EXHIBIT 2.2
AGREEMENT AND PLAN OF SHARE EXCHANGE
This AGREEMENT AND PLAN OF SHARE EXCHANGE (the "Agreement") is made as of
the --- day of April, 1999 by and between Eriko Internet Inc., a Washington
corporation ("Eriko") and Digital Sign Corporation, a Delaware corporation
("Digital") (collectively, the "Constituent Corporations") with reference to the
following facts:
A. Digital wishes to acquire the entire issued and outstanding share
capital of Eriko and Eriko wishes to become the wholly owned subsidiary of
Digital.
B. Each of the Constituent Corporations has, subject, in the case of Eriko,
to approval by its shareholders, adopted the plan of share exchange embodied in
this Agreement.
C. The share exchange is intended to qualify as a reorganization under
Section 368(a)(1)(B) of the Internal Revenue Code (the "Code").
NOW, THEREFORE, the Constituent Corporations do hereby agree to the share
exchange, on the terms and conditions herein provided, as follows:
1. On the Effective Date, by virtue of the share exchange and without any
action on the part of the holders thereof, each then outstanding share of common
stock of Eriko shall be exchanged for four (4) shares of common stock to be
issued by Digital.
2. The "Effective Date" of the share exchange shall be, and such term as
used herein shall mean, 5:00 p.m., Seattle, Washington time, on the day on which
the Articles of Share Exchange in substantially the form attached hereto as
Exhibit A are filed in the office of the Secretary of State of the state of
Washington, after satisfaction of the requirements of applicable laws of the
state's prerequisites to such filings.
3. Notwithstanding anything contained in this Agreement to the contrary,
this Agreement may be terminated and the share exchange abandoned:
(a) Upon written notice at any time prior to the Effective Date by
mutual consent of the Constituent Corporations;
(b) If holders of at least a majority of the outstanding shares of
common stock of a Constituent Corporation shall not vote in favor of the share
exchange; or
(c) If there exists a suit, action, or other proceeding commenced,
pending or threatened, before any court or other governmental agency of the
federal
or state government, in which it is sought to restrain, prohibit or otherwise
adversely affect the consummation of the share exchange contemplated hereby.
4. Notwithstanding anything contained in this Agreement, this Agreement may
be amended or modified in writing at any time prior to the Effective Date;
provided that, an amendment made subsequent to the adoption of this Agreement by
the shareholders of a Constituent Corporation shall not: (1) alter or change the
amount or kind of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of the shares of any
class or series thereof of the Constituent Corporations; (2) alter or change any
term of the Articles of Incorporation of a Constituent Corporation; or (3) alter
or change any of the terms and conditions of this Agreement if such alteration
or change would adversely affect the holders of any class or series thereof of
the Constituent Corporations; provided, however, the Constituent Corporations
may by agreement in writing extend the time for performance of, or waive
compliance with, the conditions or agreements set forth herein.
5. In exercising their rights under Sections 4. or 5., each of the
Constituent Corporations may act by its Board of Directors, and such rights may
be so exercised, notwithstanding the prior approval of this Agreement by the
shareholders of a Constituent Corporation.
6. Each of the Constituent Corporations shall (A) keep its records and file
in connection with its federal and state income tax returns all such information
as may be required by Treas. Reg. Section 1.368-3; (B) for federal and state
income tax purposes report the share exchange as qualifying as a reorganization
under Section 368(a)(1)(B) of the Code; (C) refrain from taking any position in
connection with its federal or any state income tax liability that would be
inconsistent with such qualification; and (D) comply with all the requirements
of Section 368(a)(1)(B) applicable to such corporation.
ERIKO INTERNET INC., a Washington corporation
By: /s/ Xxxxxxx Xxxxxxxxxx
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Its: President
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DIGITAL SIGN CORPORATION, a Delaware
corporation
By: Xxxxxx Xxxx
------------------------------------------
Its: President
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EXHIBIT A
ARTICLES OF SHARE EXCHANGE
between
DIGITAL SIGN CORPORATION
a Delaware corporation
and
ERIKO INTERNET INC.
a Washington corporation
In accordance with RCW 23B.11.050
The undersigned, Xxxxxx Xxxx, being the President of Digital Sign Corporation, a
Delaware corporation, ("Digital") and Xxxxxxx Xxxxxxxxxx, being the President of
Eriko Internet Inc., a Washington corporation, ("Eriko"), DO HEREBY CERTIFY as
follows:
(1) The constituent corporations in the share exchange (the "Exchange") are
Digital Sign Corporation, a Delaware corporation, and Eriko Internet Inc, a
Washington corporation;
(2) An Agreement and Plan of Share Exchange dated as of April 5, 1999 (the
"Share Exchange Agreement") has been approved, adopted, and executed by each of
the constituent corporations in accordance with RCW 23B.11.010 et seq. The Share
Exchange Agreement is attached hereto as Exhibit A and incorporated herein by
reference;
(3) The Exchange was duly approved by the shareholders of Eriko in
accordance with Section 23B.011.030 of the Washington Business Corporation Act.
The shareholders of Digital are not required to approve the Exchange.
The Exchange shall become effective on the date on which these Articles of
Share Exchange are filed by the Secretary of State of the state of Washington.
IN WITNESS WHEREOF, the parties hereto have caused these Articles of Share
Exchange to be duly executed as of this 5th day of April, 1999.
ERIKO INTERNET INC., a Washington corporation
By: /s/ Xxxxxxx Xxxxxxxxxx
------------------------------------------
Its: President
-----------------------------------------
DIGITAL SIGN CORPORATION, a Delaware
corporation
By: Xxxxxx Xxxx
------------------------------------------
Its: President
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