EX-2
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
▇-▇ INTERNATIONAL, LTD. (NEVADA)
AND
▇-▇ INTERNATIONAL, LTD. (DELAWARE)
This Agreement and Plan of Merger ("Agreement") between ▇-▇
International, Ltd. ("▇-▇ International Nevada" or "Surviving
Corporation") and ▇-▇ International, Ltd. ("▇-▇ International
Delaware"), the two corporations acting by their respective boards of
directors and sometimes collectively referred to as the "Constituent
Corporations," is entered into this 1st day of December, 2001 in
Paynesville, Minnesota, and will have an effective date, if approved
as set forth in Article I, Section 1 hereafter, of the filing of the
Certificate and Articles of Merger, in the State of Nevada and the
State of Delaware, respectively ("Effective Date").
WHEREAS, ▇-▇ International Nevada is a corporation organized and
existing under the laws of the State of Nevada, having been
incorporated on December 20, 2001, with its principal business office
to be located at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
WHEREAS, the authorized capital stock of ▇-▇ International Nevada
is Five Hundred Million (500,000,000) shares of common stock, par
value of One Tenth of One Cent ($0.001) per share, none of which have
been issued;
WHEREAS, Nevada Revised Statutes 92A.190 confers upon ▇-▇
International Nevada the power to merge with a foreign corporation,
and Nevada Revised Statutes 92A.250 confers upon ▇-▇ International
Nevada the right to issue its own shares in exchange for shares of any
corporation to be merged into ▇-▇ International Nevada;
WHEREAS, ▇-▇ International Delaware is a corporation organized
and existing under the laws of the State of Delaware, having been
originally incorporated as DOS, Inc. on February 12, 1987;
WHEREAS, the authorized capital stock of ▇-▇ International
Delaware consists of Twenty Million (20,000,000) shares of common
stock, par value of $0.01 per share, of which Twelve Million, Two
Hundred and Fourteen, Six Hundred and Thirty Two (12,214,632) shares
are presently issued and outstanding, and Ten Million (10,000,000)
shares of preferred stock, par value of .01 per share, of which no
shares are presently issued and outstanding. Section 252 of the
Delaware Statutes provides that a foreign corporation and a domestic
corporation may be merged and the foreign corporation can be the
surviving entity.
WHEREAS, the respective boards of directors of ▇-▇ International
Nevada and ▇-▇ International Delaware deem it desirable and in the
best interests of the corporations and their stockholders that the
corporations enter into this Agreement and merge pursuant to the terms
and conditions contained herein and for the sole purpose of
redomiciling the corporation into the State of Nevada; and
WHEREAS, in order to consummate this merger and in consideration
of the mutual benefits to be derived and the mutual agreements
contained herein, ▇-▇ International Group Nevada and ▇-▇ International
Delaware approve and adopt this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual
agreements, provisions and covenants herein contained, it is agreed by
and between the parties that, in accordance with the provisions of the
laws of the State of Nevada, ▇-▇ International Nevada and ▇-▇
International Delaware shall be, and they are, as of the merger date
(as defined in Article I, Section 2 hereafter) merged into a single
surviving corporation, which shall be and is ▇-▇ International Nevada,
one of the Constituent Corporations, which shall continue its
corporate existence and remain a Nevada corporation governed by the
laws of that state, all on the terms and conditions set forth as
follows:
ARTICLE I
MERGER
1. Shareholder Approval.
Within thirty (30) days from the date of this Agreement, or such
longer period as the parties hereto shall agree upon in writing, this
Agreement shall be submitted for approval and adoption, pursuant to
and in accordance with the applicable provisions of the laws of the
State of Nevada and the State of Delaware, to the holders of common
stock of ▇-▇ International Nevada and to the holders of common shares
of ▇-▇ International Delaware at duly held shareholders' meetings or
by unanimous written consent. This Agreement shall be approved and
adopted upon receiving the affirmative vote of the holders of a
majority of the common stock of ▇-▇ International Nevada outstanding
on the record date established for determining the holders of ▇-▇
International Nevada common stock entitled to vote at such ▇-▇
International Nevada shareholders' meeting, and the affirmative vote
of a majority of the common shares of ▇-▇ International Delaware
outstanding on the record date established for determining the holders
of common shares entitled to vote at such ▇-▇ International Delaware
shareholders' meeting. If this Agreement shall be so approved and
adopted, ▇-▇ International Nevada and ▇-▇ International Delaware shall
immediately proceed to effectuate the merger of ▇-▇ International
Delaware into ▇-▇ International Nevada. If this Agreement shall not
be so approved and adopted, it shall, without any further action by
the parties, other than certification to the other Constituent
Corporation of the results of the vote by the Secretary or Clerk, as
the case may be, of the Constituent Corporation the shareholders of
which shall not have approved or adopted this Plan, be cancelled
without liability from either party to the other.
2. Filings After Shareholder Approval.
Under Section 252 of the Delaware Statutes, ▇-▇ International
Delaware will cease to exist and ▇-▇ International Nevada will possess
all the powers and property formerly possessed by ▇-▇ International
Delaware upon approval of this Agreement by its shareholders, and the
filing with the Delaware Secretary of State the following (A) an
agreement that ▇-▇ International, Inc. may be served with process in
Delaware, in any proceeding for enforcement of any obligation of any
constituent corporation of Delaware, as well as for enforcement of any
obligation of the surviving or resulting corporation arising from the
merger or consolidation, including any suit or other proceedings
pursuant to section 262 of the Delaware Statutes, and shall
irrevocably appoint the Secretary of State as its agent to accept
service of process in any such suit or other proceedings and shall
specify the address to which a copy of such process shall be mailed by
the Secretary of State. Under Section 251 of the Delaware Statutes,
the effective date of the merger is the date on which the merger
becomes effective in the State of Nevada.
As soon as practicable after the approval of the merger by the
shareholders of ▇-▇ International Nevada has been obtained and all
other conditions to the obligations of the parties to this agreement
to the effect the merger shall have been satisfied or waived, ▇-▇
International Nevada shall file with the Nevada Secretary of State a
duly executed Articles of Merger, as required by Nevada Revised
Statutes 92A.200, and take such other and future actions as may be
required by Nevada law to make the merger effective. The merger of W-
J International Delaware into ▇-▇ International Nevada shall become
effective upon the filing of the Articles of Merger with the Nevada
Secretary of State ("Merger Date").
3. Effect of Merger.
▇-▇ International Nevada shall succeed to, without other
transfer, and shall possess and enjoy all rights, privileges, powers
and franchises as well of a public as of a private nature, and be
subject to all restrictions, disabilities and duties of each of two
Constituent Corporations, and all and singular, the rights,
privileges, powers and franchises of each of corporations, and all
property, real, personal and mixed, and all debts to either of
Constituent Corporations on whatever account, as well for stock
subscriptions as all other things in action or belonging to each of
the corporations shall be vested in the Surviving Corporation; and all
property, rights, privileges, powers and franchises, and all and every
other interest shall be as effectually property of the Surviving
Corporation as they were of Constituent Corporations, provided, that
all rights of creditors and all liens on any property of each of
Constituent Corporations shall be preserved unimpaired, limited to
property affected by the liens at time of merger, and all debts,
liabilities and duties of Constituent Corporations shall attach to the
Surviving Corporation, and may be enforced against it to the same
extent as if debts, liabilities and duties had been incurred or
contracted by it. If at any time the Surviving Corporation shall deem
or be advised that any further assignments or assurances in law or
things are necessary or desirable to vest, or to perfect or confirm,
of record or otherwise, in the Surviving Corporation the title to any
property acquired or to be acquired by reason of or as a result of
merger provided for by this agreement, proper officers and directors
of each of Constituent Corporations shall execute and deliver all
proper deeds, assignments and assurances in law and do all things
necessary or proper to vest, perfect or confirm title to property in
the Surviving Corporation and otherwise to carry out the purpose of
this Agreement.
ARTICLE II
NAME AND CONTINUED CORPORATE EXISTENCE
OF SURVIVING CORPORATION
The corporate name of ▇-▇ International Nevada, the Constituent
Corporation whose corporate existence is to survive this merger and
continue thereafter as the Surviving Corporation, and its identity,
existence, purposes, powers, objects, franchises, rights and
immunities shall continue unaffected and unimpaired by the merger, and
the corporate identity, existence, purposes, powers, objects,
franchises, rights and immunities of ▇-▇ International Delaware shall
be wholly merged into ▇-▇ International Nevada. Accordingly, on the
Merger Date the separate existence of ▇-▇ International Delaware,
except insofar as continued by statute, shall cease.
ARTICLE III
GOVERNING LAW
CERTIFICATE OF INCORPORATION
As stated, the laws of State of Nevada shall govern the Surviving
Corporation. From and after the Merger Date, the Articles of
Incorporation of ▇-▇ International Nevada attached as Appendix A
(which Appendix A represents the certificate of incorporation of ▇-▇
International Nevada filed in the office of the Secretary of State of
the State of Nevada on April 12, 2002) shall be and become the
certificate of incorporation of the Surviving Corporation. In
addition to the powers conferred upon it by law, the Surviving
Corporation shall have the powers set forth in Appendix A and be
governed by those provisions. From and after the Merger Date, and
until further amended as provided by law, Appendix A may be certified,
separate and apart from this agreement, as the certificate of
incorporation of the Surviving Corporation.
ARTICLE IV
BYLAWS OF SURVIVING CORPORATION
From and after the Merger Date the present bylaws of ▇-▇
International Nevada shall be and become the bylaws of the Surviving
Corporation until they shall be altered, amended or repealed, or until
new bylaws shall be adopted, in accordance with the provisions of law,
the bylaws and the certificate of incorporation of the Surviving
Corporation.
ARTICLE V
DIRECTORS AND OFFICERS
1. Directors.
The number of directors of the Surviving Corporation, who shall
hold office until their successors have been duly elected and shall
have qualified, or as otherwise provided in the certificate of
incorporation of ▇-▇ International Nevada or its bylaws, shall be
three (4) until changed by action of the Board of Directors of the
Surviving Corporation pursuant to its bylaws; and the respective names
of the first directors of the Surviving Corporation are as follows:
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇
If, on or after the Merger Date, a vacancy shall for any reason exist
in the Board of Directors of the Surviving Corporation, or in any of
the offices, the vacancy shall be filled in the manner provided in the
certificate of incorporation of ▇-▇ International Nevada or in its bylaws.
2. Annual Meeting.
The first annual meeting of the shareholders of the Surviving
Corporation after the Merger Date shall be the annual meeting provided
by the bylaws of ▇-▇ International Nevada for the year 2001.
3. Officers.
The first officers of the Surviving Corporation, who shall hold
office until their successors have been elected or appointed and shall
have qualified, or as otherwise provided in its bylaws, are as follows:
▇▇▇▇▇▇ ▇. ▇▇▇▇, President
▇▇▇▇▇ ▇. ▇▇▇▇, Secretary
▇▇▇▇▇ ▇. ▇▇▇▇, Treasurer
ARTICLE VI
CAPITAL STOCK OF SURVIVING CORPORATION
The capitalization of the Surviving Corporation upon the Merger
Date shall be as set forth in the certificate of incorporation of ▇-▇
International Nevada.
ARTICLE VII
CONVERSION OF SHARES ON MERGER
Each of the shares of common stock, par value of One Tenth Cent
($0.001) per share, of ▇-▇ International Delaware outstanding on the
Merger Date ("▇-▇ International Delaware Stock"), and all rights shall
upon the Merger Date be converted into one share of common stock, par
value One Tenth of One Cent ($0.001) per share of ▇-▇ International
Nevada ("▇-▇ International Nevada Stock"). At any time and from time
to time after the Merger Date, each holder of an outstanding
certificate or certificates representing shares of ▇-▇ International
Delaware Stock shall be entitled, upon the surrender of the
certificate or certificates at the office of an transfer agent of ▇-▇
International Nevada to be designated by the Board of Directors of ▇-▇
International Nevada to receive in exchange a certificate or
certificates representing the number of shares of ▇-▇ International
Nevada Stock into which the shares of ▇-▇ International Delaware Stock
represented by the certificate or certificates surrendered shall have
been converted. No dividend shall be paid by ▇-▇ International Nevada
to the holders of outstanding certificates expressed to represent
shares of ▇-▇ International Delaware Stock, but, upon surrender and
exchange as provided, there shall be paid to the record holder of the
certificate or certificates for ▇-▇ International Nevada Stock issued
in exchange therefor an amount with respect to each such share of ▇-▇
International Nevada Stock equal to all dividends which shall have
been paid or become payable to holders of record of ▇-▇ International
Nevada Stock between the Merger Date and the date of exchange.
ARTICLE VIII
ASSETS AND LIABILITIES
On the Merger Date, all property, real, personal and mixed, and
all debts due to either of the Constituent Corporations on whatever
account, as well for stock subscriptions as all other choses in
action, and all and every other interest of or belonging to either of
Constituent Corporations shall be taken by and deemed to be
transferred to and vested in the Surviving Corporation without further
act or deed; and all property and every other interest shall be as
effectually the property of the Surviving Corporation as it was of the
respective Constituent Corporations, and the title to any real estate
or any interest, whether 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 all rights of creditors
and all liens upon the property of either of the Constituent
Corporations shall be preserved unimpaired, and all debts,
liabilities, obligations and duties of the respective Constituent
Corporations shall attach to the Surviving Corporation, and may be
enforced against it to the same extent as if the debts, liabilities,
obligations and duties had been incurred or contracted by it. Any
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, or the Surviving Corporation may be submitted in place of
either of the Constituent Corporations. The parties respectively agree
that from time to time, when requested by the Surviving Corporation or
by its successors or assigns, they will execute and deliver or cause
to be executed and delivered all deeds and instruments, and will take
or cause to be taken all further or other action, as the Surviving
Corporation may deem necessary or desirable in order to vest in and
confirm to the Surviving Corporation or its successors or assigns
title to and possession of all the property and rights and otherwise
carry out the intent and purposes of this Agreement.
ARTICLE IX
CONDUCT OF BUSINESS BY CONSTITUENT CORPORATIONS
Prior to the Merger Date ▇-▇ International Delaware shall conduct
its business in its usual and ordinary manner, and shall not enter
into any transaction other than in the usual and ordinary course of
such business except as provided. Without limiting the generality of
the above, ▇-▇ International Delaware shall not, except as otherwise
consented to in writing by ▇-▇ International Nevada or as otherwise
provided in this agreement:
1. Issue or sell any shares of its capital stock in addition to
those outstanding on this date, except shares issued pursuant to
rights or options outstanding at that date;
2. Issue rights to subscribe to or options to purchase any shares of
its stock in addition to those outstanding on this date;
3. Amend its certificate of incorporation or its bylaws;
4. Issue or contract to issue funded debt;
5. Declare or pay any dividend or make any other distribution upon
or with respect to its capital stock.
6. Repurchase any of its outstanding stock or by any other means
transfer any of its funds to its shareholders either selectively or
rateably, in return for value or otherwise, except as salary or other
compensation in the ordinary or normal course of business;
7. Undertake or incur any obligations or liabilities except current
obligations or liabilities in the ordinary course of business and
except for liabilities for fees and expenses in connection with the
negotiation and consummation of the merger in amounts to be determined
after the Merger Date;
8. Mortgage, pledge, subject to lien or otherwise encumber any
realty or any tangible or intangible personal property;
9. Sell, assign or otherwise transfer any tangible assets of
whatever kind, or cancel any claims, except in the ordinary course of
business;
10. Sell, assign, or otherwise transfer any trademark, trade name,
patent or other intangible asset;
11. Default in performance of any material provision of any material
contract or other obligation;
12. Waive any right of any substantial value; or
13. Purchase or otherwise acquire any equity or debt security of
another corporation except to realize on an otherwise worthless debt.
ARTICLE X
WARRANTIES OF THE CONSTITUENT CORPORATIONS
1. Representations and Warranties of ▇-▇ International Delaware.
▇-▇ International Delaware covenants, represents and warrants to
▇-▇ International Nevada that:
a. It is on the date of this Agreement, and will be on the Merger
Date, (a) a corporation duly organized and existing and in good
standing under the laws of the jurisdiction of the State of Delaware
(b) duly authorized under its articles, and under applicable laws, to
engage in the business carried on by it, and (c) it is fully qualified
to do business in the State of Delaware;
b. All federal, state and local tax returns required to be filed by
it on or before the Merger Date will have been filed, and all taxes
shown to be required to be paid on or before the Merger Date will have
been paid;
c. It will use its best efforts to collect the accounts receivable
owned by it on or prior to the Merger Date and will follow its past
practices in connection with the extension of any credit prior to the
Merger Date;
d. All fixed assets owned by it and employed in its business are of
the type, kind and condition appropriate for its business and will be
operated in the ordinary course of business until the Merger Date;
e. All leases now held by it are now and will be on the Merger Date
in good standing and not voidable or void by reason of any default
whatsoever;
f. During the period between December 1, 2001, and the date of this
Agreement, except as disclosed in writing to ▇-▇ International Nevada,
it has not taken any action, or suffered any conditions to exist, to
any material or substantial extent in the aggregate, which it has
agreed in Article IX or this Article X of this Agreement not to take
or to permit to exist during the period between the date of this
agreement and the Merger Date;
g. It has not been represented by any broker in connection with the
transaction contemplated, except as it has advised ▇-▇ International
Nevada in writing; and
h. Its Board of Directors has, subject to the authorization and
approval of its stockholders, authorized and approved the execution
and delivery of this Agreement, and the performance of the
transactions contemplated by this Agreement.
i. ▇-▇ International Delaware, in addition to other action which is
has covenanted, represented, and warranted to ▇-▇ International Nevada
that it shall take, shall also:
(1) Use its best efforts to preserve its business organization
intact, to keep available to ▇-▇ International Nevada the present
officers and employees of ▇-▇ International Delaware, and to
preserve for ▇-▇ International Nevada the relationships of ▇-▇
International Delaware with suppliers and customers and others
having business relations with ▇-▇ International Delaware; and
(2) Not increase the compensation, wages, or other benefits
payable to its officers or employees, other than increases which
▇-▇ International Nevada has approved in writing.
2. Representations and Warranties of ▇-▇ International Nevada.
▇-▇ International Nevada covenants, represents and warrants to W-
J International Delaware that:
a. ▇-▇ International Nevada is a corporation duly organized and
existing and in good standing under the laws of the State of Nevada
and has the corporate power to own its properties and to carry on its
business as now being conducted; and
b. Its Board of Directors has, subject to the authorization and
approval of its stockholders, authorized and approved the execution and
delivery of this Agreement, and the performance of the transactions
contemplated by this Agreement.
ARTICLE XI
CONSUMMATION OF MERGER
If the merger contemplated is completed, all expenses incurred in
consummating the plan of merger shall, except as otherwise agreed in
writing between the Constituent Corporations, be borne by ▇-▇
International Nevada. If the merger is not completed, each of the
Constituent Corporations shall be liable for, and shall pay, the
expenses incurred by it.
Notwithstanding shareholder authorization and at any time prior
to the filing, the filing and recording of this agreement may be
deferred from time to time by mutual consent of the respective boards
of directors of each of the Constituent Corporations, and, to the
extent provided in (a), (b), (c) and (d) below, the merger may be
abandoned:
1. By the mutual consent of the respective Boards of Directors of
each of the Constituent Corporations;
2. At the election of the Board of Directors of ▇-▇ International
Nevada, if (a) demands by shareholders for appraisal of their shares
of ▇-▇ International Delaware Stock have been received from the
holders of twenty-five percent (25%) or more of the outstanding
shares, or (b) in the judgment of the Board any judgment is rendered
relating to any legal proceeding not commenced and the existence of
the judgment will or may materially affect the rights of either
Constituent Corporation to sell, convey, transfer or assign any of its
assets or materially interfere with the operation of its business,
renders the merger impracticable, undesirable or not in the best
interests of its shareholders;
3. By the Board of Directors of ▇-▇ International Nevada if there
shall not have been submitted to ▇-▇ International Nevada the opinion
of counsel for ▇-▇ International Delaware, in form and substance
satisfactory to ▇-▇ International Nevada, to the effect that (1) ▇-▇
International Delaware is a validly organized and duly existing
corporation, (2) this Agreement has been duly authorized by, and is
binding upon, ▇-▇ International Delaware in accordance with its terms,
and (3) all the properties, estate, rights, privileges, powers and
franchises of ▇-▇ International Delaware and all debts due to ▇-▇
International Delaware shall be transferred to and vested in ▇-▇
International Nevada, as the Surviving Corporation, without further
act or deed, subject only to any legal requirements for recording or
filing any instruments of conveyance, assignment or transfer, the
giving of notice of any such conveyance, assignment or transfer,
consents of third parties and governmental authorities to assignment
of any contract or lease, and other specified exceptions acceptable to
▇-▇ International Nevada;
4. At the election of the Board of Directors of ▇-▇ International
Delaware if there shall not have been submitted to ▇-▇ International
Delaware the opinion of counsel for ▇-▇ International Nevada, in form
and substance satisfactory to ▇-▇ International Delaware, to the
effect that (1) ▇-▇ International Nevada is a validly organized and
duly existing corporation, (2) this Agreement has been duly authorized
by, and is binding upon, ▇-▇ International Nevada in accordance with
its terms, (3) when Articles of Merger shall have been filed as
provided in this Agreement, the merger will become effective and all
liabilities and obligations of ▇-▇ International Delaware will become
the liabilities and obligations of ▇-▇ International Nevada, as the
surviving corporation, fully and without any further action by either
Constituent Corporation, (4) the ▇-▇ International Delaware Stock will
be converted into ▇-▇ International Nevada Stock, (5) the ▇-▇
International Nevada Stock into which the ▇-▇ International Delaware
Stock will be converted as provided herein will be legally and validly
authorized, exempt from the registration requirements of Section 5 of
the Securities Act of 1933, as amended, ("Act'), provided by Section
3(a)(10) thereof, exempt from the registration requirements of Nevada
Revised Statutes 90.460, as amended, provided by Nevada Revised
Statutes 90.530(11), and may be issued without a restrictive legend
pursuant to Rule 145(a)(2) under the Act if the shares of ▇-▇
International Delaware are otherwise unrestricted, and (6) when issued
will be validly issued, fully paid and nonassessable stock of the
surviving corporation;
5. At the election of the Board of Directors of either Constituent
Corporation if:
a. The warranties and representations of the other Constituent
Corporation contained in this Agreement shall not be substantially
accurate in all material respects on and as of the date of election;
or the covenants contained of the other Constituent Corporation shall
not have been performed or satisfied in all material respects;
b. This agreement shall not have been approved by the requisite
votes of shareholders of the Constituent Corporations on or before
December 1, 2001;
c. Prior to the merger (1) there shall have been filed in any court
or agency having jurisdiction a complaint or other proceeding seeking
to restrain or enjoin the merger contemplated hereby, or (2) there
shall have been presented to ▇-▇ International Delaware or ▇-▇
International Nevada or any director or officer of either of them any
process, demand or request which, in the opinion of counsel for either
Constituent Corporation, offers reasonable ground to believe that a
complaint or ▇▇▇▇ in equity may be forthcoming which, if successful,
would restrain, enjoin or dissolve the merger, and if, in either case,
such Board of Directors determines that abandonment and cancellation
of this Agreement is advisable in the best interests of the
Constituent Corporations, their shareholders, employees and customers;
d. If the Merger Date shall not have occurred by December 31, 2002,
then, at the option of the Board of Directors of either Constituent
Corporation, it may be deferred to a date on or after June 30, 2003.
If the Merger Date shall not have occurred by June 30, 2003, then, at
the option of the Board of Directors of either Constituent Corporation
the merger may be abandoned. In the event of the abandonment of the
merger pursuant to the foregoing provisions, this Agreement shall
become void and have no effect, without any liability on the part of
either of the Constituent Corporations or its shareholders or
directors or officers in respect of this merger except the obligation
of each Constituent Corporation to pay its own expenses as provided in
this Article XI.
ARTICLE XII
RESIDENT AGENT
The respective names of the county and the city within the county
in which the principal office of the surviving corporation is to be
located in the State of Nevada, the street and number of this office,
the name of the registered agent will, as of the Merger Date, be as
set forth in Article Second of the Articles of Incorporation of the
Surviving Corporation.
ARTICLE XIII
RIGHT TO AMEND ARTICLES OF INCORPORATION
The Surviving Corporation reserves the right to amend, alter,
change or repeal its Articles of Incorporation in the manner now or
later prescribed by statute or otherwise authorized by law; and all
rights and powers conferred in the certificate of incorporation on
shareholders, directors or officers of ▇-▇ International Nevada, or
any other person, are subject to this reserved power.
ARTICLE XIV
MISCELLANEOUS
1. Access to Books and Records.
To enable ▇-▇ International Nevada to coordinate the activities
of ▇-▇ International Delaware into those of ▇-▇ International Nevada
on and after the Merger Date, ▇-▇ International Delaware shall, before
the Merger Date, afford to the officers and authorized representatives
of ▇-▇ International Nevada free and full access to the plants,
properties, books and records of ▇-▇ International Delaware, and the
officers of ▇-▇ International Delaware will ▇▇▇▇▇▇▇ ▇-▇ International
Nevada with financial and operating data and other information as to
the business and properties of ▇-▇ International Delaware as ▇-▇
International Nevada shall from time to time reasonably request. ▇-▇
International Nevada shall, before the Merger Date, afford to the
officers and authorized representatives of ▇-▇ International Delaware
such access, and ▇-▇ International Nevada's officers will furnish such
data and information to ▇-▇ International Delaware, as may be
reasonably required by ▇-▇ International Delaware for the preparation
of its proxy statement in connection with the meeting of shareholders
to be called pursuant to section 1 of Article I of this Agreement. W-
J International Nevada and ▇-▇ International Delaware agree that,
unless and until the merger contemplated by this Agreement has been
consummated, ▇-▇ International Nevada and ▇-▇ International Delaware
and their officers and representatives will hold in strict confidence
all data and information obtained from one another as long as it is
not in the public domain, and if the merger provided for is not
consummated as contemplated, ▇-▇ International Nevada and ▇-▇
International Delaware will each return to the other party all data as
the other party may reasonably request.
2. Rights Cumulative; Waivers.
The rights of each of the parties under this Agreement are
cumulative. The rights of each of the parties hereunder shall not be
capable of being waived or varied other than by an express waiver or
variation in writing. Any failure to exercise or any delay in
exercising any of such rights shall not operate as a waiver or
variation of that or any other such right. Any defective or partial
exercise of any of such rights shall not preclude any other or further
exercise of that or any other such right. No act or course of conduct
or negotiation on the part of any party shall in any way preclude such
party from exercising any such right or constitute a suspension or any
variation of any such right.
3. Benefit; Successors Bound.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof, shall be
binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators, representatives,
successors, and permitted assigns.
4. Entire Agreement.
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof. There are no promises,
agreements, conditions, undertakings, understandings, warranties,
covenants or representations, oral or written, express or implied,
between them with respect to this Agreement or the matters described
in this Agreement, except as set forth in this Agreement. Any such
negotiations, promises, or understandings shall not be used to
interpret or constitute this Agreement.
5. Assignment.
Neither this Agreement nor any other benefit to accrue hereunder
shall be assigned or transferred by either party, either in whole or
in part, without the written consent of the other party, and any
purported assignment in violation hereof shall be void.
6. Amendment.
This Agreement may be amended only by an instrument in writing
executed by all the parties hereto.
7. Severability.
Each part of this Agreement is intended to be severable. In the
event that any provision of this Agreement is found by any court or
other authority of competent jurisdiction to be illegal or
unenforceable, such provision shall be severed or modified to the
extent necessary to render it enforceable and as so severed or
modified, this Agreement shall continue in full force and effect.
8. Section Headings.
The Section headings in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of
this Agreement.
9. Construction.
Unless the context otherwise requires, when used herein, the
singular shall be deemed to include the plural, the plural shall be
deemed to include each of the singular, and pronouns of one or no
gender shall be deemed to include the equivalent pronoun of the other
or no gender.
10. Further Assurances.
In addition to the instruments and documents to be made, executed
and delivered pursuant to this Agreement, the parties hereto agree to
make, execute and deliver or cause to be made, executed and delivered,
to the requesting party such other instruments and to take such other
actions as the requesting party may reasonably require to carry out
the terms of this Agreement and the transactions contemplated hereby.
11. Notices.
Any notice which is required or desired under this Agreement
shall be given in writing and may be sent by personal delivery or by
mail (either a. United States mail, postage prepaid, or b. Federal
Express or similar generally recognized overnight carrier), addressed
as follows (subject to the right to designate a different address by
notice similarly given):
To ▇-▇ International Nevada:
▇▇▇▇▇▇ ▇. ▇▇▇▇, President
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To ▇-▇ International Delaware
▇▇▇▇▇▇ ▇. ▇▇▇▇, President
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12. Governing Law.
This Agreement shall be construed and enforced under, in
accordance with, and governed by, the laws of the State of Nevada.
13. Consents.
The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and
authority to execute and deliver this Agreement on behalf of such party.
14. Termination of Agreement.
This Agreement shall terminate on the Effective Date unless all
actions required under this Agreement have not been fully performed.
15. Survival of Provisions.
The representations and warranties contained in Article X of this
agreement and any liability of one Constituent Corporation to the
other for any default under the provisions of Articles IX or X of this
agreement, shall expire with, and be terminated and extinguished by,
the merger under this agreement on the Merger Date.
16. Execution in Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of which together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the date first above written.
▇-▇ INTERNATIONAL NEVADA:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇, President
▇-▇ INTERNATIONAL DELAWARE:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇, President