Exhibit 10.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made as of this 22nd
day of November, 2006, by and between DirectView, Inc., a Nevada corporation
(the "Nevada Corporation"), and GS Carbon 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 applicable provisions of Chapter
92A of the Nevada Revised Statutes regarding Private Corporations (
the "Nevada Revised Statutes"), at such time hereafter as the parties
hereto shall mutually agree, 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
Nevada Secretary of State in accordance with the applicable provisions
of the Nevada Revised Statutes; 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 Section 92A 200 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; Name of Surviving Corporation. 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 GS
Carbon 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 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, each two hundred
and fifty (250) shares of common stock of the Nevada Corporation
("Nevada Common Stock") outstanding immediately prior to the Effective
Time shall be changed and converted into one (1) fully paid and
non-assessable share of common stock of the Delaware Corporation
("Delaware Common Stock"), each share of Preferred Stock of the Nevada
Corporation ("Nevada Preferred Stock") outstanding immediately prior
to the Effective Time shall be changed and converted into one fully
paid and non-assessable share Preferred Stock of the Delaware
Corporation, as follows: each share of Series 1 Preferred Stock of the
Nevada Corporation shall be changed and converted into a share of
Series A Preferred Stock of the Delaware Corporation, and each share
of Series 2 Preferred Stock of the Nevada Corporation shall be changed
and converted into one share of Series B Preferred Stock of the
Delaware Corporation. No fractional shares of common stock will be
issued; rather, any shareholder who would otherwise be entitled to a
fractional share as a result of the exchange will be issued one whole
share of Delaware Common Stock in lieu of the fraction.
7. Outstanding Stock of the Delaware Corporation. At the Effective Date,
the 1,000 shares of the common stock of the Delaware Corporation
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 represent 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 Preferred and Common Stock. All shares of
Delaware Common Stock into which the Nevada Common Stock is to be
converted pursuant to the Merger, and all shares of Delaware Preferred
Stock into which the Nevada Preferred 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 or Nevada
Preferred Stock, as the case may be.
10. Rights of Former Holders. From and after the Effective Date, no holder
of certificates which evidenced Nevada Common Stock or Nevada
Preferred Stock immediately prior to the Effective Date shall have any
rights with respect to the shares formerly evidenced by those
certificates, other than the right to receive the shares of Delaware
Common Stock or Delaware Preferred Stock into which such Nevada Common
Stock or Preferred 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 necessary vote of the stockholders of the Nevada
Corporation. 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.
DIRECTVIEW, INC. GS CARBON CORPORATION
By:/s/ Xxxxx Xxxxxxxx By:/s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx
Title: Chief Executive Officer Title: Chief Executive Officer
