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EXHIBIT 2
AGREEMENT OF MERGER
THIS AGREEMENT OF MERGER is made as of March 16, 1999, by and between
XxxxxxxXxxxx.xxx, Inc., a California corporation (herein the "Corporation"), and
TravelnStore, LLC, a California limited liability company (herein the "LLC").
(The Corporation and the LLC are hereinafter collectively referred to as the
"Constituent Entities".)
RECITALS
A. The Board of Directors and shareholders of the Corporation have
determined that it is desirable and in the best interests of the Corporation and
its shareholders that the LLC be merged with and into the Corporation on the
terms and conditions set forth herein and the Board of Directors and the
shareholders of the Corporation have approved this Agreement of Merger.
B. The Members of the LLC have determined that it is desirable and in
the best interests of the LLC and its Members that the LLC be merged with and
into the Corporation on the terms and conditions set forth herein and the
Members of the LLC have approved this Agreement of Merger.
C. The LLC is a member-managed limited liability company.
NOW, THEREFORE, in order to implement the foregoing, the parties agree
as follows:
1. MERGER. At the Effective Time (as defined in Section 2 hereof), the LLC
shall be merged with and into the Corporation (the "Merger") pursuant to the
provisions of, and with the effect provided in, Chapter 11 of the General
Corporation Law of California (the "GCL") and Chapter 12 of the Xxxxxxx-Xxxxxx
Limited Liability Company Act of California (the "LLC Act"). The Corporation
shall be the surviving corporation of the Merger (the "Surviving Corporation")
and shall continue to be governed by the GCL. The separate existence of the LLC
shall cease at the Effective Time. The corporate existence of the Surviving
Corporation shall continue unimpaired and unaffected by the Merger.
2. EFFECTIVE TIME OF THE MERGER. The Merger shall become effective at the
time of the filing in the office of the Secretary of State of the State of
California of a copy of this Agreement of Merger accompanied by Certificates of
Merger substantially in the form of Exhibits A and B hereto (the "Certificates
of Merger") in accordance with Sections 1103 and 1113 of the GCL and Section
17552 of the LLC Act, which time is herein sometimes referred to as the
"Effective Time".
3. DIRECTORS AND OFFICERS. The officers and directors of the Corporation
holding office at the Effective Time shall hold office in the Surviving
Corporation until removed as provided by law or until the election and
qualification of their respective successors.
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4. CONVERSION OF INTERESTS.
4.1 CONVERSION OF MEMBERSHIP INTERESTS. Upon the Effective Time, each
one percent (1%) membership interest in the LLC outstanding immediately prior to
the Effective Time shall be converted by reason of the Merger and without any
action on the part of the holders of any such membership interests into and
shall become Forty-Five Thousand (45,000) shares of Common Stock of the
Corporation.
4.2 CONVERSION OF COMMON STOCK. Upon the Effective Time, each share of
Common Stock of the Corporation issued and outstanding immediately prior thereto
shall, by virtue of the Merger and without any action by the Corporation, the
holder of such shares or any other person, be canceled and returned to the
status of authorized and unissued shares.
5. ASSUMPTION OF OBLIGATIONS. At the Effective Time, the franchises,
existence and rights of the LLC shall be merged into the Corporation and the
Corporation shall, as the Surviving Corporation, be fully vested therewith. At
the Effective Time, (a) the Surviving Corporation shall possess all of the
rights, privileges, powers and franchises and be subject to all of the
restrictions, disabilities and duties of each of the Constituent Entities; (b)
all property, real, personal and mixed, and all debts due to either of the
Constituent Entities on whatever account, including stock subscriptions, and all
other things in action and all and every other interest of or belonging to or
due to each of the Constituent Entities, shall be taken and deemed to be
transferred to and vested in the Surviving Corporation without further act or
deed; (c) all property, rights, privileges, powers, franchises and all and every
other interest of each of the Constituent Entities shall be thereafter as
effectually the property of the Surviving Corporation as they had been of the
respective Constituent Entities; and (d) the title to any real property, or any
interest therein, which has vested by deed or otherwise in either of the
Constituent Entities, shall not revert to the transferor thereof, or be in any
way impaired, by reason of the Merger. The Surviving Corporation shall assume
and thenceforth be responsible and liable for all the liabilities and
obligations of each of the Constituent Entities.
6. APPROVAL BY SHAREHOLDERS AND MEMBERS. The terms and conditions of the
Merger and this Agreement of Merger have been unanimously approved by the
shareholders of the Corporation and by the Members of the LLC.
7. FURTHER ACTS. From time to time, as or when requested by the Surviving
Corporation, or by its successors or assigns, the LLC shall execute and deliver
or cause to be executed and delivered all such other instruments, and shall take
or cause to be taken all such further or other actions, as the Surviving
Corporation, or its successors or assigns, may deem necessary or desirable in
order to vest in and confirm to the Surviving Corporation and its successors and
assigns, title to and possession of all of the property, rights, privileges,
powers and franchises referred to in Section 5 hereof and otherwise to carry out
the intent and purposes of this Agreement.
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8. AMENDMENT. The parties hereto, by mutual consent of their respective
Boards of Directors and Members, may amend, modify or supplement this Agreement
of Merger in such manner as may be agreed upon by them in writing at any time
before or after the adoption and approval of this Agreement of Merger by the
shareholders and Members of the Constituent Entities. If any amendment,
modification or supplement changes any of the principal terms of this Agreement
of Merger, then said amendment, modification or supplement to this Agreement of
Merger shall be approved by the shareholders and the Members of the Constituent
Entities.
9. ABANDONMENT. Subject to the rights of third parties under any contracts
relating thereto, this Agreement of Merger may be abandoned by the action of the
Board of Directors and Members of the Constituent Entities at any time before or
after approval or adoption hereof by the shareholders and Members of the
Constituent Entities, notwithstanding favorable action on the Merger by the
shareholders and Members of either Constituent Entity, but not later than the
filing of this Agreement of Merger with the Secretary of State of the State of
California.
10. MISCELLANEOUS.
10.1 ADDRESS OF SURVIVING CORPORATION. The address of the Surviving
Corporation for purposes of the delivery of notices regarding any matter
relating to the Merger and the transactions contemplated in this Agreement of
Merger is as follows:
XxxxxxxXxxxx.xxx, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
10.2 COUNTERPARTS. This Agreement of Merger may be executed in one or
more counterparts, and each such counterpart hereof shall constitute but one
agreement.
10.3 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement of Merger.
10.4 GOVERNING LAW. This Agreement of Merger shall be governed by, and
construed in accordance with, the laws of the State of California as applied to
agreements between California residents made and performed entirely within the
State of California.
(Signatures appear on the following page)
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IN WITNESS WHEREOF, each of the parties hereto, pursuant to authority
granted by its Board of Directors and Section 17103(a)(3) of the LLC Act, has
caused this Agreement of Merger to be executed on its behalf as of the day first
written above.
TRAVELNSTORE, LLC, A CALIFORNIA XXXXXXXXXXXX.XXX, INC., A CALIFORNIA
LIMITED LIABILITY COMPANY CORPORATION
By:_________________________________ By:_____________________________________
Xxx X. Xxxxx, Member Xxx X. Xxxxx, Chief Executive Officer
By:_________________________________ By:_____________________________________
Xxxx Xxxx, Member Xxxx Xxxxx, Secretary
By:_________________________________
Yula, Greco, Member
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XXXXXXXXXXXX.XXX, INC.
CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
Xxx X. Xxxxx and Xxxx Xxxxx certify that:
1. They are the Chief Executive Officer and Secretary, respectively, of
XxxxxxxXxxxx.xxx, Inc., a California corporation (the "Corporation").
2. The principal terms of the Agreement of Merger to which this
Certificate is attached (the "Merger Agreement") were duly approved by the Board
of Directors and shareholders of the Corporation.
3. The principal terms of the Merger Agreement in the form attached were
approved by the vote of the number of shares of capital stock of the Corporation
which were entitled to vote, which vote equaled or exceeded the vote required.
The percentage vote required was more than fifty percent (50%) of the
outstanding shares of such class.
4. There are two classes of shares of capital stock of the Corporation,
which are designated, respectively, as Preferred Stock and Common Stock. There
are no shares of Preferred Stock issued and outstanding. The number of
outstanding shares of Common Stock is one (1).
We further declare under penalty of perjury under the laws of the State
of California that the matters set forth in this certificate are true and
correct of our own knowledge.
Executed at Camarillo, California, on March 16, 1999.
By:_________________________________
Xxx X. Xxxxx, Chief Executive Officer
By:_________________________________
Xxxx Xxxxx, Secretary
Exhibit A
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CERTIFICATE OF MERGER
OF
TRAVELNSTORE, LLC
OTHER INFORMATION
The principal terms of the Agreement of Merger to which this Certificate
is attached (the "Merger Agreement") were duly approved by vote of the
percentage of the Membership Interests of TravelnStore, LLC which were entitled
to vote, which vote equaled or exceeded the vote required pursuant to Section
17103(a)(3) of the Xxxxxxx-Xxxxx Limited Liability Company Act. There is only
one class of Membership Interest of TravelnStore, LLC. The percentage vote
required by the Membership Interest of TravelnStore, LLC was more than fifty
percent (50%) of the outstanding Membership Interests of TravelnStore, LLC.
Exhibit B
