PLAN AND AGREEMENT OF MERGER
Exhibit
10.2
THIS
PLAN AND AGREEMENT OF MERGER
(hereinafter called the “Agreement”), dated as of February 14, 2007, is between
Fluid Audio Networks, Inc., a Delaware corporation (“PARENT”), and Freedom 20,
Inc., a Delaware corporation (“SUB”).
WHEREAS,
on the
date hereof SUB is a corporation duly organized and existing under the laws
of
the State of Delaware, having authorized capital stock of 110,000,000 shares,
100,000,000 of which are classified and designated as common stock, $0.0001
par
value, (“SUB Common Stock”) and 10,000,000 of which are classified and
designated as preferred stock, $0.0001 par value (the “SUB Preferred
Stock”);
WHEREAS,
PARENT
is a corporation duly organized and existing under the laws of the State of
Delaware, currently having authorized capital stock of 20,000,000 shares of
authorized common stock, par value $0.001 (the “PARENT Common Stock”), and
10,000,000 authorized preferred stock (the “PARENT Preferred
Stock”);
WHEREAS,
there
are 11,340,395 shares of PARENT (“PARENT ISSUED Common Stock”) issued and
outstanding and wherein PARENT owns 100% of the SUB Common Shares, and such
shares constitute all of the issued and outstanding capital stock of
SUB;
WHEREAS,
the
directors of SUB and PARENT have determined it advisable and in the best
interest of each company that the PARENT merge with and into SUB as authorized
by the statutes of the state of Delaware and upon the terms and subject to
the
conditions of this Agreement; and
WHEREAS,
the
directors of SUB and PARENT have unanimously approved this Agreement by written
consent to action in lieu of a meeting and a majority of the shareholders of
SUB
and PARENT have approved this Agreement by written consent to action in lieu
of
a meeting in accordance with the statutes of the state of Delaware;
and
NOW
THEREFORE,
in
consideration of the mutual agreements and covenants set forth herein, PARENT
and SUB hereby agree as follows:
1. Merger.
Upon
the terms and subject to the conditions set forth in this Agreement, the PARENT
shall be merged with and into the SUB (the “Merger”), and SUB shall be the
surviving corporation (sometimes hereafter referred to as the “Surviving
Corporation”). The name of the Surviving Corporation shall be Fluid Audio
Networks, Inc. The Merger shall become effective upon the date and time of
filing of appropriate certificates of merger and/or this Agreement providing
for
the Merger, with the Secretary of State of the State of Delaware, (the
“Effective Time” or the “Effective Date”).
2. Governing
Documents. The
Certificate of Incorporation of SUB shall be the Certificate of Incorporation
of
the Surviving Corporation without change or amendment until thereafter amended
in accordance with applicable law. The Bylaws of SUB, as in effect immediately
prior to the Effective Time, shall be the Bylaws of the Surviving Corporation
until thereafter amended as provided by law, by such Certificate of
Incorporation or by such Bylaws.
3. Succession;
Officers and Directors.
On the
Effective Date, the separate corporate existence of the PARENT shall cease
and
SUB, as the Surviving Corporation, shall possess all the rights, privileges,
powers and franchises of a public and private nature and be subject to all
the
restrictions, disabilities and duties of the PARENT; and all property, real
personal and mixed, and all debts due to the PARENT on whatever account, as
well
as for share subscriptions and all other things in action belonging to the
PARENT, shall be vested in the Surviving Corporation; and all and every other
interest shall be thereafter the property of the Surviving Corporation as they
were of the PARENT, and the title to any real estate vested by deed or otherwise
in the PARENT, shall not revert or be in any way impaired by reason of the
Merger; but all rights of creditors and all liens upon any property of the
PARENT shall be preserved unimpaired, and all debts, liabilities and duties
of
the PARENT shall thence forth 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 the Surviving Corporation. All corporate
acts, plans, policies, agreements, arrangements, approvals and authorizations
of
the PARENT, its shareholders, board of directors and committees thereof,
officers and agents which were valid and effective immediately prior to the
Effective Date, shall be taken for all purposes as the acts, plans, policies,
agreements, arrangements, approvals and authorizations of SUB and shall be
as
effective and binding thereon as the same were with respect to the
PARENT.
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The
directors of PARENT immediately prior to the Effective Time shall be the
directors of the Surviving Corporation, each to hold office in accordance with
the Certificate of Incorporation and Bylaws of the Surviving Corporation, and
the officers of PARENT immediately prior to the Effective Time shall be the
officers of the Surviving Corporation, in each case until their resignation
or
their respective successors are duly elected or appointed and qualified. The
employees and agents of the PARENT shall become the employees and agents of
the
Surviving Corporation entitled to the same rights and benefits which they
enjoyed as employees and agents of the PARENT.
4. Further
Assurances.
From
time to time, as and when required by SUB, or by its successors and assigns,
there shall be executed and delivered on behalf of the PARENT such deeds and
other instruments, and there shall be taken or caused to be taken by it all
such
further and other action, as shall be appropriate or necessary in order to
vest,
perfect or confirm, of record or otherwise, in SUB the title to and possession
of all property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of the PARENT, and otherwise to carry out the purposes
of this Agreement, and the officers and directors of SUB are fully authorized
in
the name and on behalf of SUB or otherwise, to take any and all such action
and
to 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 Agreement or of the merger
herein provided for.
5. Conversion
and Cancellation of Common Stock.
a. At
the
Effective Time, (i) each issued and outstanding share of common stock of Parent
shall be converted into and become one
fully
paid and nonassessable share of common stock, par value $0.0001 per share,
of
the Surviving Corporation, and, from and after the Effective Time, the holders
of all of said issued and outstanding shares of common stock of the Parent
shall
automatically be and become holders of shares of the Sub upon the basis above
specified, whether or not certificates representing said shares are then issued
and delivered and all shares of stock of the Sub acquired in the merger shall
for purposes of § 203 of this title be deemed to have been acquired at the time
that the shares of stock of the Parent converted in the merger were acquired;
and (ii)
all
outstanding warrants of the Parent to purchase shares of the Parent Common
Stock
(“Parent Warrants”), immediately prior to the Effective Time that have not been
surrendered by the holder thereof in exchange for Parent Common Stock, will
at
the Effective Time, be
deemed
be a warrant (the “Sub Warrants”) to acquire the same number of shares of Sub
Common Stock as the holder of such Parent
Warrants
would have been entitled to receive pursuant to the Merger had such holder
exercised such Parent
Warrants
in full immediately prior to the Effective Time at a price per share of Sub
Common Stock equal to the exercise price for the shares of Parent
Common
Stock otherwise purchasable pursuant to such Parent
Warrant.
Schedule 5(a) attached hereto sets forth the name of each holder of Parent
Warrants,
the aggregate number of shares of Parent
Common
Stock that each such person may purchase pursuant to the exercise of his or
her
Parent
Warrants
and the aggregate number of shares of Sub Common Stock that each such person
may
purchase upon exercise of Sub Warrants acquired pursuant to this Section 5(a).
By its signature hereunder, Sub expressly assumes the obligation to issue Sub
Common Stock to the holders of Sub Warrants upon exercise thereof, in accordance
with the provisions of this Section 5(a).
b. At
the
Effective Time, each share of common stock of the Sub (a “Share”) owned by the
Sub as treasury stock or by any subsidiary of the Sub and each Share owned
by
the Parent shall be cancelled and retired and shall cease to exist, and no
consideration shall be delivered in exchange therefor.
c. At
the
Effective Time, each issued and outstanding Share of the Parent shall be (other
than Shares to be cancelled in accordance with Section (d) above) converted
into
one share of common stock in the Sub (the “Offer Price”), without surrender of
the certificate formerly representing such Share (each a “Subs Certificate”) in
the manner provided in (f) below. From and after the Effective Time, all such
converted Shares shall no longer be outstanding and shall be deemed to be
cancelled and retired and shall cease to exist, and each holder of any such
Shares shall cease to have any rights with respect to any Parent Certificate
except the right to receive shares in the Sub equal to the number of shares
owned in the Parent (the “Merger Consideration”).
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d. After
the
Effective Time, each holder of record of common stock of the Parent shall
receive in exchange therefor the Merger Consideration, and the shares of common
stock of the Parent shall be cancelled.
e. In
its
sole discretion, SUB may elect to round up to the nearest whole share, in lieu
of issuing fractional shares of SUB Common Stock as a result of the Merger
or to
pay the fair market value of such fractional shares to the holders who would
otherwise be entitled to such fractional shares of SUB Common Stock, as
determined by its board of directors.
6. Amendment.
Subject
to the applicable law, this Agreement may be amended, modified or supplemented
by written agreement of the parties at any time prior to the Effective
Date.
7. Abandonment.
At any
time prior to the Effective Date, this Agreement may be terminated and the
Merger may be abandoned by the Board of Directors of SUB, if the Board of
Directors of SUB determines for any reason in its sole judgment that the
consummation of the transaction would be inadvisable or not in the best
interests of SUB and its Shareholders.
8. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original and the same agreement.
IN
WITNESS WHEREOF,
the
undersigned Presidents, with the attestations of a Witness, of the respective
constituent corporations, duly authorized hereunto, have executed this Agreement
as of the date first above written.
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Freedom
20, Inc.
/s/
Xxxxxx Xxxxxxx
By:_____________________________
Xxxxxx
Xxxxxxx
CEO
|
Fluid
Audio Networks, Inc.
/s/
Xxxxxx Xxxxxxx
By:_____________________________
Xxxxxx
Xxxxxxx
CEO
|
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