EXHIBIT 2
ARTICLES AND AGREEMENT OF MERGER
DATED: July 21, 1999
BETWEEN: FIRST COLONIAL VENTURES LTD.
a Utah corporation ("First Colonial")
AND: NOVA COMMUNICATIONS LTD.
a Nevada corporation ("Nova")
WHEREAS, First Colonial and Nova wish to provide for the terms and
conditions upon which a merger of First Colonial with and into Nova would be
consummated for the purposes of changing the domicile of First Colonial from
Utah to Nevada and changing the name of First Colonial to Nova Communications
Ltd; and
WHEREAS, the Board of Directors of First Colonial and Nova have deemed
it desirable and in the best interests of the corporations and their
shareholders that the merger should take place, and have approved the merger
pursuant to the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and agreements contained herein, the parties agree
as follows:
ARTICLE I
The Merger and Related Matters
------------------------------
1.01 The Merger
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(a) Subject to the terms and conditions of this Agreement, at
the Effective Date, as defined in Section 1.01(b), First
Colonial shall be merged with and into Nova in accordance
with the provisions of the Business Corporation Acts of
the States of Utah and Nevada, respectively ("Corporation
Acts"), and the separate existence of First Colonial shall
cease and Nova shall continue as the surviving corporation
under the laws of the State of Nevada under the name "Nova
Communications Ltd." ("Surviving Corporation").
(b) The merger shall become effective at the time of filing
Articles of Merger under the Corporation Acts. The date
when the merger shall become effective is hereinafter
referred to as the "Effective Date."
(c) On the Effective Date, the Surviving Corporation shall
thereafter possess all
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assets and property of every description, and the rights,
privileges, powers and authority of First Colonial and
Nova, and all obligations belonging to or due to each of
First Colonial and Nova. The Surviving Corporation shall
be liable for all obligations of each of First Colonial
and Nova, including liability to dissenting shareholders
as referred to in Section 1.03.
1.02 Exchange of Shares
------------------
On the Effective Date, the then issued and outstanding shares of
voting common stock of First Colonial shall be exchanged for
15,516,263 shares of fully paid and nonassessable voting common
stock in the Surviving Corporation. The voting common stock of
First Colonial so exchanged shall be cancelled and returned and
shall no longer be considered issued or outstanding. On the
Effective Date, there shall be outstanding 15,516,263 shares of the
common stock of the Surviving Corporation.
1.03 Dissenting Shares
-----------------
To the extent provided by the Corporation Acts, the voting common
stock of First Colonial and Nova, respectively, which are
outstanding immediately prior to the Effective Date and which are
held by shareholders who are entitled to and did not vote such
shares in favor of the merger and who shall have properly and
timely delivered to First Colonial or Nova, as the case may be, a
written demand for payment of the fair cash value of the common
stock in accordance with all of the relevant provisions of the
Corporation Acts shall not be exchanged for the voting common stock
of the Surviving Corporation, but instead the holders thereof shall
be entitled to payment of the fair cash value of such common stock.
However, if any shareholder has not properly complied with all of
the relevant provisions of the Corporation Acts regarding the
rights of dissenting shares, the shares of common stock held by
such shareholder shall be deemed to have been exchanged pursuant to
the merger.
10.4 Articles of Incorporation and Bylaws of Surviving Corporation
-------------------------------------------------------------
The Articles of Incorporation and Bylaws of Nova, as in effect on
the Effective Date, shall be the Articles of Incorporation and
Bylaws of the Surviving Corporation until amended as provided by
law.
1.06 Directors and Officers of the Surviving Corporation
---------------------------------------------------
The officers and directors of the Surviving Corporation shall be as
follows:
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NAME TITLE
---- -----
Xxxxxx X. Xxxxxxxxxx President and Chief Executive
Officer, Director
Xxxxxx X. Handler Secretary, Director
Xxxxxxx Xxxx Director
The directors shall hold office subject to the provisions of the
Bylaws of the Surviving Corporation until the next annual
shareholders' meeting of the Surviving Corporation and until their
respective successors have been duly elected or appointed and
qualified. Such officers shall hold office subject to the
provisions of the Articles of Incorporation and Bylaws of the
Surviving Corporation until their respective successors have been
duly elected or appointed, and have been duly qualified.
ARTICLE II
Warranties and Representations
2.01 Warranties and Representations of First Colonial
------------------------------------------------
First Colonial hereby warrants and represents to Nova as follows:
(a) Due Organization; Good Standing and Corporate Power. First
Colonial is a corporation duly organized, validly existing
and in good standing under the laws of the State of Utah
and has all requisite corporate power and authority to
own, lease, and operate its properties and to carry on its
business as now being conducted.
(b) Capitalization. On the Effective Date, the authorized
capital stock shall consist of 500,000,000 shares of
voting common stock, $0.001 par value, and 10,000,000
shares of preferred stock. All issued and outstanding
shares of common stock have been validly issued and are
fully paid and nonassessable. There are no shares of
preferred stock issued and outstandning.
(c) Authorization and Validity of Agreement. First Colonial
has full corporate power and authority to execute and
deliver this Agreement, and has obtained the necessary
approval of its shareholders, to consummate the merger.
The execution, delivery and performance by the Company of
this Agreement have been authorized by its Board of
Directors. This Agreement is a valid and binding
obligation of the Company, enforceable against it in
accordance with its terms.
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(d) No Consents or Approvals Required. The execution and
delivery of this Agreement will not (i) conflict with, or
violate any provision of the Articles of Incorporation or
Bylaws of First Colonial, (ii) conflict with or violate
any law, rule, regulation, order, writ, injunction,
judgment or decree applicable to First Colonial or by
which any of its properties or assets are found or
affected; or (iii) conflict with or result in any breach
of or constitute a default under, or give to others any
rights of termination or cancellation of or result in the
creation of any lien, charge or encumbrance on any of the
properties or assets of First Colonial pursuant to any
note, bond, mortgage, indenture, deed of trust, lease, or
any other instrument to which First Colonial is a party.
(e) Litigation or Administrative Proceedings. There are no
suits, actions, legal or administrative proceedings or
investigations pending or threatened against First
Colonial of which Nova has not been advised, which, if
adversely determined, would materially and adversely
affect the financial condition of First Colonial or the
conduct of its business.
2.02 Warranties and Representations of Nova
--------------------------------------
Nova hereby warrants and represents to First Colonial as follows:
(a) Due Organization; Good Standing and Corporate Power. Nova
is a corporation duly organized and validly existing and
in good standing under the laws of the state of Nevada and
has all requisite corporate power and authority to own,
lease, and operate its properties and to carry on the
business as now being conducted.
(b) Capitalization. The authorized capital stock consists of
500,000,000 shares of voting common stock, $0.001 par
value, and 10,000,000 shares of preferred stock. All
issued and outstanding shares of common stock have been
validly issued and are fully paid and nonassessable.
(c) Authorization and Validity of Agreement. Nova has full
corporate power and authority to execute and deliver this
Agreement and to consummate the merger. The execution,
delivery and performance by Nova of this Agreement have
been authorized by the Board of Directors. This Agreement
is a valid and binding obligation of Nova, enforceable
against it in accordance with its terms.
(d) No Consents or Approvals Required. Neither the execution
nor the delivery of this Agreement will (i) conflict with,
violate, or result in a breach of any provision of the
Articles of Incorporation or Bylaws of Nova, (ii) conflict
with,
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or violate any law, rule, regulation, order, writ,
injunction, judgment or decree applicable to Nova, or by
which any of its properties or assets may be found or
affected; or (iii) conflict with or result in any breach
of or constitute a default under or give to others any
rights of termination or cancellation of or result in the
creation of any lien, charge or encumbrance on any of the
properties or assets of Nova pursuant to any note, bond,
mortgage, indenture, deed of trust, lease or any other
instrument to which Nova is a party.
(e) Litigation or Administrative Proceedings. There are no
suits, actions, legal or administrative proceedings or
investigations pending or threatened against Nova of which
First Colonial has not been advised, which, if adversely
determined, would materially and adversely affect the
financial condition of Nova or the conduct of its
business.
ARTICLE III
Conditions to the Merger
------------------------
3.01 Conditions Precedent to Obligations of First Colonial and Nova
--------------------------------------------------------------
The respective obligations of First Colonial and Nova to consummate
the merger under this Agreement are subject to the satisfaction or
waiver of each of the following conditions:
(a) The approval of the shareholders of First Colonial shall
have been obtained in accordance with the Corporation
Acts.
(b) No order, statute, regulation, injunction, decree or
restraining order shall have been enacted, entered or
enforced by any court of competent jurisdiction or
governmental authority that prohibits the consummation of
the merger.
(c) All regulatory authorizations necessary to carry out the
merger shall have been received.
First Colonial and Nova each agree to use their best efforts to
fulfill all conditions precedent referred to herein and to do all
things necessary to consummate the merger.
ARTICLE IV
Termination and Abandonment
---------------------------
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4.01 Termination
-----------
This Agreement may be terminated and the merger abandoned, at any
time prior to the Effective Date, whether before or after the
approval of the merger by the shareholders of First Colonial and
Nova, respectively, by mutual consent of the Board of Directors of
First Colonial and Nova.
4.02 Effect of Termination
---------------------
In the event of the termination of this Agreement pursuant to
Section 4.01, this Agreement shall become void and have no effect
and there shall be no liability hereunder on the part of First
Colonial or Nova or any of their respective officers, directors,
employees, agents or shareholders.
ARTICLE V
Miscellaneous
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5.01 Entire Agreement
----------------
This Agreement contains the entire agreement of the parties with
respect to the merger and supercedes all prior agreements and
understandings oral and written with respect thereto.
5.02 Amendment and Modification
--------------------------
To the extent permitted by applicable law, at or prior to the
Effective Date this Agreement may be amended, modified or
supplemented by written agreement of the respective Boards of
Directors of First Colonial and Nova, whether before or after the
vote of the shareholders of First Colonial and Nova.
5.03 Counterparts
------------
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original.
5.04 Applicable Law
--------------
This Agreement and the legal relations between First Colonial and
Nova shall be governed by and construed in accordance with the laws
of the State of Nevada
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IN WITNESS WHEREOF, First Colonial and Nova have each caused this
Agreement to be executed by their respective officers duly authorized as of the
date first above written.
Attest: FIRST COLONIAL VENTURES LTD.
By /s/ XXXXXX X. HANDLER By:/s/ XXXXXX XXXXXXXXXX
Secretary President
Attest:
NOVA COMMUNICATIONS LTD.
By:/s/ XXXXXX X. HANDLER By:/s/ XXXXXX XXXXXXXXXX
Secretary President
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