AGREEMENT AND PLAN OF MERGER BETWEEN DARWIN RESOURCES, INC. (a Delaware Corporation), AND VITECH AMERICA, INC. (a Florida Corporation)
Exhibit
3.3
AGREEMENT
AND PLAN OF MERGER
BETWEEN
(a
Delaware Corporation),
AND
VITECH
AMERICA, INC.
(a
Florida Corporation)
This AGREEMENT AND PLAN OF MERGER (this
“Agreement”) is made and entered into as of September 28, 2007, between Darwin
Resources, Inc., a Delaware corporation (“Delaware”), and Vitech America, Inc.,
a Florida corporation (the “Company”).
RECITALS
WHEREAS, Delaware is a corporation duly
organized and existing under the laws of the State of Delaware;
WHEREAS, the Company is a corporation
duly organized and existing under the laws of the State of Florida;
WHEREAS, the Board of Directors of
Delaware and the Board of Directors of the Company deem it advisable to merge
the Company with and into Delaware so that Delaware is the surviving corporation
on the terms provided herein (the “Merger”).
NOW, THEREFORE, in consideration of the
mutual agreements contained herein and other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
I
MERGER
1.1 The
Merger. After satisfaction or, to the extent permitted
hereunder, waiver of all conditions to the Merger, and subject to the applicable
provisions of the General Corporation Law of the State of Delaware (the “DGCL”)
and Florida
Statutes, the Company will merge with and into Delaware and Delaware shall file
a Certificate of Merger with the Secretary of State of the State of Delaware in
accordance with the provisions of the DGCL and a Certificate of Merger
with the Secretary of State of the State of Florida in accordance with the
provisions of Florida Statutes and shall make all other filings or recordings
required by Delaware or Florida law in connection with
the Merger. The Merger shall become effective upon the later filing
of such Certificates of Merger with theSecretary
of State of the State of Delaware and the Secretary of State of the State of
Florida or at such later time as may be provided for in such Certificates of
Merger (the “Effective Time”). Upon the Effective Time, the separate
corporate existence of the Company shall cease and Delaware shall be the
surviving corporation (the “Surviving Corporation”).
1.2 Conditions to the
Merger. The respective obligation of each party to effect the
Merger is subject to the satisfaction or waiver (except as provided in this
Agreement) of the following conditions:
(a) This
Agreement shall have been adopted by the sole stockholder of Delaware, in
accordance with the requirements of the DGCL and the Certificate of
Incorporation and Bylaws of Delaware;
(b) This
Agreement shall have been adopted by holders of at least a majority of the
outstanding voting power of the Company in accordance with the requirements of
the Florida Statutes and the Certificate of Incorporation and Bylaws of the
Company;
1.3 Transfer,
Conveyance and Assumption. At the Effective Time, Delaware
shall continue in existence as the Surviving Corporation and, without further
transfer, succeed to and possess all rights, privileges, powers and franchises
of Delaware, and all of the assets and property of whatever kind and character
of the Company shall vest in Delaware, as the Surviving Corporation, without
further deed; thereafter, Delaware, as the Surviving Corporation, shall be
liable for all of the liabilities and obligations of the Company, and any claim
or judgment against California may be enforced against Delaware, as the
Surviving Corporation, in accordance with Section 259 of the DGCL and Florida
Statutes.
1.4 Certificate
of Incorporation; Bylaws.
(a) From and
after the Effective Date, the Certificate of Incorporation of Delaware [shall be
amended in its entirety as set forth in Annex A hereto, and, as so amended,]
shall be the Certificate of Incorporation of the Surviving
Corporation.
(b) From and
after the Effective Date, the Bylaws of Delaware [shall be amended in their
entirety as set forth in Annex B hereto, and, as so amended,] shall be the
Bylaws of the Surviving Corporation.
1.5 Directors and
Officers of the Surviving Corporation. From and after the
Effective Time, the directors and officers of Delaware serving as directors or
officers of Delaware immediately prior to the Effective Time shall be the
directors and officers of the Surviving Corporation.
ARTICLE
II
CONVERSION
OF SHARES
2.1 Conversion
of Stock.
(a) Upon the
Effective Time, by virtue of the Merger and without any action on the part of
the holder of any outstanding share of common stock, par value $0.000001 per
share, of Delaware (the “Common Stock”), each share Common Stock issued and
outstanding immediately prior to the Effective Time shall remain unchanged and
continue to remain outstanding as one share of Common Stock of the Surviving
Corporation.
(b) Upon the
Effective Time, by virtue of the Merger and without any action on the part of
the holder of any outstanding share of Common stock, no par value per share, of
the Company (the “Common Stock”), each share of Common Stock issued and
outstanding immediately prior to the Effective Time shall remain unchanged and
continue to remain outstanding as one share of Common Stock of the Surviving
Corporation.
(c) Upon the
Effective Time, by virtue of the Merger and without any action on the part of
the holder of any outstanding share of series A preferred stock, no par value
per share, of the Company (the “Series A Stock”), each share of Series A Stock
issued and outstanding immediately prior to the Effective Time shall be
converted into one share of Series A Preferred stock, par value $0.000001 per
share, of the Surviving Corporation.
(d) Upon the
Effective Time, by virtue of the Merger and without any action on the part of
the holder of any outstanding share of series B preferred stock, no par value
per share, of the Company (the “Series B Stock”), each share of Series B Stock
issued and outstanding immediately prior to the Effective Time shall be
converted into one share of Series B Preferred stock, par value $0.000001 per
share, of the Surviving Corporation.
2.2 Shares of
Dissenting Stockholders. Notwithstanding anything in this
Agreement to the contrary, any issued and outstanding shares of capital stock of
Delaware held by a person (a “Dissenting Stockholder”) who shall not have voted
or consented in writing to adopt this Agreement and who properly demands
appraisal for such shares in accordance with Section 262 of the DGCL
(“Dissenting Shares”) shall not be converted as described in Section 2.1, but
shall be converted into the right to receive such consideration as may be
determined to be due to such Dissenting Stockholder pursuant to the DGCL, unless
such holder fails to perfect or withdraws or otherwise loses his right to
appraisal. If, after the Effective Time, such Dissenting Stockholder
fails to perfect or withdraws or loses his right to appraisal, such Dissenting
Stockholder's shares of capital stock of Delaware shall no longer be considered
Dissenting Shares for the purposes of this Agreement and such holder's shares of
capital stock of Delaware shall thereupon be deemed to have been converted, at
the Effective Time, as set forth in Section 2.1.
ARTICLE
III
REPRESENTATIONS AND
WARRANTIES
3.1 Representations
and Warranties of Delaware. Delaware hereby represents and
warrants that it:
(a) is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, and has all the requisite power and authority to own,
lease and operate its properties and assets and to carry on its business as it
is now being conducted;
(b) is duly
qualified to do business as a foreign person, and is in good standing, in each
jurisdiction where the character of its properties or the nature of its
activities make such qualification necessary;
(c) is not in
violation of any provisions of its Certificate of Incorporation or Bylaws;
and
(d) has full
corporate power and authority to execute and deliver this Agreement and,
assuming the adoption of this Agreement by the sole stockholder of Delaware in
accordance with the DGCL and the Certificate of Incorporation and Bylaws of
Delaware, consummate the Merger and the other transactions contemplated by this
Agreement.
3.2 Representations
and Warranties of the Company. The Company hereby represents
and warrants that it:
(a) is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Florida, and has all the requisite power and authority to own,
lease and operate its properties and assets and to carry on its business as it
is now being conducted;
(b) is duly
qualified to do business as a foreign person, and is in good standing, in each
jurisdiction where the character of its properties or the nature of its
activities make such qualification necessary;
(c) is not in
violation of any provisions of its Certificate of Incorporation or Bylaws;
and
(d) has full
corporate power and authority to execute and deliver this Agreement and,
assuming the adoption of this Agreement by the stockholders of the Company in
accordance with the 607.1113, F.S. and the Certificate of Incorporation and
Bylaws of the Company, consummate the Merger and the other transactions
contemplated by this Agreement.
ARTICLE
IV
TERMINATION
4.1 Termination. At
any time prior to the Effective Time, this Agreement may be terminated and the
Merger abandoned for any reason whatsoever by the Board of Directors of Delaware
or the Board of Directors of the Company, notwithstanding the adoption of this
Agreement by the stockholders of Delaware or the Company.
ARTICLE
V
FURTHER
ASSURANCES
5.1 Further
Assurances as to Delaware. If, at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that any further
assignment, conveyance or assurance in law or any other acts are necessary or
desirable to (i) vest, perfect or confirm in the Surviving Corporation its
right, title or interest in, to or under any of the rights, properties or assets
of the Company acquired or to be acquired by the Surviving Corporation as a
result of, or in connection with, the Merger, or (ii) otherwise carry out the
purposes of this Agreement, the Company and its proper officers shall be deemed
to have granted to the Surviving Corporation an irrevocable power of attorney to
execute and deliver all such proper deeds, assignments and assurances in law and
to do all acts necessary or proper to vest, perfect or confirm title to and
possession of such rights, properties or assets in the Surviving Corporation and
otherwise carry out the purposes of this Agreement; and the officers and
directors of the Surviving Corporation are fully authorized in the name of the
Company or otherwise to take any and all such action.
ARTICLE
VI
MISCELLANEOUS
6.1 Amendment. At
any time prior to the Effective Time, this Agreement may be amended, modified or
supplemented by the Board of Directors of Delaware and the Board of Directors of
the Company, whether before or after the adoption of this Agreement by the
stockholders of Delaware and the Company; provided, however, that after any such
adoption, there shall not be made any amendment that by law requires the further
approval by such stockholders of Delaware or the Company without such further
approval. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of Delaware and the Company.
6.2 No
Waivers. 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.
6.3 Assignment; Third
Party Beneficiaries. Neither this Agreement, nor any right,
interest or obligation hereunder shall be assigned by any of the parties hereto
without the prior written consent of the other parties. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. This Agreement is not intended to
confer any rights or benefits upon any person other than the parties
hereto.
6.4 Governing Law.
This Agreement shall in all respects be interpreted by, and construed,
interpreted and enforced in accordance with and pursuant to the laws of the
State of Delaware/Florida.
6.5 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
6.6 Entire
Agreement. This Agreement and the documents referred to herein
are intended by the parties as a final expression of their agreement with
respect to the subject matter hereof, and are intended as a complete and
exclusive statement of the terms and conditions of that agreement, and there are
not other agreements or understandings, written or oral, among the parties,
relating to the subject matter hereof. This Agreement supersedes all
prior agreements and understandings, written or oral, among the parties with
respect to the subject matter hereof.
IN WITNESS WHEREOF, the undersigned,
intending to be legally bound hereby, have duly executed this Agreement as of
the date first stated above.
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Name: ▇▇▇▇
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Title: President,
Secretary & Director
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Vitech
America, Inc.
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Name: ▇▇▇▇
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Title: President,
Secretary & Director
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CERTIFICATE OF THE SECRETARY
OF
The undersigned, being the Secretary of
Delaware Corp., a Delaware corporation (“Delaware”), does hereby certify
pursuant to Section 252 of the General Corporation Law of the State of Delaware
that the sole stockholder of Darwin Resources, Inc., duly adopted this Agreement
and Plan of Merger by[a written consent to action without a meeting pursuant to
and in accordance with Section 228 of the General Corporation Law of the State
of Delaware.]
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Name: ▇▇▇▇
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Title: President,
Secretary & Director
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Dated: September
28, 2007