AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (hereinafter called the
"Merger Agreement") is made effective as of November 1996, by and
between DelSoft Consulting, Inc., a Georgia corporation ("DelSoft"),
and Pyke Corp., a Delaware corporation ("Pyke"). DelSoft and Pyke
are sometimes referred to as the "Constituent Corporations," with
reference to the following facts:
A. The authorized capital stock of DelSoft consists of
20,000,000 shares of no par value common stock. The authorized
capital stock of Pyke consists of 20,000,000 shares of common stock,
$.001 par value.
B. There are 8,300,000 shares of common stock of DelSoft
issued and outstanding.
X. Xxxx has no subsidiaries, and has a total of 10,279,216
shares of common stock issued and outstanding, and there are no
options or other rights to acquire any newly issued shares available
to any person.
D. The directors of the Constituent Corporations deem it
advisable and to the advantage of such corporations that Pyke merge
into DelSoft upon the terms and conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt the plan of merger
encompassed by this Merger Agreement and do hereby agree that Pyke
shall merge with and into DelSoft on the following terms, conditions
and other provisions:
1. TERMS AND CONDITIONS
1.1 MERGER. Pyke shall be merged with and into DelSoft (the
"Merger"), and DelSoft shall be the surviving corporation (the
"Surviving Corporation") effective upon the date when this Merger
Agreement or a Certificate of Merge is filed with the Secretary of
State of the states of Delaware and Georgia (the "Effective Date"),
1.2 SUCCESSION. On the Effective Date, DelSoft shall continue
its corporate existence under the law of the State of Georgia, and
the separate existence and corporate organization of Pyke, except
insofar as it may be continued by operation of law, shall be
terminated and cease.
1.3 TRANSFER OF ASSETS AND LIABILITIES. On the Effective
Date, the rights, privileges, powers and franchises, both of a
public as well as of a private nature, of each of the Constituent
Corporations shall be vested in and possessed by the Surviving
Corporation, subject to all of the disabilities, duties and
restrictions of or upon each of the Constituent Corporations;
and all singular rights, privileges, powers and franchises of each
of the Constituent Corporations, and all property, real, personal
and mixed, of each of the Constituent Corporations, and all debts
due to each of the Constituent Corporations on whatever account, and
all things in action or belonging to each of the Constituent
Corporations shall be transferred to and vested in the Surviving
Corporation, and all property, rights, privileges, powers and
franchises, and all and every other interest, shall be thereafter
the property of the Surviving Corporation as they were of the
Constituent Corporations, and the title to any real estate vested by
deed or otherwise in either of the Constituent Corporations shall
not revert or be in any way impaired by reason of the Merger;
provided, however, that the liabilities of the Constituent
Corporations and of their stockholders, directors and officers shall
not be affected and all rights of creditors and all liens upon any
property of either of the Constituent Corporations shall be
preserved unimpaired, and any claim existing or action or proceeding
pending by or against either of the Constituent Corporations may be
prosecuted to judgments as if the Merger had not taken place except
as they may be modified with the consent of such creditors and all
debts, liabilities and duties of or upon each of the Constituent
Corporations shall attach to the Surviving Corporation, and may be
enforced against it to the same extent as if such debts liabilities
and duties had been incurred or contracted by it.
1.4 MANNER OF ACCOMPLISHING MERGER. The Merger shall be
accomplished by way of the exchange of 100% of the issued and
outstanding shares of Pyke for common stock of DelSoft, at the ratio
of one share of DelSoft for each six shares of Pyke outstanding on
the effective date of the Merger (1 for 6). The transfer agent will
automatically be instructed to issue new certificates of DelSoft,
based on the above ratio, to each of the shareholders of Pyke, at
the address listed in the register of Pyke shareholders. No
fractional shares will be issued, but each fractional share will be
rounded up to the next share and a certificate for DelSoft will be
issued to each record holder of Pyke accordingly. The exchange will
be accomplished pursuant to an exemption from registration provided
by Regulation D, Section 504 in each state where said exemption or a
registration of the issuance can be accomplished. In each state
where an exemption from registration is not available pursuant to
Rule 504 of Regulation D or some other available exemption from
registration which can be reasonably complied with, DelSoft shall
issue cash in lieu of the exchanged securities of Pyke at $.01 per
share exchanged.
1.5 RIGHTS OF APPRAISAL. This Merger shall be subject to the
rights of appraisal granted to the shareholders of Pyke in
accordance with the General Corporation Law of the State of
Delaware. Should more than ten percent (10%) of the shareholders of
Pyke, regardless of the number of shares owned, seek to enforce
their rights of appraisal, the Merger shall be deemed canceled and
all parties relieved of any obligation pursuant to this Agreement.
1.6 OBLIGATIONS OF PYKE NOT TO ISSUE ITS SECURITIES. As of
the date of this Merger Agreement and until the date of closing,
Pyke shall not issue any additional shares of its common stock to
any person or entity whatsoever, including as a result of having
previously issued any warrants to acquire common stock, any options
to acquire its securities as a result of any employee stock option
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plan or otherwise, or pursuant to any employee benefit plan. Pyke
further represents that the capitalization, as set forth in
paragraph C of the preamble of this Agreement, is true and accurate
in all respects.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION AND BYLAWS. The Certificate
of Incorporation of DelSoft in effect on the Effective Date shall
continue to be the Certificate of Incorporation of the Surviving
Corporation. The Bylaws of DelSoft shall be the Bylaws of the
Surviving Corporation, as they may be amended from time to time.
2.2 DIRECTORS. The directors of DelSoft immediately preceding
the Effective Date shall become the directors of the Surviving
Corporation on and after the Effective Date to serve until the
expiration of their terms and until their successors are elected and
qualified.
2.3 OFFICERS. The officers of DelSoft immediately preceding
the Effective Date shall become the officers of the Surviving
Corporation on and after the Effective Date to serve at the pleasure
of its Board of Directors.
3. MISCELLANEOUS
3.1 FURTHER ASSURANCES. From time to time, and when required
by the Surviving Corporation or by its successors and assigns, there
shall be executed and delivered on behalf of Pyke 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 or
necessary in order to vest or perfect in or to conform of record or
otherwise, in the Surviving Corporation the title to and possession
of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Pyke and otherwise
to carry out the purposes of this Merger Agreement, and the officers
and directors of the Surviving Corporation are fully authorized in
the name and on behalf of Pyke 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 Pyke, this Merger Agreement may be amended in any
manner (except that, after the approval of the Merger Agreement by
the stockholders of Pyke and DelSoft, the principal terms may not be
amended without the further approval of the stockholders of Pyke and
DelSoft) as may be determined in the judgment of the respective
Board of Directors of DelSoft and Pyke 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 CONDITIONS TO MERGER. The obligation of the Constituent
Corporations to effect the transactions contemplated hereby is
subject to satisfaction of the following conditions (any or all of
which may be waived by either of the Constituent Corporations in its
sole discretion to the extent permitted by law):
(a) the Merger shall have been approved by the
stockholder of Pyke in accordance with applicable provisions of the
General Corporate Law of the State of Delaware; and
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(b) any and all consents, permits, authorizations,
approvals, and orders deemed in the sole discretion of either Pyke
or DelSoft to be material to consummation of the Merger shall have
been obtained; and
(c) the securities issued by DelSoft shall be issued
pursuant to an exemption from registration pursuant to the
Securities Act of 1933 (as amended), Regulation D, Section 504, and
the shareholders who reside in certain states which comport with
said Regulation D, Section 504, or other tandem exemptions from
registration, may receive unrestricted securities in exchange for
the securities of Pyke; and
(d) an audit of the books and records of Pyke, conducted
in accordance with generally accepted accounting practices, shall
have been delivered to and approved by DelSoft; and
(e) any other requirements under applicable Delaware or
Georgia laws shall have been satisfied in connection with the
Merger.
3.4 ABANDONMENT OR DEFERRAL. 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 either Pyke or DelSoft or
both, notwithstanding the approval of the Merger by the stockholders
of Pyke or DelSoft, or the consummation of the Merger may be
deferred for a reasonable period of time if, in the opinion of the
Board of Directors of Pyke and DelSoft, such action would be in the
best interest of such corporations. In the event of termination of
this Merger Agreement, this Merger Agreement shall become void and
of no effect and there shall be no liability on the part of either
Constituent Corporation or its Board of Directors or stockholders
with respect thereto.
3.5 COUNTERPARTS. In order to facilitate the filing and
recording of this Merger Agreement, the same may be executed in any
number of counterparts, each of which shall be deemed to be an
original.
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IN WITNESS WHEREOF, this Merger Agreement, having first been
duly approved by the Board of Directors of Pyke and DelSoft, is
hereby executed on behalf of each said corporation and attested by
their respective officers thereunto duly authorized.
PYKE CORP.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx, President
ATTEST:
/s/
--------------------------
--------------------------
Secretary, Assistant
DELSOFT CONSULTING, INC.,
a Georgia corporation
By: /s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx, President
ATTEST:
/s/ X. Xxxxxxxxx
--------------------------
X. Xxxxxxxxx
--------------------------
Secretary
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