Exhibit 2.1
PLAN AND AGREEMENT OF MERGER
Between
Island Critical Care Corporation
And
Island Critical Care Corp.
This Plan and Agreement of Merger is made, and entered into, on the 13th
day of January, 2000, by and between Island Critical Care Corp., a Delaware
Corporation, hereinafter referred to as the Surviving Corporation, and Island
Critical Care Corporation, an Ontario, Canada Corporation, hereinafter referred
to as the Merged Corporation. Said Corporations are hereinafter sometimes
referred to jointly as the Constituent Corporations.
WITNESSETH:
WHEREAS the Surviving Corporation is organized and exists under the laws of
the State of Delaware, having filed its Certificate of Incorporation in the
Office of the Secretary of State of the State of Delaware, on December 15, 1999,
and recorded it in the office of the Recorder of Deeds for the county of New
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Castle. in the aforesaid State, on December 15, 1999, and having its
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registered office at 2530 Channin Drive in the City of Wilmington, County of
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New Castle, and having as its registered agent Corporate Creations
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Enterprises Inc. and
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WHEREAS the total number of shares of stock which the Surviving Corporation
has authority to issue is fifty million (50,000,000) shares, of which one
million three hundred and forty-six thousand and two hundred and fifty (1346250)
shares are now issued and outstanding; and
WHEREAS the Merged Corporation is organized and exists under the laws of
the Province of Ontario, its Articles of Incorporation having been filed with
the Ministry of Consumer and Commercial Relations for the Province of Ontario on
April 28, 1998, and the address of its registered office is 220 Laurier Avenue
West, Suite 350, in the Regional Municipality of Ottawa-Carleton, in the
Province of Ontario; and
WHEREAS the aggregate number of shares which the Merged Corporation has
authority to issue is unlimited, of which 9,675,098 shares are issued and
outstanding; and
WHEREAS the Board of Directors of each of the Constituent Corporations
deems it advisable that the Merged Corporation be merged into the Surviving
Corporation on the terms and conditions set forth below, in accordance with the
applicable provisions of the statutes of the State of Delaware and the Province
of Ontario, respectively, which permit such merger;
THEREFORE, in consideration of the agreements, covenants and provisions set
out below, the Surviving Corporation and the Merged Corporation, by their Boards
of Directors, do hereby agree as follows:
ARTICLE I
The Surviving Corporation and the Merged Corporation shall be merged into a
single Corporation, in accordance with applicable provisions of the laws of the
State of Delaware and of the Province of Ontario by the Merged Corporation
merging into the Surviving Corporation, 'which shall be the Surviving
Corporation.
ARTICLE II
Upon the merger becoming effective under the laws of the States of Delaware and
of the Province of Ontario (such time being referred to herein as the "EFFECTIVE
DATE OF THE MERGER"):
1. The two Constituent Corporations shall be a single corporation, which
shall be the Surviving Corporation, and the separate existence of
the Merged Corporation shall cease, except to the extent, if any,
provided by the laws of the Province of Ontario.
2. The Surviving Corporation shall thereupon possess all the rights,
privileges, immunities and franchises of the Constituent Corporations;
and all property, real and personal, and all debts due on whatever
account, and every other interest belonging to or due to each of the
Constituent Corporations, shall be vested in the Surviving Corporation
without further act or deed.
3. The Surviving Corporation shall be responsible and liable for all of the
liabilities and obligations of each Constituent Corporation; and all
existing or pending claims, actions or proceedings by or against
the Constituent Corporations may be prosecuted to judgment as if the
merger had not taken place, or the Surviving Corporation may be
substituted in the place of the appropriate Constituent Corporation,
and neither the rights of creditors nor any liens upon the property of
the Constituent Corporations shall be impaired by the merger.
4. The Surviving Corporation hereby agrees that it may be served with
process in the State of Florida in any proceeding for the enforcement
of any obligation of either Constituent Corporation, including those
arising from the merger, and hereby irrevocably appoints the Secretary
of State of Florida as its agent to accept service of process in any
such suit or other proceedings, and further agrees that service of any
such process may be made by providing the Secretary of State of the
State of with duplicate copies of such process; and the Surviving
Corporation authorizes the aforesaid Secretary of State to send such
process to it by registered mail directed to its registered office at:
2530 Channin Drive
Wilmington, DE
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19810
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5. With respect to each Constituent Corporations, the aggregate amount of
net assets of each Constituent Corporation that was available to support
and pay dividends before the merger, shall continue to be available for the
payment of dividends by the Surviving Corporation, except to the extent
that all or a portion of those net assets may be transferred to the stated
capital of the Surviving Corporation.
6. The Bylaws of the Surviving Corporation as they existed immediately
before the effective date of merger shall be the Bylaws of the
Surviving Corporation.
7. The persons who will serve on the Board of Directors and as the
officers of the Surviving Corporation shall be the same persons who
served as directors and officers of the Merged Corporation immediately
before the effective date of the merger.
ARTICLE III
The Articles of Incorporation of the Surviving Corporation shall not be
amended in any respect by reason of this Agreement of Merger, and said Articles
of Incorporation shall constitute the Articles of Incorporation of the Surviving
Corporation unless or until it is subsequently amended by the action of the
Board of Directors and shareholders: the said Articles of Incorporation are set
forth in Exhibit A attached hereto and are made a part of this Plan and
Agreement of Merger.
ARTICLE IV
The shares of the Constituent Corporations shall be converted into shares
of the Surviving
Corporation in the following manner:
1. Each share of each Constituent Corporations shall be converted into one
(1) fully paid and non-assessable share of capital stock of the Surviving
Corporation, any shares of the Surviving Corporation which are issued and
outstanding prior to the merger shall not be cancelled or replaced unless deemed
necessary and expedient by the Board of Directors of the Surviving Corporation.
Shareholders of the Merged Corporation shall be required to surrender their
share certificates in the Merged Corporation prior to receiving a replacement
share in the Surviving Corporation.
ARTICLE V
The Surviving Corporation shall pay all expenses incurred for the purpose
of bringing both this Agreement of Merger and the merger herein described into
effect.
ARTICLE VI
If the Surviving Corporation shall have reason to request any further
assignments, conveyances or other transfers that it is advised by counsel are
necessary to vest in the Surviving Corporation title to any property or rights
of either of the Constituent Corporations, the officers and directors of the
appropriate Constituent Corporation shall execute any assignment, conveyance or
transfer to vest such property or rights in the Surviving Corporation.
ARTICLE VII
This Plan and Agreement of Merger shall be submitted to the shareholders of
each of the Constituent Corporations for consideration at a meeting of
shareholders held in accordance with the Bylaws of each Constituent Corporation
and with the laws of their State of incorporation, and upon (1) The approval by
the shareholders of each Constituent Corporation, and (2) The subsequent
execution, filing and recording of such documents shall then take effect and be
the Plan of Merger of the Constituent Corporations. This Plan and Agreement of
Merger may be abandoned by (1) Either of the Constituent Corporations by the
action of its Board of Directors if such action is taken before the Plan and
Agreement of Merger has been approved by the shareholders of the Constituent
Corporation whose Board seeks abandonment, or (2) The mutual consent of the
Constituent Corporations if their respective Boards of Directors each adopt a
resolution abandoning the Plan and Agreement of Merger before the effective date
of the merger.
IN WITNESS WHEREOF, each Constituent Corporations acting by the authority set
out in a resolution adopted by its Boards of Directors has directed this Plan
and Agreement of Merger to be executed by the President and attested to by the
Secretary of each Constituent Corporation, and to have the corporate seal of
each Constituent Corporation affixed hereto. Attest:
/s/ J. Paul Hines /s/ J. Paul Hines
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J. Paul Hines J. Paul Hines
Secretary Secretary
/s/ Sean Flanigan /s/ Kenneth Legere
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Sean Flanigan Kenneth Legere
Secretary President
I, Sean Flanigan, Secretary of Island Critical Care Corporation, a
Corporation organized and existing under the laws of the Province of Ontario,
hereby certify, as such Secretary, and under the seal of the said Corporation,
that the Agreement of Merger to which this certificate is attached, after having
been first duly signed on behalf of said Corporation by the President and
Secretary of Island Critical Care Corporation, a Corporation of the Province of
Ontario, was duly submitted to the shareholders of Island Critical Care
Corporation, at a special meeting of said shareholders, called and held
separately from the meeting of shareholders of any other Corporation, upon
waiver of notice, signed by all shareholders, for the purpose of considering and
taking action upon said Agreement of Merger, that shares of stock of said
Corporation were on said date issued and outstanding and that the holders of
9,675,098 shares voted by ballot in favor of said Agreement of Merger and the
holders of shares voted by ballot against same, the said affirmative vote
representing at least a majority of the total number of shares of the
outstanding capital stock of said Corporation, and that thereby the Agreement of
Merger was at said meeting duly adopted as the act of the shareholders of said
Island Critical Care Corporation, and the duly adopted agreement of said
Corporation.
WITNESS my hand and seal of said Island Critical Care Corporation on this
13th day of January, 2000.
/s/ Sean P. Flanigan
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Sean P. Flanigan
Secretary
Seal:
I, J. Paul Hines, Secretary of Island Critical Care Corp., a Corporation
organized and existing under the laws of the State of Delaware, hereby certify,
as such Secretary, and under the seal of the said Corporation, that the
Agreement of Merger to which this certificate is attached, after having been
first duly signed on behalf of said Corporation by the President and Secretary
of Island Critical Care Corp., a Corporation of the State of Delaware, was duly
submitted to the shareholders of Island Critical Care Corp., at a special
meeting of said shareholders, called and held separately from the meeting of
shareholders of any other Corporation, upon waiver of notice, signed by all
shareholders, for the purpose of considering and taking action upon said
Agreement of Merger, that shares of stock of said Corporation were on said date
issued and outstanding and that the holders of all shares voted by ballot in
favor of said Agreement of Merger and the holders of shares voted by ballot
against same, the said affirmative vote representing at least a majority of the
total number of shares of the outstanding capital stock of said Corporation, and
that thereby the Agreement of Merger was at said meeting duly adopted as the act
of the shareholders of said Island Critical Care Corp., and the duly adopted
agreement of said Corporation.
WITNESS my hand and seal of said Island Critical Care Corp. on this 13th
day of January, 2000.
/s/ J. Paul Hines
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J. Paul Himes
Secretary
Seal:
THE ABOVE AGREEMENT OF MERGER, having been executed by the President and
Secretary of each corporate party thereto, and having been adopted
separately by the shareholders of each corporate party thereto, in accordance
with the provisions of the laws of the State of Delaware and the Province of
Ontario, and the fact having been certified on said Agreement of Merger by the
Secretary of each corporate party thereto, is now hereby executed under the
corporate seals of the respective Corporations, by the authority of the
directors and shareholders thereof, as the respective act, deed and agreement of
each of said Corporation, on the 13th day of January, 2000
/s/ Sean Flanigan /s/ Kenneth Legere
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Sean Flanigan Kenneth Legere
Secretary President
Seal: