AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
(this “Agreement”), dated as
of December 3, 2007, by and among Automated Vending Technologies, Inc., a
Delaware corporation (“Automated Delaware”)
and AVT, Inc., a Nevada corporation (“Automated
Nevada”).
WITNESSED:
WHEREAS, Automated Delaware is
a public company with 37,048,878 shares of its common stock, $0.001 par value
per share, (“Automated
Delaware Common Stock”) issued and outstanding as of the date
hereof;
WHEREAS, Automated Nevada is a
private company with 100 shares of its common stock, $0.001 par value per share
(“Automated Nevada
Common Stock”), issued and outstanding as of the date
hereof;
WHEREAS, the respective Boards
of Directors of each of Automated Nevada and Automated Delaware, have approved
and authorized the execution and delivery of this Agreement so as to implement
the Merger (as defined in Section 1 hereof) in compliance with the provisions of
the Delaware General Corporation Law of the State of Delaware (the “DGCL”), and the
Nevada Revised Statutes of the State of Nevada (the “NRS”), with the
result that Automated Nevada shall continue as the surviving corporation and the
separate existence of Automated Delaware (except as it may be continued by
operation of law) shall cease;
WHEREAS, the purpose of the
Merger is to: (i) change the domicile of the corporation from Delaware to
Nevada; (ii) reverse the common stock of the corporation on a 1 for 3 basis; and
(iii) to change the name of the Corporation.
WHEREAS, Automated Nevada and
Automated Delaware intend that the Merger will qualify as a tax-free
reorganization pursuant to Section 368(a) of the Internal Revenue Code of 1986,
as amended (the “Code”);
and
WHEREAS, the parties desire to
make certain representations, warranties and agreements in connection with the
Merger on the terms and conditions set forth herein.
NOW THEREFORE, in
consideration of the premises and the mutual representations, warranties,
covenants and agreements herein contained, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
1. The Merger. Subject
to the terms and conditions hereinbelow set forth, on the Effective Date (as
defined in Section 6(a) hereof), in accordance with the DGCL and the NRS,
Automated Delaware shall be merged with and into Automated Nevada with Automated
Nevada being the surviving entity (the “Merger”) and, in
connection therewith:
(a) except to
the extent provided or permitted by the DGCL and the NRS, the separate existence
of Automated Delaware shall cease and terminate and Automated Nevada shall
continue as the surviving corporation.
(b) all of
the rights, privileges, immunities, powers, franchises and authority (both
public and private) of Automated Delaware and Automated Nevada shall vest in the
Surviving Corporation;
(c) all of
the assets and property of Automated Delaware and Automated Nevada of every
kind, nature and description (real, personal and mixed and both tangible and
intangible) and every interest therein, wheresoever located, including, without
limitation, all debts or other obligations belonging or due to Automated
Delaware or Automated Nevada, all claims and all causes of action, shall be, and
be deemed to be, vested, absolutely and unconditionally, in the Surviving
Corporation; and
(d) all debts
and obligations of Automated Delaware or Automated Nevada, all rights of
creditors of Automated Delaware or Automated Nevada, and all liens or security
interests encumbering any of the property of Automated Delaware or Automated
Nevada, shall be vested in the Surviving Corporation and shall remain in full
force and effect without modification or impairment and shall be, and be deemed
to be, enforceable against the Surviving Corporation and its assets and
properties with the same full force and effect as if such debts, obligations,
liens or security interests had been originally incurred or created by the
Surviving Corporation in its own name and for its own behalf. Without
limiting the generality of the foregoing, Surviving Corporation specifically
assumes all continuing obligations which Automated Delaware or Automated Nevada
would otherwise have to indemnify its officers and directors, to the fullest
extent currently provided in the Surviving Corporation’s Articles of
Incorporation, By-Laws and pursuant to the DGCL, with respect to any and all
claims arising out of actions taken or omitted by such officers and directors
prior to the Effective Date.
2. Instruments of
Conveyance. Without limiting the generality of the provisions
of Section 1 hereof and/or the succession provisions of applicable law, the
officers and directors of Automated Delaware last in office shall (to the extent
they, or any of them, possess and/or may exercise the power to do so) execute,
deliver and/or record such deeds and/or other instruments of transfer and/or
conveyance, and take or cause to be taken, such other and further actions, as
the case may be, as shall be reasonably requested by Automated Nevada or its
legal counsel, to vest, perfect, confirm, implement the transfer of, or
establish in the name, on behalf or for the account or the benefit of Automated
Nevada, title to, and/or possession of, any or all of the assets, property,
property interests, rights, privileges, immunities, powers and franchises owned
and/or exercisable by Automated Delaware (or in which Automated Delaware had an
interest and/or the power to exercise immediately prior to the Effective Date)
and which was vested, or intended to be vested, in Automated Nevada pursuant to
the provisions of this Agreement and the Merger.
3. Constitutional Documents, Directors,
and Officers. On and as of the Effective Date:
(a) the
Articles of Incorporation of Automated Nevada, as further amended on such date
in full force and effect, shall be the Articles of Incorporation of the
Surviving Corporation, until the same shall be altered, amended, modified,
terminated or rescinded in the manner provided by the NRS, which rights of
alteration, amendment, modification, termination and/or rescission are hereby
expressly reserved by Automated Nevada.
(b) the
By-Laws of Automated Delaware on such date in full force and effect shall be the
By-Laws of the Surviving Corporation, until the same shall be altered, amended,
modified, terminated or rescinded in the manner provided in the Articles of
Incorporation of Automated Nevada and/or the NRS, which rights of alteration,
amendment, modification, termination and/or rescission are hereby expressly
reserved by Automated Nevada; and
(c) the
members of the Board of Directors of the Surviving Corporation shall be the
directors of Automated Delaware immediately prior to the Effective Date, who
shall hold such office as provided in the By-Laws of Automated Delaware and/or
the NRS. The officers of the Surviving Corporation shall be the former officers
of Automated Delaware, who shall hold office as provided in the By-Laws of
Automated Delaware.
4. Conversion. On and
as of the Effective Date, by virtue of the Merger and without any action on the
part of the holder of any shares of capital stock of Automated Delaware or
capital stock of Automated Nevada:
(a) Subject
to the provisions of Section 5 hereof, each issued and outstanding share of
Automated Delaware common stock shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted and exchanged on a 3 for
1 reverse basis, for Automated Nevada common stock, containing substantially
similar other terms and conditions, and the exchanged Automated Delaware
securities shall thereafter be cancelled.
(b) Subject
to the provisions of Section 5 hereof, each issued and outstanding share of
Automated Delaware Preferred Stock, by virtue of the Merger and without any
action on the part of the holder thereof, be converted and exchanged on a 1 for
1basis for a new Automated Nevada security, containing substantially similar
other terms and conditions, and the exchanged Automated Delaware securities
shall thereafter be cancelled.
(c) Subject
to the provisions of Section 5 hereof, each issued and outstanding Automated
Delaware convertible note, by virtue of the Merger and without any action on the
part of the holder thereof, be converted and exchanged for a new Automated
Nevada convertible note, containing substantially similar other terms and
conditions, except that such new Automated Nevada convertible notes shall
contain such adjustments to account for the 3 for 1 reverse stock split, and the
exchanged Automated Delaware convertible notes shall thereafter be
cancelled.
(d) Subject
to the provisions of Section 5 hereof, each issued and outstanding Automated
Delaware debenture, by virtue of the Merger and without any action on the part
of the holder thereof, be converted and exchanged for a new Automated Nevada
debenture, containing substantially similar other terms and conditions, except
that such new Automated Nevada debenture shall contain such adjustments to
account for the 3 for 1 reverse stock split, and the exchanged Automated
Delaware debentures shall thereafter be cancelled.
(e) Subject
to the provisions of Section 5 hereof, each new Automated Nevada security which
is issued upon conversion and exchange of an issued and outstanding security of
Automated Delaware which bore a restrictive legend as of the Exchange date,
shall be deemed to be “restricted securities” as defined by Rule 144(a)(3) under
the Securities Act of 1933, as amended (the “Securities
Act”). The certificates evidencing such securities shall bear
substantially the following restrictive legend:
“THE
SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE SOLD
OR OTHERWISE TRANSFERRED UNLESS REGISTERED UNDER THE SECURITIES ACT OR THERE IS
AN OPINION FROM COUNSEL TO THE COMPANY THAT SUCH SALE OR OTHER TRANSFER MAY BE
MADE PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENT OF THE
SECURITIES ACT.”
5. Certificate
Exchange. Subsequent to the Effective Date, the issuance and
distribution of New Certificates (as defined in Section 5(a) hereof) in exchange
for Old Certificates (as defined in Section 5(a) hereof) shall be implemented as
follows:
(a) As
promptly after the Effective Date as shall be reasonably possible, each
Automated Delaware shareholder may, at the shareholder’s sole option and cost,
in accordance with Section 4 and this Section 5, exchange certificates
representing the shares of the Automated Delaware Common Stock (the “Old Certificates”)
for certificates representing Automated Nevada Common Stock.
(b) Upon
delivery of the New Certificates, the Old Certificates shall be deemed
surrendered and cancelled. Notwithstanding anything to the contrary
set forth herein, the representations, warranties, indemnities, agreements and
other statements of Automated Delaware or its officers, directors, employees and
agents, and of each purchaser of Automated Delaware Common Stock or its
officers, directors, employees, and agents, made in connection with the original
issuance and purchase of the Automated Delaware Common Stock, shall remain
operative and in full force and effect regardless of the exchange under this
Section 5 and Section 8 hereof.
6. The Effective
Date.
(a) Subject
to the provisions of this Agreement, (i) articles of merger (“Articles of Merger”)
in such form as is required by the NRS, and (ii) a certificate of merger (“Certificate of
Merger”) in such form as is required by the DGCL, shall be duly prepared,
executed and acknowledged by Automated Delaware and Automated Nevada and
thereafter delivered to the Secretary of State of the State of Nevada and the
Secretary of State of the State of Delaware, as applicable, for filing, as
provided in the NRS and the DGCL, as applicable, as early as practicable on the
date of the execution and delivery of this Agreement. The Merger
shall become effective as at the close of business on the date of filing the
Articles of Merger and the Certificate of Merger (the “Effective
Date”).
(b) The
closing of the Merger (the “Closing”) shall take
place as of the Effective Date.
(c) On
the Effective Date, Automated Nevada shall fix the number of members of the
Board of Directors at not less then one (1) and not more than seven (7),
effective with the Effective Date. The Board of Directors of
Automated Nevada shall consist of the following individuals:
Xxxxxxx
Xxxxxxxx
Xxxxxxx
Xxxxxxx
Xxxxx
Xxxxxx
(d) On
the Effective Date, the officers of Automated Nevada shall be as follows, each
to serve until the first meeting of the Board of Directors immediately following
the next Annual Meeting of Stockholders of Automated Nevada or until the Board
otherwise directs:
Name Position
Xxxxxxx
Xxxxxxx President
andSecretary
Xxxx
Xxxx Chief
Financial Officer
7. Automated Nevada Representations and
Warranties. In order to induce Automated Delaware to execute
this Agreement and perform its obligations under this Agreement, Automated
Nevada does hereby represent and warrant (which representations and warranties
shall be, and be deemed to be, continuing and survive the execution and delivery
of this Agreement and the Effective Date) as follows:
(a) Automated
Nevada is a corporation duly organized and validly existing under the laws of
the State of Nevada and has all requisite power and authority to own, lease, and
operate its properties and assets and to conduct the business as now conducted
and as proposed to be conducted. A true, complete and correct copy of
the Articles of Incorporation of Automated Nevada and the By-laws of Automated
Delaware as in effect on the date of this Agreement, including all amendments
thereto, have heretofore been delivered to the Automated Delaware.
(e) Except
with respect to the filing and approval of the Articles of Merger and the
Certificate of Merger, no consent, approval, authorization or order of, or any
filing with, any court, governmental agency, authority or body, or any other
third party is required by Automated Nevada in connection with the
execution, delivery and performance of this Agreement and/or the consummation by
Automated Nevada of the transactions contemplated by this
Agreement.
8. Other Securities.
(a) On
the Effective Date, each and every outstanding security issued by Automated
Delaware (the “Old Automated
Delaware Securities”), whether vested or unvested, shall be assumed by
Automated Nevada on the same terms and conditions as were applicable under such
Old Automated Delaware Securities, in accordance with the
foregoing.
(b) The
consummation of the Merger shall not result in the termination or acceleration
of any outstanding Old Automated Delaware Securities that are so assumed by
Automated Nevada.
(c) On
the Effective Date, Automated Nevada shall take all corporate action necessary
to reserve for issuance a sufficient number of shares of Automated Nevada Common
Stock for delivery under the Old Automated Delaware Securities assumed and
exchanged in accordance with this Section 8.
(d) On
the Effective date, the 100 issued and outstanding shares of Automated Nevada
held in the name of Automated Delaware shall be cancelled.
9. Further
Assurances and Cooperation; Restrictive Covenant.
(a) Each
party hereto will, before, at, and after the Closing and the Effective Time,
execute and deliver such instruments and take such other actions as the other
party or parties, as the case may be, may reasonably require in order to carry
out the intent of this Agreement.
10. Indemnification.
(a) Automated
Nevada agrees to indemnify and hold harmless Automated Delaware and their
respective successors and assigns (collectively, the “Automated Delaware
Indemnitees”) against and in respect of any and all claims, suits,
actions, proceedings (formal and informal), investigations, judgments,
deficiencies, damages, settlements, liabilities, losses, costs and legal and
other expenses arising out of or based upon any breach of any representation or
warranty, covenant or agreement of Automated Nevada contained in this Agreement
or in any other agreement executed and delivered by Automated Nevada hereunder
or in connection herewith.
(b) Automated
Delaware agrees to indemnify and to hold harmless Automated Nevada and its
successors and assigns (collectively, the “Automated Nevada Indemnitees”)
against and in respect of any and all claims, suits, actions, proceedings
(formal and informal), investigations, judgments, deficiencies, damages,
settlements, liabilities, losses, costs and legal and other expenses
arising out of or based upon any breach of any representation, warranty,
covenant or agreement of Automated Delaware contained in this Agreement or in
any other agreement executed and delivered by Automated Delaware hereunder or in
connection herewith.
(d) Any
Automated Delaware Indemnitee or Automated Nevada Indemnitee (in any such case,
the “Indemnified
Party”) seeking indemnification under this Agreement shall give to the
party obligated to provide indemnification to such Indemnified Party (in any
such case, the “Indemnitor”) a notice
(a “Claim
Notice”) describing in reasonable detail the facts giving rise to any
claim for indemnification hereunder promptly upon learning of the existence of
such claim. Upon receipt by the Indemnitor of a Claim Notice from an Indemnified
Party with respect to any claim of a third party, such Indemnitor may assume the
defense thereof with counsel reasonably satisfactory to the Indemnified Party
and, in such event, shall agree to pay and otherwise discharge with the
Indemnitor’s own assets all judgments, deficiencies, damages, settlements,
liabilities, losses, costs and legal and other expenses related thereto; and the
Indemnified Party shall cooperate in the defense or prosecution thereof and
shall furnish such records, information and testimony and attend all such
conferences, discovery proceedings, hearings, trials and appeals as may be
reasonably requested in connection therewith. If the Indemnitor does
not assume the defense thereof within ten days of its receipt of the Claim
Notice, the Indemnitor shall similarly cooperate with the Indemnified Party in
such defense or prosecution. The Indemnified Party shall have the
right to participate in the defense or prosecution of any lawsuit with respect
to which the Indemnitor has assumed the defense and to employ its own counsel
therein, but the fees and expenses of such counsel shall be at the expense of
the Indemnified Party unless (i) the Indemnitor shall not have promptly employed
counsel reasonably satisfactory to such Indemnified Party to take charge of the
defense of such action, (ii) such Indemnified Party shall have reasonably
concluded that there exists a significant conflict of interest with respect to
the conduct of such Indemnified Party’s defense by the Indemnitor, or (iii) the
Indemnitor fails to provide reasonable insurance to the Indemnified Party of its
financial capacity to defend such action and provide indemnification with
respect to such action, in any of which events such reasonable fees and expenses
shall be borne by the Indemnitor and the Indemnitor shall not have the right to
direct the defense of any such action on behalf of the Indemnified
Party. The Indemnitor shall have the right, in its sole discretion,
to settle any claim (a) which is solely for monetary damages for which
indemnification has been sought and is available hereunder, and (b) where there
is no finding or admission of any violation of any legal requirements or any
violation of the rights of any Person and no effect on any other claims that may
be made against the indemnified party, provided that the Indemnitor shall not
agree to the settlement of any claim which constitutes the subject of a Claim
Notice which settlement in the reasonable opinion of the Indemnified Party would
have a material adverse continuing effect on the business of the Indemnified
Party without the prior written consent of the Indemnified Party. The
Indemnified Party shall give written notice to the Indemnitor of any proposed
settlement of any suit, which settlement the Indemnitor may, if it shall have
assumed the defense of the suit, reject in its reasonable judgment within 10
days of receipt of such notice. Notwithstanding the foregoing, the
Indemnified Party shall have the right to pay or settle any suit for which
indemnification has been sought and is available hereunder, provided that, if
the defense of such claim shall have been assumed by the Indemnitor, the
Indemnified Party shall automatically be deemed to have waived any right to
indemnification hereunder.
11. Brokers and
Finders. Each Party to this Agreement represents and warrants
to the other(s) that they or it have not employed any broker, financial advisor
or finder or incurred any liability for any broker, financial advisory or
finders’ fees in connection with this Agreement and the consummation of the
Merger.
12. Costs and
Expenses. Each Party shall pay their own respective costs and
expenses relating to the Merger and the transactions contemplated by this
Agreement, including, without limitation, the costs and expenses relating to the
preparation of this Agreement, such as attorneys’ fees, accounting fees,
printing expenses and consent solicitation expenses. Automated
Delaware shall pay all of the expenses and filing fees in connection with the
filing of the Articles of Merger and the Certificate of Merger, as well as all
public filings in connection with the Merger to be made with the Commission and
any state securities authorities.
13. Notices. Any and
all notices, requests or instructions desired to be given by any party hereto to
any other party hereto shall be in writing and shall be either be hand
delivered, delivered by express courier or overnight delivery or mailed to the
recipient first class, postage prepaid, certified, return receipt requested at
the following respective addresses:
To: Automated
Delaware or Automated Nevada
Xxxxxxx
Xxxxxxx
000 Xxxxxx Xxxxxx, Xxxxx
000
Xxxxxx, XX 00000
or to such other address as any party
hereto shall designate in a writing complying with the provisions of this
Section 13.
14. Waiver. The Parties
may, by written instrument, (a) extend the time for the performance of any of
the obligations or other acts of the other(s) under this Agreement; (b) waive
any inaccuracies of such other party(ies) in the representations and warranties
contained in this Agreement or in any document delivered pursuant to this
Agreement; (c) waive compliance with any of the covenants of such other
party(ies) contained in this Agreement; and (d) waive the performance of any of
the obligations of such other party(ies) contained in this
Agreement.
15. Governing Law; Waiver of Jury
Trial. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to any
principles of conflicts of laws. Each party waives the right to a
jury trial.
16. Effectiveness. This
Agreement shall inure to the benefit of, and be binding upon, the parties hereto
and their respective successors, transferees, heirs, assigns and
beneficiaries.
17. Counterparts. This
Agreement may be executed in multiple copies, each of which shall constitute an
original, but all of which shall constitute one and the same
agreement.
18. Partial
Invalidity. If any term, covenant or condition in this
Agreement, or the application thereof to any person or circumstance, shall be
invalid or unenforceable, the remainder of this Agreement or the application of
such term, covenant or condition to persons or circumstances, other than those
as to which it is held invalid, shall be unaffected thereby and each term,
covenant or condition of this Agreement shall be enforced to fullest extent
permitted by law.
19. Integration. This
Agreement (including the Schedules hereto, the documents and instruments
delivered by the parties hereto and any other documents executed and delivered
and/or to be executed and delivered pursuant to the provisions of this Agreement
as herein
provided
or in connection herewith) sets forth the entire agreement among the parties
hereto with respect to the subject matter herein contained. There are
no covenants, promises, agreements, conditions or understandings, either oral or
written, between or among the parties hereto with respect to the subject matter
hereof except as herein and in such ancillary documents provided.
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement and Plan of Merger as of the date
first above written.
AUTOMATED
VENDING TECHNOLOGIES, INC.
A
Delaware corporation
By: Xxxxxxx
Xxxxxxx
Its: President
A
Nevada corporation
By: Xxxxxxx
Xxxxxxx
Its: President
