AGREEMENT AND PLAN OF REORGANIZATION AND MERGER
OF
Tesmark, Inc., an Idaho corporation
INTO
Tesmark, Inc., a Nevada Corporation,
as the surviving corporation
AGREEMENT AND PLAN OF REORGANIZATION AND MERGER, dated as of the 10th
day of November, 1998, by and between Tesmark, Inc. (hereinafter "Idaho"), an
Idaho corporation, and Tesmark, Inc. (hereinafter "Nevada"), a Nevada
corporation, the corporations being hereinafter sometimes called the Constituent
Corporations.
WHEREAS the Boards of Directors of each of the Constituent Corporations
deems it advisable and generally to the welfare of the Constituent Corporations
that these corporations merge under the terms and conditions hereinafter set
forth; such merger to be pursuant to the statutes of the state of Nevada and
they have duly approved and authorized the form of agreement of reorganization
and merger.
WHEREAS the laws of the State of Nevada permit such a merger, and the
Constituent Corporations desire to merge under and pursuant to the provisions of
the laws of Nevada.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements and covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged by the
parties, it is agreed as follows:
1. AGREEMENT TO MERGE, NAME OF SURVIVOR: Tesmark, Inc., an Idaho corporation
("Idaho") is hereby merged into Tesmark, Inc., a Nevada corporation ('Nevada"),
which shall be the Surviving Corporation, and the terms and conditions of such
merger and the mode of carrying it into effect are and shall be as stated
hereinafter.
The name of the corporation, which is sometimes hereinafter referred to
as the surviving corporation, shall, from and after the effective date of the
merger, be TESMARK, INC., the Nevada corporation. The separate existence of
Tesmark, Inc. ("Idaho') as an Idaho corporation shall cease at the effective
time of the merger, except insofar as it may be continued by law in order to
carry out the purposes of this Agreement of Merger and except as continued in
the Surviving Corporation.
2. ARTICLES OF INCORPORATION AND BYLAWS OF SURVIVING CORPORATION: (a) The
Articles of Incorporation of the Surviving Corporation shall be the Articles of
Incorporation of Tesmark, Inc., the Nevada corporation ('Nevada"), a copy of
which is annexed as Exhibit "A", hereto. (b) The Bylaws of the surviving
corporation at the effective time of the merger shall be the Bylaws of the
Surviving Corporation until altered or repealed as provided therein.
3. BOARD OF DIRECTORS AND OFFICERS: The members of the Board of Directors and
the officers of the Surviving Corporation immediately after the effective time
of the merger shall be those persons who were the members of the Board of
Directors and the officers, respectively, of ("Nevada"), immediately prior to
the effective time of the merger, and such persons shall serve in such offices,
respectively, for the terms provided by law or in the Bylaws, or until their
respective successors are elected and qualified.
4. AUTHORITY TO CONDUCT BUSINESS: The surviving corporation will file its
application for authority to conduct business, and/or such certificate of merger
or amendment of the articles as the case may be, with the Secretary of State of
Nevada, immediately upon completion of the merger.
5. CONVERSION AND ISSUANCE OF SHARES: The manner of converting shares of the
Constituent Corporations into shares of the surviving corporation shall be set
forth in this paragraph as follows: Immediately upon the effective date of the
merger, each one (1) share of $1.00 par value common voting stock of "Idaho",
outstanding, without any action on the 9 part of the holder thereof, shall
automatically become and be converted into common stock of the surviving
corporation ("Nevada') at the rate of Five Hundred (500) shares of $.001 par
value common voting stock of the surviving corporation ("Nevada") for each share
of $1.00 par value common stock of "Idaho", provided that there shall be no
fractional shares, nor shareholders holding less than one (1) share. All shares
thus converted shall be deemed for all corporate purposes (other than the
payment of dividends) to evidence the ownership of the number of fully paid,
non-assessable shares of $.001 par value common voting stock of the surviving
corporation into which shares of common stock of 'Idaho' shall have been so
converted.
6. RIGHTS OF SHAREHOLDERS: After the effective time of the merger, any holder of
a certificate or certificates which theretofore represented shares of stock of
"Idaho" may, but shall not be required to, surrender the same to the corporate
secretary or the Transfer Agent of the surviving corporation, and shall
thereupon be entitled to receive in exchange therefor a certificate or
certificates representing the number of shares of stock of the surviving
corporation into which the shares of stock of "Idaho", previously represented by
such certificate or certificates, shall have been converted.
7. EFFECTIVE DATE OF MERGER: (a) For all purposes of the laws of the State of
Nevada, this Agreement and the merger and reorganization provided for herein,
shall become effective and the separate existence of "Idaho," except insofar as
it may be continued by statute, shall cease as soon as: This Agreement shall
have been adopted, approved, signed, and acknowledged in accordance with the
corporate laws of Nevada and certificates of its adoption and approval shall
have been executed in accordance with such laws, and The Certificate of Merger
shall have been filed in the office of the Department of State of the State of
Nevada.
(b) The corporate identity, existence, purposes, powers, objects, franchises,
rights and immunities of the Constituent Corporations shall continue unaffected
and unimpaired by the merger hereby provided for; and the corporate identities,
existence, purposes, powers, objects, franchises, rights and immunities of
"Nevada" and "Idaho" shall be continued in and merged into "Nevada", and
'Idaho" shall be fully vested therewith.
(c) The date upon which this Agreement is filed in the offices of the Secretary
of State of Nevada, and upon which the Constituent Corporations shall so become
a single Nevada corporation is the effective date of their merger, but not later
than December 31, 1998, if not so filed.
8. AUTHORIZATION: The parties hereto acknowledge and respectively represent that
this Agreement is authorized by the laws of the respective jurisdiction of the
Constituent Corporations and that the matter was approved at a special
shareholders' meeting of the respective corporations at which the shareholders
voted in the majority to ratify and approve this Agreement.
9. FURTHER ASSURANCES OF TITLE: As and when requested by the surviving
corporation or by its successors or assigns, "Idaho" and "Nevada" will execute
and deliver or cause to be executed and delivered all such deeds and instruments
and will take or cause to be taken all such further action as the surviving
corporation may deem necessary or desirable in order to vest in and confirm to
the surviving corporation title to and possession of any property of any of the
Constituent Corporations acquired by the surviving corporation by reason or as a
result of the merger herein provided for and otherwise to carry out the intent
and purposes hereof, and the officers and directors of the Constituent
Corporations, and the officers and directors of the surviving corporation are
fully authorized in the name of the respective Constituent Corporations or
otherwise to take any and all such action.
10. SERVICE OF PROCESS ON SURVIVING CORPORATIONS: The surviving corporation
agrees that it may be served with process in the State of Nevada in any
proceeding for enforcement of any of its obligation as well as for the
enforcement of any obligation of the surviving corporation arising from the
merger, including any suit or other proceeding to enforce the right of
obligation of the surviving corporation arising from the merger, including any
suit or other proceeding to enforce the right of any dissenting shareholder
pursuant to the provisions of the Nevada Corporate Statutes and hereby
irrevocably appoints the Secretary of State of Nevada as its agent, to accept
service of process in any suit or other proceeding.
II. DISSENTING SHAREHOLDER'S RIGHT TO PAYMENT: The surviving corporation agrees
that, subject to the provisions of the Nevada Corporate Statutes, it will pay to
the shareholders of the Constituent Corporations the amounts, if any, to which
such dissenting shareholder may be entitled under the provisions of the above
statutes of the laws of Nevada as the case may be.
12. ABANDONMENT: This Agreement of Reorganization and Merger may be abandoned
(a) by any of the Constituent Corporations, acting by their Board of Directors,
at any time prior to this adoption by the shareholders of any of the Constituent
Corporations as provided by laws, or (b) by the mutual consent of the
Constituent Corporations, acting each by its Board of Directors, at any time
after such adoption by such shareholder and prior to the effective time of the
merger. In the event of abandonment of this Agreement pursuant to (a) above,
notice thereof shall be given by the Board of Directors of the Constituent
Corporation so terminating to the other
Constituent Corporation, and thereupon, or abandonment pursuant to (b) above,
this Agreement of Merger shall become wholly void and of no effect and there
shall be no further liability or obligation hereunder on the part of either of
the Constituent Corporations or of its Board of Directors of shareholders.
13. WARRANTIES: Each of the Constituent Corporations, by and through its
officers and directors, warrant as follows:
(a) The corporations are duly organized, validly existing and in good
standing under the laws of their respective states; each has all requisite power
and authority to own, lease and operate its business, and to enter into this
Agreement and be bound thereby to the conditions, covenants and terms of
performance.
(b) The execution and delivery of this Agreement by the signatories
hereto, and the consummation of the transaction contemplated hereby have been
duly authorized by the respective board of directors and shareholders at special
meetings called upon notice for such purposes.
(c) This Agreement constitutes the valid and binding obligation of the
respective parties hereto; the execution hereof will not violate any provision
of the articles of incorporation or bylaws of the said corporations, nor any
judgment, order, injunction or decree binding upon the parties, or their
securities, property or business.
(d) The issuance of any securities called for hereunder will be in
compliance with state and federal laws.
(e) The financial statements of the parties, as at the date hereof,
fairly set forth the condition of the Constituent Corporations.
(f) There are no material debts, liabilities or adverse claims, whether
absolute, accrued, contingent, or otherwise, which are undisclosed as of this
date (for this Agreement, "material" shall mean in excess of $10,000).
(g) The parties have disclosed all material facts, required to be
stated or disclosed necessary to make the statements made, whether herein or
otherwise, not misleading.
(h) All the representations and warranties made by the parties shall be
true and correct as of this date and as of the date of closing herein.
(i) Since October 23, 1998, the date of the letter of intent between
the parties to merge, there has not been any material adverse change in the
business of the parties, other than in the ordinary course of business.
(j) Since the date of the letter of intent to merge, none of the
parties has altered or amended its articles of incorporation or bylaws, except
as may have been disclosed or required in
order to consummate this agreement.
(k) All due diligence material required in order to make full and fair
disclosure (i.e., minutes, shareholder lists, files, books, records, etc.) has
been delivered by the parties to each other, prior to the closing hereof.
14. INDEMNIFICATION, HOLD HARMLESS: The parties agree to indemnify and hold each
other harmless against any costs, damages, expenses or liabilities arising out
of any untrue statement of any material fact contained herein, or arising out of
or based upon the omission of any material fact required to be stated herein,
necessary to make such statement not misleading.
15. CONDITIONS: As conditions to performance hereunder, the following shall
apply:
(a) The shareholders of 'Idaho" shall exchange all of their outstanding
shares (5,000 shares of common) for (2,500,000 shares of restricted common)
$.001 par value stock in 'Nevada", and any assets of "Idaho", as stated in its
most recent unaudited financial statements at n/a , shall be merged into
'Nevada", as of this date.
(b) The Constituent Corporations shall have received an opinion of counsel
(i) that this merger is in accordance with Nevada corporate law;
(ii) that, so far as is known to such counsel, the parties are in good
standing and all required corporate action to consummate this Agreement has been
taken;
(iii) that the issuance of the securities hereunder shall have been
duly registered or otherwise exempted from registration.
(c) A majority of the shareholders of the Constituent Corporations shall
have duly voted and adopted the agreement of merger herein.
16. FURTHER CONDITIONS: All of the representations and warranties hereunder
shall be true in all material respects as of the date hereof.
17. MISCELLANEOUS PROVISIONS: The following miscellaneous provisions, standard
to contracts of this type, shall apply herein:
(a) All representations and warranties hereunder shall, to the exten
permitted by law, N'".l survive the execution and closing hereof.
(b) Any notice hereunder shall be deemed delivered when mailed by first
class mail to the last known address of the parties.
(c) Except to the extent that the laws of Nevada mandate otherwise, this
Agreement shall be construed in accordance with Nevada law of corporations
and/or contracts.
(d) This merger shall be a "pooling of interests" under section 368 of the
Internal Revenue Code (1954), as amended.
(e) Time is of the essence to this agreement.
(f) Failure to attach any exhibits to this agreement shall not void
this contract, it being understood that such exhibits may be obtained from the
files and records of the other party.
(g) This agreement may be executed in one or more counterparts, including
electronic or facsimile telephonic transmissions, each of which shall be
considered to be an original document.
(h) All prior agreements between the parties, whether oral or written, are
merged herein.
(i) This agreement may not be modified or changed except by proper written
amendment.
IN WITNESS WHEREOF, each of the Constituent Corporations, pursuant to
authority duly granted by its Board of Directors, has caused this Agreement of
Merger to be executed the day and date above set forth.
The respective directors and officers of the Constituent Corporation do
hereby certify that the above Agreement and Plan of Reorganization and Merger
was adopted by majority vote of the shareholders of the Constituent Corporation
as set forth in the above Agreement and that said resolution has not been
revoked or amended.
TESMARK, INC. (Idaho) TESMARK, INC. (Nevada)
BY://S// XXXXX XXXXXXXXX BY://S//XXXXX XXXXXXXXX
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TITLE: PRESIDENT TITLE: PRESIDENT
ATTEST: //S//XXXXXX XXXXXXXX ATTEST: //S//XXXXXX XXXXXXXX
