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AGREEMENT, PLAN AND ARTICLES OF MERGER
THIS AGREEMENT, PLAN AND ARTICLES OF MERGER dated January 26, 2001 by and
between XXX.Xxx, INCORPORATED ("CDXX"), a Colorado Corporation, having its
principal place of business located at 000 Xxxxxxxxxx Xxxxxxxxx Xxxxxxxx,
Xxxxxxx 00000; PENSAT INTERNATIONAL COMMUNICATIONS, INC. ("PICI"), a Delaware
Corporation, and PENSAT, INC. ("PENSAT"), a Nevada Corporation such corporations
each having their principal place of business located at 0000 Xxxxxxxxx Xxxxxx,
XX Xxxxx 000 Xxxxxxxxxx, XX 00000; the latter two corporations collectively
being referred to as the "Constituent Corporations",
WITNESSETH:
WHEREAS, CDXX is a corporation duly organized and existing under the laws
of the State of Colorado, having been incorporated on July 12, 1978 and having
an authorized capital stock including certain shares of common stock (the "CDXX
Common Stock"), and
WHEREAS, PICI is a corporation duly organized and existing under the laws
of the State of Delaware, having been incorporated on March 27, 1997, and having
an authorized capital stock including certain shares of common stock, (the "PICI
Common Stock"); and
WHEREAS, PENSAT is a corporation duly organized and existing under the
laws of the State of Nevada, having been incorporated on January 26, 2001, and
having an authorized capital stock including certain shares of common stock,
(the "PENSAT Common Stock"); and
WHEREAS, the respective boards of directors of CDXX, PICI and PENSAT deem
it advisable and for the best interests of said Corporations that PICI be merged
with and into PENSAT with PENSAT as the surviving Corporation as a wholly owned
subsidiary of CDXX, and each such board has duly approved this Agreement and
Plan of Merger (this "Plan").
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, the parties hereto have agreed and do hereby
agree as follows:
1. MERGER AND NAME OF SURVIVING CORPORATION.
At the Effective Date, as hereinafter defined, PICI shall be merged with and
into PENSAT which is hereby designated as the "Surviving Corporation," as a
wholly owned subsidiary of CDXX.
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2. TERMS AND CONDITIONS OF MERGER.
The terms and conditions of the merger are (in addition to those set forth
elsewhere in this Plan) as follows:
(a) The Constituent Corporations shall be a single corporation, which shall
be PENSAT, INC., the Corporation designated herein as the Surviving Corporation.
(b) The separate existence of PICI shall cease.
(c) The Surviving Corporation shall possess all the rights, privileges,
powers and franchises as well of a public as of a private nature, and be subject
to all the restrictions, disabilities and duties of each Constituent
Corporation. All of the rights, privileges, powers and franchises of each
Constituent Corporation, and all property, real, personal, intellectual and
mixed, and all debts due to either Constituent Corporation on whatever account,
belonging to each Constituent Corporation shall be vested in the Surviving
Corporation. All property, rights, privileges, powers and franchises, and all
and every other interest shall be thereafter the property of the Surviving
Corporation just as they were of the respective Constituent Corporations. The
title to any real estate vested by deed or otherwise in either Constituent
Corporation shall not revert or be in any way impaired by reason of the merger.
All rights of creditors and all liens upon any property of either Constituent
Corporation shall be preserved unimpaired. All debts, liabilities and duties of
the respective Constituent Corporations shall attach to the Surviving
Corporation and may be enforced against it to the same extent as if said debts,
liabilities and duties had been incurred or contracted by it. Any action or
proceeding pending by or against either Constituent Corporation shall be
prosecuted as if the merger had not taken place, or the Surviving Corporation
may be substituted in such action or proceeding.
(d) All corporate acts, plans, policies, contracts, approvals and
authorizations of PENSAT and its stockholders, board of directors, committees
elected or appointed by the board of directors, officers and agents, which were
valid and effective immediately prior to the Effective Date shall be taken for
all purposes as the acts, plans, policies, contracts, approvals and
authorizations of the Surviving Corporation and shall be as effective and
binding thereon as the same were with respect to PENSAT.
(e) The assets, liabilities, reserves and accounts of each Constituent
Corporation shall be recorded on the books of the Surviving Corporation at the
amounts at which they, respectively, shall then be carried on the books of such
Constituent Corporation subject to such adjustments as may be appropriate in
giving effect to the merger.
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(f) The board of directors and the officers of PENSAT as of the Effective
Date shall be the board of directors and officers of the Surviving Corporation.
3. MANNER AND BASIS OF CONVERTING SHARES.
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(a) All of the issued and outstanding shares of PICI Stock at the Effective
Date shall be converted on a pro rata basis into an aggregate of 110,000,000
shares of the common stock of CDXX without any action on the part of the holder
thereof. After the Effective Date, each holder of an outstanding certificate or
certificates which prior thereto represented shares of PICI Stock shall be
entitled to receive a certificate or certificates representing the number of
whole shares of CDXX Stock into or for which his shares have been converted or
exchanged. No fractional shares of CDXX Stock shall be issued pursuant to the
merger, and the aggregate number of shares of CDXX Stock to be issued pursuant
to the merger shall be determined by rounding any fractional share to which any
Stockholder of PICI may otherwise be entitled to the nearest whole share. Until
surrendered, each outstanding certificate which prior to the Effective Date
represented shares of PICI Stock shall for all purposes evidence the ownership
of the shares of CDXX Stock into or for which such shares have been so converted
or exchanged.
(b) All shares of Stock into which shares of PICI Stock shall have been
converted pursuant to this Plan shall be issued in full satisfaction of all
rights pertaining to such converted shares. Any shareholder who has dissented to
the Plan of Merger shall retain their rights under the laws of the State of
Delaware, and the Surviving Corporation hereby agrees to comply in all respects
with such laws with respect to such dissenting shareholders.
(c) All of the issued and outstanding shares of PENSAT Stock and CDXX Stock
at the Effective Date shall remain issued, outstanding and unchanged.
4. ARTICLES OF INCORPORATION AND BY-LAWS. The Articles of Incorporation of
PENSAT as existing and constituted immediately prior to the Effective Date shall
be and constitute the Articles of Incorporation of the Surviving Corporation
until amended in the manner provided by law. The By-laws of PENSAT as existing
and constituted immediately prior to the Effective Date shall be and constitute
the By-laws of the Surviving Corporation until amended in the manner provided by
law.
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5. APPROVALS. This Plan was approved by the respective Board of Directors of
each Constituent Corporation on January 19, 2001 and submitted to the
shareholders of PICI for approval as provided by the Delaware General
Corporation Law. The shareholders of PICI approved the merger by the following
percentages by class as follows:
CLASS OF STOCK PERCENTAGE APPROVING MERGER
Class A Common Stock 85%
Class A Preferred Stock 80%
Class B Preferred Stock 100%
The shareholders of PENSAT approved this Plan unanimously on January 25, 2001.
6. EFFECTIVE DATE. The Merger shall become effective upon the filing of the
Articles of Merger with the Delaware Secretary of State in accordance with the
Delaware General Corporation Law, and with the Nevada Secretary of State in
accordance with the Nevada Corporation Act. The date on which such merger shall
become effective is herein called the "Effective Date."
7. OTHER PROVISIONS WITH RESPECT TO MERGER.
(a) This Plan may be terminated at any time prior to the Effective Date,
whether before or after action thereon by the stockholders of the Constituent
Corporations, by mutual consent of the Constituent Corporations, and CDXX
expressed by action of their respective boards of directors.
(b) For the convenience of the parties and to facilitate the filing and
recording of this Plan, any number of counterparts hereof may be executed, and
each such counterpart shall be deemed to be an original instrument.
(c) This Plan and the legal relations between the parties hereto shall be
governed by and construed exclusively in accordance with the laws of the
District of Columbia. Any matter arising out of this Plan shall be heard
exclusively by a court of competent jurisdiction in the District of Columbia.
This Plan cannot be altered or amended except pursuant to an instrument in
writing signed on behalf of the parties hereto.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the
date stated above.
XXX.XXX INCORPORATED
By:___________________________
PENSAT INTERNATIONAL COMMUNICATIONS, INC.
By:__________________________
PENSAT, INC.
By:_________________________
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