AGREEMENT AND PLAN OF MERGER
Exhibit 2.1
AGREEMENT
AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER (this “Agreement”), dated as of December 2, 2008, by and
between Health Systems Solutions, Inc., a Delaware corporation (“HSS-Delaware”),
and Health Systems Solutions, Inc., a Nevada corporation
(“HSS-Nevada”).
WHEREAS,
HSS-Delaware is a corporation duly organized and in good standing under the laws
of the State of Delaware;
WHEREAS,
the Board of Directors and the holder of a majority of the outstanding shares of
voting capital stock of HSS-Nevada have determined that it is advisable and in
the best interests of HSS-Nevada that it merge with and into HSS-Delaware upon
the terms and subject to the conditions herein provided, and have approved this
Agreement.
WHEREAS,
the Board of Directors and sole stockholder of HSS-Delaware have determined that
it is advisable and in the best interests of HSS-Delaware that HSS-Nevada merge
with and into it upon the terms and subject to the conditions herein provided,
and have approved this Agreement.
NOW,
THEREFORE, in consideration of the premises, the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree that HSS-Nevada shall
be merged with and into HSS-Delaware on the terms and conditions hereinafter set
forth.
ARTICLE I
SECTION
1.01. The
Merger.
(a) Upon the
terms and subject to the conditions set forth in this Agreement, at the
Effective Time (as defined below), HSS-Nevada shall be merged with and into
HSS-Delaware (the “Merger”), the separate existence of HSS-Nevada shall cease
and HSS-Delaware shall be the corporation surviving the Merger (hereinafter
referred to as the “Surviving Corporation”), which shall continue to exist
under, and be governed by, the laws of the State of Delaware. The
Merger shall have the effects specified in the General Corporation Law of the
State of Delaware (the “DGCL”), the Nevada Revised Statutes (the “NRS”) and this
Agreement.
(b) The
Merger shall become effective on the date and time specified in a Certificate of
Merger in substantially the form attached hereto as Exhibit A to be filed
with the Secretary of State of the State of Delaware (the “Certificate of
Merger”) and Articles of Merger in substantially the form attached hereto as
Exhibit B to be
filed with the Secretary of State of the State of Nevada (the “Articles of
Merger”), which shall be the later of (i) 12:01 a.m. Eastern Standard Time on
January 1, 2009, (ii) the date of filing of the Certificate of Merger and
Articles of Merger, or (iii) the date and time determined by the Chief Executive
Officers of HSS-Nevada and HSS-Delaware (the “Effective Time”).
SECTION
1.02. Effect of Merger on Capital
Stock.
(a) At the
Effective Time, (i) each share of common stock, $0.001 par value per share, of
HSS-Nevada outstanding immediately prior to the Effective Time shall be
converted into and become one share of common stock, $0.001 par value per share,
of the Surviving Corporation; (ii) each share of Series C Convertible Preferred
Stock, $0.001 par value per share, of HSS-Nevada outstanding immediately prior
to the Effective Time shall be converted into and become one share of Series C
Convertible Preferred Stock, $0.001 par value per share, of the Surviving
Corporation; (iii) each share of Series D Convertible Preferred Stock, $0.001
par value per share, of HSS-Nevada outstanding immediately prior to the
Effective Time shall be converted into and become one share of Series D
Convertible Preferred Stock, $0.001 par value per share, of the Surviving
Corporation; and (iv) each share of Series E Convertible Preferred Stock, $0.001
par value per share, of HSS-Nevada outstanding immediately prior to the
Effective Time shall be converted into and become one share of Series E
Convertible Preferred Stock, $0.001 par value per share, of the Surviving
Corporation.
(b) At the
Effective Time, each option, warrant or other security of HSS-Nevada issued and
outstanding immediately prior to the Effective Time shall be converted into and
shall be an identical security of the Surviving Corporation and shares of common
stock of the Surviving Corporation shall be reserved for purposes of the
exercise of such options, warrants or other securities for each share of common
stock of HSS-Nevada so reserved prior to the Effective Time.
(c) At the
Effective Time, each issued and outstanding share of stock of HSS-Delaware owned
by HSS-Nevada shall be canceled, without the payment of consideration
therefore.
(d) At and
after the Effective Time, all of the outstanding certificates or other documents
that immediately prior thereto evidenced ownership of securities of HSS-Nevada
shall be deemed for all purposes to evidence ownership of and to represent the
securities of HSS-Delaware into which such securities of HSS-Nevada have been
converted as herein provided and shall be so registered on the books and records
of the Surviving Corporation or its transfer agent. The registered
owner of any such outstanding certificate or other document evidencing ownership
of securities of HSS-Nevada shall, until such certificate or other document
shall have been surrendered for transfer or otherwise accounted for to the
Surviving Corporation or its transfer agent, have and be entitled to exercise
any voting and other rights with respect to, and to receive any dividends and
other distributions upon, the securities evidenced by such certificate or other
document, as above provided.
SECTION
1.03. Employee Benefit and
Compensation Plans. At the Effective Time, each employee
benefit plan, incentive compensation plan and other similar plans to which
HSS-Nevada is then a party shall be assumed by, and continue to be the plan of,
the Surviving Corporation. To the extent any employee benefit plan,
incentive compensation plan or other similar plan of HSS-Nevada provides for the
issuance or purchase of, or otherwise relates to, securities of HSS-Nevada,
after the Effective Time such plan shall be deemed to provide for the issuance
or purchase of, or otherwise relate to, the securities of HSS-Delaware into
which such securities of HSS-Nevada have been converted as herein
provided.
ARTICLE II
SECTION
2.01. Name. From
and after the Effective Time, the name of the Surviving Corporation shall be
Health Systems Solutions, Inc.
SECTION
2.02. Certificate of
Incorporation; By-Laws. At the Effective Time, the Certificate
of Incorporation and By-Laws of HSS-Delaware, as in effect immediately prior to
the Effective Time, shall be the Certificate of Incorporation and By-Laws of the
Surviving Corporation.
SECTION
2.03. Directors;
Officers. From and after the Effective Time, the directors of
HSS-Nevada immediately prior to the Effective Time shall be the directors of the
Surviving Corporation. From and after the Effective Time, the
officers of HSS-Nevada immediately prior to the Effective Time shall be the
officers of the Surviving Corporation. These directors and officers
shall hold office in accordance with the Certificate of Incorporation and
By-Laws of the Surviving Corporation and the DGCL.
ARTICLE III
TRANSFER
AND CONVEYANCE OF ASSETS
AND
ASSUMPTION OF LIABILITIES
SECTION
3.01. Transfer, Conveyance and
Assumption. Without limiting the generality of the foregoing,
at the Effective Time, (i) the Surviving Corporation shall, without further
transfer, succeed to and possess all of the rights, privileges, franchises,
immunities and powers of HSS-Nevada; (ii) all of the assets and property of
whatever kind and character of HSS-Nevada shall vest in the Surviving
Corporation without further act or deed; and (iii) the Surviving Corporation,
shall, without further act or deed, assume and be subject to all of the duties,
liabilities, obligations and restrictions of every kind and description of
HSS-Nevada, including, without limitation, all outstanding indebtedness of
HSS-Nevada.
SECTION
3.02. Further
Assurances. From time to time, as and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed
and delivered on behalf of HSS-Nevada such deeds and other instruments, and
there shall be taken or caused to be taken by the Surviving Corporation all such
further and other actions, as shall be appropriate or necessary in order to
vest, perfect or confirm in the Surviving Corporation the title to and
possession of all property, interests, assets, rights, privileges, immunities,
powers and authority of HSS-Nevada, and otherwise to carry out the purposes of
this Agreement. The directors and officers of the Surviving
Corporation are fully authorized, on behalf of the Surviving Corporation and
HSS-Nevada, to take any and all such actions and to execute and deliver any and
all such deeds, documents and other instruments.
ARTICLE IV
SECTION
4.01. Termination. This
Agreement may be terminated, and the Merger may be abandoned, at any time prior
to the Effective Time if the Board of Directors of HSS-Nevada determines for any
reason, in its sole judgment and discretion, that the consummation of the Merger
would be inadvisable or not in the best interests of HSS-Nevada and its
shareholders. In the event of the termination and abandonment of this
Agreement, this Agreement shall become null and void and have no effect, without
any liability on the part of either HSS-Nevada or HSS-Delaware, or any of their
respective shareholders, directors or officers.
SECTION
4.02. Amendments;
Waivers.
(a) Any
provision of this Agreement may, subject to applicable law, be amended or waived
prior to the Effective Time if, and only if, such amendment or waiver is in
writing and signed by HSS-Nevada and HSS-Delaware, provided that an amendment
shall not (i) alter or change the amount or kind of shares, securities, cash,
property and/or rights to be received in exchange for or on conversion of all or
any securities of HSS-Nevada to be effected by the Merger; (ii) alter or change
any term of the Certificate of Incorporation of the Surviving Corporation; or
(iii) alter or change any of the terms and conditions of this Agreement if such
alteration or change would adversely affect the holders of any securities of
HSS-Nevada.
(b) No
failure or delay by any party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
ARTICLE V
SECTION
5.01. Successors and
Assigns. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, provided that no party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of the other party hereto.
SECTION
5.02. Governing
Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Delaware, without reference to principles
of conflicts of law.
SECTION
5.03. Consent to
Jurisdiction. Each of the parties hereto hereby irrevocably
submits to the exclusive jurisdiction of any New York state court, or the United
States District Court, Southern District of New York, in each case sitting in
the County of New York over any action or proceeding arising out of or relating
to this Agreement and the transactions contemplated hereby and each of the
parties hereto hereby irrevocably agrees that all claims in respect of such
action or proceeding shall be heard and determined in such New York state or
Federal court.
[Signature
Page Follows]
[Signature
Page to Agreement and Plan of Merger]
HEALTH
SYSTEMS SOLUTIONS, INC.
a
Nevada corporation
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Chief
Financial Officer
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HEALTH
SYSTEMS SOLUTIONS, INC.
a
Delaware corporation
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By:
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/s/
Xxxxxxx X. Xxxxxx
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Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Chief
Executive Officer
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