EXHIBIT 10.126
MERGER AGREEMENT DATED FEBRUARY 28, 1996 BETWEEN NUOASIS
INTERNATIONAL INC., A CALIFORNIA CORPORATION AND ALBION
AVIATION COMPANY LIMITED, A BAHAMANIAN CORPORATION
MERGER AGREEMENT
THIS MERGER AGREEMENT is made and entered into as of the 28th day of
February, 1996, by and between ALBION AVIATION COMPANY LIMITED, a corporation
organized under the laws of the Commonwealth of the Bahamas (the "Surviving
Corporation"), and NUOASIS INTERNATIONAL, INC., a California corporation
("NuOasis"). The Surviving Corporation and NuOasis are hereinafter sometimes
referred to collectively as the "Constituent Corporations."
RECITALS:
A. NuOasis is a privately held company engaged in the lawful act or activity
for which a corporation may be organized under the General Corporation Law
of California other than the banking business, the trust company business
or the practice of a profession permitted to be incorporated by the
California Corporations Code.
B. The Surviving Corporation is a corporation organized under the
International Business Companies Act (1990) of the Commonwealth of the
Bahamas.
C. The Boards of Directors of NuOasis and the Surviving Corporation have
determined that it is advisable that NuOasis merge with and into the
Surviving Corporation, and that the shareholders of NuOasis exchange their
shares of the capital stock of NuOasis for shares of the common stock of
the Surviving Corporation. The transaction contemplated hereby is
hereinafter referred to as the "Merger".
D. The Constituent Corporations desire to enter into and adopt this Merger
Agreement for the purpose of setting forth certain terms and provisions
that will govern the Merger and to consummate the Merger as a "change in
domicile merger" in accordance with the provisions of the applicable laws
of the Commonwealth of the Bahamas.
E. The principal purpose of the Merger is to effectuate a change in corporate
domicile from California to the Commonwealth of the Bahamas, to set forth a
new capital structure and to reduce the number of issued and outstanding
shares of NuOasis.
PROVISIONS:
NOW, THEREFORE, in consideration of the mutual agreement hereinafter set
forth, in accordance with the provisions of the applicable laws of the
Commonwealth of the Bahamas and the General Corporation Law of the 1995
Corporations Code of the State of California and for the purpose of setting
forth the terms and conditions of the Merger, the mode of completing the Merger,
and the manner of converting the shares of the capital stock of NuOasis into
shares of the common stock of the Surviving Corporation, the parties agree as
follows:
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I. THE REORGANIZATION
1.1 The Effective Time. The Merger shall be accomplished by filing appropriate
articles of merger with the governing authority of the Commonwealth of the
Bahamas and the Secretary of State of the State of California in the form
provided for by the business corporation laws of such State and
Principality as soon as practicable after execution of this Merger
Agreement. The term "Effective Time" shall mean the time of the
effectiveness of the Merger under the International Business Companies Act
(No. 2 of 1990) of the Commonwealth of the Bahamas provided that the
Articles of Merger and Merger Agreement are filed with the Secretary of
State of the State of California within six months after the time of
effectiveness in the Commonwealth of the Bahamas.
1.2 Manner of Merger. At the Effective Time, NuOasis shall be merged into the
Surviving Corporation, which shall be the corporation that survives the
Merger. The corporate existence of the Surviving Corporation with all its
purposes, powers and objects shall continue unaffected and unimpaired by
the Merger; and, as the corporation surviving the Merger, the Surviving
Corporation shall by governed by the laws of the Commonwealth of the
Bahamas and shall succeed to all rights, assets, liabilities and
obligations of NuOasis, as provided in the General Corporation Law of the
1995 Corporations Code of the State of California. The separate existences
and corporate organizations of the Surviving Corporation and NuOasis shall
cease at the Effective Time, and thereafter the Surviving Corporation shall
continue as the Surviving Corporation under the laws of the Commonwealth of
the Bahamas under the new name of NuOasis International, Inc., a
corporation organized under the Commonwealth of the Bahamas. All the
property, real, personal, and mixed, and all debts of other obligations due
to NuOasis, shall be transferred to and shall be vested in the Surviving
Corporation, without further act or deed, as provided in the business
corporation laws of the Commonwealth of the Bahamas and the General
Corporation Law of the 1995 California Corporations Code of the State of
California.
1.3 Articles of Incorporation and Bylaws of the Surviving Corporation. At the
Effective Time
(a) The Articles of Incorporation of the Surviving Corporation shall be
amended to change its name to "NuOasis International, Inc."
(b) The Bylaws of the Surviving Corporation shall be the Bylaws of the
Corporation surviving this Merger, except as they may thereafter be
altered, amended or repealed in accordance with law, or in accordance
with the Articles of Incorporation of the Surviving Corporation or its
Bylaws.
(c) The directors and officers of the Surviving Corporation shall be the
directors and officers of the corporation surviving this Merger, until
their successors shall have been elected and qualified, or as
otherwise provided by the International Business Companies Act of the
Commonwealth of the Bahamas and in the Bylaws of the Surviving
Corporation. If at the Effective Time a vacancy exists in the Board of
Directors of in any of the offices of the Surviving Corporation, such
vacancy shall thereafter be filled in the manner provided in the
Bylaws of the Surviving Corporation.
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1.4 Status and Conversion of Shares. The manner of converting the shares of
capital stock of NuOasis outstanding immediately prior to the Merger into
shares of common stock of the Surviving Corporation shall be as follows:
(a) At the Effective Time, every One Hundred Thousand (100,000) shares of
the issued and outstanding no $.01 par value common stock of NuOasis
shall by virtue of the Merger and without any action on the part of
the holder thereof become and be converted into one (1) share of the
no par value common stock of the Surviving Corporation. One whole
share in the Surviving Corporation shall be issued to any shareholder
of NuOasis with respect to any fractional share in the Surviving
Corporation resulting from such division.
(b) Any shares of the capital stock of NuOasis that may be held in
treasury as of the Effective Time shall be canceled as of the
Effective Time, and shall not thereafter be issued or outstanding.
(c) After the Effective Time, each holder of a certificate or certificates
theretofore representing outstanding shares of the capital stock of
NuOasis may surrender such certificate or certificates to such agent
or agents as shall be appointed by the Surviving Corporation (the
"Exchange Agent"), and shall be entitled to receive in exchange
therefor a certificate or certificates representing the number of
whole shares of capital stock of the Surviving Corporation into which
the shares of capital stock of NuOasis theretofore represented by the
certificates so surrendered have been converted.
(d) If any certificate evidencing shares of the capital stock of NuOasis
is to be issued in a name other than the name in which the certificate
surrendered is registered, the certificate so surrendered shall be
properly endorsed and shall otherwise be in proper form for transfer.
The person requesting the transfer shall pay to the Exchange Agent any
transfer or other fees or taxes required by reason of the issuance of
a certificate in name other than that of the registered holder of the
certificate surrendered.
(e) The Surviving Corporation may, without notice to any person, terminate
all exchange agencies at any time after 120 days following the
Effective Time. After such termination, all exchanges, payments and
notices provided for in this Agreement to be made to or by the
Exchange Agent shall be made to or by the Surviving Corporation or its
agent.
(f) On February 15, 1996, notice of the proposed merger was given to all
shareholders of record of NuOasis. On February 28, 1996, holders of a
majority of the outstanding shares of the $.01 par value common stock
of NuOasis approved the Merger. No shareholder voted against the
Merger or elected dissenter's rights. Under California law, all
NuOasis shareholders, by voting in favor of the Merger, have waived
any dissenter's rights under the General Corporation Law of the 1995
Corporation's Code of the State of California.
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(g) The sole share of no par value common stock of the Surviving
Corporation shall be canceled as of the Effective Time and shall not
thereafter be issued or outstanding.
II. MISCELLANEOUS
2.1 Amendments. This Merger Agreement may be amended with the approval of the
Boards of Directors of the Constituent Corporations at any time before or
after the approval hereof by their respective shareholders, but after any
such approval no amendment shall be made that substantially and adversely
changes the terms hereof as to any party without the approval of the
shareholders of such party.
2.2 Extension; Waiver. At any time before the Effective Time, the Board of
Directors of either of the Constituent Corporations may (a) extend the time
for the performance of any of the obligations or other acts of another
party hereto, or (b) waive compliance by another party with any of the
agreements or conditions contained herein. Any such extension or waiver
shall be valid only if set forth in an instrument in writing duly executed
and delivered on behalf of such party.
IN WITNESS WHEREOF, the Constituent Corporations have executed this Merger
Agreement as of the day and year first above written.
"Surviving Corporation"
ALBION AVIATION COMPANY LIMITED
a corporation organized under the laws
of the Commonwealth of the Bahamas
By:------------------------------------
Name:
Title:
"NuOasis"
NUOASIS INTERNATIONAL, INC.
a California corporation
By:------------------------------------
Name:
Title:
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