EX-2.6
AGREEMENT AND PLAN OR MERGER
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
5G WIRELESS COMMUNICATION, INC.
AND
5G WIRELESS SOLUTIONS, INC.
This Agreement and Plan of Merger ("Agreement") between 5G
Wireless Communications, Inc., a Nevada corporation ("Surviving
Corporation") and 5G Wireless Solutions, Inc., a Nevada corporation
("5G Wireless Solutions"), the two corporations acting by their
respective boards of directors and sometimes collectively referred to
as the "Constituent Corporations," is entered into this 18th day of
January, 2006 in Marina del Rey, California, and will have an
effective date, if approved as set forth in Article I, Section 1
hereafter, of the filing of the Articles of Merger with the Nevada
Secretary of State ("Effective Date").
WHEREAS, Surviving Corporation is a corporation organized and
existing under the laws of the State of Nevada, having been
incorporated on October 23, 1998, with its principal business office
located at 0000 Xxx Xxx Xxxxxx, Xxxxxx xxx Xxx, Xxxxxxxxxx 00000;
WHEREAS, the authorized capital stock of Surviving Corporation is
Five Billion (5,000,000,000) shares of common stock, par value of One
Tenth of One Cent ($0.001) per share, of which 3,551,527 are issued
and outstanding, and Ten Million (10,000,000) shares of preferred
stock, of which Three Million (3,000,000) of Series A are issued and
outstanding;
WHEREAS, Nevada Revised Statutes 92A.180 confers upon Surviving
Corporation the power to merge with a subsidiary corporation;
WHEREAS, 5G Wireless Solutions is a corporation organized and
existing under the laws of the State of Nevada, having been
incorporated on October 11, 2004, with its principal business office
located at 0000 Xxx Xxx Xxxxxx, Xxxxxx xxx Xxx, Xxxxxxxxxx 00000;
WHEREAS, the authorized capital stock of 5G Wireless Solutions
consists of One Hundred Ten Million (110,000,000) shares of common
stock, par value of One Tenth of One Cent ($0.001) per share, of which
Three Hundred Two Thousand Two Hundred Thirty (302,230) are issued and
outstanding.
WHEREAS, the respective boards of directors of Surviving
Corporation and 5G Wireless Solutions deem it desirable and in the
best interests of the corporations and their stockholders that the
corporations enter into this Agreement and merge pursuant to the terms
and conditions contained herein and for the sole purpose of combining
all the operations of the Surviving Corporation and 5G Wireless
Solutions into one corporation; and
WHEREAS, in order to consummate this merger and in consideration
of the mutual benefits to be derived and the mutual agreements
contained herein, Surviving Corporation and 5G Wireless Solutions
approve and adopt this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual
agreements, provisions and covenants herein contained, it is agreed by
and between the parties that, in accordance with the provisions of the
laws of the State of Nevada, Surviving Corporation and 5G Wireless
Solutions shall be, and they are, as of the merger date (as defined in
Article I, Section 2 hereafter) merged into a single surviving
corporation, which shall be and is Surviving Corporation, one of the
Constituent Corporations, which shall continue its corporate existence
and remain a Nevada corporation governed by the laws of that state,
all on the terms and conditions set forth as follows:
ARTICLE I
MERGER
1. Shareholder Approval.
Under the provisions of Nevada Revised Statutes 92A.180, the
consent of the shareholders of the Constituent Corporations is not
required for this merger.
2. Filings After Shareholder Approval.
As soon as practicable, Surviving Corporation shall file with the
Nevada Secretary of State a duly executed Articles of Merger, as
required by Nevada Revised Statutes 92A.200, and take such other and
future actions as may be required by Nevada law to make the merger
effective. The merger of 5G Wireless Solutions into Surviving
Corporation shall become effective upon the filing of the Articles of
Merger with the Nevada Secretary of State ("Merger Date").
3. Effect of Merger.
Surviving Corporation shall succeed to, without other transfer,
and shall possess and enjoy all rights, privileges, powers and
franchises as well of a public as of a private nature, and be subject
to all restrictions, disabilities and duties of each of two
Constituent Corporations, and all and singular, the rights,
privileges, powers and franchises of each of corporations, and all
property, real, personal and mixed, and all debts to either of
Constituent Corporations on whatever account, as well for stock
subscriptions as all other things in action or belonging to each of
the corporations shall be vested in the Surviving Corporation; and all
property, rights, privileges, powers and franchises, and all and every
other interest shall be as effectually property of the Surviving
Corporation as they were of Constituent Corporations, provided, that
all rights of creditors and all liens on any property of each of
Constituent Corporations shall be preserved unimpaired, limited to
property affected by the liens at time of merger, and all debts,
liabilities and duties of Constituent Corporations shall attach to the
Surviving Corporation, and may be enforced against it to the same
extent as if debts, liabilities and duties had been incurred or
contracted by it. If at any time the Surviving Corporation shall deem
or be advised that any further assignments or assurances in law or
things are necessary or desirable to vest, or to perfect or confirm,
of record or otherwise, in the Surviving Corporation the title to any
property acquired or to be acquired by reason of or as a result of
merger provided for by this agreement, proper officers and directors
of each of Constituent Corporations shall execute and deliver all
proper deeds, assignments and assurances in law and do all things
necessary or proper to vest, perfect or confirm title to property in
the Surviving Corporation and otherwise to carry out the purpose of
this Agreement.
ARTICLE II
NAME AND CONTINUED CORPORATE EXISTENCE
OF SURVIVING CORPORATION
The corporate name of Surviving Corporation, the Constituent
Corporation whose corporate existence is to survive this merger and
continue thereafter as the Surviving Corporation, and its identity,
existence, purposes, powers, objects, franchises, rights and
immunities shall continue unaffected and unimpaired by the merger, and
the corporate identity, existence, purposes, powers, objects,
franchises, rights and immunities of 5G Wireless Solutions shall be
wholly merged into Surviving Corporation. Accordingly, on the Merger
Date the separate existence of 5G Wireless Solutions, except insofar
as continued by statute, shall cease.
ARTICLE III
GOVERNING LAW
As stated, the laws of State of Nevada shall govern the Surviving
Corporation.
ARTICLE IV
CAPITAL STOCK OF SURVIVING CORPORATION
The capitalization of the Surviving Corporation upon the Merger
Date shall be as set forth in the Articles of Incorporation, as
amended, of Surviving Corporation.
ARTICLE V
CANCELLATIION OF SHARES ON MERGER
Upon the Merger Date, all shares of common stock of 5G Wireless
Solutions held by Surviving Corporation shall be automatically
cancelled.
ARTICLE VI
ASSETS AND LIABILITIES
On the Merger Date, all property, real, personal and mixed, and
all debts due to either of the Constituent Corporations on whatever
account, as well for stock subscriptions as all other choses in
action, and all and every other interest of or belonging to either of
Constituent Corporations shall be taken by and deemed to be
transferred to and vested in the Surviving Corporation without further
act or deed; and all property and every other interest shall be as
effectually the property of the Surviving Corporation as it was of the
respective Constituent Corporations, and the title to any real estate
or any interest, whether vested by deed or otherwise, in either of the
Constituent Corporations shall not revert or be in any way impaired by
reason of the merger; provided, however, that all rights of creditors
and all liens upon the property of either of the Constituent
Corporations shall be preserved unimpaired, and all debts,
liabilities, obligations and duties of the respective Constituent
Corporations shall attach to the Surviving Corporation, and may be
enforced against it to the same extent as if the debts, liabilities,
obligations and duties had been incurred or contracted by it. Any
action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted to judgment as if the merger had not
taken place, or the Surviving Corporation may be submitted in place of
either of the Constituent Corporations. The parties respectively agree
that from time to time, when requested by the Surviving Corporation or
by its successors or assigns, they will execute and deliver or cause
to be executed and delivered all deeds and instruments, and will take
or cause to be taken all further or other action, as the Surviving
Corporation may deem necessary or desirable in order to vest in and
confirm to the Surviving Corporation or its successors or assigns
title to and possession of all the property and rights and otherwise
carry out the intent and purposes of this Agreement.
ARTICLE VII
CONDUCT OF BUSINESS BY CONSTITUENT CORPORATIONS
Prior to the Merger Date 5G Wireless Solutions shall conduct its
business in its usual and ordinary manner, and shall not enter into
any transaction other than in the usual and ordinary course of such
business except as provided. Without limiting the generality of the
above, 5G Wireless Solutions shall not, except as otherwise consented
to in writing by Surviving Corporation or as otherwise provided in
this agreement:
1. Issue or sell any shares of its capital stock in addition to
those outstanding on this date, except shares issued pursuant to
rights or options outstanding at that date;
2. Issue rights to subscribe to or options to purchase any shares of
its stock in addition to those outstanding on this date;
3. Amend its certificate of incorporation or its bylaws;
4. Issue or contract to issue funded debt;
5. Declare or pay any dividend or make any other distribution upon
or with respect to its capital stock.
6. Repurchase any of its outstanding stock or by any other means
transfer any of its funds to its shareholders either selectively or
ratably, in return for value or otherwise, except as salary or other
compensation in the ordinary or normal course of business;
7. Undertake or incur any obligations or liabilities except current
obligations or liabilities in the ordinary course of business and
except for liabilities for fees and expenses in connection with the
negotiation and consummation of the merger in amounts to be determined
after the Merger Date;
8. Mortgage, pledge, subject to lien or otherwise encumber any
realty or any tangible or intangible personal property;
9. Sell, assign or otherwise transfer any tangible assets of
whatever kind, or cancel any claims, except in the ordinary course of
business;
10. Sell, assign, or otherwise transfer any trademark, trade name,
patent or other intangible asset;
11. Default in performance of any material provision of any material
contract or other obligation;
12. Waive any right of any substantial value; or
13. Purchase or otherwise acquire any equity or debt security of
another corporation except to realize on an otherwise worthless debt.
ARTICLE VIII
WARRANTIES OF THE CONSTITUENT CORPORATIONS
1. Representations and Warranties of 5G Wireless Solutions.
5G Wireless Solutions covenants, represents and warrants to
Surviving Corporation that:
a. It is on the date of this Agreement, and will be on the Merger
Date, (a) a corporation duly organized and existing and in good
standing under the laws of the jurisdiction of the State of Nevada;
(b) duly authorized under its articles, and under applicable laws, to
engage in the business carried on by it; and (c) it is fully qualified
to do business in the State of Nevada;
b. All federal, state and local tax returns required to be filed by
it on or before the Merger Date will have been filed, and all taxes
shown to be required to be paid on or before the Merger Date will have
been paid;
c. It will use its best efforts to collect the accounts receivable
owned by it on or prior to the Merger Date and will follow its past
practices in connection with the extension of any credit prior to the
Merger Date;
d. All fixed assets owned by it and employed in its business are of
the type, kind and condition appropriate for its business and will be
operated in the ordinary course of business until the Merger Date;
e. All leases now held by it are now and will be on the Merger Date
in good standing and not voidable or void by reason of any default
whatsoever;
f. During the period between January 1, 2006, and the date of this
Agreement, except as disclosed in writing to Surviving Corporation, it
has not taken any action, or suffered any conditions to exist, to any
material or substantial extent in the aggregate, which it has agreed
in Article VII of this Agreement not to take or to permit to exist
during the period between the date of this agreement and the Merger Date;
g. It has not been represented by any broker in connection with the
transaction contemplated, except as it has advised Surviving
Corporation in writing; and
h. Its Board of Directors has authorized and approved the execution
and delivery of this Agreement, and the performance of the
transactions contemplated by this Agreement.
i. 5G Wireless Solutions, in addition to other action which is has
covenanted, represented, and warranted to Surviving Corporation that
it shall take, shall also:
(1) Use its best efforts to preserve its business organization
intact, to keep available to Surviving Corporation the present
officers and employees of 5G Wireless Solutions, and to preserve
for Surviving Corporation the relationships of 5G Wireless
Solutions with suppliers and customers and others having business
relations with 5G Wireless Solutions; and
(2) Not increase the compensation, wages, or other benefits
payable to its officers or employees, other than increases that
Surviving Corporation has approved in writing.
2. Representations and Warranties of Surviving Corporation.
Surviving Corporation covenants, represents and warrants to 5G
Wireless Solutions that:
a. Surviving Corporation is a corporation duly organized and
existing and in good standing under the laws of the State of Nevada
and has the corporate power to own its properties and to carry on its
business as now being conducted; and
b. Its Board of Directors has authorized and approved the execution
and delivery of this Agreement, and the performance of the
transactions contemplated by this Agreement.
ARTICLE IX
CONSUMMATION OF MERGER
If the merger contemplated is completed, all expenses incurred in
consummating the plan of merger shall, except as otherwise agreed in
writing between the Constituent Corporations, be borne by Surviving
Corporation. If the merger is not completed, each of the Constituent
Corporations shall be liable for, and shall pay, the expenses incurred
by it.
This agreement may be deferred from time to time by mutual
consent of the respective boards of directors of each of the
Constituent Corporations, and, to the extent provided in 5(a), (b),
(c) and (d) below, the merger may be abandoned:
1. By the mutual consent of the respective Boards of Directors of
each of the Constituent Corporations;
2. By the Board of Directors of Surviving Corporation if there shall
not have been submitted to Surviving Corporation the opinion of
counsel for 5G Wireless Solutions, in form and substance satisfactory
to Surviving Corporation, to the effect that (1) 5G Wireless Solutions
is a validly organized and duly existing corporation, (2) this
Agreement has been duly authorized by, and is binding upon, 5G
Wireless Solutions in accordance with its terms, and (3) all the
properties, estate, rights, privileges, powers and franchises of 5G
Wireless Solutions and all debts due to 5G Wireless Solutions shall be
transferred to and vested in Surviving Corporation, as the Surviving
Corporation, without further act or deed, subject only to any legal
requirements for recording or filing any instruments of conveyance,
assignment or transfer, the giving of notice of any such conveyance,
assignment or transfer, consents of third parties and governmental
authorities to assignment of any contract or lease, and other
specified exceptions acceptable to Surviving Corporation;
3. At the election of the Board of Directors of 5G Wireless
Solutions if there shall not have been submitted to 5G Wireless
Solutions the opinion of counsel for Surviving Corporation, in form
and substance satisfactory to 5G Wireless Solutions, to the effect
that (1) Surviving Corporation is a validly organized and duly
existing corporation, (2) this Agreement has been duly authorized by,
and is binding upon, Surviving Corporation in accordance with its
terms, (3) when Articles of Merger shall have been filed as provided
in this Agreement, the merger will become effective and all
liabilities and obligations of 5G Wireless Solutions will become the
liabilities and obligations of Surviving Corporation, as the surviving
corporation, fully and without any further action by either
Constituent Corporation, (4) the 5G Wireless Solutions Stock will be
converted into Surviving Corporation Stock, (5) the Surviving
Corporation Stock into which the 5G Wireless Solutions Stock will be
converted as provided herein will be legally and validly authorized,
exempt from the registration requirements of Section 5 of the
Securities Act of 1933, as amended, ("Act'), provided by Rule 145
thereof, exempt from the registration requirements of Nevada Revised
Statutes 90.460, as amended, provided by Nevada Revised Statutes
90.530(17), and may be issued without a restrictive legend under the
Act if the shares of 5G Wireless Solutions are otherwise unrestricted,
and (6) when issued will be validly issued, fully paid and
nonassessable stock of the surviving corporation;
5. At the election of the Board of Directors of either Constituent
Corporation if:
(a) The warranties and representations of the other Constituent
Corporation contained in this Agreement shall not be substantially
accurate in all material respects on and as of the date of election;
or the covenants contained of the other Constituent Corporation shall
not have been performed or satisfied in all material respects;
(b) This agreement shall not have been approved by the requisite
votes of shareholders of the Constituent Corporations on or before
December 1, 2003;
(c) Prior to the merger (1) there shall have been filed in any court
or agency having jurisdiction a complaint or other proceeding seeking
to restrain or enjoin the merger contemplated hereby, or (2) there
shall have been presented to 5G Wireless Solutions or Surviving
Corporation or any director or officer of either of them any process,
demand or request which, in the opinion of counsel for either
Constituent Corporation, offers reasonable ground to believe that a
complaint or xxxx in equity may be forthcoming which, if successful,
would restrain, enjoin or dissolve the merger, and if, in either case,
such Board of Directors determines that abandonment and cancellation
of this Agreement is advisable in the best interests of the
Constituent Corporations, their shareholders, employees and customers;
(d) If the Merger Date shall not have occurred by January 31, 2006,
then, at the option of the Board of Directors of either Constituent
Corporation, it may be deferred to June 30, 2006. If the Merger Date
shall not have occurred by June 30, 2006, then, at the option of the
Board of Directors of either Constituent Corporation the merger may be
abandoned. In the event of the abandonment of the merger pursuant to
the foregoing provisions, this Agreement shall become void and have no
effect, without any liability on the part of either of the Constituent
Corporations or its shareholders or directors or officers in respect
of this merger except the obligation of each Constituent Corporation
to pay its own expenses as provided in this Article IX.
ARTICLE X
RIGHT TO AMEND ARTICLES OF INCORPORATION
The Surviving Corporation reserves the right to amend, alter,
change or repeal its Articles of Incorporation in the manner now or
later prescribed by statute or otherwise authorized by law; and all
rights and powers conferred in the certificate of incorporation on
shareholders, directors or officers of Surviving Corporation, or any
other person, are subject to this reserved power.
ARTICLE XI
MISCELLANEOUS
1. Access to Books and Records.
To enable Surviving Corporation to coordinate the activities of
5G Wireless Solutions into those of Surviving Corporation on and after
the Merger Date, 5G Wireless Solutions shall, before the Merger Date,
afford to the officers and authorized representatives of Surviving
Corporation free and full access to the plants, properties, books and
records of 5G Wireless Solutions, and the officers of 5G Wireless
Solutions will furnish Surviving Corporation with financial and
operating data and other information as to the business and properties
of 5G Wireless Solutions as Surviving Corporation shall from time to
time reasonably request. Surviving Corporation and 5G Wireless
Solutions agree that, unless and until the merger contemplated by this
Agreement has been consummated, Surviving Corporation and 5G Wireless
Solutions and their officers and representatives will hold in strict
confidence all data and information obtained from one another as long
as it is not in the public domain, and if the merger provided for is
not consummated as contemplated, Surviving Corporation and 5G Wireless
Solutions will each return to the other party all data as the other
party may reasonably request.
2. Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall not be
capable of being waived or varied other than by an express waiver or
variation in writing. Any failure to exercise or any delay in
exercising any of such rights shall not operate as a waiver or
variation of that or any other such right. Any defective or partial
exercise of any of such rights shall not preclude any other or further
exercise of that or any other such right. No act or course of conduct
or negotiation on the part of any party shall in any way preclude such
party from exercising any such right or constitute a suspension or any
variation of any such right.
3. Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators, representatives,
successors, and permitted assigns.
4. Entire Agreement.
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof. There are no promises,
agreements, conditions, undertakings, understandings, warranties,
covenants or representations, oral or written, express or implied,
between them with respect to this Agreement or the matters described
in this Agreement, except as set forth in this Agreement. Any such
negotiations, promises, or understandings shall not be used to
interpret or constitute this Agreement.
5. Assignment.
Neither this Agreement nor any other benefit to accrue hereunder
shall be assigned or transferred by either party, either in whole or
in part, without the written consent of the other party, and any
purported assignment in violation hereof shall be void.
6. Amendment.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
7. Severability.
Each part of this Agreement is intended to be severable. In the
event that any provision of this Agreement is found by any court or
other authority of competent jurisdiction to be illegal or
unenforceable, such provision shall be severed or modified to the
extent necessary to render it enforceable and as so severed or
modified, this Agreement shall continue in full force and effect.
8. Section Headings.
The Section headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement.
9. Construction.
Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall be
deemed to include each of the singular, and pronouns of one or no
gender shall be deemed to include the equivalent pronoun of the other
or no gender.
10. Further Assurances.
In addition to the instruments and documents to be made, executed
and delivered pursuant to this Agreement, the parties hereto agree to
make, execute and deliver or cause to be made, executed and delivered,
to the requesting party such other instruments and to take such other
actions as the requesting party may reasonably require to carry out
the terms of this Agreement and the transactions contemplated hereby.
11. Governing Law.
This Agreement shall be construed and enforced under, in
accordance with, and governed by, the laws of the State of Nevada.
12. Consents.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and
authority to execute and deliver this Agreement on behalf of such party.
13. Termination of Agreement.
This Agreement shall terminate on the Effective Date unless all
actions required under this Agreement have not been fully performed.
14. Survival of Provisions.
The representations and warranties contained in Article X of this
agreement and any liability of one Constituent Corporation to the
other for any default under the provisions of Articles IX or X of this
agreement, shall expire with, and be terminated and extinguished by,
the merger under this agreement on the Merger Date.
15. Execution in Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
5G WIRELESS COMMUNICATIONS, INC.:
By: /s/ Xxxxx Xxx
Xxxxx Xxx, Chief Executive Officer
5G WIRELESS SOLUTIONS, INC.:
By: /s/ Xxx Xxxxxxxx
Xxx Xxxxxxxx, Secretary
