AGREEMENT OF MERGER OF PARENT MERGER SUB AND COMPANY
Exhibit
2.2
AGREEMENT
OF MERGER
OF
PARENT
MERGER
SUB
AND
COMPANY
This
Agreement of Merger, is made as of the 15th day of October, 2007 (“Agreement
of Merger”), by and among Commerce Planet, Inc., a Utah corporation
(“Parent”), I-Corp Acquisition Sub, Inc., a California corporation and
wholly owned subsidiary of Parent (“Merger Sub”), and Iventa Corporation,
a California corporation (the “Company”).
RECITALS
A. The
Company, Merger Sub and Parent have entered into an Agreement and Plan of Merger
(the “Merger Agreement”), dated October 12, 2007, by and among Parent,
Merger Sub, I-Corp Merger Sub, LLC, a California limited liability company,
and
the Company, and Xxxxxxx Xxxxxxxx, providing for certain representations,
warranties, covenants and agreements in connection with the transactions
contemplated hereby. This Agreement of Merger and the Merger
Agreement are intended to be construed together to effectuate their
purpose.
B. The
Boards of Directors of Parent, Merger Sub and the Company and the shareholders
of the Company have approved a merger pursuant to which the Company shall be
acquired through a merger of Merger Sub with and into the Company, with the
Company continuing as the surviving corporation (the
“Merger”).
AGREEMENTS
The
parties hereto hereby agree as follows:
1. The
Merger. Merger Sub shall be merged with and into the Company and
the Company shall be the surviving corporation. The Company after the
effective time of the Merger is sometimes referred to herein as the
“Surviving Corporation.”
2. Effective
Time. The Merger shall become effective at such time (the
“Effective Time”) as this Agreement of Merger and the officers’
certificates each of Merger Sub and the Company are accepted for
filing with the
Secretary of State of the State of California pursuant to Section 1103 of
the Corporations Code of the State of California.
3. Conversion. At
the Effective Time of the Merger:
(i) all
shares of Common Stock of the Company (the “Company Common Stock”), that
are owned directly or indirectly by the Company or any subsidiary of the Company
shall be cancelled, and no securities of Parent or other consideration shall
be
delivered in exchange therefor;
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(ii) all
shares of Common Stock of the Merger Sub (the "Merger Sub Common Stock"), that
are owed directly or indirectly by the Merger Sub or any subsidiary of the
Merger Sub shall be canceled without consideration, and no securities of Parent
or other consideration shall be delivered in exchange therefor;
(iii) each
of the issued and outstanding shares of Parent shall remain outstanding as
one
validly issued, fully paid and nonassessable share of the capital stock of
Parent;
(iv) each
share of Company Common Stock issued and outstanding immediately prior to the
Effective Time (other than shares, if any, held by persons who have demanded
and
perfected dissenters’ rights for such shares in accordance with the Corporations
Code of the State of California and who, as of the Effective Time, have not
effectively withdrawn or lost such dissenters’ rights, referred to hereinafter
as “Dissenting Shares”, and those shares being cancelled pursuant to
clause (i) above) shall be converted automatically into the right to
receive,
(1) a
number of shares (rounded down to the nearest whole share) of the common stock
of Parent ("Parent Common Stock") equal to the quotient obtained from dividing
(1) $1,245,609 by (2) $0.73, and then dividing such quotient by the total number
of shares of Company Common Stock issued and outstanding immediately prior
to
the Effective Time, plus,
(2) if
the Surviving Corporation produces at least $800,000 of net profit by the first
anniversary of the Effective Time, a number of additional shares (rounded down
to the nearest whole share) equal to the quotient obtained from dividing (1)
$300,000 by (2) the average closing price of a share of Parent Common Stock
(as
reported on the Over-the-Counter Bulletin Board (the "OTCBB") for the
five (5) trading days immediately preceding the date of the Surviving
Corporation's determination of its net profit) and then dividing such quotient
by the total number of shares of Company Common Stock issued and outstanding
immediately prior to the Effective Time, plus
(3) if
the Surviving Corporation produces at least $1,000,000 of net profit by the
first anniversary of the Effective Time, a number of additional shares (rounded
down to the nearest whole share) equal to the quotient obtained from dividing
(1) $200,000 by (2) the average closing price of a share of Parent Common Stock
(as reported on the OTCBB for the five (5) trading days immediately preceding
the date of the Surviving Corporation's determination of its net profit) and
then dividing such quotient by the total number of shares of Company Common
Stock issued and outstanding immediately prior to the Effective Time,
plus
(4) if
the Surviving Corporation produces at least $2,400,000 of additional net profit
by the second anniversary of the Effective Time, a number of additional
shares (rounded down to the nearest whole share) equal to the quotient obtained
from dividing (1) $300,000 by (2) the average closing price of a share of Parent
Common Stock (as reported on the OTCBB for the five (5) trading days immediately
preceding the date of the Surviving Corporation's determination of its net
profit) and then dividing such quotient by the total number of shares of Company
Common Stock issued and outstanding immediately prior to the Effective Time
plus
$300,000 in cash divided by the total number of shares of Company Common Stock
issued and outstanding immediately prior to the Effective Time,
plus
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(5) if
the Surviving Corporation produces at least $3,000,000 of additional net profit
by the second anniversary of the Effective Time, a number of additional
shares (rounded down to the nearest whole share) equal to the quotient obtained
from dividing (1) $200,000 by (2) the average closing price of a share of Parent
Common Stock (as reported on the OTCBB for the five (5) trading days immediately
preceding the date of the Surviving Corporation's determination of its net
profit) and then dividing such quotient by the total number of shares of Company
Common Stock issued and outstanding immediately prior to the Effective Time,
plus $200,000 in cash divided by the total number of shares of Company Common
Stock issued and outstanding immediately prior to the Effective
Time.
4. Fractional
Shares. No fraction of a share of Parent Common Stock will be
issued in the Merger, but in lieu thereof, each holder of shares of Company
Common Stock who would otherwise be entitled to a fraction of a share of Parent
Common Stock (after aggregating all fractional shares of Parent Common Stock
to
be received by such holder) shall be entitled to receive from Parent an amount
of cash (rounded to the nearest whole cent) equal to the product of (a) such
fraction, multiplied by (b) $0.73.
5. Dissenting
Shares. Any Dissenting Shares shall not be converted into the
right to receive Parent Common Stock and/or the applicable cash amount but
shall
be converted into such consideration as may be determined to be due with respect
to such Dissenting Shares pursuant to the law of the State of
California. If after the Effective Time any Dissenting Shares shall
lose their status as Dissenting Shares, then as of the occurrence of the event
which causes the loss of such status, such shares shall be converted into the
right to receive Parent Common Stock and/or the applicable cash amount in
accordance with Section 3.
6. Conversion
of Company Common Stock. The conversion of the Company Common
Stock into the right to receive Parent Common Stock and cash as provided by
this
Agreement of Merger shall occur automatically at the Effective Time without
action by the holders thereof. Each holder of Company Common Stock
shall thereupon have the right to receive certificates representing the
applicable number of shares of Parent Common Stock (and cash in lieu of
fractional shares) and cash in accordance with the Merger Agreement upon
compliance with the exchange procedures set forth therein.
7. Effect
of the Merger. At the Effective Time, the separate existence of
the Merger Sub shall cease, and the Company shall succeed, without other
transfer, to all of the rights and properties of Merger Sub and shall be subject
to all the debts and liabilities thereof in the same manner as if Merger Sub
had
itself incurred them. All rights of creditors and all liens upon the
property of each corporation shall be preserved unimpaired, provided that such
liens upon property of each corporation shall be limited to the property
affected thereby immediately prior to the Effective Time. Without
limiting the generality of the foregoing, and subject thereto, at the Effective
Time, all the property, rights, privileges, powers and franchises of Merger
Sub
shall vest in the Surviving Corporation, and all debts, liabilities and duties
of Merger Sub shall become the debts, liabilities and duties of the Surviving
Corporation.
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8. Articles
of Incorporation; Bylaws; Directors and Officers of Surviving
Corporation
(a) The
articles of incorporation of the Surviving Corporation immediately prior to
the
Merger shall continue to be the articles of the Surviving Corporation after
the
Effective Time until such time as amended in accordance with the bylaws and
articles of incorporation.
(b) The
bylaws of the Surviving Corporation immediately prior to the Merger shall
continue to be the bylaws of the Surviving Corporation after the Effective
Time
until such time as amended in accordance with the bylaws and articles of
incorporation.
(c)
The directors and officers of Merger Sub immediately prior to the Effective
Time
shall be the directors and officers of the Surviving Corporation, each to hold
office in accordance with the articles of incorporation and bylaws of the
Surviving Corporation.
9. Miscellaneous.
(a) Notwithstanding
the approval of this Agreement of Merger by the shareholders of the Company
and
Merger Sub, this Agreement of Merger shall terminate forthwith in the event
that
the Merger Agreement shall be terminated as therein provided, prior to the
Effective Time.
(b) In
the event of the termination of this Agreement of Merger as provided above,
this
Agreement of Merger shall forthwith become void and there shall be no liability
on the part of the Company, Merger Sub or Parent or their respective officers
or
directors, except as otherwise provided in the Merger Agreement, prior to the
Effective Time.
(c) This
Agreement of Merger may be signed in two or more counterparts, each of which
shall be deemed an original and all of which shall constitute one
agreement.
(d) Prior
to the Effective Time, this Agreement of Merger may be amended by the parties
hereto any time before or after approval hereof by the shareholders of the
Company and Merger Sub, but, after such approval, no amendments shall be made
which by law require the further approval of such shareholders without obtaining
such approval. This Agreement of Merger may not be amended except by
an instrument in writing signed on behalf of each of the parties
hereto.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties have
executed this Agreement of Merger as of the date first written
above.
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Commerce
Planet, Inc., a Utah corporation
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By:______________________________________________
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Name:________________________________________
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Title:_________________________________________
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By:______________________________________________
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Name:
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Title: Secretary
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I-Corp
Acquisition Sub, Inc., a California corporation
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By:_____________________________________________
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Name:_______________________________________
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Title:________________________________________
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By:______________________________________________
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Name:
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Title: Secretary
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Iventa
Corporation, a California corporation
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By:_____________________________________________
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Name:_______________________________________
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Title:________________________________________
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By:______________________________________________
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Name:________________________________________
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Title: Secretary
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[SIGNATURE
PAGE TO AGREEMENT OF MERGER]
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OFFICERS’
CERTIFICATE
OF
IVENTA
CORPORATION, INC
Xxxxxxx
Xxxxxxxx, President and Xxxxx Xxxx, Secretary, of Iventa Corporation, a
corporation duly organized and existing under the laws of the State of
California (the “Corporation”), do hereby certify:
1. That
they
are the duly elected, acting and qualified President and the Secretary,
respectively, of the Corporation.
2. There
is
one class of shares consisting of 30,000,000 shares of Common Stock, no par
value per share (the “Common Stock”). There are 12,839,950
shares of Common Stock issued and outstanding and entitled to vote on the
Agreement of Merger in the form attached.
3. The
Agreement of Merger in the form attached was duly approved by the board of
directors of the Corporation in accordance with the Corporations Code of the
State of California.
4. Approval
of the Agreement of Merger by the holders of at least a majority of the
outstanding shares of Common Stock voting together as a class was
required. The percentage of the outstanding shares of the
Corporation’s Common Stock entitled to vote on the Agreement of Merger which
voted to approve the Agreement of Merger equaled or exceeded the vote
required.
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Each
of
the undersigned declares under penalty of perjury that the statements contained
in the foregoing certificate are true of their own
knowledge. Executed in Los Angeles, California, on October 15,
2007.
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Name:
Xxxxxxx Xxxxxxxx
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Title: President
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Name:
Xxxxx Xxxx
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Title: Secretary
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[SIGNATURE
PAGE TO COMPANY OFFICERS’ CERTIFICATE]
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OFFICERS’
CERTIFICATE
OF
I-CORP.
ACQUISITION SUB, INC.
Xxxxxxx
Xxxx, President, and Xxxxx Xxxxxx, Secretary, of I-Corp. Acquisition Sub, Inc.,
a corporation duly organized and existing under the laws of the State of
California (the “Corporation”), do hereby certify:
1. That
they are the duly elected, acting and qualified President and Secretary,
respectively, of the Corporation.
2. That
the Agreement of Merger in the form attached was duly approved by the Board
of
Directors of the Corporation alone under the provisions of Section 1200 of
the
California Corporations Code.
3. That
the Agreement of Merger in the form attached was approved by 100% of the
shareholders of the Corporation, as required by California Corporations Code
Section 1202(a), as the shares of the Corporation are being cancelled without
consideration.
4. No
vote of the shareholders of the Corporation's Parent was required pursuant
to
Section 1201(b) of the California Corporations Code.
We
further
declare under penalty of perjury under the laws of the State of California
that
the matters set forth in this certificate are true and correct of our own
knowledge.
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Executed
in Santa Barbara, California this 15th day of October,
2007.
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Xxxxxxx
Xxxx, President
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Xxxxx
Xxxxxx, Secretary
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