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Document Preview Agreement and Plan of Merger |
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Title: |
Agreement and Plan of Merger |
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Date: |
2007 |
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Preview shows 7KB of 86KB total |
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$40 |
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ID: |
#2866557 |
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AGREEMENT AND PLAN OF MERGER
This agreement and plan of merger (the Agreement) dated as of April 24, 2007, is by and among, ICON DEVELOPMENT, INC., a corporation organized under the laws of the State of Nevada (ICON) and having its principal offices at 1235 Quayside Drive, Suite 703, New Westminister, British Columbia, Canada V3M 6J5, Icon Acquisition Corporation, a corporation organized under the laws of the State of Delaware (MERGER SUB) and having its principal offices at 1235 Quayside Drive, Suite 703, New Westminister, British Columbia, Canada V3M 6J5, AMERICAN XENO, INC., a corporation organized under the laws of the State of Nevada and having its principal offices at 143 Gardner Road, Brookline, Massachusetts 02445 (XENO), and the stockholders of XENO (the Holders).
RECITALS
A. The respective boards of directors of ICON, MERGER SUB and XENO have approved and declared advisable this Agreement and the merger of MERGER SUB with and into XENO (the Merger), upon the terms and conditions in this Agreement, whereby each issued and outstanding share of common stock of XENO will be converted into the right to receive the Merger Consideration (as defined herein).
B. The Holders own 100% of the issued and outstanding securities of XENO, all of which consist of common stock of XENO, and the Holders wish to document their intention to pass a resolution of the stockholders of XENO approving of the Merger and to transfer their interest in the common stock of XENO.
C. It is intended by the parties that the Merger qualify as a reorganization under the provisions of Section 368(a) of the United States Internal Revenue Code of 1986, as amended (the Code), and the rules and regulations promulgated thereunder and that the Agreement constitute a plan of reorganization.
NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations and warranties contained in this Agreement, the parties hereto agree as follows:
SECTION 1. THE MERGER
1.1 Merger. Upon the terms and conditions set forth herein and in accordance with applicable Delaware and Nevada law, at the Effective Time (as defined herein), MERGER SUB shall be merged with and into XENO. As a result of the Merger, the separate corporate existence of MERGER SUB shall cease and XENO shall continue as the surviving corporation of the Merger. XENO, in its capacity as the corporation surviving the Merger, is hereinafter sometimes referred to as the Surviving Corporation.
1.2 Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in the applicable provisions of Delaware and Nevada law. Without limiting the generality of the foregoing, at the Effective Time, except as otherwise provided herein, all the property, rights and privileges, powers, immunities and franchises of MERGER SUB and XENO shall vest in the Surviving Corporation, and all debts, liabilities, obligations, restrictions and duties of MERGER SUB and XENO shall become the debts, liabilities and duties of the Surviving Corporation.
1.3 Closing of Merger. The closing of the Merger (the Closing) shall take place on the first business day after the satisfaction or waiver (subject to applicable laws) of the conditions in this Agreement, unless this Agreement has been terminated pursuant to its terms or unless another time or
date is agreed to in writing by the parties to this Agreement, which shall not include the Holders (the actual date of Closing being referred to herein as the Closing Date). The Closing shall be held in the offices of ICON or such other plce and in such other manner as the parties agree. As soon as practicable on or after the Closing Date, the parties hereto shall cause the Merger to be consummated by filing the necessary documentation in the States of Nevada and Delaware in such form as required by, and executed in accordance with the relevant provisions of, applicable law (the date and time all such filings are accepted, or if another date and time is specified in such fiilngs, such specified date and time, being respectively the Effective Date and the Effective Time).
1.4 Articles of Incorporation; Bylaws.
(a) At the Effective Time and without further action on the part of XENO and MERGER SUB, the Articles of Incorporation of XENO, as may be amended or restated, as in effect at the Effective Time shall be the Articles of Incorporation of the Surviving Corporation until thereafter and further amended as provided therein and under applicable Nevada law.
(b) At the Effective Time and without further action on the part of XENO and MERGER SUB, the Bylaws of XENO, as may be amended or restated, as in effect at the Effective Time shall be the Bylaws of the Surviving Corporation until thereafter and further amended or repealed in accordance with their terms or the Articles of Incorporation and Bylaws of the Surviving Corporation and under applicable Nevada law.
1.5 Directors and Officers of the Surviving Corporation. The directors of the Surviving Corporation shall be Wayne Smith, Elliot Lebowitz, David Sachs, Michael Perry, Milton Datsopoulus and James Beckner (the Surviving Corporation Initial Directors), each to hold office in accordance with the Articles of Incorporation and Bylaws of the Surviving Corporation. The officers of the Surviving Corporation shall be Mr. Lebowitz, as Chief Executive Officer and President, Mr. Smith, as Chief Financial Officer, Treasurer and Secretary and Mr. Perry as Chairman of the board of directors of the Surviving Corporation each to hold office in accordance with the Articles of Incorporation and Bylaws of the Surviving Corporation. The parties acknowledge and agree that the Surviving Corporation shall have a board of directors consisting of up to seven (7) members, and that the remaining vacancy on the board of directors will be appointed by the unanimous agreement of the Surviving Corporation Initial Directors.
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