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Exhibit 10.18
AGREEMENT AND PLAN OF MERGER
OF
JAWS TECHNOLOGIES, INC.
(A NEVADA CORPORATION)
WITH AND INTO
JAWS TECHNOLOGIES, INC.
(A DELAWARE CORPORATION)
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and
entered into as of April 28, 2000 between JAWS TECHNOLOGIES, INC., a Nevada
corporation ("JAWS Nevada"), and, JAWS TECHNOLOGIES, INC., a Delaware
corporation ("JAWS Delaware").
RECITALS
WHEREAS, JAWS Nevada is a corporation duly organized and existing under
the laws of the State of Nevada;
WHEREAS, JAWS Delaware is a corporation duly organized and existing
under the laws of the State of Delaware; and
WHEREAS, the Board of Directors of each of JAWS Nevada and JAWS
Delaware deem it desirable to merge JAWS Nevada with and into JAWS Delaware so
that JAWS Delaware is the surviving corporation on the terms provided herein
(the "Merger").
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
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ARTICLE I
MERGER
1.1 The Merger. Upon the Effective Date (as defined in Section
1.5) and subject to and upon the terms of conditions provided in this Agreement
and the applicable provisions of the General Corporation Law of the State of
Delaware (the "DGCL") and the General Corporation Law of the State of Nevada
(the "NGCL"), JAWS Nevada will merge with and into JAWS Delaware, the separate
corporate existence of JAWS Nevada shall cease, and JAWS Delaware shall be the
surviving corporation. JAWS Delaware is hereinafter sometimes referred to as the
"Surviving Corporation."
1.2 Constituent Corporations. The name, address, jurisdiction of
organization and governing law of each of the constituent corporations is as
follows:
(a) JAWS Technologies, Inc., a corporation organized under and
governed by the laws of the State of Nevada with an address at 0000
00xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0; and
(b) JAWS Technologies, Inc., a corporation organized under and
governed by the laws of the State of Delaware with an address at 0000
00xx Xxxxxx X.X., Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0.
1.3 Surviving Corporation. JAWS Technologies, Inc., a corporation
organized under the laws of the State of Delaware, shall be the surviving
corporation.
1.4 Address of Principal Office of Surviving Corporation. The
address of the principal office of JAWS Delaware as the Surviving Corporation
shall be 0000 00xx Xxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0.
1.5 Closing: Effective Date. The Merger shall be effective (the
"Effective Date"), on the date upon which the last of the following shall have
been completed:
(a) This Agreement and the Merger shall have been adopted and
recommended to the stockholders of JAWS Nevada by the board of
directors of JAWS Nevada and approved by a majority voting power of
JAWS Nevada, in accordance with the requirements of the DGCL and the
NGCL;
(b) This Agreement and the Merger shall have been adopted and
approved by the board of directors of JAWS Delaware in accordance with
the requirements of the DGCL;
(c) No vote of the stockholders of JAWS Delaware shall be
necessary to approve this Agreement and authorize the Merger because no
shares of JAWS
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Delaware shall have been issued prior to the adoption by the board of
directors of JAWS Delaware of the resolution approving this Agreement;
(d) The effective date of the Merger as stated in the executed
Articles of Merger filed with the Secretary of State of the State of
Nevada; and
(e) An executed Certificate of Merger or an executed
counterpart of this Agreement meeting the requirements of the DGCL
shall have been filed with the Secretary of State of the State of
Delaware.
1.6 Effect of the Merger. The effect of the Merger shall be as
provided in this Agreement, the Certificate of Merger, and the applicable
provisions of the DGCL and the NGCL. Without limiting the foregoing, on the
Effective Date, all the property, rights, privileges, powers and franchises of
JAWS Nevada shall vest in JAWS Delaware, as the Surviving Corporation, and all
debts, liabilities and duties of JAWS Nevada shall become the debts, liabilities
and duties of JAWS Delaware, as the Surviving Corporation.
1.7 Certificate of Incorporation; Bylaws.
(a) From and after the Effective Date, the Certificate of
Incorporation of JAWS Delaware as in effect immediately prior to the
Effective Date, shall be the Certificate of Incorporation of the
Surviving Corporation.
(b) From and after the Effective Date, the Bylaws of JAWS
Delaware as in effect immediately prior to the Effective Date, shall be
the Bylaws of the Surviving Corporation.
1.8 Directors and Officers of the Surviving Corporation. From and
after the Effective Date, the directors or officers of JAWS Delaware serving as
directors or officers of JAWS Delaware immediately prior to the Effective Date,
shall be the directors and officers of the Surviving Corporation.
ARTICLE II
CONVERSION OF SHARES
2.1 Conversion of Stock. Upon the Effective Date, by virtue of the
Merger and without any action on the part of the holders of any outstanding
shares of capital stock or other securities of JAWS Nevada, each share of common
stock of JAWS Nevada, par value $0.001 per share ("Company Common Stock"),
issued and outstanding or held in treasury immediately prior to the Effective
Date shall be converted into one (1) fully paid and nonassessable share of
Common Stock, par value $0.001 per share, of the Surviving Corporation
("Delaware Common Stock"), and the sole share of Special Series A Preferred
Stock of JAWS Nevada, par value $0.001 per share ("Company Preferred
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Stock"), issued and outstanding immediately prior to the Effective Date shall be
converted into one (1) fully paid and nonassessable share of Special Series A
Preferred Stock, par value $0.001 per share, of the Surviving Corporation
("Delaware Preferred Stock"). Upon the Effective Date, by virtue of the Merger
and without any action on the part of the holders of any outstanding shares of
capital stock or other securities of JAWS Nevada, each certificate which,
immediately prior to the Effective Date represented a share or shares of Company
Common Stock or the share of Company Preferred Stock shall represent an
equivalent number of shares of Delaware Common Stock or Delaware Preferred
Stock, as applicable.
2.2 Delaware Common Stock. Upon the Effective Date, each share of
Delaware Common Stock or Delaware Preferred Stock issued and outstanding
immediately prior to the Merger, if any, shall, by virtue of the Merger and
without any action by the holder thereof or JAWS Delaware, cease to be
outstanding, and shall be canceled and returned to the status of authorized but
unissued shares and any holder of certificates which immediately prior to the
Effective Date represented such shares of Delaware Common Stock or Delaware
Preferred Stock shall thereafter cease to have any rights with respect to such
shares.
2.3 JAWS Nevada Employee Plans and Options.
(a) Upon the Effective Date, each outstanding and unexercised
option or other right to purchase or security convertible into Company
Common Stock shall become an option or right to purchase or a security
convertible into Delaware Common Stock on the basis of one share of
Delaware Common Stock for each share of Company Common Stock issuable
pursuant to such option, stock purchase right or convertible security,
on the same terms and conditions and at an exercise price per share
equal to the exercise price applicable to any such JAWS Nevada option,
stock purchase right or convertible security on the Effective Date.
There are no options or stock purchase rights for or securities
convertible into the preferred stock of JAWS Nevada, par value $0.001
per share.
(b) A number of Delaware Common Stock shall be reserved for
issuance upon the exercise of options, stock purchase rights and
convertible securities equal to the number of shares of Company Common
Stock so reserved immediately prior to the Effective Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of JAWS Nevada. JAWS Nevada
hereby covenants and agrees that it:
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(a) Is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada, and has all the
requisite power and authority to own, lease and operate its properties
and assets and to carry on its business as it is now being conducted;
(b) Is duly qualified to do business as a foreign person, and
is in good standing, in each jurisdiction where the character of its
properties or the nature of its activities make such qualification
necessary;
(c) Is not in violation of any provisions of its articles of
incorporation or bylaws; and
(d) Has full corporate power and authority to execute and
deliver this Agreement and, assuming the approval of this Agreement by
the stockholders of JAWS Nevada in accordance with the NGCL, consummate
the Merger and the other transactions contemplated by this Agreement.
3.2 Representations and Warranties of JAWS Delaware. JAWS Delaware
hereby covenants and agrees that it:
(a) Is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has all the
requisite power and authority to own, lease and operate its properties
and assets and to carry on its business as it is now being conducted;
(b) Is duly qualified to do business as a foreign person, and
is in good standing, in each jurisdiction where the character of its
properties or the nature of its activities make such qualification
necessary;
(c) Is not in violation of any provisions of its certificate
of incorporation or bylaws; and
(d) Has full corporate power and authority to execute and
deliver this Agreement and, assuming, prior to the issuance of shares
of stock of JAWS Delaware, the approval of the board of directors of
JAWS Delaware in accordance with the DGCL, consummate the Merger and
the other transactions contemplated by this Agreement.
ARTICLE IV
TERMINATION
4.1 Termination. At any time prior to the Effective Date, this
Agreement may be terminated and the Merger abandoned for any reason whatsoever
by the Board of
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Directors of either JAWS Nevada or JAWS Delaware, or both of them,
notwithstanding the approval of this Agreement and the Merger by a
majority of the voting power of JAWS Nevada.
ARTICLE V
FURTHER ASSURANCES
5.1 Further Assurances as to JAWS Nevada. From time to time, as
and when required by JAWS Delaware or by its successors or assigns, there shall
be executed and delivered on behalf of JAWS Nevada such deeds and other
instruments, and there shall be taken or caused to be taken by JAWS Delaware
such further and other actions as shall be appropriate or necessary in order to
vest or perfect in or conform of record or otherwise by JAWS Delaware the title
to and possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of JAWS Nevada and otherwise to
carry out the purposes of this Agreement, the officers and directors of JAWS
Delaware are fully authorized in the name and on behalf of JAWS Nevada or
otherwise to take any and all such action and to execute and deliver any and all
such deeds and other instruments.
ARTICLE VI
MISCELLANEOUS
6.1 Amendment. Subject to applicable law, at any time prior to the
Effective Date, this Agreement may be amended, modified or supplemented only by
the written agreement of JAWS Nevada and JAWS Delaware.
6.2 Assignment; Third Party Beneficiaries. Neither this Agreement,
nor any right, interest or obligation hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. This Agreement is not intended to
confer any rights or benefits upon any person other than the parties hereto.
6.3 Registered Office. The registered office of the Surviving
Corporation in the State of Delaware shall be One Xxxxxx Square, 10th Floor,
10th and King Streets, in the City of Wilmington, County of New Castle, 19801
and RL&F Service Corp. shall be the registered agent of the Surviving
Corporation at such address.
6.4 Executed Agreement. Executed copies of this Agreement will be
on file at the principal place of business of the Surviving Corporation at JAWS
Delaware at 0000 00xx Xxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0, and
copies of this
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Agreement will be furnished to any stockholder of any of the parties hereto,
upon request and without cost.
6.5 Governing Law. This Agreement shall in all respects be
interpreted by, and construed, interpreted and enforced in accordance with and
pursuant to the laws of the State of Delaware and, so far as applicable, by the
provisions of the NGCL.
6.6 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.7 Entire Agreement; Modification. This Agreement and the
documents referred to herein are intended by the parties as a final expression
of their agreement with respect to the subject matter hereof, and are intended
as a complete and exclusive statement of the terms and conditions of that
agreement, and there are not other agreements or understandings, written or
oral, among the parties, relating to the subject matter hereof. This Agreement
supercedes all prior agreements and understandings, written or oral, among the
parties with respect to the subject matter hereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby, have duly executed this Agreement as of the date first stated above.
JAWS TECHNOLOGIES, INC.
(A Nevada corporation)
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: Chief Financial Officer
JAWS TECHNOLOGIES, INC.
(A Delaware corporation)
By: /s/ XXXX XXXXXXX
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Name: Xxxx Xxxxxxx
Title: President
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