AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger
Agreement") is dated as of April 27, 2007, and is entered into
by and between Ikona Gear International, Inc., a Nevada
corporation ("Ikona-Nevada") and Ikona Gear International Inc.,
a Delaware corporation ("Ikona-Delaware"). Ikona-Nevada
and Ikona-Delaware are hereinafter sometimes collectively
referred to as the "Constituent Corporations".
RECITALS
A.
Ikona-Nevada desires to merge with and into
Ikona-Delaware and Ikona-Delaware desires to merge with
Ikona-Nevada, all upon the terms and subject to the conditions of
this Merger Agreement.
B.
Ikona-Nevada was incorporated on September 20, 2000
and is a corporation duly organized and existing under the laws of
the State of Nevada. Its authorized capital stock consists of
100,000,000 shares of Common Stock, par value $0.00001 per share
(the "Ikona-Nevada Common Stock") of which 28,349,292 shares were
issued and outstanding on April 27, 2007.
C.
Ikona-Delaware was incorporated on April 20, 2007
and is a corporation duly organized and existing under the laws of
the State of Delaware. Its authorized capital stock consists
of 25,000,000 shares of Preferred Stock, par value $0.0001 per
share (the "Ikona-Delaware Preferred Stock), and 100,000,000 shares
of Common Stock, par value $0.00001 per share (the "Ikona-Delaware
Common Stock"), of which no shares of Ikona-Delaware Preferred
Stock and 100 shares of Ikona-Delaware Common Stock were issued and
outstanding on April 27, 2007. All outstanding shares of
Ikona-Delaware Common Stock shares are held by and in the name of
Ikona-Nevada.
D.
The Board of Directors of Ikona-Nevada has
determined that, for the purpose of effecting the reincorporation
of Ikona-Nevada in the State of Delaware, it is advisable and in
the bests interests of Ikona-Nevada and its shareholders that
Ikona-Nevada merge with and into Ikona-Delaware upon the terms and
conditions herein provided.
E.
The Board of Directors of Ikona-Nevada has adopted
resolutions approving this Merger Agreement and the transactions
contemplated hereby and has recommended to the existing
shareholders of Ikona-Nevada (individually, a "Shareholder", and
collectively, the "Shareholders") to approve this Merger Agreement
and the transactions contemplated hereby. The Shareholders of
Ikona-Nevada approved the Merger Agreement at the annual meeting of
Shareholders held on April 16, 2007.
F.
The Board of Directors of Ikona-Delaware has
adopted resolutions approving this Merger Agreement and the
transactions contemplated hereby.
G.
It is intended, for federal tax purposes, that the
merger accomplished by the Merger Agreement will qualify as a
tax-free reorganization within the meaning of Section 368(a)(1)(A)
of the Internal Revenue Code.
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NOW, THEREFORE , in consideration of the
premises and the mutual representations, warranties, covenants,
agreements and conditions contained herein, the parties hereto
agree as follows:
ARTICLE I
MERGER
Section 1.1.
The Merger . In accordance with the
provisions of this Merger Agreement, the Nevada Revised Statutes
(“NRS”) and the Delaware General Corporation Law (the
"DGCL"), Ikona-Nevada shall be merged with and into Ikona-Delaware
(the "Merger"), the separate existence of Ikona-Nevada shall cease
and Ikona-Delaware shall be the surviving corporation (hereinafter
sometimes called the "Surviving Corporation") and shall continue
its corporate existence under the laws of the State of Delaware.
The name of the Surviving Corporation shall be "Ikona Gear
International, Incorporated."
Section 1.2.
Filing and Effectiveness . The Merger
shall become effective (the "Effective Date") when the following
actions have been completed:
(a)
This Merger Agreement and the Merger shall have
been adopted and approved by the directors of Ikona-Nevada and
Ikona-Delaware in accordance with the requirements of the NRS and
the DGCL, respectively;
(b)
An executed Certificate of Ownership or an executed
counterpart of this Merger Agreement meeting the requirements of
the DGCL shall have been filed with the Secretary of State of the
State of Delaware; and
(c)
An executed Articles of Merger or an executed
counterpart of this Merger Agreement meeting the requirements of
the NRS shall have been filed with the Secretary of State of the
State of Nevada.
Section 1.3.
Effect of the Merger . Upon the
Effective Date, the separate existence of Ikona-Nevada shall cease
and Ikona-Delaware, as the Surviving Corporation: (i) shall
continue to possess all of its assets, rights, powers and property
as constituted immediately prior to the Effective Date; (ii) shall
be subject to all actions previously taken by its and
Ikona-Nevada's Boards of Directors; (iii) shall succeed, without
other transfer, to all of the assets, rights, powers and property
of Ikona-Nevada in the manner more fully set forth in Section 259
of the DGCL; (iv) shall continue to be subject to all of the debts,
liabilities and obligations of Ikona-Delaware as constituted
immediately prior to the Effective Date; and (v) shall
succeed, without other transfer, to all of the debts, liabilities
and obligations of Ikona-Nevada in the same manner as if
Ikona-Delaware had itself incurred them, all as more fully provided
under the applicable provisions of the DGCL and the NRS.
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ARTICLE II
CHARTER DOCUMENTS; DIRECTORS AND OFFICERS
Section 2.1.
Certificate of Incorporation and Bylaws .
The Certificate of Incorporation of Ikona-Delaware, in the
form attached hereto as Exhibit A (the "Certificate"), and
the Bylaws of Ikona-Delaware as in effect immediately prior to the
Effective Date shall continue in full force and effect as the
Certificate of Incorporation and Bylaws of the Surviving
Corporation until duly amended in accordance with the provisions
thereof and applicable law.
Section 2.2.
Directors and Officers . The directors
and officers of Ikona-Nevada immediately prior to the Effective
Date shall be the directors and officers of the Surviving
Corporation until their respective successors are duly elected or
appointed and qualified or until as otherwise provided by law, or
by the Certificate and Bylaws of the Surviving Corporation.
ARTICLE III
MANNER OF CONVERSION OF STOCK
Section 3.1.
Ikona-Nevada Capital Stock . Upon the
Effective Date, each share of Ikona-Nevada Common Stock issued and
outstanding immediately prior thereto shall, by virtue of the
Merger and without any action by the Constituent Corporations, the
holder of such shares or any other person, be converted
automatically into one (1) fully paid and nonassessable, issued and
outstanding share of Common Stock, par value $0.00001 per share, of
the Surviving Corporation with the identical rights, privileges,
powers, qualifications, limitations, restrictions, duties, and
obligations that existed prior to the Merger, as more fully
described in the Certificate.
Section 3.2.
Ikona-Nevada Options and Stock Purchase
Rights . Upon the Effective Date, the Surviving
Corporation shall assume and continue the stock options and all
other employee benefit plans of Ikona-Nevada and all of such
options and plans shall become the lawful obligations of the
Surviving Corporation and shall be implemented and administered in
the same manner and without interruption until the same are amended
or otherwise lawfully altered or terminated. Each outstanding
and unexercised option or other right to purchase Ikona-Nevada
Common Stock shall become an option or right to purchase the
Surviving Corporation's Common Stock, as the case may be, on the
basis of one share of the Surviving Corporation's Common Stock for
each share of Ikona-Nevada Common Stock, issuable pursuant to any
such stock option or stock purchase right, on the same terms and
conditions and at an exercise price per share equal to the exercise
price applicable to any such Ikona-Nevada stock option or stock
purchase right.
Section 3.3
Ikona-Delaware Common Stock . Upon the
Effective Date, each share of Ikona-Delaware Common Stock issued
and outstanding immediately prior thereto shall, by virtue of the
Merger and without any action by Ikona-Delaware, the holder of such
shares or any other person, be canceled and returned to the status
of authorized but unissued shares.
Section 3.4.
Exchange of Certificates . After the
Effective Date, each holder of an outstanding certificate
representing shares of Ikona-Nevada Common Stock may, at such
stockholder's option, surrender the same for cancellation to the
Surviving Corporation or its
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transfer agent, and each such holder shall be
entitled to receive in exchange therefor a certificate or
certificates representing the number of shares of the Surviving
Corporation's Common Stock into which the surrendered shares
were converted as herein provided. Unless and until so
surrendered, each outstanding certificate theretofore
representing shares of Ikona-Nevada Common Stock shall be deemed
for all purposes to represent the number of shares of the
Surviving Corporation's Common Stockinto which such shares were
converted in the Merger.
The registered owner on the books and records of
Ikona-Nevada of any shares of capital stock represented by such
outstanding certificate shall, until such certificate shall have
been surrendered for transfer or otherwise accounted for to the
Surviving Corporation or its transfer agent, have and be
entitled to exercise any voting and other rights with respect to
and to receive any dividend and other distributions upon the
shares of capital stock of the Surviving Corporation represented
by such outstanding certificate as provided above.
Each certificate representing capital stock of
the Surviving Corporation so issued in the Merger shall bear the
same legends, if any, with respect to the restrictions on
transferability as the certificates of Ikona-Nevada so converted
and given in exchange therefor, unless otherwise determined by
the Board of Directors of the Surviving Corporation in
compliance w
