Exhibit 3.3
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER, dated as of the 1st day of June,
2002 (the "Agreement") is among INVESTORS FOCUS, INC., a Florida corporation
("Investors Corp"), and INVESTORS FOCUS, LLC, a Florida limited liability
company ("Investors LLC"). (Investors Corp and Investors LLC are sometimes
collectively referred to as "Constituent Entities".)
WHEREAS, Investors Corp is a corporation duly organized and existing
under the laws of the State of Florida, and Investors LLC is a limited liability
company duly organized and existing under the laws of the State of Florida; and
WHEREAS, the Board of Directors of Investors Corp and the Manager of
Investors LLC have approved and have declared advisable the merger of Investors
LLC with and into Investors Corp (the "Merger"), upon the terms and subject to
the conditions set forth herein, whereby each issued and outstanding membership
interest ("Membership Interest") of Investors LLC will be changed and converted
into common stock of Investors Corp (as defined in Section 5.2), and have
determined that the Merger is in furtherance of the respective business
strategies and goals of the Constituent Entities; and
WHEREAS, the Constituent Entities desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained in this Agreement, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions set forth
in this Agreement, and in accordance with the Florida Limited Liability Company
Act (the "Act") and the Florida Business Corporation Act ("FBCA"), Investors LLC
shall be merged with and into Investors Corp at the Effective Time (as defined
in Section 1.4). Following the Effective Time, the separate existence of
Investors LLC shall cease and Investors Corp shall be the surviving corporation
(the "Surviving Corporation") and shall succeed to and assume all the rights and
obligations of Investors LLC in accordance with the FBCA and the Act.
1.2 Transfer of Assets and Liabilities. At the Effective Time, the
rights, privileges, powers and franchises, both of a public as well as a private
nature, of each of the Constituent Entities shall be vested in and possessed by
the Surviving Corporation, subject to all the disabilities, duties and
restrictions of or upon each of the Constituent Entities; and singular rights,
privileges, powers and franchises of each of the Constituent Entities; and all
property, real, personal and mixed, of each of the Constituent Entities, and all
debts due to each of the Constituent Entities on whatever account, and all
things in action or belonging to each of the Constituent Entities shall be
transferred to and vested in the Surviving Corporation; and all property,
rights, privileges, powers and franchises, and every other interest, shall be
thereafter the property of the Surviving Corporation as they were of the
Constituent Entities; provided, however, that the liabilities of the Constituent
Entities and of their shareholders, interest holders, members, managers,
directors and officers shall not be effected and all rights of creditors and all
liens upon any property of either of the Constituent Entities shall be
preserved, unimpaired and any claims existing or action or proceeding pending by
or against either of the Constituent Entities may be prosecuted to judgment as
if the Merger had not taken place, 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 Entities 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.
1.3 Closing. The closing of the Merger (the "Closing") will take place
at and on the day of the satisfaction or waiver of the conditions set forth in
Article VII, unless another time or date is agreed to by the parties (the
"Closing Date").
1.4 Effective Time. Subject to the provisions of this Agreement, as
soon as practicable on or after the Closing Date, the parties shall file
Articles of Merger (the "Articles of Merger") executed in accordance with the
relevant provisions of the FBCA and the Act and shall make all other filings or
recordings required under the FBCA and the Act. The Merger shall become
effective at such time as the Department of State of the State of Florida
accepts the Articles of Merger for record, or at such subsequent date or time as
the Constituent Parties shall agree and specify (the "Effective Time").
1.5 Effects of the Merger. The Merger shall have the effect set forth
in Section 607.11101 of the FBCA and 608.4383 of the Act.
1.6 Articles of Incorporation. The Articles of Incorporation of
Investors Corp, as in effect immediately prior to the execution of this
Agreement, shall be the Articles of Incorporation of the Surviving Corporation
until thereafter changed or amended as provided therein or by applicable law.
ARTICLE II
TAX MATTERS
All assets and liabilities will transfer for state law purposes by
operation or law. For federal income tax purposes, it is the intention of the
Constituent Entities that the Merger will qualify as tax-free to the Members of
Investors LLC as well as to the Surviving Corporation pursuant to the
non-recognition tax provisions of Section 351 of the Internal Revenue Code of
1986, as amended.
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ARTICLE III
EFFECT OF THE MERGER ON THE STOCK OF THE PARTIES
3.1 Effect on Membership Interests. As of the Effective Time, by virtue
of the Merger and without any action on the part of the Constituent Entities,
the manner and basis of converting the Membership Interests and obligations of
Investors LLC into Investors Common Stock and obligations of Investors Corp are
as follows:
Common Stock of Investors Corp; Membership Interests in
Investors LLC. At the Effective Time, by virtue of the Merger and without any
further action on the part of the Constituent Entities or their share or
interest holders, the Membership Interests of Investors LLC that are issued and
outstanding shall be changed and converted into, on a pro-rata basis, 100% of
Investors Corp Common Stock to be issued pursuant to the Merger (See Schedule on
Exhibit A). Each Membership Interest of Investors LLC shall be canceled and
retired and shall cease to exist.
ARTICLE IV
APPROVAL OF BOARD OF DIRECTORS/MANAGER
4.1 Board of Directors of Investors Corp. The Board of Directors of
Investors Corp shall take any and all action necessary to instruct the officers
to take all and any necessary action to effectuate the Merger.
4.2 Manager of Investors LLC. The Manager of Investors LLC shall take
any and all action necessary to effectuate the Merger.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF INVESTORS CORP
5.1 Organization, Qualification, Etc. Investors Corp is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida and has the corporate power and authority to own its properties
and assets and to carry on its business as it is now being conducted and is duly
qualified to do business and is in good standing in each jurisdiction in which
the ownership of its properties or the conduct of its business requires such
qualification, except for such jurisdictions in which failure to be so qualified
or to be in good standing would not, individually or in the aggregate, have a
material adverse effect on Investors Corp. Copies of Investors Corp's Articles
of Incorporation and Bylaws are complete and correct and in full force and
effect on the date hereof. Investors Corp has no subsidiaries.
5.2 Stock. The authorized capital stock of Investors Corp consists of
100,000,000 shares of common stock, $.0001 par value per share ("Investors Corp
Common Stock") and 1,000,000 shares of preferred stock, $.0001 par value per
share ("Investors Corp Preferred Stock").
5.3 Corporate Authority Relative to this Agreement. Investors Corp has
the corporate power and authority to enter into this Agreement and to carry out
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its obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of Investors Corp. No other corporate
proceedings on the part of Investors Corp are necessary to authorize this
Agreement or the transactions contemplated hereby. The Board of Directors of
Investors Corp has determined that the transactions contemplated by this
Agreement are in the best interests of Investors Corp.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF INVESTORS LLC
6.1 Organization, Qualification, Etc. Investors LLC is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Florida and has the power and authority to own its
properties and assets and to carry on its business as it is now being conducted
and is duly qualified to do business and is in good standing in each
jurisdiction in which the ownership of its properties or the conduct of its
business requires such qualification, except for such jurisdictions in which
failure to be so qualified or to be in good standing would not, individually or
in the aggregate, have a material adverse effect on Investors LLC. All of the
outstanding Membership Interests in Investors LLC are validly issued and are
owned by its duly authorized Members. There are no existing options, rights of
first refusal, preemptive rights, calls or commitments of any character relating
to the Membership Interests in Investors LLC.
6.2 Authority Relative to this Agreement. Investors LLC has the power
and authority to enter into this Agreement and carry out its obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Manager of Investors LLC pursuant to its Operating Agreement and no other
proceeding on the part of Investors LLC is necessary to authorize this
Agreement.
ARTICLE VII
CONDITIONS OF THE MERGER
7.1 Conditions to the Merger. The obligation of the Constituent
Entities 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 Entities in their sole discretion to the extent
permitted by law):
(a) The Merger shall have been approved by the Directors of
Investors Corp in accordance with applicable provisions of the FBCA;
and
(b) The Merger shall have been approved by the Manager of
Investors LLC in accordance with the provisions of the Operating
Agreement of Investors LLC.
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ARTICLE VIII
MISCELLANEOUS
8.1 Amendment. This Agreement may be amended by action of each
Constituent Entity taken at any time.
8.2 Waiver. At any time prior to the Effective Time, the Constituent
Entities may:
(a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto;
(b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant
hereto; and
(c) waive compliance with any of the agreements or conditions
contained herein.
Any agreement on the part of a party hereto to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on behalf of
such party. Such extensions or waivers shall be in writing, executed by each of
the parties. Such waiver shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
8.3 Notices. All notices, claims, demands and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
or by telex or telecopy or mailed by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
If to either Party: INVESTORS FOCUS, INC.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxx, President
8.4 Descriptive Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.5 Entire Agreement; Assignment. This Agreement (a) constitutes the
entire agreement and supersedes all other prior agreements and understandings,
both written and oral, among the parties or any of them, with respect to the
subject matter hereof; and (b) shall not be assigned by operation of law or
otherwise.
8.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without giving effect to the
provisions thereof relating to conflicts of law.
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8.7 Parties in Interest. Nothing in this Agreement, express or implied,
is intended to or shall confer upon any party other than the parties hereto any
rights, benefit, or remedies of any nature whatsoever or by reason of this
Agreement.
8.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
8.9 Severability. The invalidity or unenforceability of any provision
of this Agreement shall not effect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
8.10 Investigation. The respective representations and warranties of
each entity contained herein or in the certificates or other documents delivered
prior to the Closing shall not be deemed waived or otherwise affected by any
investigation made by any party hereto.
8.11 Consents. For purposes of any provision of this Agreement
requiring, permitting, or providing for the consent of Investors Corp or
Investors LLC, the written consent of the President or Manager of the parties
shall be sufficient to constitute such consent.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their respective duly authorized officers as of the date first above
written.
INVESTORS FOCUS, INC.
By:
--------------------------------------
Xxxxxxxx Xxxxxxxx, President
INVESTORS FOCUS, LLC
By:
--------------------------------------
Xxxxxxxx Xxxxxxxx, Manager
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EXHIBIT A
SCHEDULE OF CONVERSION
Percentage Shares Held
Name Interest Owned in LLC After Merger
---- --------------------- ------------
Xxxxxxxx Xxxxxxxx and
Xxxx Xxxxxxxx, Tenants
by the Entirety 65.06 23,000,000
Xxxxxxx Xxxxxxxx 9.77 3,450,000
Xxxxx Xxxxxx 6.93 2,450,000
Xxx Xxxxxxxx 4.88 1,725,000
Xxxxx Xxxxxxxx 4.88 1,725,000
Xxxxx Xxxxx 2.83 1,000,000
Xxxxx Xxxxxx 2.83 1,000,000
Xxxxxx Xxxxxx, ITF
Xxxxxxxx Xxxxxx 1.41 500,000
Xxxxxx Xxxxxx, ITF
Xxxxx Xxxxxx 1.41 500,000
------- -----------
100% 35,350,000
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