EXHIBIT 2.4
AMENDED AND RESTATED PLAN OF MERGER
THIS AMENDED AND RESTATED PLAN OF MERGER, dated as of June 24, 1999, is by
and between ADVANCED MEDICAL SCIENCES, INC., a corporation organized under the
laws of the Commonwealth of Virginia ("AMS") with its principal place of
business at 000 Xxxxx 00, #000, Xxxxxx, Xxx Xxxx 00000, and AMERICA'S SHOPPING
MALL, INC., a corporation organized under the laws of the State of Nevada (the
"Company") with its principal place of business at 000 Xxxxx 00, #000, Xxxxxx,
Xxx Xxxx 00000.
RECITALS:
On May 10, 1999, the Boards of Directors of AMS and the Company each
determined that it is in the best interests of their respective shareholders for
AMS to merge with and into the Company and adopted a Plan and Articles of Merger
(the "Original Plan") providing for the merger of AMS with and into the Company
upon the terms and subject to the conditions set forth therein.
On June 24, 1999, the Board of Directors of AMS and the Company adopted
this Amended and Restated Plan of Merger to amend in certain respects and
restate in its entirety the Original Plan.
In consideration of the premises and the mutual agreements set forth
herein, AMS and the Company agree as follows:
1. Merger. At the Effective Time (as defined below), AMS shall be merged
with and into the Company in accordance with the provisions of Article 12 of the
Virginia Stock Corporation Act and Chapter 92A of the Nevada Revised Statutes
(the "Merger"). The separate corporate existence of AMS shall cease at the
Effective Time, and the Company, as the surviving entity (the "Surviving
Corporation"), shall continue its corporate existence under the laws of the
State of Nevada under its present name. The Merger shall have the effect set
forth in ss. 92A.250 of the Nevada Revised Statutes. The terms and conditions of
the Merger and the mode of carrying the same into effect shall be as set forth
in this Plan.
2. Effective Time. The Merger shall become effective at the time that both
(i) a Certificate of Merger of AMS into the Company shall have been issued by
the State Corporation Commission of the Commonwealth of Virginia, and (ii)
Articles of Merger of AMS into the Company shall have been filed with the
Secretary of State of the State of Nevada (the "Effective Time").
3. Articles of Incorporation. The Articles of Incorporation of the Company
as in effect at the Effective Time shall be the Articles of Incorporation of the
Surviving Corporation, except that:
(A) Each of Article IV (relating to preemptive rights of
shareholders), Article VII (relating to indemnification) and Article VIII
(relating to transactions between the corporation and its directors) of the
Articles of Incorporation shall be deleted in its entirety, it being the
intention of the parties that the matters covered by the deleted articles
shall, at and after the Effective Time, be governed by the applicable
provisions of the Nevada Revised Statutes;
(B) Articles V, VI, IX, X and XI of the Articles of Incorporation
shall be renumbered Articles IV, V, VI, VII and VIII, respectively; and
(C) Article IV of the Articles of Incorporation (formerly Article V)
shall be deleted in its entirety and the following new Article IV shall be
substituted in its place:
"ARTICLE IV
The purposes for which the corporation is organized are:
To engage in a specialty advertising business and a retail
catalogue business; and in connection therewith to purchase and
otherwise acquire, hold for sale, advertise for sale by catalogues or
other means, and sell and otherwise dispose of by means of mail
orders, telephone orders, or otherwise, goods of every type and
description, and in general to do all lawful things necessary or
convenient for the conduct of such a business; and
To engage in any lawful act or activity for which a corporation
may be organized pursuant to the General Corporation Law of the State
of Nevada, except that the corporation is not organized to engage in
any act or activity requiring the consent or approval of any official,
department, board, agency or other body of the State of Nevada without
such consent or approval first being obtained."
Said Articles of Incorporation as amended by this Plan shall continue in full
force and effect until further amended and changed in the manner prescribed by
the provisions of the Nevada Revised Statutes.
4. By-Laws. The by-laws of the Company as in effect at the Effective Time
shall be the by-laws of the Surviving Corporation and will continue in full
force and effect until changed, altered, or amended as therein provided and in
the manner prescribed by the provisions of the Nevada Revised Statutes.
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5. Directors. The directors of the Company at the Effective Time shall, at
and after the Effective Time, be the directors of the Surviving Corporation and
shall hold their offices until their successors have been duly elected or
appointed and qualified, or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Articles of Incorporation and
by-laws and the applicable provisions of the Nevada Revised Statutes.
6. Officers. The officers of the Company at the Effective Time shall, at
and after the Effective Time, be the officers of the Surviving Corporation and
shall hold their offices until their successors have been duly elected or
appointed and qualified, or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Articles of Incorporation and
by-laws and the applicable provisions of the Nevada Revised Statutes.
7. Conversion of Shares in the Merger.
(a) At the Effective Time of the Merger, by virtue of the Merger and
without any action on the part of AMS, the Company or any shareholder thereof:
(i) Subject to Paragraph 7(b) below, each share of common stock, $.005
par value, of AMS issued and outstanding immediately prior to the Effective
Time shall be converted into one-thirtieth (1/30) of a share of common
stock, $.001 par value, of the Surviving Corporation (the "Common Stock");
(ii) Each share of common stock, $.001 par value, of the Company
issued and outstanding immediately prior to the Effective Time shall be and
remain one (1) share of Common Stock; and
(iii) Each share of Series A Senior Convertible Preferred Stock, $.001
par value, of the Company issued and outstanding immediately prior to the
Effective Time shall be and remain one (1) share of Series A Senior
Convertible Preferred Stock, $.001 par value, of the Surviving Corporation.
(b) No fractional shares of Common Stock shall be created or issued as a
result of the Merger. If any holder of common stock of AMS would be entitled to
receive a fraction of a share of Common Stock as a result of the conversion of
his shares pursuant to Paragraph 7(a)(i), the aggregate number of shares of
common stock of AMS represented by all certificates registered in the name of
such holder shall instead be converted by dividing such number by 30 and
rounding the quotient up to the next larger whole number.
(c) All shares of common stock of AMS shall, upon conversion into shares of
Common Stock, cease to be outstanding and shall automatically be cancelled and
retired, and each holder of a certificate previously evidencing shares of AMS
common stock shall thereafter cease to have any rights with respect to such
shares, except
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the right to receive for each of his shares, upon surrender of his certificate
to the Surviving Corporation, a certificate representing that number of shares
of Common Stock into which his shares of AMS were converted pursuant to this
Paragraph 7.
(d) Each share of common stock of the Company held by AMS immediately prior
to the Effective Time shall be cancelled and extinguished without conversion and
shall cease to exist.
8. Conditions to Effectiveness. This Plan and the Merger shall not become
effective until this Plan and the Merger contemplated hereby shall have been
duly approved:
(i) by the affirmative vote of holders of two-thirds of the
outstanding shares of common stock of AMS at a meeting duly called and held
for such purpose in accordance with the Articles of Incorporation of AMS
and applicable provisions of the Virginia Stock Corporation Act; and
(ii) by the affirmative vote of holders of a majority of the
outstanding shares of common stock of the Company, voting separately as a
class, and by the holders of a majority of the shares of Series A Senior
Convertible Preferred Stock of the Company, voting separately as a class,
or by the unanimous written consent of such holders, in accordance with the
Articles of Incorporation of the Company and applicable provisions of the
Nevada Revised Statutes.
9. Articles of Merger. Subject to approval of this Plan in accordance with
Paragraph 8, AMS and the Company shall promptly prepare, or cause to be
prepared, and execute Articles of Merger in the prescribed forms, and shall
promptly file the same with the State Corporation Commission of the Commonwealth
of Virginia and the Secretary of State of the State of Nevada, and shall do or
cause to be done all other acts and things necessary to effectuate the Merger.
10. Authority of Officers. The proper officers of AMS and the Company,
respectively, are hereby authorized, empowered, and directed to do any and all
acts and things, and to make, execute, deliver, file, and/or record any and all
instruments, papers, and documents which shall be or become necessary, proper,
or convenient to carry out or put into effect any of the provisions of this Plan
or the Merger herein provided for.
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IN WITNESS WHEREOF, this Amended and Restated Plan of Merger has been duly
executed and delivered by the duly authorized officers of the parties hereto as
of the date first above written.
ADVANCED MEDICAL SCIENCES, INC.
By: /s/ Xxxxx Xxxxxxxxxxx
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Xxxxx Xxxxxxxxxxx
President
AMERICA'S SHOPPING MALL, INC.
By: /s/ Xxxxx Xxxxxxxxxxx
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Xxxxx Xxxxxxxxxxx
President
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