AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (the "PLAN OF MERGER"), (1) approved on
May 31, 2006, by Twin Lakes Delaware, Inc. (the "SURVIVING CORPORATION"), a
corporation organized under the laws of the State of Delaware, and by its Board
of Directors on said date and (2) approved on May 31, 2006, by Twin Lakes, Inc.
(the "NON-SURVIVOR"), a corporation organized under the laws of the State of
Nevada, and by its Board of Directors and shareholders on said date. The
Surviving Corporation and the Non-Survivor are collectively referred to herein
as the "CORPORATIONS."
WHEREAS, the Surviving Corporation is a corporation duly
organized and existing under the laws of the State of Delaware, having been
formed on June 1, 2006, pursuant to a Certificate of Incorporation filed with
the State of Delaware;
WHEREAS, the Non-Survivor is a corporation duly organized and
existing under the laws of the State of Nevada, having been formed on January
28, 2000, pursuant to Articles of Incorporation filed with the State of Nevada;
and
WHEREAS, the Board of Directors of each of the Corporations
has determined that it is in the best interests of the Corporations to merge
into a single corporation (the "MERGER") and that the Surviving Corporation be
the surviving corporation to the Merger on the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements, representations and warranties contained herein, it is agreed that:
1. Upon the Effective Time of the Merger (as defined in Section 11 below),
the Non-Survivor shall, pursuant to the applicable provisions of the
Nevada Revised Statutes (the "NRS"), be merged with and into the
Surviving Corporation, which shall (a) be the surviving corporation
upon the Effective Time of the Merger and (b) continue to exist as said
surviving corporation under the name Twin Lakes, Inc., its present
name, pursuant to the applicable provisions of the General Corporation
Law of the State of Delaware (the "DGCL"). The separate existence of
the Non-Survivor shall cease upon the Effective Time of the Merger in
accordance with the applicable provisions of the NRS.
2. The Certificate of Incorporation of the Surviving Corporation upon the
Effective Time of the Merger shall be the Certificate of Incorporation
of the Surviving Corporation following the Merger, and said Certificate
of Incorporation shall continue in full force and effect until amended
and changed in the manner prescribed by the provisions of the laws of
the State of Delaware.
3. The Bylaws of the Surviving Corporation upon the Effective Time of the
Merger shall be the Bylaws of the Surviving Corporation following the
Merger, and said Bylaws shall continue in full force and effect until
changed, altered, or amended as therein provided and in the manner
prescribed by the provisions of the laws of the State of Delaware.
4. The directors and officers of the Surviving Corporation upon the
Effective Time of the Merger shall be the directors and officers of the
Surviving Corporation following the Merger, all of whom shall hold
their directorships and offices until the election and qualification of
their respective successors or until their tenure is otherwise
terminated in accordance with the Bylaws of the Surviving Corporation.
5. At the Effective Time of the Merger, the separate existence of the
Non-Survivor shall cease, and the Surviving Corporation shall continue
in existence and, without transfer, shall succeed to and possess all of
the properties, rights, privileges, immunities, powers, purposes and
franchises, of a public and private nature, and shall be subject to all
of the obligations, restrictions, disabilities and duties, of the
Non-Survivor, all without further act or deed, as provided in the
applicable statutes of the State of Delaware.
6. If at any time the Surviving Corporation shall consider or be advised
that any further assignments, conveyances or assurances in law are
necessary or desirable to carry out the provisions hereof, the proper
officers and directors of the Non-Survivor as of the Effective Time of
the Merger shall execute and deliver any and all proper deeds,
assignments and assurances in law, and do all things necessary or
proper to carry out the provisions hereof.
7. One (1) share of common stock of the Surviving Corporation ("Survivor
Shares") shall be issued in exchange for each five (5) shares of issued
and outstanding common stock of the Non-Survivor ("Non-Survivor
Shares") upon the Effective Time of the Merger (the "Exchange Ratio").
The issued shares of the Surviving Corporation, if any, at the
Effective Time of the Merger, shall not be converted or exchanged in
any manner, but each said share which is issued as of the Effective
Time shall be canceled without consideration.
8. Immediately following the Effective Time of the Merger, any and all
issued and outstanding options, warrants or other rights to acquire any
of the Non-Survivor Shares shall be converted into an option, warrant
or other right, as the case may be, to purchase Survivor Shares on the
same terms, at the Exchange Ratio and at a price equal to five (5)
times the current exercise price. (i.e., a Class A Warrant of the
Non-Survivor exercisable at $1.00 per share, to purchase 1,000,000
Non-Survivor shares, will be converted into a Class A Warrant of the
Surviving Corporation, exercisable at $5.00 per share, to purchase
200,000 Survivor Shares following the Effective Time of the Merger.)
9. This Plan of Merger, as approved by the Corporations, shall be
submitted to the shareholders of the Non-Survivor for their approval or
rejection in the manner prescribed by the provisions of the NRS.
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10. In the event that the Plan of Merger shall have been (x) approved by
the shareholders of the Non-Survivor and (y) otherwise duly authorized
in the manner prescribed by the applicable provisions of the DGCL and
the NRS, each of the Corporations hereby stipulates that it will cause
to be executed and filed and/or recorded any document or documents
prescribed by the laws of the State of Delaware and Nevada, and that
each of the Corporations will cause to be performed all necessary acts
therein and elsewhere to effectuate the Merger.
11. The Board of Directors and the proper officers of each of the
Corporations, are hereby authorized, empowered and directed to do any
and all acts and things, and to make, execute, deliver, file and/or
record any and all instruments, papers and documents which shall be or
become necessary, proper or convenient to carry out or put into effect
any of the provisions of this Plan of Merger or of the Merger herein
provided for.
12. The effective date of the Merger shall (i) in the State of Nevada be
the date the Articles of Merger are filed with the Secretary of State
of Nevada and (ii) in the State of Delaware be the date the Certificate
of Merger is filed by the Secretary of State of Delaware (the
"EFFECTIVE TIME OF THE MERGER");
13. Notwithstanding the approval of the Plan of Merger by the shareholders
of the Non-Survivor, the Merger herein provided for may be abandoned at
any time prior to the Effective Time of the Merger, notwithstanding
favorable action on the Merger by the shareholders of one or both of
the Corporations, but not later than the Effective Time of the Merger,
by the mutual consent of the Board of Directors of the Corporations.
14. The Corporations, by mutual consent of their respective Board of
Directors, may amend or modify this Plan of Merger in such manner as
may be agreed upon by them in writing at any time before or after
approval or adoption thereof by the shareholders of the Non-Survivor.
Either of the Corporations may, pursuant to action by its Board
Directors, by an instrument in writing, extend the time for or waive
compliance by the other with any of the covenants or conditions
contained herein; provided, however, that no such waiver or extension
shall affect the rights of the shareholders of either of the
Corporations in a manner which is materially adverse to such
shareholders in the judgment of its respective Board of Directors so
acting.
15. This Plan of Merger may be executed in counterparts, each of which when
so executed shall be deemed to be an original, and such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, pursuant to the general approval and
authority duly given by resolutions adopted by their respective Boards of
Directors, each of the Corporations has caused this Plan of Merger to be
executed by a duly authorized officer.
TWIN LAKES, INC., A NEVADA CORPORATION
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: President
TWIN LAKES DELAWARE, INC., A DELAWARE CORPORATION
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: President
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CERTIFICATE OF SECRETARY OF TWIN LAKES DELAWARE, INC.
The undersigned, being the Secretary of Twin Lakes Delaware, Inc., a
Delaware corporation, does hereby certify that the foregoing Agreement and Plan
of Merger has been adopted upon behalf of said corporation pursuant to the
provisions of Subsection (f) of Section 251 of the Delaware General Corporation
Law, and that, as of the date of this Certificate, the outstanding shares of
said corporation were such as to render the provisions of said Subsection (f)
applicable.
Executed on this 2nd day of June, 2006.
/s/ Xxxx Xxxxxxx
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Secretary
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