AGREEMENT AND PLAN OF MERGER
Exhibit
2.2
AGREEMENT
AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER, dated as of October 4, 2010, is entered into by
and between Design Source, Inc., a Nevada corporation (“DSGS”), and InVivo
Therapeutics Holdings Corp., a Nevada corporation (“InVivo Sub”).
RECITALS
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A.
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InVivo
Sub is a wholly-owned subsidiary of
DSGS;
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B.
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The
boards of directors of InVivo Sub and DSGS deem it advisable and in the
best interests of their respective companies and shareholders that InVivo
Sub be merged with and into DSGS, with DSGS remaining as the surviving
corporation under the name “InVivo Therapeutics Holdings
Corp.”;
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C.
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The
board of directors of InVivo Sub has approved the plan of merger embodied
in this Agreement; and
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D.
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The
board of directors of DSGS has approved the plan of merger embodied in
this Agreement.
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In
consideration of the mutual agreements and covenants set forth herein, the
parties hereto do hereby agree to merge on the terms and conditions herein
provided, as follows:
AGREEMENT
1. THE
MERGER
1.1 The
Merger. Upon the terms and subject to the conditions hereof,
on the Effective Date (as hereinafter defined), InVivo Sub shall be merged with
and into DSGS in accordance with the applicable laws of the State of Nevada (the
“Merger”). The separate existence of InVivo Sub shall cease, and DSGS
shall be the surviving corporation under the name “InVivo Therapeutics Holdings
Corp.” (the “Surviving Corporation”) and shall be governed by the laws of the
State of Nevada.
1.2 The Effective
Date. The Merger shall become effective on the date and at the
time (the “Effective Date”) that:
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(a)
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the
Articles of Merger, in substantially the form previously circulated among
the Board of Directors of DSGS and InVivo Sub, that the parties hereto
intend to deliver to the Secretary of State of the State of Nevada, are
accepted and declared effective by the Secretary of State of the State of
Nevada; and
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(b)
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after
satisfaction of the requirements of the laws of the State of
Nevada.
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1.3 Articles of
Incorporation. On the Effective Date, the Articles of
Incorporation of DSGS, as in effect immediately prior to the Effective Date,
shall continue in full force and effect as the Articles of Incorporation of the
Surviving Corporation except that Article 1 of the Articles of Incorporation of
DSGS, as the Surviving Corporation, shall be amended to state that the name of
the corporation is “InVivo Therapeutics Holdings Corp.”.
1.4 Bylaws. On
the Effective Date, the Bylaws of DSGS, as in effect immediately prior to the
Effective Date, shall continue in full force and effect as the bylaws of the
Surviving Corporation.
1.5 Directors and
Officers. The directors and officers of DSGS immediately prior
to the Effective Date shall be the directors and officers of the Surviving
Corporation, until their successors shall have been duly elected and qualified
or until otherwise provided by law, the Articles of Incorporation of the
Surviving Corporation or the Bylaws of the Surviving Corporation.
2. CONVERSION
OF SHARES
2.1 Common Stock of
DSGS. Upon the Effective Date, by virtue of the Merger and
without any action on the part of any holder thereof, each share of common stock
of DSGS, par value of $0.00001 per share, issued and outstanding immediately
prior to the Effective Date shall be changed and converted into one fully paid
and non-assessable share of the common stock of the Surviving Corporation, par
value of $0.00001 per share (the “Survivor Stock”).
2.2 Common Stock of InVivo
Sub. Upon the Effective Date, by virtue of the Merger and
without any action on the part of the holder thereof, each share of common stock
of InVivo Sub, par value of $0.001 per share, issued and outstanding immediately
prior to the Effective Date shall be cancelled.
2.3 Exchange of
Certificates. Each person who becomes entitled to receive any
Survivor Stock by virtue of the Merger shall be entitled to receive from the
Surviving Corporation a certificate or certificates representing the number of
Survivor Stock to which such person is entitled as provided herein.
3. EFFECT
OF THE MERGER
3.1 Rights, Privileges,
Etc. On the Effective Date of the Merger, the Surviving
Corporation, without further act, deed or other transfer, shall retain or
succeed to, as the case may be, and possess and be vested with all the rights,
privileges, immunities, powers, franchises and authority, of a public as well as
of a private nature, of InVivo Sub and DSGS; all property of every description
and every interest therein, and all debts and other obligations of or belonging
to or due to each of InVivo Sub and DSGS on whatever account shall thereafter be
taken and deemed to be held by or transferred to, as the case may be, or
invested in the Surviving Corporation without further act or deed; title to any
real estate, or any interest therein vested in InVivo Sub or DSGS, shall not
revert or in any way be impaired by reason of this merger; and all of the rights
of creditors of InVivo Sub and DSGS shall be preserved unimpaired, and all liens
upon the property of InVivo Sub or DSGS shall be preserved unimpaired, and all
debts, liabilities, obligations and duties of the respective corporations shall
thenceforth remain with or be attached to, as the case may be, the Surviving
Corporation and may be enforced against it to the same extent as if all of said
debts, liabilities, obligations and duties had been incurred or contracted by
it.
3.2 Further
Assurances. From time to time, as and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed
and delivered on behalf of InVivo Sub such deeds and other instruments, and
there shall be taken or caused to be taken by it such further other action, as
shall be appropriate or necessary in order to vest or perfect in or to confirm
of record or otherwise in the Surviving Corporation the title to and possession
of all the property, interest, assets, rights, privileges, immunities, powers,
franchises and authority of InVivo Sub and otherwise to carry out the purposes
of this Agreement, and the officers and directors of the Surviving Corporation
are fully authorized in the name and on behalf of InVivo Sub or otherwise to
take any and all such action and to execute and deliver any and all such deeds
and other instruments.
4. GENERAL
4.1 Abandonment. This
Agreement may be terminated and the Merger may be abandoned at any time prior to
the Effective Time, by mutual written agreement of InVivo Sub and
DSGS.
4.2 Amendment. At
any time prior to the Effective Date, this Agreement may be amended or modified
in writing by the board of directors of both InVivo Sub and
DSGS.
4.3 Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada.
4.4 Counterparts. In
order to facilitate the filing and recording of this Agreement, the same may be
executed in any number of counterparts, each of which shall be deemed to be an
original.
4.5 Electronic
Means. Delivery of an executed copy of this Agreement by
electronic facsimile transmission or other means of electronic communication
capable of producing a printed copy will be deemed to be execution and delivery
of this Agreement as of the date hereof.
IN
WITNESS WHEREOF, the parties hereto have entered into and signed this Agreement
as of the date set forth above.
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DESIGN
SOURCE, INC.
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By:
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/s/ Xxxxx X Xxxxxxxx
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Xxxxx
X. Xxxxxxxx
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President
and Chief Executive Officer
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By:
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/s/ Xxxxx X Xxxxxxxx
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Xxxxx
X. Xxxxxxxx
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President
and Chief Executive Officer
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