EXHIBIT 10.3
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER (this "Merger Agreement") is made as of
June 25, 2001, by and between D.F.R. Associates I, Inc., a Delaware corporation
("DFR") and Netsitter Corporation, a Delaware corporation ("Netsitter") (DFR and
Netsitter are hereinafter collectively sometimes referred to as the "Constituent
Corporations").
WHEREAS, the authorized capital stock of DFR consists of 20,000,000 shares of
Common Stock, par value $.0001 per share and 1,000,000 shares of Preferred
Stock, par value $.01 per share;
WHEREAS, the issued and outstanding capital stock of DFR consists of 11,564,918
shares of Common Stock, par value $.0001 per share and no shares of Preferred
Stock, par value $.0001 per share;
WHEREAS, the authorized capital stock of Netsitter consists of 30,000,000 shares
of Common Stock, par value $.00001 per share, and no shares of Preferred Stock;
WHEREAS, the issued and outstanding capital stock of Netsitter consists of
5,000,000 shares of Common Stock, par value $.00001 per share.
WHEREAS, this Plan and Agreement of Merger has been duly approved by the
requisite votes of the boards of directors and shareholders of each constituent
corporation; and
WHEREAS, the directors of the Constituent Corporations deem it advisable and to
the advantage of the Constituent Corporations that DFR merge with and into
Netsitter upon the terms and conditions provided herein.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that DFR shall merge
with and into Netsitter on the following terms, conditions and other provisions:
1. TERMS AND CONDITIONS.
1.1 Merger. DFR shall be merged with and into Netsitter (the "Merger"),
effective at 5:01 p.m., Eastern Standard Time, on the date that the requisite
filings are made by the Delaware Secretary of State(the "Effective Date") and
Netsitter shall be the surviving corporation (the "Surviving Corporation").
1.2 Succession. On the Effective Date, Netsitter will continue its separate
corporate existence under the laws of the State of Delaware, and the separate
existence and corporate organization of DFR, 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, and powers, both of a public and 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 rights, privileges, and
powers 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 and
powers, and all and every other interest, thereafter shall be 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 respective 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 judgment as if the Merger had not
been consummated, 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 Common Stock of DFR and Netsitter. On the Effective Date, by virtue of the
Merger and without any further action on the part of the Constituent Corporation
or their respective stockholders, (i) each share of Common Stock of DFR issued
and outstanding immediately prior thereto shall be combined, changed and
converted into one (1) share of Common Stock of Netsitter, in each case fully
paid and non-assessable; (ii) the shares of Netsitter which are owned by DFR
shall be cancelled and shall return to the status of authorized but unissued
shares; and (iii) the 300,000 shares of Common Stock of Netsitter which are
issued and outstanding immediately prior thereto, but not owned by DFR, shall
remain issued and outstanding and shall each be converted into two shares of
common stock.
1.5 Stock Certificates. On and after the Effective Date, all of the outstanding
certificates that, prior to that time, represented shares of Common Stock DFR
shall be deemed for all purposes to evidence ownership of and to represent the
shares of Netsitter into which the shares of DFR represented by such
certificates have been converted as herein provided and shall be so registered
on the books and records of the Surviving Corporation or its transfer agents.
The registered owner of any such certificate shall, until such certificate shall
have been surrendered for transfer or conversion or otherwise accounted for to
the Surviving Corporation or its transfer agent, have and be entitled to
exercise any voting and other rights with respect to and to receive any dividend
and other distribution upon the shares of Netsitter evidenced by such
outstanding certificate as above provided.
1.6 Options. On the Effective Date, if any options or rights granted to purchase
shares of Common Stock of DFR remain outstanding, then the Surviving Corporation
will assume outstanding and unexercised portions of such options and such
options, shall be changed and converted into options to purchase Common Stock of
Netsitter, such that an option to purchase one (1) share of Common Stock of DFR
shall be converted into an option to purchase one (1) share of Common Stock of
Netsitter. No other changes in the terms and conditions of such options will
occur.
1.7 Purchase Rights. On the Effective Date, the Surviving Corporation will
assume outstanding obligations of DFR to issue Common Stock or other capital
stock pursuant to contractual purchase rights granted by DFR, and the
outstanding and unexercised portions of all outstanding contractual rights to
purchase Common Stock or other capital stock of DFR shall be changed and
converted into contractual rights to purchase Common Stock or other capital
stock, respectively, of Netsitter such that a contractual right to purchase one
(1) share of Common Stock or other capital stock of DFR shall be converted into
a contractual right to purchase one (1)share of Common stock or other capital
stock, respectively, of Netsitter. No other changes in the terms and conditions
of such contractual purchase rights will occur.
1.8 Employee Benefit Plans. On the Effective Date, the Surviving Corporation
shall assume all obligation of DFR under any and all employee benefit plans in
effect as of such date with respect to which employee rights or accrued benefits
are outstanding as of such date. On the Effective Date, the Surviving
Corporation shall adopt and continue in effect all such employee benefit plans
upon the same terms and conditions as were in effect immediately prior to the
Merger.
1.9 Corporate Name. On the Effective Date, the Surviving Corporation's name
shall be changed to VX Technologies, Inc.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation and Bylaws. The Certificate of Incorporation of
Netsitter is to be amended by changing the name of the Corporation in Article
First to VX Technologies, Inc. on the effective date of the merger. The Bylaws
of Netsitter in effect on the Effective Date shall continue to be the Bylaws of
the Surviving Corporation.
2.2 Directors. The directors of DFR preceding the Effective Date shall become
the directors of the Surviving Corporation on and after the Effective Date to
serve until expiration of their terms and until their successors are elected and
qualified.
2.3 Officers. The officers of DFR 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, the Surviving Corporation shall
execute and deliver, or cause to be executed and delivered, such deeds and other
instruments, and the Surviving Corporation shall take or cause to be taken such
further and other action as shall be appropriate or necessary in order to vest
or perfect 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 DFR and otherwise to
carry out the purposes of this Merger Agreement, and the officers and directors
of the Surviving Corporation are authorized fully in the name and on behalf of
Netsitter 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 DFR,
this Merger Agreement may be amended in any manner (except that, after the
approval of this Merger Agreement by the stockholders of DFR, the principal
terms may not be amended without further approval of the stockholders of DFR) as
may be determined in the judgment of the respective Board of Directors of
Netsitter and DFR 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 shareholders of DFR in accordance
with applicable provisions of the General Corporation Law of the State of
Delaware;
(b) DFR, as sole stockholder of Netsitter, shall have approved the Merger in
accordance with the General Corporation Law of the State of Delaware; and
(c) any and all consents, permits, authorizations, approvals, and orders deemed
in the sole discretion of DFR to be material to consummation of the Merger shall
have been obtained.
3.4 Abandonment or Deferral. Notwithstanding the approval of this Merger
Agreement by the shareholders of DFR and Netsitter, at any time before the
Effective Date, (a) this Merger Agreement may be terminated and the Merger may
be abandoned by the Board of Directors of either DFR or Netsitter or both or (b)
the consummation of the Merger may be deferred for a reasonable period of time
if, in the opinion of the Board of Directors of DFR or the Board of Directors of
Netsitter, such action would be in the best interests of such corporations. In
the even 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 their respective Board of Directors or
stockholders with respect thereto, except that DFR shall pay all expenses
incurred in connection with the Merger or in respect to this Merger Agreement or
relating 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.
IN WITNESS WHEREOF, this Plan and Agreement of Merger, having first been duly
approved by the Board of Directors and Shareholders of DFR and the Board of
Directors and Shareholders of Netsitter, hereby is executed on behalf of each
such corporation and attested to by a duly authorized officer thereof as of the
date first above written.
D.F.R. Associates I, Inc.
By:
Xxxxxxxx Xxxxx, President
Netsitter Corporation.
By:
Xxxxxxxx Xxxxx, President
