Exhibit 2-a
FORM OF
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made as of
this 17th day of May, 2005, by and between Incode Technologies Corp., a
Nevada corporation (the "Nevada Corporation"), and Inseq Corporation, a
Delaware corporation (the "Delaware Corporation").
W I T N E S S E T H:
WHEREAS, the Nevada Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Nevada; and
WHEREAS, the Delaware Corporation is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware; and
WHEREAS, the respective Boards of Directors of the Nevada
Corporation and the Delaware Corporation have determined that, for
purposes of effecting the reincorporation of the Nevada Corporation in the
State of Delaware, it is advisable, to the advantage of and in the best
interests of the Delaware Corporation and its stockholder and the Nevada
Corporation and its stockholders that the Nevada Corporation merge with
and into the Delaware Corporation upon the terms and subject to the
conditions herein provided; and
WHEREAS, the parties intend, by executing this Agreement, to adopt a
plan of reorganization within the meaning of Section 368 of the Internal
Revenue Code of 1986, as amended (the "Code"), and to cause the merger
described herein to qualify as a reorganization under the provisions of
Section 368 of the Code; and
WHEREAS, the respective Boards of Directors of the Nevada
Corporation and the Delaware Corporation and the stockholder of the
Delaware Corporation have unanimously adopted and approved this Agreement,
and the Board of Directors of the Nevada Corporation has directed that
this Agreement be submitted to the stockholders of the Nevada Corporation
for their consideration.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and intending to be legally bound, the Nevada
Corporation and the Delaware Corporation hereby agree as follows:
1. Merger. Subject to the approval of the stockholders of the
Nevada Corporation in accordance with the Nevada Revised Statutes (the
"NRS"), at such time hereafter as the parties hereto shall mutually agree,
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the Nevada Corporation shall be merged with and into the Delaware
Corporation (the "Merger"), and the Delaware Corporation shall be the
surviving company hereinafter sometimes referred to as the "Surviving
Corporation"). The Merger shall be effective upon (a) the filing of this
Agreement together with Articles of Merger (the "Articles of Merger") with
the office of the Secretary of State of the State of Nevada in accordance
with the provisions of Chapter 92-A of the NRS; and (b) the filing of a
duly certified counterpart of this Agreement and a duly executed
Certificate of Merger (the "Certificate of Merger") with the Secretary of
State of the State of Delaware in accordance with the applicable
provisions of the Delaware General Corporation Law (the "DCGL"); the date
and time of the later of such filings being hereinafter referred to as the
"Effective Date." Following the due approval of the Merger by the
stockholders of the Nevada Corporation, subject to the provisions of this
Agreement, the Articles of Merger shall be duly executed by the Delaware
Corporation and the Nevada Corporation and thereafter delivered to the
office of the Secretary of State of the State of Nevada, as provided in
Chapter 92-A of the NRS, and the Certificate of Merger shall be duly
executed by the Delaware Corporation and the Nevada Corporation and
thereafter delivered to the office of the Secretary of State of Delaware,
pursuant to Section 251 of the DGCL.
2. Governing Documents.
a. The Certificate of Incorporation of the Delaware Corporation
shall be the Certificate of Incorporation of the Surviving Corporation.
b. The By-Laws of the Delaware Corporation shall be the By-Laws of
the Surviving Corporation.
3. Officers and Directors. The directors of the Nevada Corporation
immediately prior to the Effective Date shall be the directors of the
Surviving Corporation and the officers of the Nevada Corporation
immediately prior to the Effective Date shall be the officers of the
Surviving Corporation. Such directors and officers will hold office from
the Effective Date until their respective successors are duly elected or
appointed and qualified in the manner provided in the Certificate of
Incorporation and By-Laws of the Surviving Corporation, as the same may be
lawfully amended, or as otherwise provided by law.
4. Succession. As of the Effective Date, the separate existence of
the Nevada Corporation shall cease and the Nevada Corporation shall be
merged with and into the Delaware Corporation, and the name of the
Surviving Corporation shall be Inseq Corporation. The Surviving
Corporation shall have all of the rights, privileges, immunities and
powers and be subject to all of the duties and liabilities granted or
imposed by Section 259 of the DGCL.
5. Further Assistance. From and after the Effective Date, as and
when required by the Delaware Corporation or by its successor and assigns,
there shall be executed and delivered on behalf of the Nevada Corporation
such deeds and other instruments, and there shall be taken or caused to be
taken by it such further and other action, as shall be appropriate or
necessary in order to vest, perfect or confirm, of record or otherwise, in
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the Delaware Corporation the title to and possession of all the property,
interests, assets, rights, privileges, immunities, power, franchises and
authority of the Nevada Corporation, and otherwise to carry out the
purposes of this Agreement, and the officers and directors of the Delaware
Corporation are fully authorized in the name and on behalf of the Nevada
Corporation or otherwise to take any and all such action and to execute
and deliver any and all such deeds and other instruments.
6. Capital Stock. At the Effective Date, by virtue of the Merger
and without any action on the part of the holder thereof:
a. Each share of common stock of the Nevada Corporation outstanding
immediately prior to the Effective Time shall be changed and converted
into one fully paid and non-assessable share of common stock of the
Delaware Corporation;
b. Each share of Series A Preferred Stock of the Nevada Corporation
outstanding immediately prior to the Effective Time shall be changed and
converted into one fully paid and non-assessable share of Series A
Preferred Stock of the Delaware Corporation; and
c. Each share of Series B Preferred Stock of the Nevada Corporation
outstanding immediately prior to the Effective Time shall be changed and
converted into one fully paid and non-assessable share of Series B
Preferred Stock of the Delaware Corporation.
7. Outstanding Stock of the Delaware Corporation. At the Effective
Date, the 1,000 shares of the Delaware Common Stock presently issued and
outstanding in the name of the Nevada Corporation shall be canceled and
retired and resume the status of authorized and unissued shares of
Delaware Common Stock, and no shares of Delaware Common Stock or other
securities of Delaware Common Stock shall be issued in respect thereof.
8. Stock Certificates. From and after the Effective Date, all of
the outstanding certificates which prior to that time represented shares
of capital stock of the Nevada Corporation shall be deemed for all
purposes to evidence ownership and to present the shares of capital stock
of the Delaware Corporation into which such shares of the Nevada
Corporation represented by such certificates have been converted as herein
provided. The registered owner on the books and records of the Delaware
Corporation or its transfer agent of any such outstanding stock
certificate shall, until such certificate shall have been surrendered for
transfer or otherwise accounted for to the Delaware Corporation or its
transfer agent, have and be entitled to exercise any voting and other
rights with respect to and to receive any dividend and other distributions
upon the shares of capital stock of the Delaware Corporation evidenced by
such outstanding certificates as above provided.
9. Validity of Delaware Common Stock. All shares of Delaware Common
Stock into which Nevada Common Stock is to be converted pursuant to the
Merger shall not be subject to any statutory or contractual preemptive
rights, shall, when issued, be validly issued, fully paid and
nonassessable and shall be issued in full satisfaction of all rights
pertaining to such Nevada Common Stock.
10. Rights of Former Holders. From and after the Effective Date,
no holder of certificates which evidenced Nevada Common Stock immediately
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prior to the Effective Date shall have any rights with respect to the
shares formerly evidenced by those certificates, other than to receive the
shares of Delaware Common Stock into which such Nevada Common Stock shall
have been converted pursuant to the Merger.
11. Abandonment and Termination. At any time before the
Effective Date, this Agreement may be terminated and the Merger may be
abandoned by the Board of Directors of either the Nevada Corporation or
the Delaware Corporation or both, notwithstanding approval of this
Agreement by the sole stockholder of the Delaware Corporation and the
stockholders of the Nevada Corporation.
12. Third Parties. Except as provided in this Agreement, nothing
herein expressed or implied is intended or shall be construed to confer
upon or give any person, firm or corporation, other than the parties
hereto or their respective successors and assigns, any rights or remedies
under or by reason of this Agreement.
13. Approval of Nevada Corporation as the Sole Stockholder of the
Delaware Corporation. By its execution and delivery of this Agreement,
the Nevada Corporation, as the sole stockholder of the Delaware
Corporation, consents to, approves and adopts this Agreement and approves
the Merger, subject to the approval and adoption of this Agreement by the
holders of a majority of the shares of the Nevada Common Stock. The Nevada
Corporation agrees to execute such instruments as may be necessary or
desirable to evidence its approval and adoption of this Agreement and
Merger as the sole stockholder of the Delaware Corporation.
IN WITNESS WHEREOF, the parties hereto, intending to be legally
bound hereby, have caused this Agreement to be executed as of this day and
year first above written.
Incode Technologies Corp.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President
Inseq Corporation
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: President
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