AGREEMENT AND PLAN OF MERGER
EXHIBIT
10.1
AGREEMENT AND PLAN OF
MERGER
THIS AGREEMENT AND PLAN OF
MERGER (hereinafter called
the "Merger
Agreement") is made as of
August 23, 2010, by and between MIB DIGITAL,
INC., a Florida corporation
("MIB "), and CAHABA
PHARMACEUTICALS, INC., a Nevada corporation ("Cahaba "). MIB and Cahaba are sometimes
referred to as the "Constituent Corporations."
A. The authorized capital stock of MIB
consists of two-hundred and fifty million (250,000,000) shares of common stock, par value $.0001 per share.
The authorized capital stock of Cahaba consists of three-hundred and ten
million (310,000,000) shares, of which three-hundred million (300,000,000)
shares are common stock, $0.001 par value, and ten million (10,000,000) shares
are preferred stock, $0.001 par value.
B. The directors of the Constituent
Corporations deem it advisable and to the advantage of the Constituent
Corporations that MIB merge into Cahaba upon the terms and conditions herein
provided.
NOW, THEREFORE, for one dollar and other
good and valuable consideration mutually exchanged, the receipt and sufficiency
of which is hereby acknowledged, the parties do hereby adopt the plan of
reorganization encompassed by this Merger Agreement and do hereby agree that MIB
shall merge into Cahaba on the following terms, conditions and other
provisions:
1. TERMS AND
CONDITIONS.
1.1 Merger. MIB shall be merged with and
into Cahaba (the "Merger"), and Cahaba shall be the surviving
corporation (the "Surviving
Corporation") effective
upon the date when this Merger Agreement is filed with the Nevada Secretary of
State (the "Effective
Date").
1.2 Succession. On the Effective Date, Cahaba
shall continue its corporate existence under the laws of the State of Nevada,
and the separate existence and corporate organization of MIB, except insofar as
it may be continued by operation of law, shall be terminated and
cease.
1.3 Transfer of
Assets and Liabilities.
On the Effective Date, the rights, privileges, powers and franchises, both
of a public as well as of a private nature, of each of the Constituent
Corporations shall be vested in and possessed by the Surviving Corporation,
subject to all of the disabilities, duties and restrictions of or upon each of
the Constituent Corporations; and all and singular rights, privileges, powers
and franchises of each of the Constituent Corporations, and all property, real,
personal and mixed, of each of the Constituent Corporations, and all debts due
to each of the Constituent Corporations on whatever account, and all things in
action or belonging to each of the Constituent Corporations shall be transferred
to and vested in the Surviving Corporation; and all property, rights,
privileges, powers and franchises, and all and every other interest, shall
be thereafter the property of the Surviving Corporation as they were of the
Constituent Corporations, and the title to any real estate vested by deed or
otherwise in either of the Constituent Corporations shall not revert or be in
any way impaired by reason of the Merger; provided, however, that the
liabilities of the Constituent Corporations and of their shareholders, directors
and officers shall not be affected and all rights of creditors and all liens
upon any property of either of the Constituent Corporations shall be preserved
unimpaired, and any claim existing or action or proceeding pending by or against
either of the Constituent Corporations may be prosecuted to judgment as if the
Merger had not taken place except as they may be modified with the consent of
such creditors and all debts, liabilities and duties of or upon each of the
Constituent Corporations shall attach to the Surviving Corporation, and may be
enforced against it to the same extent as if such debts, liabilities and duties
had been incurred or contracted by it.
1.4 Common Stock
of MIB and Cahaba. On
the Effective Date, by virtue of the Merger and without any further action on
the part of the Constituent Corporations or their shareholders, (i) each one (1) share of
common stock of MIB issued and outstanding
immediately prior thereto shall be converted into eight and one-third (8 1/3) shares of fully paid and nonassessable
shares of common stock of Cahaba, and (ii) each share of common stock of MIB issued and outstanding
immediately prior thereto shall be cancelled.
1.5 Stock
Certificates. On and
after the Effective Date, all of the outstanding certificates which prior to
that time represented shares of the Common Stock of MIB shall be deemed for all
purposes to evidence ownership of and to represent the shares of Cahaba into
which such shares of MIB represented by such certificates have been converted as
herein provided and shall be so registered on the books and records of the
Surviving Corporation or its transfer agent. The registered owner of any
such outstanding stock certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to the
Surviving Corporation or its transfer agent, have and be entitled to exercise
any voting and other rights with respect to and to receive any dividend and
other distributions upon the shares of Cahaba evidenced by such outstanding
certificate as above provided.
2. CHARTER DOCUMENTS, DIRECTORS
AND OFFICERS
2.1 Certificate
of Incorporation and Bylaws. The Certificate of Incorporation
of Cahaba in effect on the Effective Date shall continue to be the Certificate
of Incorporation of the Surviving Corporation.
2.2 Directors. The directors of MIB immediately preceding the Effective Date
shall become the directors of the Surviving Corporation on and after the
Effective Date to serve until the expiration of their terms and until their
successors are elected and qualified.
2.3 Officers. The officers of MIB immediately preceding the Effective Date
shall become the officers of the Surviving Corporation on and after the
Effective Date to serve at the pleasure of its Board of
Directors.
3.
MISCELLANEOUS.
3.1 Further
Assurances. From time
to time, and when required by the Surviving Corporation or by its successors and
assigns, there shall be executed and delivered on behalf of MIB such deeds and
other instruments, and there shall be taken or caused to be taken by it such
further and other action, as shall be appropriate or necessary in order to vest
or perfect in or to conform of record or otherwise, in the Surviving Corporation
the title to and possession of all the property, interests, assets,
rights, privileges, immunities, powers, franchises and authority of MIB and
otherwise to carry out the purposes of this Merger Agreement, and the officers
and directors of the Surviving Corporation are fully authorized in the name and
on behalf of MIB or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
3.2 Amendment. At any time before or after
approval by the shareholders of MIB, this Merger Agreement may be amended in any
manner (except that, after the approval of the Merger Agreement by a majority of
the shareholders of MIB, the principal terms may not be amended without the
further approval of the shareholders of MIB) as may be determined in the
judgment of the respective Board of Directors of Cahaba and MIB to be necessary,
desirable, or expedient in order to clarify the intention of the parties hereto
or to effect or facilitate the purpose and intent of this Merger
Agreement.
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3.3 Conditions
to Merger. The
obligations of the Constituent Corporations to effect the transactions
contemplated hereby is subject to satisfaction of the following conditions (any
or all of which may be waived by either of the Constituent Corporations in its
sole discretion to the extent permitted by law):
(a) the Merger shall have been approved
by the shareholders of MIB in accordance with applicable provisions of the
Florida Business Corporation Act; and
(b) MIB, as sole stockholder of Cahaba,
shall have approved the Merger in accordance with the General Corporation Law of
the State of Nevada; and
(c) any and all consents, permits,
authorizations, approvals, and orders deemed to be material to consummation of
the Merger by the Boards of Directors of MIB and Cahaba shall have been
obtained.
3.4 Abandonment
or Deferral. At any
time before the Effective Date, this Merger Agreement may be terminated and the
Merger may be abandoned by the Board of Directors of either MIB or Cahaba or
both, notwithstanding the approval of this Merger Agreement by the shareholders
of MIB or Cahaba, or the consummation of the Merger may be deferred for a
reasonable period of time if, in the opinion of the Boards of Directors of MIB
and Cahaba, such action would be in the best interest of such corporations.
In the event of termination of this Merger Agreement, this Merger
Agreement shall become void and of no effect and there shall be no liability on
the part of either Constituent Corporation or its Board of Directors or
shareholders with respect thereto.
3.5 Counterparts. In order to facilitate the
filing and recording of this Merger Agreement, the same may be executed in any
number of counterparts, each of which shall be deemed to be an
original.
IN WITNESS WHEREOF, this Merger
Agreement, having first been duly approved by the Board of Directors of MIB and
Cahaba, is hereby executed on behalf of each said corporation and attested by
their respective officers thereunto duly authorized.
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MIB
DIGITAL, INC.
(a
Florida corporation)
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(a
Nevada corporation)
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By:
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/s/
Xxxxx Xxxxxx
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By:
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/s/
Xxxxxxx X. XxXxxxx
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Xxxxx
Xxxxxx, President
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Xxxxxxx
X. XxXxxxx, President
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