AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER, dated as of May 18, 2007 (the “Agreement”), between Fitness
Xpress Software Inc., a Nevada corporation (the “Corporation”), and Fitness
Xpress Software Inc., a Delaware corporation (the “Subsidiary”).
WITNESSETH:
WHEREAS,
the Subsidiary desires to acquire all the assets, and to assume all of the
liabilities and obligations, of the Corporation by means of a merger of the
Corporation with and into the Subsidiary, with the Subsidiary being the
surviving corporation (the “Merger”);
WHEREAS,
the Subsidiary is a wholly-owned subsidiary of the Corporation;
WHEREAS,
Section 92A.200 of the Nevada Revised Statutes (“Nevada Law”) and Section 253(c)
of the Delaware General Corporation Law (the “DGCL”), authorize the merger of a
Nevada corporation into a Delaware corporation;
WHEREAS,
the Subsidiary shall be the surviving entity (the “Surviving Corporation”) and
continue its existence as a Delaware corporation; and
WHEREAS,
the stockholders and Board of Directors of the Corporation and the Subsidiary
have approved this Agreement and the consummation of the Merger.
NOW
THEREFORE, the parties hereto hereby agree as follows:
ARTICLE
I
THE
MERGER
SECTION
1.01. The
Merger.
(a) At
the
Effective Time (as defined below), the Corporation shall be merged, the separate
existence of the Corporation shall cease and the Surviving Corporation shall
be
the surviving entity and continue its existence as a Delaware
corporation.
(b) The
Merger shall become effective on the date that a Certificate of Ownership and
Merger with respect to the Merger, substantially in the form attached hereto
as
Exhibit
A,
is
accepted for filing by the Office of the Secretary of State of Delaware (the
“Effective Time”) and all other filings or recordings required by the Nevada
Revised Statutes and the Delaware General Corporation Law in connection with
the
Merger are made.
SECTION
1.02. Merger
Consideration.
At
the
Effective Time, each share of common stock, par value $0.001 per share of the
Corporation which shall be issued and outstanding immediately prior to the
Effective Time shall be converted into 1.0000000000 issued and outstanding
shares of common stock, par value $0.001 per share of the Surviving Corporation,
and from and after the Effective Time, the holders of all said issued and
outstanding shares of stock of the Corporation shall automatically become
holders of shares of the Surviving Corporation, whether or not certificates
representing said shares are then issued and delivered.
ARTICLE
II
THE
SURVIVING CORPORATION
SECTION
2.01. Bylaws;
Certificate of Incorporation.
The
certificate of incorporation of the Subsidiary, as in effect immediately prior
to the Effective Time, shall be the certificate of incorporation of the
Surviving Corporation unless and until thereafter amended in accordance with
its
terms and applicable law. The By-laws of the Subsidiary as in effect immediately
prior to the Effective Time shall be the By-laws of the Surviving Corporation
unless and until thereafter amended in accordance with applicable
law.
At
the
Effective Time the name of the Surviving Corporation shall be Fitness Xpress
Software Inc.
ARTICLE
III
TRANSFER
AND CONVEYANCE OF ASSETS
AND
ASSUMPTION OF LIABILITIES
SECTION
3.01. Transfer,
Conveyance and Assumption.
At the
Effective Time, the Subsidiary shall continue in existence as the Surviving
Corporation, and without further transfer, succeed to and possess all of the
rights, privileges and powers of the Corporation, and all of the assets and
property of whatever kind and character of the Corporation shall vest in the
Surviving Corporation without further act or deed; thereafter, the Surviving
Corporation, shall be liable for all of the liabilities and obligations of
the
Corporation, and any claim or judgment against the Corporation may be enforced
against the Surviving Corporation in accordance with Section 92A.200 of the
Nevada Law and Section 253(c) of the DGCL.
SECTION
3.02. Further
Assurances.
If at
any time the Subsidiary shall consider or be advised that any further
assignment, conveyance or assurance is necessary or advisable to vest, perfect
or confirm of record in the Surviving Corporation the title to any property
or
right of the Corporation, or otherwise to carry out the provisions hereof,
the
proper representatives of the Corporation as of the Effective Time shall execute
and deliver any and all proper deeds, assignments, and assurances and do all
things necessary or proper to vest, perfect or convey title to such property
or
right in the Surviving Corporation, and otherwise to carry out the provisions
hereof.
ARTICLE
IV
MISCELLANEOUS
SECTION
4.01. Authorized
Person.
Xxx
Xxxx, the President, Chief Executive Officer, Treasurer and Secretary of the
Corporation, shall be authorized, at such time in his sole discretion as he
deems appropriate to execute, acknowledge, verify, deliver, file and record,
for
and in the name of the Corporation any and all documents and instruments
including, without limitation, the certificate of incorporation of the Surviving
Corporation and the Certificate of Merger, and shall do and perform any and
all
acts required by applicable law which the Surviving Corporation deems necessary
or advisable, in order to effectuate the Merger.
SECTION
4.02. Survival
of Representations and Warranties.
The
representations and warranties and agreements contained in any certificate
or
other writing delivered pursuant hereto shall not survive the Effective Time
or
the termination of this Agreement.
SECTION
4.03. Amendments;
No Waivers.
(a) Any
provision of this Agreement may, subject to applicable law, be amended or waived
prior to the Effective Time if, and only if, such amendment or waiver is in
writing and signed by the Corporation and the Subsidiary.
(b) No
failure or delay by any party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
SECTION
4.04. Integration.
All
prior or contemporaneous agreements, contracts, promises, representations,
and
statements, if any, between the Subsidiary and the Corporation, or their
representatives, are merged into this Agreement, and this Agreement shall
constitute the entire understanding between the Subsidiary and the Corporation
with respect to the subject matter hereof.
SECTION
4.05. Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns, provided that
no
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other party
hereto.
SECTION
4.06. Governing
Law.
This
Agreement shall be construed in accordance with and governed by the internal
laws of the State of Delaware, without reference to principles of conflicts
of
law.
SECTION
4.07. Counterparts;
Effectiveness.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument. This Agreement shall become effective when each party
hereto shall have received the counterpart hereof signed by the other party
hereto.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the undersigned have executed this instrument as of the 18th
day of May 2007.
|
a
Nevada corporation
|
||
|
By:
|
/s/
Xxx Xxxx
|
|
|
Name:
Xxx Xxxx
|
||
|
Title:
President
|
||
|
a
Delaware corporation
|
||
|
By:
|
/s/
Xxx Xxxx
|
|
|
Name:
Xxx Xxxx
|
||
|
Title:
President
|
||
EXHIBIT
A
CERTIFICATE
OF OWNERSHIP AND MERGER
