THIS PLAN OF
MERGER (this “ Plan ”), dated as of
October 9, 2009 (the “ Execution Date ”),
is entered into by and among TECHNISCAN, INC., a Utah corporation
(“ TechniScan ”) and TECHNISCAN ACQUISITION,
INC., a Utah corporation (“ Merger Sub
”).
WHEREAS ,
the sole shareholder of Merger Sub, Castillo, Inc., a Delaware
corporation (“ Parent ”) and the boards of
directors of each of Merger Sub and TechniScan (each a “
Board ”) have, pursuant to the laws of their
respective states of organization, declared that this Plan is
advisable, fair and in the best interests of their respective
shareholders, and have approved this Plan and the consummation of
the transactions contemplated hereby, including the merger of
Merger Sub with and into TechniScan in exchange for shares of the
common stock of Parent (“ Parent Common Stock
”); and
WHEREAS ,
the parties to this Plan intend that the merger will qualify as a
transaction described in Section 368 of the Internal Revenue
Code of 1986, as amended and the parties have agreed not to take
actions that would cause the merger not to so qualify.
NOW,
THEREFORE , in consideration of the covenants, promises and
representations set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
expressly and mutually acknowledged, and intending to be legally
bound hereby, the parties hereto agree as follows:
1.1 Merger
. On the terms and subject to the conditions set forth in this
Plan, at the Effective Time, in accordance with the provisions of
the Utah Revised Business Corporation Act (the “ Utah
Act ”), Merger Sub shall be merged with and into
TechniScan. TechniScan shall continue as the surviving entity (the
“ Surviving Entity ”) and the separate existence
of Merger Sub shall cease (the “ Merger
”).
1.2 Effective
Time . Prior to the Effective Time, Merger Sub and TechniScan
shall prepare, and, on the closing date of the Merger (the “
Closing Date ”), TechniScan shall file with the
Department of Commerce, Division of Corporations and Commercial
Code of the State of Utah (the “ Division ”),
Articles of Merger (the “ Articles of Merger ”),
and/or such other appropriate documents executed in accordance with
the applicable provisions of the Utah Act and shall make all other
filings or recordings required under the Utah Act to effect the
Merger. The Merger shall become effective at such time as the
Articles of Merger are filed with the Division on the Closing Date,
or such other time and/or date specified in the Articles of Merger
(the “ Effective Time. ”)
1.3 Legal
Effects of the Merger . At the Effective Time, the effect of
the Merger shall be as provided in this Plan and the applicable
provisions of the Utah Act. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all of the
assets, properties, rights, privileges, powers and franchises of
TechniScan and Merger Sub shall vest in the Surviving
Entity.
1.4 Articles of
Incorporation and Bylaws of the Surviving Entity .
(a)
Articles of Incorporation . As of the Effective Time, by
virtue of the Merger and without any action on the part of Merger
Sub or TechniScan, the Articles of Incorporation of Merger Sub as
in effect immediately prior to the Effective Time shall be the
Articles of Incorporation of the Surviving Entity until thereafter
amended in accordance with the Utah Act.
1
(b)
Bylaws . As of the Effective Time, by virtue of the Merger
and without any action on the part of Merger Sub or TechniScan, the
Bylaws of Merger Sub, as in effect immediately prior to the
Effective Time, shall be the Bylaws of the Surviving Entity until
thereafter amended in accordance with the Utah Act and the Articles
of Incorporation of the Surviving Entity.
1.5 Directors
and Officers of the Surviving Entity . The initial director and
officer of the Surviving Entity shall be David Robins
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