AGREEMENT AND PLAN OF MERGER
AGREEMENT
AND PLAN OF MERGER, dated as of May 18, 2007 (the
“Agreement”), between Fitness Xpress Software
Inc., a Nevada corporation (the “Corporation”),
and Fitness Xpress Software Inc., a Delaware corporation (the
“Subsidiary”).
WITNESSETH:
WHEREAS,
the Subsidiary desires to acquire all the assets, and to
assume all of the liabilities and obligations, of the
Corporation by means of a merger of the Corporation with and
into the Subsidiary, with the Subsidiary being the surviving
corporation (the “Merger”);
WHEREAS,
the Subsidiary is a wholly-owned subsidiary of the
Corporation;
WHEREAS,
Section 92A.200 of the Nevada Revised Statutes (“Nevada
Law”) and Section 253(c) of the Delaware General
Corporation Law (the “DGCL”), authorize the merger
of a Nevada corporation into a Delaware
corporation;
WHEREAS,
the Subsidiary shall be the surviving entity (the
“Surviving Corporation”) and continue its
existence as a Delaware corporation; and
WHEREAS,
the stockholders and Board of Directors of the Corporation and
the Subsidiary have approved this Agreement and the
consummation of the Merger.
NOW
THEREFORE, the parties hereto hereby agree as
follows:
ARTICLE
I
THE
MERGER
SECTION
1.01.
The Merger .
(a)
At
the Effective Time (as defined below), the Corporation shall
be merged, the separate existence of the Corporation shall
cease and the Surviving Corporation shall be the surviving
entity and continue its existence as a Delaware
corporation.
(b)
The
Merger shall become effective on the date that a Certificate
of Ownership and Merger with respect to the Merger,
substantially in the form attached hereto as
Exhibit A ,
is accepted for filing by the Office of the Secretary of State of
Delaware (the “Effective Time”) and all other filings
or recordings required by the Nevada Revised Statutes and the
Delaware General Corporation Law in connection with the Merger are
made.
SECTION
1.02.
Merger Consideration .
At
the Effective Time, each share of common stock, par value
$0.001 per share of the Corporation which shall be issued and
outstanding immediately prior to the Effective Time shall be
converted into 1.0563380282 issued and outstanding shares of
common stock, par value $0.001 per share of the Surviving
Corporation, and from and after the Effective Time, the
holders of all said issued and outstanding shares of stock of
the Corporation shall automatically become holders of shares
of the Surviving Corporation, whether or not certificates
representing said shares are then issued and
delivered.
ARTICLE
II
THE
SURVIVING CORPORATION
SECTION
2.01.
Bylaws; Certificate of Incorporation .
The certificate of incorporation of the Subsidiary, as in effect
immediately prior to the Effective Time, shall be the certificate
of incorporation of the Surviving Corporation unless and until
thereafter amended in accordance with its terms and applicable law.
The By-laws of the Subsidiary as in effect immediately prior to the
Effective Time shall be the By-laws of the Surviving Corporation
unless and until thereafter amended in accordance with applicable
law.
At
the Effective Time the name
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