Exhibit 2.3(b)
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ACQUISITION AGREEMENT AND PLAN OF MERGER
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This Acquisition Agreement and Plan of Merger is made as of March 17, 1999,
by and between American Fire Retardant Corporation, a Wyoming Corporation (the
"Disappearing Corporation") and American Fire Retardant Corp., a Nevada
Corporation (the "Surviving Corporation"). (The corporations together are
sometimes referred to below as the "Constituent Corporations.")
RECITALS
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A. Whereas, the Disappearing Corporation, American Fire Retardant
Corporation, is a Wyoming Corporation organized and existing under the laws of
the State of Wyoming, having been incorporated on July 24, 1995, with authorized
capital stock consisting of an unlimited number of shares of common shares
without par value of which 2,022,938 shares are issued and outstanding.
B. Whereas, the Surviving Corporation, American Fire Retardant Corp., is a
Nevada Corporation organized and existing under the laws of the State of Nevada,
having been incorporated on January 29, 1998, with authorized capital stock
consisting of 25,000,000 shares of common stock, $0.001 par value per share, of
which 2,000 shares are issued and outstanding.
C. Whereas, the Surviving Corporation is presently a wholly owned
subsidiary of the Disappearing Corporation.
D. Whereas, the Board of Directors of the Disappearing Corporation desire
to merge the Disappearing Corporation, with and into the Surviving Corporation
for the sole purpose of effecting a change of Domicile from the State of Wyoming
to the State of Nevada.
E. Whereas, the merger will have no effect or change in the nature of the
business or management of the resulting business operating through the Surviving
Corporation.
F. Whereas, the Board of Directors of each of the Constituent Corporations
deem it advisable for the welfare of the Constituent Corporations that these
corporations merge under the terms and conditions hereinafter set forth, and
they have duly approved and authorized the terms of this Agreement.
G. Whereas, the laws of the State of Wyoming and Nevada permit such a
merger, and the Constituent Corporations desire to merge under and pursuant to
the provisions of the laws of their respective states.
H. Whereas, the Plan of Merger as set forth herein is contained in the
Articles of Merger to be filed with respective States of the Constituent
Corporations.
AGREEMENT
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NOW THEREFORE, in consideration of the premises and of the mutual
agreements and covenants herein contained, it is agreed that the Disappearing
Corporation will merge with and into the Surviving Corporation under the terms
and conditions set forth herein as follows:
1. The Merger. Subject to the terms and conditions hereof, the merger shall
be consummated in accordance with the Wyoming Business Corporation Act and the
applicable provisions of the Nevada Revised Statutes, as promptly as practicable
following the approval of the shareholders of the Disappearing Corporation. At
the Effective Date as set forth herein, subject to the terms and conditions of
this Agreement and in accordance with the laws of the States of Nevada and
Wyoming, the Disappearing Corporation shall be merged with and into Surviving
Corporation, whereupon the separate existence of Disappearing Corporation shall
cease and the Nevada Corporation shall be the Surviving Corporation. The
Surviving Corporation shall continue its corporate existence under the laws of
the State of Nevada.
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Without any other transfer or documentation, on the effective date of the
merger the Surviving Corporation shall (i) succeed to all of Disappearing
Corporation's rights and property; and (ii) be subject to all Disappearing
Corporation's liabilities and obligations. Notwithstanding the above, after the
effective date the Surviving Corporation's proper officers and directors may
perform any acts necessary or desirable to vest or confirm Surviving
Corporation's possession of and title to any property or rights of Disappearing
Corporation, or otherwise carry out this Agreement's purposes. This includes
execution and delivery of deeds, assurances, assignments or other instruments.
2. Execution of Articles of Merger. Following the approval of the merger by
the shareholders of the Disappearing Corporation, the Disappearing Corporation
and Surviving Corporation shall complete and execute Articles of Merger and
cause the Articles of Merger to be delivered to the Secretary of State of the
States of Nevada and Wyoming for filing. The parties hereto will also execute
and deliver such other documents or certificates as may be required to effect
the merger.
3. Effect of Merger. The effect of the merger will be to change the
domicile of the Disappearing Corporation from the State of Wyoming to the State
of Nevada without any change in the nature of the business or management.
4. Name of Surviving Corporation. The name of the Surviving Corporation,
shall, and, from and after the effective date of the merger, be American Fire
Retardant Corp. The separate existence of the Disappearing Corporation shall
cease at the effective time of the merger, except insofar as it may be continued
by law or in order to carry out the purposes of this Agreement, and except as
continued in the Surviving Corporation.
5. Articles of Incorporation of Surviving Corporation. The Articles of
Incorporation of the Surviving Corporation shall be the Articles of
Incorporation of the Surviving Corporation as presently on file with the
Secretary of States office of the State of Nevada, a copy of which is attached
hereto as Exhibit A.
6. By-laws of the Surviving Corporation. The By-laws of the Surviving
Corporation, at the effective time of the merger, shall be the present By-laws
of the Surviving Corporation, until altered or replaced as provided herein.
7. Board of Directors and Officers. The members of the Board of Directors
and the Officers of the Surviving Corporation immediately after the effective
time of the merger shall be those persons who are presently the members of the
Board of Directors and the Officers of the Disappearing Corporation and
Surviving Corporation, as set forth below, for the terms provided by law or in
the By-laws of the Surviving Corporation, or until their respective successors
are elected and qualified.
Directors: Officers:
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Xxxxxxx X. Xxxxx President and CEO.......... Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxx Chief Financial Officer .... Xxxxxx X. Xxxxx
Secretary .................. Xxxxxx X. Xxxxx
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8. Conversion of shares. By virtue of the merger and without any action by
any shareholder, upon the effective date each share of capital stock of
Disappearing Corporation outstanding immediately prior to the effective date
shall be converted into one (1) fully paid and non-assessable share of Surviving
Corporation's common stock, without any dilution or change in the rights or
privileges associated with said shares. No fractional shares of Surviving
Corporation shall be issued.
9. Stock Certificates. On or after the effective date, all of Disappearing
Corporation's outstanding stock certificates shall be deemed to represent
ownership of Surviving Corporation' shares, into which Disappearing
Corporation's shares have been converted (as provided above). The holders of
such certificates must surrender them to the Surviving Corporation in whatever
manner it may legally require, or as provided by the Surviving Corporation. On
receipt thereof, Surviving Corporation shall issue and exchange certificates for
shares of its common stock representing the number of shares to which the holder
is entitled as provided above.
Pending the surrender and exchange of certificates, the registered owner on
Disappearing Corporation's books of any outstanding stock certificate shall be
entitled to exercise all voting and other rights, and receive any dividends
payable, with respect to the shares of Surviving Corporation represented by the
certificates (as provided above).
10. Authority to Conduct Business. The Surviving Corporation represents
that the corporation has not filed an application for authority to do business
in the State of Wyoming. The Surviving Corporation has filed or will file
applications to conduct business as a foreign corporation within the States of
California, Florida, Louisiana and such other states as it will conduct business
from time to time.
11. Effective Date. Provided this Agreement is not abandoned, the effective
date of merger (the "Effective Date") shall be at the close of business on the
date when the requisite Articles of Merger are duly filed in the office of the
Secretary of State of Nevada and Wyoming.
12. Service of Process of Surviving Corporation. The Surviving Corporation
agrees that it may be served with process is the State of Wyoming in any
proceedings for enforcement of any obligation of the Disappearing Corporation,
as well as for the enforcement of any obligation of the Surviving Corporation
arising from the merger, and hereby irrevocably appoints the Secretary of State
of the State of Wyoming, as its agent to accept service of process in any suit
or other proceedings. Copies of such process shall be mailed to:
American Fire Retardant Corp.
Xx. Xxxxxxx X. Xxxxx
0000 Xxxx Xxxxxx
Xx Xxxxx, Xxxxxxxxxx 00000
13. Abandonment. This Agreement of Merger may be abandoned (a) by either
Constituent Corporation, acting by its Board of Directors, at any time prior to
its adoption by the shareholders of both of the Constituent Corporations, as
provided by law, or, (b) by the mutual consent of the Constituent Corporations,
acting each by its Board of Directors, at any time after such adoption by such
shareholders and prior to the effective time of merger. In the event of the
abandonment of this Agreement of Merger pursuant to (a) above, notice thereof
shall be given by the Board of Directors of the Constituent Corporation and
thereupon, or abandonment pursuant to (b) above, this Agreement of Merger shall
become wholly void and of no effect and there shall be no further liability of
obligation hereunder on the part of either the Constituent Corporations or of
its Board of Directors or shareholders.
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14. The obligations of each party hereto to consummate the Merger and the
other transactions contemplated by this Agreement shall be subject to
fulfillment on or prior to the Closing of each of the following conditions:
a. Shareholder Approval. The shareholders of Disappearing Corporation
shall have duly adopted and approved this Agreement and the
transactions contemplated hereby in accordance with the applicable
provisions of the Wyoming Business Corporation Act other applicable
law.
b. No Injunctions. No injunction or restraining or other order issued
by a court of competent jurisdiction which prohibits the consummation
of the transactions contemplated by this Agreement shall be in effect
(each party agreeing to use diligent efforts to have any such
injunction or order lifted), and no governmental action or proceeding
shall have been commenced or threatened in writing seeking any
injunction or restraining or other order that seeks to prohibit,
restrain, invalidate or set aside consummation of the transactions
contemplated by this Agreement.
c. No Governmental Proceedings. No action will have been taken, and no
statute, rule or regulation will have been enacted, by any state or
federal government agency that would render the consummation of the
Merger illegal.
d. Governmental Approvals. All governmental filings or approvals
required in connection with the consummation of the transactions
contemplated by this Agreement shall have been made or received.
15. Amendments. Subject to applicable law, this Agreement, the Articles of
Merger and any exhibit attached hereto or thereto may be amended by the parties
hereto at any time prior to the Effective Date; provided, however, that any such
amendment must be in writing and executed by all parties hereto.
16. Assignment. The rights under this Agreement shall not be assignable nor
the duties delegable by any party without the written consent of the other
parties; and nothing contained in this Agreement, express or implied, is
intended to confer upon any person or entity, other than the parties hereto and
their successors in interest and permitted assignees, any rights or remedies
under or by reason of this Agreement unless so stated to the contrary.
17. Entire Agreement. This Agreement (including all schedules and exhibits
attached hereto and thereto and all documents delivered as provided for herein
and therein) contain the entire agreement among the parties hereto with respect
to the subject matter hereof and the transactions contemplated hereby and
supersedes all prior negotiations, discussions, agreements, and undertakings,
both written and oral, among the parties hereto, with respect to the subject
matter hereof.
18. Counterparts. This Agreement may be executed in one or more
Counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may be
executed by facsimile with original executed copies to be delivered by overnight
mail.
19. Governing Law. This Agreement shall be construed by and enforced in
accordance with the laws of the State of Nevada without giving effect to the
principles of the conflicts of laws.
20. Approval and Adoption by Boards of Directors of the Constituent
Corporations. The Boards of Directors of the Constituent Corporation deem it
best interests of the corporations and their shareholders that Disappearing
Corporation be merged with and into the Surviving Corporation and their
respective Boards of Directors have adopted on behalf of their corporations the
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their respective duly authorized officers, as of the date first written above.
THE DISAPPEARING CORPORATION
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AMERICAN FIRE RETARDANT CORPORATION
A Wyoming Corporation
/s/ Xxxxxxx X. Xxxxx
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By: Xxxxxxx X. Xxxxx
Its: President
/s/ Xxxxxx X. Xxxxx
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By: Xxxxxx X. Xxxxx
Its: Secretary
THE SURVIVING CORPORATION
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AMERICAN FIRE RETARDANT CORP.
A Nevada Corporation
/s/ Xxxxxxx X. Xxxxx
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By: Xxxxxxx X. Xxxxx
Its: President
/s/ Xxxxxx X. Xxxxx
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By: Xxxxxx X. Xxxxx
Its: Secretary
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