Exhibit 2.1
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER, dated April 16, 2001 ("Agreement"),
is entered into between Intercallnet, Inc., a Florida corporation ("ICN"), and
Never Miss A Call, Inc., a Nevada corporation ("NMC").
RECITALS
A. The respective Boards of Directors of ICN and NMC believe that the
best interests of ICN and NMC and their respective stockholders will be served
by the merger of NMC with ICN under and pursuant to the provisions of this
Agreement and the Nevada General Corporation Law and the Florida Business
Corporation Act.
B. NMC has an aggregate authorized capital of 25,000,000 shares of
common stock, par value $.001 per share ("NMC Stock"). On April 16, 2001, there
were 11,938,104 shares of NMC Common Stock issued and outstanding.
C. ICN has an aggregate authorized capital stock of 52,000,000 shares
consisting of 50,000,000 shares of common stock, par value $.0001 per share
("ICN Common Stock') and 2,000,000 shares of blank check preferred stock, par
value $.0001 par value ("ICN Preferred Stock). On the date hereof, there were
100 shares of ICN Common Stock issued and outstanding and no shares of ICN
Preferred Stock issued and outstanding.
AGREEMENT
In consideration of the Recitals and of the mutual agreements contained
in this Agreement, the parties hereto agree as set forth below.
1. Merger. NMC shall be merged with and into ICN ("Merger").
2. Effective Date. The Merger shall become effective immediately upon
the filing of this Agreement and articles of merger with the Secretary of State
of Nevada in accordance with the Nevada General Corporation Law and the filing
of this Agreement and articles of merger with the Secretary of State of Florida
in accordance with the Florida Business Corporation Act. The time of such
effectiveness is hereinafter called the "Effective Date."
3. Surviving Corporation. ICN shall be the surviving corporation and
shall continue to be governed by the laws of the State of Florida. The separate
corporate existence of NMC shall cease on the Effective Date.
4. Articles of Incorporation. The Articles of Incorporation of ICN as
it exists on the Effective Date shall be the Articles of Incorporation of ICN
following the Effective Date, unless and until the same shall thereafter be
amended or repealed in accordance with the laws of the State of Florida.
5. Bylaws. The Bylaws of ICN as they exist on the Effective Date shall
be the Bylaws of ICN following the Effective Date, unless and until the same
shall be amended or repealed in accordance with the provisions thereof and the
laws of the State of Florida.
6. Board of Directors and Officers. The members of the Board of
Directors and the officers of NMC immediately prior to the Effective Date shall
be the members of the Board of Directors and the officers, respectively, of ICN
following the Effective Date, and such persons shall serve in such offices for
the terms provided by law or in the bylaws, or until their respective successors
are elected and qualified.
7. Conversion of Outstanding NMC Stock. Upon the Effective Date, each
issued and outstanding share of NMC Common Stock (post 3.5 for 1 forward stock
split, effective April 3, 2001) and all rights in respect thereto shall be
converted into 1 fully paid and nonassessable share of ICN Common Stock, and
each certificate representing shares of NMC Common Stock (post 3.5 for 1 forward
stock split, effective April 3, 2001) shall for all purposes be deemed to
evidence the ownership of the same number of shares of ICN Common Stock as set
forth in such certificate. After the Effective Date, each holder of an
outstanding certificate representing shares of NMC Common Stock shall surrender
the same to ICN's registrar and transfer agent for cancellation, and each such
holder shall be entitled to receive in exchange therefor a certificate(s)
evidencing the ownership of 1 share of ICN Common Stock for each 1 share of
NMC's Common Stock (post 3.5 for 1 forward stock split, effective April 3, 2001)
surrendered to ICN's registrar and transfer agent.
8. Stock Options, Warrants and Convertible Debt. Upon the Effective
Date, each stock option, stock warrant, convertible debt instrument and other
right to subscribe for or purchase shares of NMC Common Stock (post 3.5 for 1
forward stock split, effective April 3, 2001) shall be converted into a stock
option, stock warrant, convertible debt instrument or other right to subscribe
for or purchase the same number of shares of ICN Common Stock (with a
corresponding reduction in the applicable exercise or conversion price, as the
case may be, and as required to reflect the post 3.5 for 1 forward stock split
effective, effective April 3, 2001) and each certificate, agreement, note or
other document representing such stock option, stock warrant, convertible debt
instrument or other right to subscribe for or purchase shares of NMC Common
Stock shall for all purposes be deemed to evidence the ownership of a stock
option, stock warrant, convertible debt instrument or other right to subscribe
for or purchase shares of ICN Common Stock in accordance with the foregoing.
9. Rights and Liabilities of ICN. On and after the Effective Date, and
all in the manner of and as more fully set forth in Section 607.1106 of the
Florida Business Corporation Act and Section 92A.250 of the Nevada General
Corporation Law, the title to all real estate and other property, or any
interest therein, owned by each of NMC and ICN shall be vested in ICN without
reversion or impairment; ICN shall succeed to and possess, without further act
or deed, all estates, rights, privileges, powers, and franchises, both public
and private, and all of the property, real, personal and mixed, of each of NMC
and ICN without reversion or impairment; ICN shall thenceforth be responsible
and liable for all the liabilities and obligations of each of NMC and ICN; any
claim existing or action or proceeding pending by or against NMC or ICN may be
continued as if the Merger did not occur or ICN may be substituted for NMC in
the proceeding; neither the rights of creditors nor any liens upon the property
of NMC or ICN shall be impaired by the Merger; and ICN shall indemnify and hold
harmless the officers and directors of each of the parties hereto against all
such debts, liabilities and duties and against all claims and demands arising
out of the Merger.
10. Termination. This Agreement may be terminated and abandoned by
action of the respective Boards of Directors of NMC and ICN at any time prior to
the Effective Date, whether before or after approval by the stockholders of
either or both of the parties hereto.
11. Amendment. The Boards of Directors of the parties hereto may amend
this Agreement at any time prior to the Effective Date; provided that an
amendment made subsequent to the approval of this Agreement by the stockholders
of either of the parties hereto shall not: (a) change the amount or kind of
shares, securities, cash, property or rights to be received in exchange for or
on conversion of all or any of
the shares of the parties hereto, (b) change any term of the articles of
incorporation of ICN, or (c) change any other terms or conditions of this
Agreement if such change would adversely affect the holders of any capital stock
of either party hereto.
12. Registered Office. The registered office of ICN in the State of
Florida is located at 000 XX Xxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx
00000, and Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx, P.A. is the registered agent of
ICN at such address.
13. Inspection of Agreement. Executed copies of this Agreement will be
on file at the principal place of business of ICN at 0000 XX 0xx Xxx, Xxxx
Xxxxxxxxxx, Xxxxxxx 00000. A copy of this Agreement shall be furnished by ICN,
on request and without cost, to any stockholder of either NMC or ICN.
14. Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Florida.
15. Service of Process. On and after the Effective Date, ICN agrees
that it may be served with process in Nevada in any proceeding for enforcement
of any obligation or NMC or ICN arising from the Merger.
16. Designation of Nevada Secretary of State as Agent for Service of
Process. On and after the Effective Date, ICN irrevocably appoints the Secretary
of State of Nevada as its agent to accept service of process in any suit or
other proceeding to enforce the rights of any stockholders of NMC or ICN arising
from the Merger. The Nevada Secretary of State is requested to mail a copy of
any such process to ICN at 0000 XX 0xx Xxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000,
Attention: Xxxxx Xxxxxxx, Chief Executive Officer.
IN WITNESS WHEREOF, each of the parties hereto, pursuant to authority
duly granted by their respective Board of Directors, has caused this Plan and
Agreement of Merger to be executed, respectively, by its Chief Executive Officer
and attested by its Secretary.
INTERCALLNET, INC.
a Florida corporation
ATTEST:
/s/ Xxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Chief Executive Officer
NEVER MISS A CALL, INC.,
a Nevada corporation
ATTEST:
/s/ Xxx Xxxxxxxx By: /s/ Xxxxx Xxxxxxx
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Its: Chief Executive Officer
