisions of the
Delaware General Corporation Law ("Delaware Law"), and the applicable provisions
of Title 7, Chapter 78 of the Nevada Revised Statutes ("Nevada Law"),
ENDV-Delaware is merged with and into ENDV-Nevada. The separate existence of
ENDV-Delaware shall cease on and after the Effective Date.
ARTICLE II
EXCHANGE AND CONVERSION OF SHARES
2.1. CONVERSION OF CAPITAL STOCK.
A. On the Effective Date, each issued and outstanding share of the
common stock, $.001 par value per share, of ENDV-Delaware shall be
converted into the right to receive one and one-fifth (1.20), fully
paid and non-assessable share of the common stock, $.001 par value per
share, of ENDV-Nevada.
B. . On the Effective Date, each issued and outstanding share of the
preferred stock of any series or class of ENDV-Delaware shall be
converted into the right to receive one fully paid and non-assessable
share of preferred stock, $.001 par value per share, of ENDV-Nevada
with substantially identical rights and preferences.
2.2. FRACTIONAL SHARES. No fractional shares or script representing
fractional shares shall be issued by ENDV-Nevada as a result of the merger.
Each fractional share that would otherwise result from the merger shall be
cancelled and returned to the authorized and unissued capital stock of
ENDV-Nevada and a full share of ENDV-Nevada common stock, $.001 par value per
share, shall be issued in its place.
2.3. MANDATORY EXCHANGE. Pursuant to the provisions of NRS 78.250, any
certificate representing shares of the common stock, $.001 par value per share,
or preferred stock, $.001 par value per share, of ENDV-Delaware are shall be
surrendered to ENDV-Nevada for cancellation and exchanged for certificates
representing shares of ENDV-Nevada common stock, $.001 par value per share, or
preferred stock, $.001 par value per share. Any stock represented by
certificates that have not been so surrendered and exchanged shall not be
entitled to notice of or to vote on any matters on which the shareholders of
ENDV-Nevada are entitle to vote and shall not be entitled to receive any
distributions on ENDV-Nevada capital stock. Without limiting any rights or
remedies available to it, ENDV-Nevada may xxx in any court with jurisdiction to
cause any stockholder of ENDV-Delaware to tender certificates representing
shares owned by such stockholder to be tendered to ENDV-Nevada for exchange.
2.4. CANCELLATION OF EXISTING SHARES. On the Effective date, each share of
the common stock, $.001 par value per share, of ENDV-Nevada outstanding
immediately prior to the merger shall be cancelled and returned to the
authorized and unissued capital stock of ENDV-Nevada.
ARTICLE III
ADDITIONAL COVENANTS AND AGREEMENTS
3.1. OUTSTANDING OPTIONS AND WARRANTS. Except to the extent otherwise
provided in outstanding options, warrants, and other rights to purchase shares
of the common stock, $.001 par value per share, of ENDV-Delaware, each option,
warrant or other right to purchase shares of the common stock, $.001 par value
per share, of ENDV-Delaware, shall be exercisable to purchase one and one-fifth
(1.20) shares of the common stock, $.001 par value per share, of ENDV-Nevada on
the same terms and conditions.
3.2. SUBMISSION TO SERVICE IN DELAWARE. ENDV-Nevada agrees that it may be
served with process in the State of Delaware in any proceeding for enforcement
of any obligation of the ENDV-Nevada arising from this merger, including any
suit or other proceeding to enforce the rights of any stockholders as determined
in appraisal proceedings pursuant to the provisions of Section 262 of the
Delaware General Corporation laws, and irrevocably appoints the Secretary of
State of Delaware as its agent to accept services of process in any such suit or
proceeding.
3.3. COOPERATION. In the event that this Agreement is approved and adopted
by the stockholders of ENDV-Delaware in accordance with Delaware Law, the
parties hereto agree that they will cause to be executed and filed and recorded
any document or documents prescribed by Delaware Law or Nevada Law, and that
they will cause to be performed all necessary acts within the State of Delaware
and the State of Nevada and elsewhere to effectuate the merger herein provided
for.
3.4. ADDITIONAL ASSURANCES. ENDV-Delaware hereby appoints the officers and
directors, each acting alone, as its true and lawful attorneys in fact to do any
and all acts and things, and to make, execute, deliver, file, and record any and
all instruments, papers, and documents which shall be or become necessary,
proper, or convenient to carry out or put into effect any of the provisions of
this Agreement or of the merger herein provided for.
ARTICLE IV
EFFECTIVE DATE
4.1. EFFECTIVE DATE. This merger shall be effective in the State of
Delaware and the State of Nevada, shall be on the last to occur of the following
(the "Effective Date"):
A. the approval of this Agreement by the stockholders of ENDV-Delaware
in accordance with Delaware Law; or
B. the date this Agreement, or a certificate of merger meeting the
requirements of Nevada Law, is filed with the Secretary of State of
the State of Nevada; or
C. March 31, 2003.
4.2. TERMINATION. Notwithstanding the full approval and adoption of this
Agreement, the said Agreement may be terminated by either party at any time
prior to the filing thereof with the Secretary of State of the State of Nevada.
4.3. AMENDMENT. Notwithstanding the full approval and adoption of this
Agreement, this Agreement may be amended at any time and from time to time prior
to the filing thereof with the Secretary of State of the State of Nevada except
that, without the approval of the stockholders of ENDV-Delaware and the
stockholders of ENDV-Nevada, no such amendment may (a) change the rate of
exchange for any shares of ENDV-Delaware or the types or amounts of
consideration that will be distributed to the holders of the shares of stock of
ENDV-Delaware; (b) change any term of the Articles of Incorporation of
ENDV-Nevada; or (c) adversely affect any of the rights of the stockholders of
ENDV-Delaware or ENDV-Nevada.
ARTICLE V
---------
MISCELLANEOUS
5.1. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which may have different signatures and be signed at
different times. When all parties have signed at least one counterpart, each
counterpart shall be deemed complete and shall constitute the same instrument.
5.2. ENTIRE AGREEMENT. This Agreement and the is intended by the parties to
be the final expression of their agreement with respect to the matter set forth
herein and is intended to contain all of the terms of such agreement without the
need to refer to other documents. There are no other understandings, written or
oral, among the parties with respect to the matter set forth herein.
5.3. AMENDMENT. This Agreement may not be amended except by a written
instrument signed by the parties hereto.
IN WITNESS WHEREOF, this Agreement is hereby executed upon behalf of each of the
parties thereto this February 24, 2003.
ENDOVASC LTD., INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx
Chief Executive Officer & President
ENDOVASC, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------
Xxxxx X. Xxxxxxx
Chief Executive Officer
