AGREEMENT AND PLAN OF MERGER OF ECLIPS ENERGY TECHNOLOGIES, INC., A FLORIDA CORPORATION AND ECLIPS MEDIA TECHNOLOGIES, INC., A DELAWARE CORPORATION
OF
ECLIPS
ENERGY TECHNOLOGIES, INC., A FLORIDA CORPORATION
AND
ECLIPS
MEDIA TECHNOLOGIES, INC., A DELAWARE CORPORATION
THIS
AGREEMENT AND PLAN OF MERGER (the "Agreement")
dated as of March 2, 2010, made and entered into by and between Eclips Energy
Technologies, Inc., a Florida corporation ("EEGT"),
and Eclips Media Technologies, Inc., a Delaware corporation ("EMT"),
which corporations are sometimes referred to herein as the "Constituent
Corporations."
W
I T N E S S E T H:
WHEREAS,
EEGT is a corporation organized and existing under the laws of the State of
Florida, having been incorporated on September 23, 1997, under the laws of the
State of Florida under the Florida Business Corporation Act (the “FBCA”);
and
WHEREAS,
EMT is a wholly-owned subsidiary corporation of EEGT, having been incorporated
under the laws of the State of Delaware under the Delaware General Corporation
Law (the “DGCL”)
on February 16, 2010; and
WHEREAS,
the respective Boards of Directors of EEGT and EMT have determined that it is
desirable to merge EEGT with and into EMT and that EMT shall be the surviving
corporation (the "Merger");
and
WHEREAS,
the parties intend by this Agreement to effect a reorganization under Section
368 of the Internal Revenue Code of 1986, as amended;
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained in
this Agreement, and for other valuable consideration, the receipt and adequacy
of which are hereby acknowledged, and intending to be legally bound, EEGT and
EMT hereto agree as follows:
ARTICLE
I
MERGER
1.1 The
Merger shall become effective upon the acceptance of the filing of the Articles
of Merger with the Department of State of the State of Florida and the
acceptance of the filing of the Certificate of Merger with the Secretary of
State of the State of Delaware (the "Effective
Date"). On the Effective Date, EEGT shall be merged with and
into EMT, the separate existence of EEGT shall cease and EMT (hereinafter
sometimes referred to as the "Surviving
Corporation") shall continue to exist under the name of Eclips Media
Technologies, Inc. by virtue of, and shall be governed by, the laws of the State
of Delaware. The address of the registered office of the Surviving Corporation
in the State of Delaware will be The Corporation Trust Company, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
ARTICLE
II
CERTIFICATE
OF INCORPORATION OF SURVIVING CORPORATION
2.1 The
name of the Surviving Corporation shall be "Eclips Media Technologies, Inc.".
The Certificate of Incorporation of the Surviving Corporation, attached hereto
as Exhibit
A, as in effect on the date hereof, shall be the Certificate of
Incorporation of EMT (the "EMTCharter")
without change, unless and until amended in accordance with Article VIII of this
Agreement or otherwise amended in accordance with applicable law.
ARTICLE
III
BYLAWS
OF THE SURVIVING CORPORATION
3.1 The
Bylaws of the Surviving Corporation, as in effect on the date hereof shall be
the Bylaws of EMT (the "EMT
Bylaws") without change, unless and until amended in accordance with
Article VIII of this Agreement or otherwise amended in accordance with
applicable law.
ARTICLE
IV
EFFECT
OF MERGER ON STOCK OF CONSTITUENT CORPORATIONS
4.1 On
the Effective Date, each outstanding share of Common Stock of EEGT, par value
$0.0001 per share (the "EEGT
Common Stock") shall be converted into two (2) shares of Common Stock,
par value $0.0001 per share, of EMT (the "EMT
Common Stock"), and each outstanding share of EMT Common Stock held by
EEGT shall be retired and canceled. In addition, on the Effective
Date, each outstanding share of EEGT Series D Preferred Stock, par value $0.0001
per share ("EEGT
Preferred"), shall be converted into two (2) shares of EMT Series A
Preferred Stock, par value $0.0001per share (the "EMT
Preferred"). The shares of EMT Preferred shall be identical to
the shares of EEGT Preferred, respectively, except that the shares of EMT
Preferred will be convertible into shares of EMT Common Stock on a share for
share basis and shall possess 250 votes per share. The additional powers,
designations, preferences, and rights of the EMT Preferred are described in more
detail in the Certificate of Designation, attached hereto as Exhibit
B. In addition, on the Effective Date, the outstanding 6%
convertible debentures due February 3, 2012 of EEGT shall be assumed by EMT and
converted into outstanding 6% convertible debentures due February 3, 2012 of
EMT.
4.2 All
options and rights to acquire EEGT Common Stock, and all outstanding warrants or
rights outstanding on the Effective Date to purchase EEGT Common Stock, will
automatically be converted into equivalent options, warrants and rights to
purchase two (2) times the number of shares of EMT Common Stock at fifty (50%)
percent of the exercise, conversion or strike price of such converted options,
warrants and rights.
4.3 After
the Effective Date, (i) certificates representing shares of EEGT Common Stock
will represent shares of EMT Common Stock, and (ii) certificates representing
shares of EEGT Preferred will represent shares of EMT Preferred, and
upon surrender of the same to the transfer agent for EEGT, who also shall serve
as the transfer agent for EMT, the holder thereof shall be entitled to receive
in exchange therefor a certificate or certificates representing the number of
shares of EMT Common Stock or EMT Preferred into which such shares of EEGT
Common Stock or EEGT Preferred shall have been converted pursuant to Article
4.1.
ARTICLE
V
CORPORATE
EXISTENCE, POWERS AND LIABILITIES OF THE SURVIVING
CORPORATION
5.1 On
the Effective Date, the separate existence of EEGT shall cease. EEGT
shall be merged with and into EMT, the Surviving Corporation, in accordance with
the provisions of this Agreement. Thereafter, EMT shall possess all the rights,
privileges, powers and franchises of a public as well as of a private nature,
and shall be subject to all the restrictions, disabilities and duties of each of
the parties to this Agreement; all singular rights, privileges, powers and
franchises of EEGT and EMT, and all property, real, personal and mixed and all
debts due to each of them on whatever account, shall be vested in EMT; and all
property, rights, privileges, powers and franchises, and all and every other
interest shall be thereafter the property of EMT, the Surviving Corporation, as
they were of the respective constituent entities, and the title to any real
estate, whether by deed or otherwise, vested in EEGT and EMT, or either of them,
shall not revert or be in any way impaired by reason of the Merger, but all
rights of creditors and all liens upon the property of the parties hereto, shall
be preserved unimpaired, and all debts, liabilities and duties of EEGT shall
thenceforth attach to EMT, and may be enforced against it to the same extent as
if said debts, liabilities and duties had been incurred or contracted by
it.
5.2 EEGT
agrees that it will execute and deliver, or cause to be executed and delivered,
all such deeds and other instruments and will take or cause to be taken such
further or other action as the Surviving Corporation may deem necessary in order
to vest in and confirm to the Surviving Corporation title to and possession of
all the property, rights, privileges, immunities, powers, purposes and
franchises, and all and every other interest of EEGT and otherwise to carry out
the intent and purposes of this Agreement.
ARTICLE
VI
OFFICERS
AND DIRECTORS OF SURVIVING CORPORATION
6.1 Upon
the Effective Date, the officers and directors of EEGT shall become the officers
and directors of EMT, and such persons shall hold office in accordance with the
EMT Bylaws until their respective successors shall have been appointed or
elected.
6.2 If
upon the Effective Date, a vacancy shall exist in the Board of Directors of the
Surviving Corporation, such vacancy shall be filled in the manner provided by
the EMT Bylaws.
ARTICLE
VII
DISSENTING
SHARES
7.1
Holders of shares of EEGT Common Stock, or EEGT Preferred who have complied with
all requirements for perfecting their rights of appraisal set forth in Chapters
607.1301 to 607.1333 of the FBCA shall be entitled to their rights under Florida
law with payments to be made by the Surviving Corporation.
ARTICLE
VIII
APPROVAL
BY SHAREHOLDERS, EFFECTIVE DATE, CONDUCT OF BUSINESS
PRIOR
TO EFFECTIVE DATE
8.1
Promptly after the approval of this Agreement by the requisite number of
shareholders of EEGT, the respective Boards of Directors of EEGT and EMT will
cause their duly authorized officers to make and execute Articles of Merger and
a Certificate of Merger or other applicable certificates or documentation
effecting this Agreement and shall cause the same to be filed with the
Department of State of Florida and Secretary of State of Delaware, respectively,
in accordance with the FBCA and the DGCL.
8.2 The
Boards of Directors of EEGT and EMT may amend this Agreement and the EMT Charter
or EMT Bylaws at any time prior to the Effective Date, provided that an
amendment made subsequent to the approval of the Merger by the shareholders of
EEGT may not (i) change the amount or kind of shares to be received in exchange
for or on conversion of the shares of the EEGT Common Stock or EEGT Preferred;
or (ii) alter or change any of the terms and conditions of this Agreement or the
EMT Charter or EMT Bylaws if such change would adversely affect the holders of
the EEGT Common Stock or EEGT Preferred.
ARTICLE
IX
TERMINATION
OF MERGER
9.1 This
Agreement may be terminated and the Merger abandoned at any time prior to the
Effective Date, whether before or after shareholder approval of this Agreement,
by the consent of the Board of Directors of EEGT and EMT.
ARTICLE
X
MISCELLANEOUS
10.1
GOVERNING LAW. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without reference to its principles of
conflicts of law.
10.2
EXPENSES. If the Merger becomes effective, the Surviving Corporation shall
assume and pay all expenses in connection therewith not theretofore paid by the
respective parties. If for any reason the Merger shall not become effective,
EEGT shall pay all expenses incurred in connection with all the proceedings
taken in respect of this Merger Agreement or relating thereto.
10.3
AGREEMENT. An executed copy of this Merger Agreement will be on file at the
principal place of business of the Surviving Corporation at 0000X 00xx Xxxxxx
Xxxxx, Xx. Xxxxxxxxxx, XX 00000 and, upon request and without cost, a copy
thereof will be furnished to any shareholder.
10.4
COUNTERPARTS. This Merger Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be executed as of the day and year
first above written.
a
Delaware corporation
By:_/s/Xxxxxxx X.
Cohen___________________
Xxxxxxx
X. Xxxxx, Chief Executive Officer
ECLIPS
ENERGY TECHNOLOGIES, INC.,
a Florida
corporation
By: /s/Xxxxxxx X.
Cohen___________________
Xxxxxxx
X. Xxxxx, Chief Executive Officer
