AGREEMENT AND PLAN OF MERGER
Exhibit
10.1
AGREEMENT AND PLAN OF
MERGER
THIS AGREEMENT AND PLAN OF
MERGER (this “Agreement”) is made
and entered into as of the 25th day of
January, 2008, by and between FINGERPRINT DETECTION TECHNOLOGIES,
INC., a Florida corporation; CONSTELLATION BIOMETRICS
CORPORATION, a Florida corporation; SEQUIAM EDUCATION, INC., a
Florida corporation; SEQUIAM
SPORTS, INC., a Delaware corporation; SEQUIAM SOFTWARE, INC., a
California corporation (collectively, the “Merged
Corporations”), and SEQUIAM BIOMETRICS, INC., a
Florida corporation (the “Surviving
Corporation” and collectively with the Merged Corporation, the “Corporations”), with
the Merged Corporations merging with and into the Surviving Corporation, such
that the separate existence of each of the Merged Corporations shall cease and
the Surviving Corporation shall continue as the surviving corporation (the
“Merger”).
R E C I T A L S:
WHEREAS, the Boards of
Directors of the Corporations deem it advisable and in the best interests of the
Corporations to merge the Corporations.
NOW, THEREFORE, in
consideration of the mutual covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE
I
MERGER
1.1 The
Merger. Upon the terms and subject to the conditions hereof,
and in accordance with the relevant provisions of the Florida Business
Corporation Act (“FBCA), the California
Corporations Code (“CCC”), and the
Delaware General Corporation Law (the “DGCL” and together
with the FBCA and the CCC, “Applicable Law”), the
Merged Corporations shall be merged with and into the Surviving
Corporation. Following the Merger, the Surviving Corporation shall
continue as the surviving corporation and shall continue its existence under the
laws of the State of Florida, and the separate corporate existence of the Merged
Corporations under the laws of the States of Florida, California and Delaware,
as applicable, shall cease.
1.2 Effective
Date. Articles of Merger (“Articles”) with
respect to the Merger shall be executed, delivered and filed with the Secretary
of State of the State of Florida in accordance with the provisions of the
FBCA. A certified copy of such Articles shall be filed with the
Secretary of the State of California in accordance with the CCC. A
Certificate of Merger shall be filed with the Secretary of State of the State of
Delaware. The Merger shall be effective upon the filing of the
Articles of Merger with the Florida Secretary of State (the “Effective
Date”).
1.3 Effect of the
Merger. Upon the Effective Date, and without any further
action on the part of the Surviving Corporation, 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, of each of the
Corporations, and be subject to all the restrictions, disabilities and duties of
each of the Corporations so merged; and all of the rights, privileges, powers
and franchises of each of the Corporations, and all property, real, personal and
mixed, and all debts due to either of the Corporations on whatever account,
shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises and all and every other interest shall be
thereafter the property of the Surviving Corporation as they were of the
Corporations; and the title to any real estate, vested by deed or otherwise,
under the laws of the State of Florida or otherwise, in either of the
Corporations, shall not revert or in any way be impaired by reason of the
Merger; provided, that all debts, liabilities and duties of the Corporations,
and all rights of creditors and all liens upon any property of either of the
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.
1.4 Articles of Incorporation
and Bylaws of Surviving Corporation. From and after the
Effective Date, the Articles of Incorporation of the Surviving Corporation (the
“Articles”),
and the bylaws of the Surviving Corporation in effect immediately prior to the
Effective Date, shall be the Articles and bylaws, respectively, of the Surviving
Corporation, unless and until altered, amended or repealed as provided in the
Articles or such bylaws.
1.5 Directors and Officers of
Surviving Corporation. The directors and officers of the
Surviving Corporation immediately prior to the Effective Date shall be the
directors and officers, respectively, of the Surviving Corporation and will hold
such office from the Effective Date until their respective successors are duly
elected and qualified in the manner provided in the Articles and bylaws of the
Surviving Corporation, or as otherwise provided by law.
ARTICLE
II
CONVERSION AND EXCHANGE OF
SECURITIES
2.1 Cancellation of
Shares. Upon the Effective Date, each then outstanding share
of common stock of the Merged Corporations shall, by virtue of the Merger and
without any action on the part of the holders thereof, be cancelled and cease to
exist and no consideration shall be issued in respect thereof.
ARTICLE
III
MISCELLANEOUS
3.1 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to the conflicts
of law rules thereof.
3.2 Headings. The
headings in this Agreement are inserted for convenience only and shall not
constitute a part hereof.
3.3 Severability. If
any provision of this Agreement is held by a court of competent jurisdiction to
be contrary to law, then the remaining provisions of this Agreement, as
applicable, if capable of substantial performance, shall remain in full force
and effect.
3.4 Third Party
Beneficiaries. This Agreement is not intended to confer upon
any other person or entity, other than the parties hereto, any rights or
remedies.
3.5 Authorization. The
Boards of Directors and the proper officers of the Corporations are hereby
authorized, empowered, and directed to do any and all acts and things, and to
make, execute, deliver, file, and/or record any and all instruments, papers, and
documents which shall be or become necessary, proper, or convenient to
effectuate or consummate any of the provisions of this Agreement or of the
Merger herein provided for.
3.6 Modification or
Amendment. Subject to the applicable provisions of the FBCA, the
parties hereto may modify or amend this Agreement by mutual written agreement
executed and delivered by duly authorized officers or representatives of the
respective parties.
3.7 Termination. This
Agreement may be terminated and abandoned by the mutual consent of the Boards of
Directors of the Corporations at any time before the Effective
Date.
3.8 Appraisal
Rights. If applicable, shareholders of the Merged
Corporations, who, except for the applicability of section 607.1104 of the FBCA,
would be entitled to vote and who dissent from the merger pursuant to section
607.1321 of the FBCA, may be entitled, if they comply with the provisions of the
FBCA regarding appraisal rights of dissenting shareholders, to be paid the fair
value of their shares.
IN WITNESS WHEREOF, each of
the parties hereto has caused this Agreement and Plan of Merger to be executed
on its behalf and attested by its officers thereunto duly authorized, all as of
the date first above written.
SEQUIAM SOFTWARE,
INC.,
a
California corporation
|
|
By:
___________________________________
|
Name:
______________________________
Title:
_______________________________
SEQUIAM SPORTS,
INC.,
a
Delaware corporation
|
|
By:
___________________________________
|
Name:
______________________________
Title:
_______________________________
CONSTELLATION BIOMETRICS
CORPORATION, a Florida
corporation
|
|
By:
___________________________________
|
Name:
______________________________
Title:
_______________________________
FINGERPRINT DETECTION TECHNOLOGIES,
INC., a Florida corporation
|
|
By:
___________________________________
|
Name:
______________________________
Title:
_______________________________
SEQUIAM
EDUCATION, INC.
a Florida
corporation
|
|
By:
___________________________________
|
Name:
______________________________
Title:
_______________________________
SEQUIAM
BIOMETRICS, INC.
a Florida
corporation
|
|
By:
___________________________________
|
Name:
______________________________
Title:
_______________________________
