Exhibit 10.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated January 19, 1999 (the
"Agreement"), between SYNAPTX WORLDWIDE, INC., a Utah corporation
("Synaptx"), and PALADYNE CORP., a Delaware corporation
("Paladyne") (Synaptx and Paladyne are sometimes referred to
herein collectively as the "Constituent Corporations").
W I T N E S S E T H:
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WHEREAS, Paladyne was incorporated in the State of Delaware
on January 11, 1999, and is a wholly-owned subsidiary of Synaptx;
and
WHEREAS, the Board of Directors of Synaptx believes that it
is in the best interest of Synaptx to reincorporate in the State
of Delaware by merging with and into Paladyne pursuant to this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises,
the mutual agreements and undertakings herein given and other
good and valuable consideration, the parties hereto agree, in
accordance with the applicable provisions of the statutes of Utah
and Delaware, respectively, which permit such merger, Synaptx
shall be, and hereby is, merged with and into Paladyne, at the
Effective Time (as herein defined), and that the terms and
conditions of the merger hereby agreed to (the "Merger") shall be
as hereinafter set forth:
ARTICLE ONE
Principal Terms of Merger
Section 1.01. Merger. At the Effective Time (as herein
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defined), Synaptx shall merge with and into Paladyne provided
that this Agreement has not been terminated pursuant to Section
4.02 herein.
Section 1.02. Effective Time of Merger. The Merger shall
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become effective as of the completion of all filing requirements
specified in Sections 4.03 and 4.04 of this Agreement, and such
date and time is hereinafter referred to as the "Effective Time."
ARTICLE TWO
Certificate of Incorporation, By-Laws and Directors
Section 2.01. Certificate of Incorporation. The
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Certificate of Incorporation of Paladyne in effect at the
Effective Time of the Merger shall be the Certificate of
Incorporation of Paladyne, to remain unchanged until amended as
provided by law.
Section 2.02. By-Laws. The By-Laws of Paladyne in effect
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at the Effective Time of the Merger shall be the By-Laws of
Paladyne, to remain unchanged until amended as provided by law.
Section 2.03. Directors. Synaptx, in its capacity as sole
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shareholder of Paladyne, shall elect as directors of Paladyne
those individuals elected by the shareholders of Synaptx prior to
the Effective Time of the Merger, and such persons shall serve as
directors of Paladyne until the next annual meeting of the
stockholders of Paladyne.
ARTICLE THREE
Exchange and Cancellation of Shares
At the Effective Time of the Merger, all issued and
outstanding shares of Synaptx common stock, $.001 par value (the
"Old Common Stock"), and all issued and outstanding shares of
Synaptx's Series A Convertible Preferred Stock, $.001 par value
(the "Old Preferred Stock"), shall be canceled and the corporate
existence of Synaptx, shall cease. Shares of Paladyne's common
stock, par value $.001 per share (the "New Common Stock"), and
shares of Paladyne's Series A Convertible Preferred Stock, $.001
par value (the "New Preferred Stock"), shall be issued to the
shareholders of Synaptx as a result of the Merger as herein
provided.
Section 3.01. The Surviving Corporation Stock. Each share
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of Old Common Stock which is outstanding prior to the Effective
Time of the Merger shall be converted into one issued and
outstanding share of New Common Stock and, from and after the
Effective Time of the Merger, the holders of all of said issued
and outstanding shares of Old Common Stock shall automatically be
and become holders of shares of New Common Stock upon the basis
above specified, whether or not certificates representing said
shares are then issued and delivered. Each share of Old
Preferred Stock which is outstanding prior to the Effective Time
of the Merger shall be converted into one issued and outstanding
share of New Preferred Stock and, from and after the Effective
Time of the Merger, the holders of all of said issued and
outstanding shares of Old Preferred Stock shall automatically be
and become holders of shares of New Preferred Stock upon the
basis above specified, whether or not certificates representing
said shares are then issued and delivered.
Section 3.02. Cancellation of Old Common Stock and Old
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Preferred Stock. After the Effective Time of the Merger, each
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holder of record of any outstanding certificate or certificates
theretofore representing shares of Old Common Stock or Old
Preferred Stock may surrender the same to American Stock Transfer
& Trust Company, New York, New York, and such holder shall be
entitled upon such surrender to receive in exchange therefor a
certificate or certificates representing an equal number of
shares of New Common Stock or New Preferred Stock. Until so
surrendered, each outstanding certificate which, prior to the
Effective Time of the Merger, represented one or more shares of
Old Common Stock or Old Preferred Stock shall be deemed for all
corporate purposes to evidence ownership of an equal number of
shares of New Common Stock or New Preferred Stock, respectively.
Upon the surrender of a certificate or certificates representing
shares of Old Common Stock or Old Preferred Stock, a proper
officer of Paladyne shall cancel said certificate or
certificates.
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ARTICLE FOUR
Adoption and Termination
Section 4.01. Submission to Vote of Shareholders. This
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Agreement shall be submitted to the shareholders of Synaptx, as
provided by applicable law, and shall take effect, and be deemed
to be the Agreement and Plan of Merger of the Constituent
Corporations, upon the approval or adoption thereof by said
shareholders of Synaptx in accordance with the requirements of
the laws of the State of Utah.
Section 4.02. Termination of Agreement. Anything herein or
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elsewhere to the contrary notwithstanding, this Agreement may be
abandoned by Synaptx by an appropriate resolution of its Board of
Directors at any time prior to the Effective Time of the Merger
if such Board of Directors believes that the Merger is not in the
best interests of Synaptx or in the event that the shareholders
who hold more than five (5%) percent of the outstanding and
issued shares of Old Common Stock [and Old Preferred Stock]
dissent from the Merger and seek appraisal rights pursuant to
Sections 16-10a-1301 through 16-10a-1331 of the Utah Revised
Business Corporation Act.
Section 4.03. Filing of Articles of Merger in the State of
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Utah. As soon as practicable after the requisite shareholder
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approval referenced in Section 4.01 herein, Articles of Merger to
effectuate the terms of this Agreement shall be executed and
acknowledged by Paladyne and thereafter delivered to the Division
of Corporations and Commerical Code (the "Division") of the State
of Utah for filing and recording in accordance with applicable
law, unless this Agreement has been terminated pursuant to
Section 4.02 herein.
Section 4.04. Filing of Certificates of Merger in the State
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of Delaware. As soon as practicable after the requisite
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shareholder approval referenced in Section 4.01 herein, a
Certificate of Merger to effectuate the terms of this Agreement
shall be executed by each of the Constituent Corporations and
thereafter delivered to the Secretary of State of the State of
Delaware for filing and recording in accordance with applicable
law, unless this Agreement has been terminated pursuant to
Section 4.02 herein.
ARTICLE FIVE
Effect of Merger
Section 5.01. Effect of Merger. At the Effective Time of
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the Merger, the Constituent Corporations shall be a single
corporation, which shall be Paladyne, and the separate existence
of Synaptx shall cease except to the extent provided by the laws
of the States of Utah and Delaware. Paladyne shall thereupon and
thereafter possess all the rights, privileges, immunities and
franchises, of both a public and private nature, of each of the
Constituent Corporations; and all property, real, personal and
mixed, and all debts due on whatever account, including
subscriptions to shares, and all other choses in action, and all
and every other interest of, or belonging to, or due to each of
the Constituent Corporations, shall be taken and deemed to be
vested in Paladyne without further act or deed; and the title to
all real estate, or any interest therein, vested in either of the
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Constituent Corporations shall not revert or be in any way
impaired by reason of the Merger. Paladyne shall thenceforth be
responsible and liable for all of the liabilities and obligations
of each of the Constituent Corporations and any claim existing or
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
substituted in its place, and neither the rights of creditors nor
any liens upon the property of either of the Constituent
Corporations shall be impaired by the Merger. Paladyne shall
assume any stock option or similar employee benefits plan of
Synaptx, and all contractual rights of Synaptx for the issuance
of shares of the Old Common Stock and Old Preferred Stock, and
such issuances or reserves for issuances shall be of shares of
New Common Stock and New Preferred Stock on an as-converted basis
as set forth in Section 3.01 hereof.
Section 5.02. Business Combinations with Ronald E. Weindruch.
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Paladyne hereby acknowledges that Ronald E. Weindruch, beneficially
owns 1,661,881 shares of Old Common Stock at the date of this
Agreement and further recognizes that, as a result of such stock
ownership, Mr. Weindruch could be deemed to be an Interested
Stockholder (as that term is defined under Section 203 of the General
Corporation Law of the State of Delaware) of Paladyne after the
consummation of the Merger. Paladyne hereby represents and warrants
to Synaptx that the Board of Directors of Paladyne has considered
the stock ownership that Mr. Weindruch will have in Paladyne at the
Effective Time of the Merger in approving this Agreement. Paladyne
hereby represents and warrants to Synaptx that the Board of Directors
of Paladyne has approved such stock acquisition.
ARTICLE SIX
Post Merger Undertakings
Section 6.01 Service of Process. Paladyne hereby agrees
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that it may be served with process within the State of Utah in
any proceeding for the enforcement of any obligation of Synaptx
and in any proceeding for the enforcement of the rights of any
dissenting shareholder of Synaptx.
Section 6.02 Authorization of Service of Process.
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Paladyne hereby authorizes service of process on it pursuant to
Section 6.01 herein by registered or certified mail return
receipt requested to its principal office as set forth in the
Articles of Merger to be filed pursuant to Section 4.03 herein or
as changed by notice to the Division.
Section 6.03 Payments to Dissenting Shareholders.
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Paladyne shall promptly pay to any shareholders of Synaptx who
dissent from the Merger the amount, if any, to which such
dissenting shareholders shall be entitled with respect to the
Merger pursuant to applicable law.
ARTICLE SEVEN
Miscellaneous
Section 7.01 Further Actions. Each of the Constituent
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Corporations shall take or cause to be taken all action, or do,
or cause to be done, all things necessary, proper or advisable
under the laws of the States of Utah and Delaware to consummate
and make effective the Merger following approval of the Merger by
the shareholders of Synaptx in accordance with the laws of said
States.
Section 7.02. Amendments. At any time prior to the
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Effective Time of the Merger (notwithstanding any shareholder
approval), if authorized by their respective Board of Directors,
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the parties hereto may, by written agreement, amend or supplement
any of the provisions of this Agreement. Any written instrument
or agreement referred to in this section shall be validly and
sufficiently authorized for the purposes of this Agreement if
signed on behalf of each of the Constituent Corporations by a
person authorized to sign this Agreement.
Section 7.03. Counterparts. This Agreement may be executed
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in any number of counterparts, each of which shall be deemed to
be an original instrument, but all such counterparts together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Constituent Corporations,
pursuant to the approval and authority duly given by resolutions
adopted by their respective Board of Directors have caused this
Agreement and Plan of Merger to be executed by an authorized
officer of each party hereto, and the corporate seal affixed on
the date above first written.
PALADYNE CORP.
(a Delaware corporation)
By: /s/ Ronald L. Weindruch
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Name: Ronald L. Weindruch
Title: President
SYNAPTX WORLDWIDE, INC.
(a Utah corporation)
By: /s/ Ronald L. Weindruch
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Name: Ronald L. Weindruch
Title: President
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