AGREEMENT AND PLAN OF MERGER
Exhibit
10.1 Agreement and Plan of Merger
AGREEMENT
AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER (this “Agreement”), dated as of June 12, 2008, is
made and entered into by and between ISDERA
NORTH AMERICA, INC.,
a New
York corporation (“Isdera-New York”) and ISDERA
NORTH AMERICA, INC.,
a
Nevada corporation and a wholly owned subsidiary of Isdera-New York
(“Isdera-Nevada”).
RECITALS
WHEREAS,
Isdera-Nevada was formed in the State of Nevada on April 23, 2008 as a
wholly-owned subsidiary of Isdera-New York; and
WHEREAS,
the board of directors of each of the Isdera-New York and Isdera-Nevada deems
it
advisable and in the best interests of the Isdera-New York and Isdera-Nevada,
respectively, upon the terms and subject to the conditions herein stated, that
the Isdera-New York be merged with and into Isdera-Nevada and that Isdera-Nevada
be the surviving corporation (the “Merger”);
and
WHEREAS,
Isdera-New York will submit this Agreement for approval by written consent
of
the holders of shares of common stock, $0.01 par value, of Isdera-New York
and
Isdera-Nevada (the “Common
Stock”).
NOW,
THEREFORE, in consideration of the premises, the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree that Isdera-New
York
shall be merged with and into Isdera-Nevada on the terms and conditions
hereinafter set forth.
ARTICLE
I
MERGER
1. Effective
on the time the Articles of Merger are accepted for filing in New York and
the
Certificate of Merger is accepted for filing in Nevada (the “Effective Time”),
Isdera-New York shall be merged with and into Isdera-Nevada in accordance with
the Nevada Revised Statutes (“NRS”) and the New York Business Corporation Law
(“NYBCL”), and the separate existence of Isdera-New York shall cease and
Isdera-Nevada (hereinafter sometimes referred to as the “Surviving Corporation”)
shall continue to exist under the name of Isdera North America, Inc. by virtue
of, and shall be governed by, the laws of the State of Nevada.
ARTICLE
II
CERTIFICATE
OF INCORPORATION
OF
THE SURVIVING CORPORATION
2. The
Certificate of Incorporation of the Surviving Corporation shall be the
Certificate of Incorporation of Isdera-New York (as amended), as in effect
immediately prior to the Effective Time, unless and until thereafter amended
as
provided by applicable law.
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ARTICLE
III
BYLAWS
OF THE SURVIVING CORPORATION
3. The
Bylaws (as amended) of Isdera-New York shall be the Bylaws of the Surviving
Corporation as in effect immediately prior to the Effective Time.
ARTICLE
IV
EFFECT
OF MERGER ON STOCK
OF
CONSTITUENT CORPORATIONS
4.1
At
the
Effective Time, each authorized share of common stock of Isdera-New York,
consisting of 500,000,000 shares of Common Stock, par value $0.001 per share
(the “New York Common Stock”), of which 4,284,400 shares are, as of the date
hereof, issued and outstanding, shall be converted into one (1) share of common
stock, par value $0.001 per share, of the Surviving Corporation (the “Nevada
Common Stock”).
4.2
At
and
after the Effective Time, each share of New York Common Stock shall be cancelled
and retired and, by virtue of the Merger and without further action, shall
cease
to exist.
4.3
At
and
after the Effective Time, all documentation which prior to that time evidenced
and represented New York Common Stock shall be deemed for all purposes to
evidence ownership of and to represent those shares of Nevada Common Stock
into
which the New York Common Stock represented by such documentation has been
converted as herein provided and shall be so registered on the books and records
of Isdera-Nevada. Each certificate representing common stock of the Surviving
Corporation so issued in the Merger shall bear the same legends, if any, with
respect to the restrictions on transferability as the certificates of Isdera-New
York so converted and given in exchange therefor, unless otherwise determined
by
the Board of Directors of the Surviving Corporation in compliance with
applicable laws.
4.4 If
any
certificate for shares of Nevada Common Stock is to be issued in a name other
than that in which the certificate surrendered in exchange therefor is
registered, it shall be a condition of issuance thereof that the certificate
so
surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and that the person requesting
such transfer pay to the Company or its transfer agent any transfer or other
taxes payable by reason of issuance of such new certificate in a name other
than
that of the registered holder of the certificate surrendered or establish to
the
satisfaction of Isdera-Nevada that such tax has been paid or is not
payable.
ARTICLE
V
CORPORATE
EXISTENCE, POWERS AND
LIABILITIES
OF SURVIVING CORPORATION
5.1
On
the
Effective Time, the separate existence of Isdera-New York shall cease and
Isdera-New York shall be merged with and into Isdera-Nevada in accordance with
the provisions of this Agreement. Thereafter, the Surviving Corporation shall
possess all of the rights, privileges, powers and franchises as well of a public
as of a private nature, and shall be subject to all the restrictions,
disabilities and duties of Isdera-New York; and all rights, privileges, powers
and franchises of Isdera-New York, and all property, real, personal and mixed,
and all debts due to each of them on whatever account, as well as stock
subscriptions and all other things in action or belonging to Isdera-New York,
shall be vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every other interest shall be
thereafter effectually the property of the Surviving Corporation as they were
of
Isdera-New York, and the title to any real estate, whether by deed or otherwise,
vested in Isdera-New York shall not revert or be in any way impaired by reason
of the Merger; but all rights of creditors and all liens upon any property
of
Isdera-New York shall be preserved unimpaired, and all debts, liabilities and
duties shall thenceforth attach to the Surviving Corporation and may be enforced
against it to the same extent as if said debts, liabilities and duties had
been
incurred or contracted by it.
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ARTICLE
VI
OFFICERS
AND DIRECTORS
OF
SURVIVING CORPORATION
6. At
the
Effective Time, the officers and directors of Isdera-New York shall become
the
officers and directors of the Surviving Corporation, and such persons shall
hold
office in accordance with the Bylaws of the Surviving Corporation or until
their
respective successors shall have been appointed or elected and qualified.
ARTICLE
VII
APPROVAL
BY STOCKHOLDERS;
AMENDMENT;
EFFECTIVE TIME
7.1
This
Agreement and the Merger contemplated hereby are subject to approval by the
requisite vote of the stockholders of Isdera-New York in accordance with New
York law. As promptly as practicable after approval of this Agreement by such
stockholders in accordance with applicable law, duly authorized officers of
Isdera-Nevada and Isdera-New York shall make and execute a Certificate of Merger
and Articles of Merger or other applicable certificates or documentation
effecting this Agreement and shall cause such document or documents to be filed
with the Secretaries of State of the States of Nevada and New York,
respectively, in accordance with the applicable Nevada and New York law.
7.2
The
respective Boards of Directors of Isdera-Nevada and Isdera-New York may amend
this Agreement at any time prior to the Effective Time.
ARTICLE
VIII
PAYMENT
OF FEES AND FRANCHISE TAXES
8. The
Surviving Corporation shall be responsible for the payment of all fees and
franchise taxes of Isdera-New York relating to or required to be paid in
connection with the Merger.
ARTICLE
IX
TERMINATION
OF MERGER
9. This
Agreement may be terminated and the Merger abandoned at any time prior to the
Effective Time, whether before or after stockholder approval of this Agreement,
by the consent of the Board of Directors of Isdera-Nevada and the Board of
Directors of Isdera-New York.
ARTICLE
X
MISCELLANEOUS
AND GENERAL
10.1
The
Merger is intended to be a tax-free plan or reorganization within the meaning
of
Section 368(a)(1)(F) of the Internal Revenue Code of 1986, as
amended.
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10.2 This
Agreement constitutes the entire agreement and supersedes all other prior
agreements, understandings, representations and warranties, both written and
oral, among the parties, with respect to the subject matter hereof.
10.3 The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of this
Agreement, or the application thereof to any person or any circumstance, is
determined by any court or other authority of competent jurisdiction to be
invalid or unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable provision
and (b) the remainder of this Agreement and the application of such
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers, all as of the day and year first above written.
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a
New York corporation
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By:
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Name: Xxxx Xxxxx |
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Title:
Chief Operating Officer and
Secretary
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a
Nevada corporation
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By:
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Name: Xxxx Xxxxx |
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Title:
Chief Operating Officer and
Treasurer
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