Exhibit A
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER (this "Agreement of Merger"), dated as of April
10, 2002, is among PNW Capital, Inc. a Delaware corporation ("Parent"), and
Industrial Minerals, Inc., a Nevada corporation (the "Company") (collectively
"Constituent Corporations").
WHEREAS, Parent owns 91% of the shares of the Company and the parties
thereto have agreed to the merger of the Company with and into Parent; and
WHEREAS, Parent, as the 91% shareholder of Company and, the respective
Boards of Directors of Parent and the Company,) have each approved the merger of
the Company into Parent in accordance with the Delaware General Corporation Law
and
WHEREAS, this Agreement of Merger shall be filed with a Certificate of
Merger and Articles of Merger with the Secretaries of State of Delaware and
Nevada respectively in order to consummate the merger of the Company with and
into Parent; and
WHEREAS, Parent and the Company have agreed to execute and file this
Agreement of Merger as provided under the Delaware Law and the Nevada Statutes.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, Parent and the Company hereby agree as follows:
1. The Merger. At the Effective Time, in accordance with this Agreement
of Merger, and Delaware Law and the Nevada Statutes, the Company shall be merged
(such merger being herein referred to as the "Merger") with and into the Parent,
the separate existence of the Company shall cease, and Parent shall continue as
the Surviving Corporation. Parent hereinafter sometimes is referred to as the
"Surviving Corporation."
2. Effect of the Merger. When the Merger has been effected, the
Surviving Corporation shall change its name to " Industrial Minerals, Inc."; and
the Surviving Corporation shall thereupon and thereafter possess all the rights,
privileges, powers and franchises of a public as well as of a private nature,
and be subject to all the restrictions, disabilities and duties of each of the
Corporations; and all and singular, the rights, privileges, powers and
franchises of each of the Constituent Corporations and all property, real,
personal and mixed, and all debts due to either of the Corporations on whatever
account, as well for stock subscriptions as all other things in action or
belonging to each of such corporations shall be vested in the Surviving
Corporation; and all property, rights, privileges, powers and franchises, and
all and every other interest shall be thereafter as effectually the property of
the Surviving Corporation as they were of the Constituent Corporations, and the
title to any real estate vested by deed or otherwise, in any of such Constituent
Corporations, 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 any of
said Constituent Corporations shall be preserved unimpaired, and all debts,
liabilities and duties of the respective Constituent Corporations shall
thenceforth attach to the Surviving Corporation, and may be enforced against it
to the same extent as if said debts, liabilities and duties had been incurred or
contracted by it.
3. Consummation of the Merger. The parties hereto will cause the Merger
to be consummated by filing with the Secretary of State of Delaware and Nevada a
Certificate of Merger (Delaware) and Articles of Merger under this Agreement of
Merger in such form as required by, and executed in accordance with, the
relevant provisions of the Delaware Law and the Nevada Statutes (the time of
such filing being the "Effective Time" and the date of such filing being the
"Effective Date").
4. Articles of Incorporation: Bylaws: Directors and Officers. The
Articles of Incorporation and bylaws of the Surviving Corporation shall be
identical with the Articles of Incorporation and bylaws of the Parent as in
effect immediately prior to the Effective Time until thereafter amended as
provided therein and under Delaware Statues.
5. Conversion of Securities. At the Effective Time, by virtue of the
Merger and without any action on the part of Parent, the Company or the holder
of any of the shares (the "Shares") of common stock, (the "Common Stock") of the
Company:
(a) Each Share issued and outstanding of Parent immediately prior to
the Effective Time shall remain as issued and outstanding common stock of parent
without change.
(b) Each Share which is held in the treasury of the Company or which
is owned by any direct or indirect subsidiary of the Company shall be canceled
and retired, and no payment shall be made with respect thereto. Each share of
Company owned by Parent shall be cancelled and retired and no payment shall be
made in respect thereto.
(c) Each outstanding or authorized subscription, option, warrant,
call, right (including any preemptive right), commitment, or other agreement of
any character whatsoever which obligates or may obligate the Parent to issue or
sell any additional shares of its capital stock or any securities convertible
into or evidencing the right to subscribe for any shares of its capital stock or
securities convertible into or exchangeable for such shares, if any, shall
remain unchanged.
(d) Each share of Common Stock of Company issued and outstanding
immediately prior to the Effective Time shall be retired into treasury, of the
Surviving Corporation. (Parent) and in conversion thereof, one share of Parent
shall be issued for each share of Company issued and outstanding, except as to
those share owned by Parent.
(e) No Fractional Shares and no certificates or scrip representing
such fractional Merger Shares, shall be issued.
6. Taking of Necessary Action: Further Action. Each of Parent, and the
Company shall use all reasonable efforts to take all such actions as may be
necessary or appropriate in order to effectuate the Merger under the Delaware
Law, the Nevada Statutes or federal law as promptly as possible. If, at any time
after the Effective Time, any further action is necessary or desirable to carry
out the purposes of the Agreement and to vest the Surviving Corporation with
full right, title and possession to all assets, property, rights, privileges,
powers and franchises of either of the Constituent Corporations, the officers
and directors of the Surviving Corporation are fully authorized in the name of
their corporation or otherwise to take, and shall take, all such lawful and
necessary action.
IN WITNESS WHEREOF, Parent, and the Company have caused this Agreement of Merger
to be executed as of the date first above written.
PNW CAPITAL, INC.
(A Delaware corporation)
By:_______________________________
President, Xx Xxxxx
INDUSTRIAL MINERALS, INC.
(A Nevada corporation)
By:__________________________
Xx Xxxxx, President of Industrial Minerals, Inc.
