AGREEMENT AND PLAN OF MERGER OF NONINVASIVE MEDICAL TECHNOLOGIES, INC. A DELAWARE CORPORATION AND NONINVASIVE MEDICAL TECHNOLOGIES, LLC A MICHIGAN LIMITED LIABILITY COMPANY
AGREEMENT
AND PLAN OF MERGER
OF
NONINVASIVE MEDICAL TECHNOLOGIES, INC.
A
DELAWARE CORPORATION
AND
NONINVASIVE
MEDICAL TECHNOLOGIES, LLC
A
MICHIGAN LIMITED LIABILITY COMPANY
THIS
AGREEMENT AND PLAN OF MERGER dated as
of
September 27, 2006 (the "Agreement")
is between Noninvasive Medical Technologies, Inc., a Delaware corporation ("NMT
Delaware") and Noninvasive Medical Technologies, LLC., a Michigan limited
liability company ("NMT Michigan"). NMT Delaware and NMT Michigan are sometimes
referred to herein as
the
"Constituent Entities."
RECITALS
A. NMT
Delaware is a corporation duly organized and existing under the laws of the
State of Delaware and has an authorized capital of 105,000,000 shares of which
100,000,000 shares are designated
"Common Stock," with a par value of $0.0001, and 5,000,000 shares are designated
“Preferred Stock,” with a par value of $0.0001. As
of the
date of this Agreement of Merger, 100 shares of Common Stock
are
issued and outstanding, all of which are held by NMT Michigan.
B. NMT
Michigan is a limited liability company duly organized and existing under the
laws of the State of Michigan and has authorized ownership interests, which
are
currently outstanding as set forth on Exhibit
A,
hereto.
C. The
Managing Board of NMT Michigan has determined that, for the purpose of effecting
the reincorporation of NMT Michigan in the State of Delaware, it is
advisable
and in the best interests of NMT Michigan that NMT Michigan merge with and
into
NMT Delaware upon the terms and conditions herein provided.
D.
The
respective Board of Directors of NMT Delaware and Managing Board of NMT
Michigan
and the respective stockholders of NMT Delaware and members of NMT Michigan
have
approved this Agreement to the extent required by applicable law.
NOW,
THEREFORE, in consideration of the mutual agreements and covenants set forth
herein, NMT
Delaware
and NMT
Michigan
hereby agree, subject to the terms and conditions hereinafter set forth,
as
follows:
I.
MERGER
1.1 Merger. In
accordance with the provisions of this Agreement, the Delaware General
Corporation Law and the Michigan Limited Liability Company Act, NMT Michigan
shall be merged
with and into NMT Delaware (the "Merger"), the separate existence of NMT
Michigan shall cease and NMT Delaware shall be, and is herein sometimes
referred
to as, the "Surviving Corporation," and the name of the Surviving Corporation
shall be Noninvasive Medical Technologies, Inc.
1.2 Filing
and Effectiveness.
The date
and time when the Merger shall become effective is when this
executed
Agreement and Plan of Merger shall have been filed with the Secretary of State
of the State of Delaware
(the “Effective Date of the Merger”).
1.3 Effect
of the Merger. Upon
the
Effective Date of the Merger, the separate existence of
NMT
Michigan shall cease and NMT Delaware, as the Surviving Corporation, (i) shall
continue to possess all of its assets, rights, powers and property as
constituted immediately prior
to
the Effective Date of the Merger, (ii) shall be subject to all actions
previously taken by its Board of Directors and
NMT
Michigan's Managing Board, (iii) shall succeed, without other transfer, to
all
of the assets, rights, powers and property of NMT Michigan in the manner more
fully set forth
in
Section 259 of the Delaware General Corporation Law, (iv) shall continue to
be
subject to all of
the
debts, liabilities and obligations of NMT Michigan as constituted immediately
prior to
the
Effective Date of the Merger, and (v) shall succeed, without other transfer,
to
all of the debts, liabilities
and obligations of NMT
Michigan
in the
same manner as if NMT Delaware
had itself incurred them, all as
more
fully provided under the applicable provisions of the Delaware General
Corporation Law and the Michigan Limited Liability Company Act.
II.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate
of Incorporation,. The
Certificate of Incorporation of NMT Delaware
as
in
effect
immediately prior to the Effective Date of the Merger shall continue in full
force and effect as
the
Certificate of Incorporation of the Surviving Corporation until duly amended
in
accordance with the provisions thereof and applicable law.
2.2 Bylaws. The
Bylaws of NMT Delaware as in effect immediately prior to the Effective
Date of the Merger shall continue in full force and effect as
the
Bylaws of the Surviving Corporation
until duly amended in accordance with the provisions thereof and applicable
law.
2.3 Directors
and Officers. The
board
of directors and officers of NMT Delaware immediately prior to the Effective
Date of the Merger shall be the directors and officers of the Surviving
Corporation until their successors shall have been duly elected and qualified
or
as otherwise provided by law, the Certificate of Incorporation of the Surviving
Corporation or the Bylaws
of
the Surviving Corporation.
III.
MANNER OF CONVERSION OF MEMBERSHIP INTEREST TO STOCK
3.1 NMT
Michigan Ownership Interest. Upon
the
Effective Date of the Merger, each
percentage of NMT Michigan ownership interest, issued and outstanding
immediately prior thereto shall, by virtue of the Merger, and without any action
by the Constituent Entities, by the holder of such ownership interest, be
converted into and exchanged for 100,000 fully
paid
and
nonassessable shares of Common Stock, $0.0001 par value, of the Surviving
Corporation,
provided that no scrip or fractional shares of Surviving Corporation Common
Stock shall be issued in the Merger, but rather any fractional share of
Surviving Corporation Common Stock to be received by any holder of NMT
Michigan ownership interests pursuant
to this Section 3.1 shall be rounded
down to the nearest whole number of shares, unless that fraction is at least
0.5, in which case the fractional share shall be rounded up to the nearest
whole
number of shares. The
share
ownership of the Surviving Corporation as of the Effective Date of Merger is
set
forth in Exhibit
B
attached
hereto.
3.2 NMT
Delaware Common Stock. Upon
the
Effective Date of the Merger, all 100 shares of Common Stock, $0.0001 par value,
of NMT Delaware issued and outstanding immediately prior thereto shall, by
virtue of the Merger, and without any action by NMT Delaware, the holder of
such
shares or any other person, be canceled and returned to the status of
authorized
but unissued shares.
3.3 Exchange
of Certificates. After
the
Effective Date of the Merger, each holder of an outstanding certificate
representing ownership interests of NMT Michigan may be asked to surrender
the
same for cancellation to the Surviving Corporation, and each such holder shall
be entitled to receive in exchange therefor a certificate or certificates
representing the ownership interests of NMT Michigan, as
the
case
may be, into which
the
surrendered shares were converted as herein provided. Until so surrendered,
each
outstanding certificate theretofore representing ownership interests of NMT
Michigan shall be deemed for all purposes to represent the number of shares
of
the Surviving
Corporation's Common Stock, respectively, into which such ownership interests
of
NMT Michigan,
as
the
case
may be, were converted in the
Merger.
The
registered owner on the books and records of the Surviving Corporation
of
any
such outstanding certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to the
Surviving Corporation, have and be entitled to exercise any voting and other
rights with respect to and to receive dividends and other distributions upon
the
shares of Common Stock of the Surviving
Corporation represented by such outstanding certificate as
provided above.
Each
certificate representing Common Stock of the Surviving Corporation so issued
in
the Merger shall bear a legend restricting transfer as promulgated by Rule
144
or any successor provision of the Securities Act of 1933.
If
any
certificate for shares of the Surviving Corporation's 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 comply
with applicable securities laws and that the person requesting such transfer
pay
to the Surviving Corporation 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 the
Surviving
Corporation that such tax has been paid or is not payable.
IV.
GENERAL
4.1 Covenants
of NMT Delaware. NMT
Delaware covenants and agrees
that it will, on or before the Effective Date of the Merger:
| (a) |
File
any and all documents with the Michigan Franchise Tax Board necessary
for
the assumption by NMT Delaware of all
of the franchise tax liabilities of NMT Michigan.
|
| (b) |
Take
such other actions as
may
be required by the Michigan Limited Liability Company Act.
|
4.2 Further
Assurances. From
time
to time, as
and
when required by NMT Delaware
or by its successors or assigns, there shall be executed and delivered on behalf
of NMT Michigan
such
deeds and other instruments, and there shall be taken or caused to be taken
by
it such further and other actions as shall be appropriate or necessary in order
to vest or perfect in or
conform
of record or otherwise by NMT Delaware the title to and possession of
all
the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of NMT Michigan
and
otherwise to carry out the purposes of this Agreement, and the officers and
directors of NMT Delaware are fully authorized in the name and on behalf of
NMT
Michigan
or
otherwise to take any and all such action and to execute and deliver any and
all
such deeds and other instruments.
4.3 Abandonment. At
any
time before the Effective Date of the Merger, this Agreement may
be
terminated and the Merger may be abandoned for any reason whatsoever by the
Managing Board of NMT
Michigan or Board
of
Directors
of NMT Delaware, or of both, notwithstanding the approval of this Agreement
by
the members of NMT Michigan or by the stockholders of NMT Delaware, or by
both.
4.4 Amendment. The
Managing Board and Boards of Directors of the Constituent
Entities
may amend this
Agreement at any time prior to the filing of this Agreement (or certificate
in
lieu thereof) with the Secretary of State of the State of Delaware, provided
that an amendment made subsequent to the adoption
of this Agreement by the members or stockholders of either Constituent
Entity
shall not: (a) alter or
change
the amount or kind of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of the interests or
shares of any class or series thereof of such Constituent Entity, (b) alter
or
change
any term of the Certificate of Incorporation of the Surviving Corporation to
be
effected by the Merger, or (c) alter or change any of the terms and conditions
of this Agreement if such alteration or change would adversely affect the
holders of any membership interest or class
or
series of capital stock of either Constituent
Entity.
4.5 Registered
Office. The
registered office of the Surviving Corporation in the State of Delaware is
the
Corporation Service Company, 0000 Xxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx,
XX
00000 in the County of New Castle and the Corporation Service Company is the
registered agent of the Surviving Corporation at such address.
4.6
Agreement.
Executed
copies of this Agreement will be on file at the
principal place of
business of the Surviving Corporation at 0000 X. Xxxxxxx Xxxxxx, Xxx Xxxxx,
XX
00000, and copies thereof will be furnished to any member or stockholder of
either Constituent Entity, upon request and
without cost.
4.7 Governing
Law. This
Agreement shall in all respects be construed, interpreted and enforced in
accordance with and governed by the laws of the State of Delaware and, so far
as
applicable, the merger provisions of the Michigan Limited Liability Company
Act.
4.8 FIRPTA
Notification.
(a) On
the Effective Date of the Merger, NMT Michigan
shall
deliver to NMT Delaware, as agent for the members of NMT Michigan,
a
properly executed statement (the "Statement") substantially in the form attached
hereto as
Exhibit
C.
NMT
Delaware shall retain the Statement for a period of not less than seven
years
and
shall, upon request, provide a copy thereof to any person that was a member
of
NMT Michigan
immediately prior to the Merger. In consequence of the approval of the Merger
by
the
members of NMT Michigan, (i) such members shall be considered to have requested
that the Statement be delivered to NMT Delaware as their agent and (ii) NMT
Delaware shall be considered to have received a copy of the Statement at the
request of the NMT
Michigan members for purposes of satisfying NMT Delaware's obligations
under Treasury Regulation Section 1.1445-2(c)(3).
(b) NMT
Michigan shall deliver to the Internal Revenue Service a notice regarding the
Statement in accordance with the requirements of Treasury Regulation
Section
1.897-2(h)(2).
IN
WITNESS WHEREOF, this Agreement having first been approved by the Board of
Directors
of NMT Delaware and the Managing Board of NMT Michigan is hereby executed on
behalf of each
of
such two entities and attested by their respective officers thereunto duly
authorized.
NONINVASIVE
MEDICAL TECHNOLOGIES, INC. a Delaware corporation
By:
/s/
Xxxxxx XxXxxxxxx
Chief
Executive Officer / President
Xxxxxx
XxXxxxxxx
ATTEST:
/s/
Xxx
X. XxXxxxxxx
Xxx
X. XxXxxxxxx
NONINVASIVE
MEDICAL TECHNOLOGIES, LLC. a Michigan limited liability company
By:
/s/
Xxxxxx XxXxxxxxx
ATTEST:
/s/
Xxx
X. XxXxxxxxx
Secretary
Xxx X. XxXxxxxxx
Exhibit
A
Outstanding
Membership Interest of Noninvasive Medical Technologies, LLC (Michigan) as
of
August 24, 2006
|
Member
Name
|
%
Ownership
|
||
|
1
|
Xxxxx,
Xxxxx
|
9.259259%
|
|
|
2
|
Xxxxx,
Xxxxxxx X. & Xxxxxxxx X.
|
0.015873%
|
|
|
3
|
Xxxxxxxxxx,
Xxxxxxx
|
7.936508%
|
|
|
4
|
Xxxxxxx
Xxxxx Trust
|
3.174603%
|
|
|
5
|
Xxxxxxxx,
Xxxxx X.
|
0.423280%
|
|
|
6
|
Xxxxxxxx,
Xxxxxx & Xxxxx
|
0.100529%
|
|
|
7
|
Xxxxxxxx-Xxxxxx,
Xxxxxxx
|
0.042328%
|
|
|
8
|
Xxxxxxxx,
Xxxxxx
|
0.423280%
|
|
|
9
|
Xxxxxxxxx,
Xxxxx
|
15.873016%
|
|
|
10
|
Xxxxxxx,
Xxxxxx
|
10.582011%
|
|
|
11
|
Xxxx,
Xxxxx
|
0.529101%
|
|
|
12
|
Xxxxxxxxxx,
Xxxx X.
|
0.088182%
|
|
|
13
|
Xxxxxxxxxx,
Xxxxx & Xxxxxx X.
|
0.088186%
|
|
|
14
|
Xxxxxxxxxx,
Xxxxx & Xxxxxxx X.
|
0.088182%
|
|
|
15
|
Xxxxxxxxxx,
Xxxxx
|
0.846561%
|
|
|
16
|
Xxxxxx,
Xxxxxx
|
5.291005%
|
|
|
17
|
Xxxxxxx,
Xxxxxxx X.
|
0.423280%
|
|
|
18
|
Xxxxxxx
Investments, LLC
|
3.809524%
|
|
|
19
|
Magic
Arts & Entertainment
|
0.529101%
|
|
|
20
|
Xxxxxxx,
Xxxxx
|
11.904762%
|
|
|
21
|
XxXxxxxx,
Xxxx X.
|
14.550265%
|
|
|
22
|
XxXxxxxxx,
Xxxxxx
|
11.904762%
|
|
|
23
|
XxXxxx,
Xxxxxx X.
|
0.423280%
|
|
|
24
|
Xxxx,
Xxxxx
|
0.370370%
|
|
|
25
|
XXX,
Xxxxx & Xxxxx
|
0.042328%
|
|
|
26
|
XXX,
Xxxxxx X. & Xxxxxxxx X.
|
0.052910%
|
|
|
27
|
Xxxxxxx,
Xxxxxxx X.
|
0.846561%
|
|
|
28
|
Xxxxxx,
Xxxxxxx X. & Xxxxxx X.
|
0.211640%
|
|
|
29
|
Xxxxxx,
Xxxxxx & June
|
0.084656%
|
|
|
30
|
Xxxxxx,
Xxxxxx
|
0.042328%
|
|
|
31
|
Ttee,
X.X. Xxxxxxxx
|
|
0.042328%
|
|
Total
Percentage Ownership
|
100.00000%
|
Exhibit
B
Outstanding
Equity of Noninvasive Medical Technologies, Inc. (“Surviving Corporation”) as of
the Effective Date of Merger
|
Member
Name
|
Outstanding
Shares of
Common
Stock
|
||
|
1
|
Xxxxx,
Xxxxx
|
925,926.00
|
|
|
2
|
Xxxxx,
Xxxxxxx X. & Xxxxxxxx X.
|
1,587.00
|
|
|
3
|
Xxxxxxxxxx,
Xxxxxxx
|
793,651.00
|
|
|
4
|
Xxxxxxx
Xxxxx Trust
|
317,460.00
|
|
|
5
|
Xxxxxxxx,
Xxxxx X.
|
42,328.00
|
|
|
6
|
Xxxxxxxx,
Xxxxxx & Xxxxx
|
10,053.00
|
|
|
7
|
Xxxxxxxx-Xxxxxx,
Xxxxxxx
|
4,233.00
|
|
|
8
|
Xxxxxxxx,
Xxxxxx
|
42,328.00
|
|
|
9
|
Xxxxxxxxx,
Xxxxx
|
1,587,302.00
|
|
|
10
|
Xxxxxxx,
Xxxxxx
|
1,058,201.00
|
|
|
11
|
Xxxx,
Xxxxx
|
52,910.00
|
|
|
12
|
Xxxxxxxxxx,
Xxxx X.
|
8,818.00
|
|
|
13
|
Xxxxxxxxxx,
Xxxxx & Xxxxxx X.
|
8,819.00
|
|
|
14
|
Xxxxxxxxxx,
Xxxxx & Xxxxxxx X.
|
8,818.00
|
|
|
15
|
Xxxxxxxxxx,
Xxxxx
|
84,656.00
|
|
|
16
|
Xxxxxx,
Xxxxxx
|
529,101.00
|
|
|
17
|
Xxxxxxx,
Xxxxxxx X.
|
42,328.00
|
|
|
18
|
Xxxxxxx
Investments, LLC
|
380,952.00
|
|
|
19
|
Magic
Arts & Entertainment
|
52,910.00
|
|
|
20
|
Xxxxxxx,
Xxxxx
|
1,190,476.00
|
|
|
21
|
XxXxxxxx,
Xxxx X.
|
1,455,026.00
|
|
|
22
|
XxXxxxxxx,
Xxxxxx
|
1,190,476.00
|
|
|
23
|
XxXxxx,
Xxxxxx X.
|
42,328.00
|
|
|
24
|
Xxxx,
Xxxxx
|
37,037.00
|
|
|
25
|
XXX,
Xxxxx & Xxxxx
|
4,233.00
|
|
|
26
|
XXX,
Xxxxxx X. & Xxxxxxxx X.
|
5,291.00
|
|
|
27
|
Xxxxxxx,
Xxxxxxx X.
|
84,656.00
|
|
|
28
|
Xxxxxx,
Xxxxxxx X. & Xxxxxx X.
|
21,164.00
|
|
|
29
|
Xxxxxx,
Xxxxxx & June
|
8,466.00
|
|
|
30
|
Xxxxxx,
Xxxxxx
|
4,233.00
|
|
|
31
|
Ttee,
X.X. Xxxxxxxx
|
|
4,233.00
|
|
|
|||
|
Total
Shares
|
10,000,000.00
|
Exhibit
C
TO
THE MEMBERS OF NONINVASIVE MEDICAL TECHNOLOGIES, LLC.:
In
connection with the reincorporation (the "Reincorporation") in Delaware of
Noninvasive Medical Technologies, LLC., a Michigan limited liability company
(the "Company"), pursuant to the Agreement and Plan of Merger (the "Agreement")
dated as of ____________, 2006
between Noninvasive Medical Technologies, LLC and Noninvasive Medical
Technologies, Inc., a Delaware corporation and wholly-owned subsidiary of
Noninvasive Medical Technologies, LLC, your ownership interest of Noninvasive
Medical Technologies, LLC will be replaced by shares of stock in Noninvasive
Medical Technologies, Inc.
In
order
to establish that (i) you will not be subject to tax under Section 897 of the
Internal Revenue
Code of 1986, as amended
(the "Code"), in consequence of the Reincorporation and (ii)
Noninvasive Medical Technologies, Inc. will not be required under Section 1445
of the Code to withhold taxes from the Noninvasive Medical Technologies, Inc
stock that you will receive in connection therewith, the Company hereby
represents to you that, as of
the
date of this letter, shares of Company stock do not constitute a "United States
real property interest" within the meaning of Section 897(c) of the Code and
the
regulations
issued thereunder.
A
copy of
this letter will be delivered to Noninvasive Medical Technologies, Inc. pursuant
to Section 4.8 of the Agreement.
Under
penalties of perjury, the undersigned officer of the Company hereby declares
that, to the best knowledge and belief of the undersigned, the facts set forth
herein are true and correct.
Sincerely,
_________________________________
Chief
Financial Officer
