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Agreement and Plan of Merger

 

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Title:

Agreement and Plan of Merger

Entities:

Immunotechnology Corp

Date:

2003

Size:

Preview shows 9KB of 202KB total

Price:

$48

ID:

#1327034

 

 

► Plans ► Agreements ► Agreements & Plans of Merger

 

 

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AGREEMENT AND PLAN OF MERGER

BY AND AMONG IMMUNOTECHNOLOGY, INC., a Delaware corporation
ULTIMATE SECURITY SYSTEMS CORPORATION, a Nevada corporation
AND THE OTHER PARTIES SIGNATORY HERETO
Dated as of April 21, 2003

TABLE OF CONTENTS
ARTICLE 1 THE MERGER
1.1 The Merger
1.2 Effective Time
1.3 Effect of the Merger on Constituent Corporations
1.4 Certificate of Incorporation and Bylaws of Surviving Corporation
1.5 Directors and Officers of Surviving Corporation
1.6 Maximum Number of Shares of IMNT Common Stock to be Issued; Effect on
Outstanding Securities of USSC
1.7 Reservation of Shares
1.8 Adjustments to Exchange Ratio
1.9 Fractional Shares
1.10 Dissenting Shares
1.11 Exchange Procedures
1.12 No Further Ownership Rights in USSC Common Stock
1.13 Lost, Stolen or Destroyed Certificates
1.14 Tax Consequences
1.15 Taking of Necessary Action: Further Action
ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF USSC
2.1 Organization and Qualification
2.2 Authority Relative to this Agreement
2.3 Capital Stock
2.4 No Subsidiaries
2.5 Directors and Officers
2.6 No Conflicts
2.7 Books and Records; Organizational Documents
2.8 USSC Financial Statements
2.9 Absence of Changes
2.10 No Undisclosed Liabilities
2.11 Taxes
2.12 Legal Proceedings
2.13 Compliance with Laws and Orders
2.14 Employee Benefit Plans and Employee Matters
2.15 Real Property
2.16 Tangible Personal Property
2.17 Intellectual Property
2.18 Contracts
2.19 Insurance
2.20 Affiliate Transactions
2.21 Employees; Labor Relations
2.22 Environmental Matters
2.23 Substantial Customers and Suppliers
2.24 Accounts Receivable
2.25 Inventory
2.26 Other Negotiations; Brokers; Third Party Expenses
2.27 Banks and Brokerage Accounts
2.28 Warranty Obligations
2.29 Foreign Corrupt Practices Act
2.30 Tax-Free Reorganization
2.31 Financial Projections
2.32 Approvals

<PAGE>
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2.33 Information Statement
2.34 No Solicitation
2.35 Disclosure
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF IMNT
3.2 Authority Relative to this Agreement
3.3 Issuance of IMNT Common Stock
3.6 Books and Records; Organizational Documents
3.7 Legal Proceedings
3.8 Compliance with Laws and Orders
3.9 Banks and Brokerage Accounts
3.10 Other Negotiations; Brokers; Third Party Expenses
3.11 Foreign Corrupt Practices Act
3.12 Approvals
3.13 Information Statement
3.14 Disclosure
3.16 Investment Advisors
3.17 Tax-Free Reorganization
ARTICLE 4 CONDUCT BEFORE THE EFFECTIVE TIME
4.1 Conduct of Business of USSC
4.2 No Solicitation
ARTICLE 5 ADDITIONAL AGREEMENTS
5.1 Information Statement
5.5 Stockholder Approval
5.6 Access to Information
5.7 Confidentiality
5.8 Expenses
5.9 Public Disclosure
5.10 Approvals
5.12 Notification of Certain Matters
5.15 Additional Documents and Further Assurances; Cooperation
5.18 USSC' s Auditors
5.20 Takeover Statutes
5.21 Treatment as Reorganization
5.22 Intellectual Property
ARTICLE 6 CONDITIONS TO THE MERGER
6.1 Conditions to Obligations of Each Party Under this Agreement
6.2 Additional Conditions to Obligations of USSC
6.3 Additional Conditions to the Obligations of IMNT
ARTICLE 7 SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
7.1 Survival of Representations, Warranties, Covenants and Agreements
ARTICLE 8 TERMINATION, AMENDMENT AND WAIVER
8.1 Termination
8.2 Effect of Termination
8.3 Amendment
8.4 Extension; Waiver
ARTICLE 9 MISCELLANEOUS PROVISIONS
9.1 Notices
9.2 Entire Agreement
9.3 Amendment
9.4 Further Assurances; Post-Closing Cooperation
9.5 Waiver
9.6 Remedies
9.7 Third Party Beneficiaries
9.8 No Assignment; Binding Effect
9.9 Invalid Provisions
9.10 Governing Law
9.11 Waiver of Trial by Jury
9.12 Costs and Expenses
9.13 Construction

<PAGE>
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9.14 Counterparts
9.15 Specific Performance
ARTICLE 10 DEFINITIONS
10.1 Definitions
10.2 Construction

Exhibits

Exhibit A-Certificate of Merger to be filed with Nev. Sec. of State
Exhibit B-Delaware Certificate of Merger
Exhibit C-IMNT officers' Certificate re: rep's and warranties
Exhibit D-USSC officers' Certificate re: rep's and warranties

AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered into
as of April 21, 2003 by and among Immunotechnology, Inc., a Delaware
corporation ("IMNT"), and Ultimate Security Systems Corporation, a Nevada
corporation ("USSC"). Capitalized terms used and not otherwise defined herein
have the meanings set forth in Article 10.
RECITALS
A. The Boards of Directors of each of IMNT and USSC have approved this
Agreement and deem it advisable and in the best interests of IMNT and USSC,
respectively, and their respective stockholders that IMNT acquire USSC by the
merger of USSC with and into IMNT (the "Merger") and, in furtherance thereof,
have approved the Merger, this Agreement and the transactions contemplated
hereby.
B. Before the Effective Time and as a condition to consummation of the Merger,
all outstanding shares of USSC Preferred Stock will be converted into
outstanding shares of USSC Common Stock and all holders of USSC Preferred
Stock shall have agreed to accept shares of IMNT common stock in exchange for
all accrued but unpaid dividends.
C. Pursuant to the Merger, among other things, and subject to the terms and
conditions of this Agreement, (i) all of the outstanding shares of USSC Common
Stock that are issued and outstanding immediately before the Effective Time of
the Merger shall be converted into the right to receive shares of Common
Stock, par value $0.001 per share, of IMNT ("IMNT Common Stock"), and (ii) all
USSC Options, USSC Warrants and USSC Stock Purchase Rights then outstanding
(whether vested or unvested) shall become exercisable for IMNT Common Stock,
on the terms and subject to the conditions set forth in this Agreement.
D. IMNT and USSC intend that the Merger shall constitute a reorganization
within the meaning of Section 368(a) of the Code and in furtherance thereof
intend that this Agreement shall be a "plan of reorganization" within the
meaning of Sections 354(a) and 361(a) of the Code.
E. USSC and IMNT desire to make certain representations, warranties, covenants
and agreements in connection with the Merger.
NOW, THEREFORE, AS CONSIDERATION FOR the covenants, promises, representations
and warranties set forth herein, and for other good and valuable consideration
(the receipt and sufficiency of which hereby are acknowledged by the parties),
intending to be legally bound hereby, the parties hereby agree as follows:
Article1

THE MERGER
1.1 The Merger
At the Effective Time and on the terms and subject to the conditions of this
Agreement and the applicable provisions of the applicable Nevada Delaware Law,
USSC shall be merged with and into IMNT, the separate corporate existence of
USSC shall cease, and IMNT shall continue as the surviving corporation. IMNT
sometimes is referred to herein as the "Surviving Corporation."

<PAGE>
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1.2 Effective Time
Unless this Agreement is terminated earlier pursuant to Section 8.1 hereof,
the closing of the Merger (the "Closing") is expected to occur on the date
that the Registration Statement on Form S-4 is declared "effective" by the
Securities and Exchange Commission and will occur no later than five (5)
Business Days following satisfaction or waiver of the conditions set forth in
Article 6, at the offices of MC Law Group, 4100 Newport Place, Suite 860,
Newport Beach, California 92660, unless another place or time is agreed to by
IMNT and USSC. The date on which the Closing actually occurs is referred to

 

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