Exhibit 2.6
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made and entered
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into this 22nd day of February, 2002, by and between GAMECO, INC., a Delaware
corporation ("GAMECO"), and XXXXXX ENTERTAINMENT, INC., an Ohio corporation
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("JEI").
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RECITALS
A. JEI desires to be merged into GAMECO and upon such merger to
be extinguished and to have its existence as a separate entity
terminated; and
B. GAMECO desires to merge with JEI and to be the surviving
entity following such merger.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
representations contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. RECITALS: The foregoing recitals are incorporated herein as if
fully rewritten herein.
2. MERGER:
a. On the Effective Date (as hereinafter defined), pursuant
to the terms and conditions contained in this Agreement:
(i) JEI will be merged into GAMECO; (ii) the separate
existence of JEI shall cease; (iii) GAMECO shall continue
in existence; and (iv) such merger shall in all respects
have the effect provided for in Sections 251, et seq. of
the Delaware General Corporation Law, including, but not
limited to, Section 252 of the same, as well as Sections
1701.01, et seq. of the Ohio Revised Code, including, but
not limited to, Section 1701.79.
b. Prior to, from and after the Effective Date, JEI and
GAMECO shall take all actions as shall be necessary or
appropriate in order to effectuate the merger. If at any
time after the Effective Date GAMECO shall determine or be
advised that any further assignments, documents,
agreements, instruments, conveyances or assurances are
necessary or desirable to effect the merger contemplated
herein, the duly authorized officers or directors of
GAMECO shall be and are hereby authorized on behalf of JEI
to execute and deliver any such assignments, documents,
agreements, instruments, conveyances or assurances in the
name, place and stead of JEI to be wholly binding upon JEI
and to do all things and take any actions necessary and
proper to carry out the terms and conditions hereof.
3. TERMS OF MERGER: On the Effective Date:
a. Each share of JEI common stock issued and outstanding
immediately prior to the merger shall be converted into
and become one (1) share of GAMECO; and each share of JEI
common stock unissued or held in the treasury of JEI shall
be deemed cancelled, and no shares of GAMECO shall be
issued for such unissued or treasury stock.
b. JEI represents and warrants that: (i) there shall exist
one shareholder of JEI common stock, to-wit; Xxxxxxx X.
Xxxxxx; (ii) there shall be no other shares of JEI stock
issued, authorized or outstanding other than common stock;
and (iii) there shall exist no options, warrants or
conversion rights attached to or regarding any JEI common
stock.
c. JEI shall cause Xxxxxxx X. Xxxxxx to deliver certificates
representing the outstanding common stock of JEI to GAMECO
duly marked as "cancelled". Until delivery of the
foregoing certificates, each such certificate issued prior
to the Effective Date representing common shares of JEI
shall be deemed and treated for all purposes, on and after
the effective date, as representing one (1) share of
GAMECO common stock.
d. Immediately upon delivery of the certificates representing
JEI common stock, GAMECO shall deliver to Xxxxxxx X.
Xxxxxx a certificate for 1 share of common stock in GAMECO
to be duly issued and delivered to Xxxxxxx X. Xxxxxx or
his designee.
4. CERTIFICATE OF INCORPORATION AND BY-LAWS: From and after the
Effective Date and until thereafter amended or modified by
law, the Certificate of Incorporation and By-laws of GAMECO,
as in effect immediately preceding the Effective Date, shall
be and remain the Certificate of Incorporation and By-Laws of
the surviving corporation: GAMECO.
5. DIRECTORS AND OFFICERS: The persons who are the duly elected
and appointed directors and officers of GAMECO immediately
preceding the merger shall continue as the directors and
officers of GAMECO following the merger and shall hold their
respective offices as provided in the Certificate of
Incorporation and By-laws of GAMECO.
6. STOCKHOLDER APPROVAL, EFFECTIVE DATE:
a. By their signatures below, the undersigned, being all of
the shareholders and directors of GAMECO and JEI,
respectively, do herewith approve and adopt this Agreement
for and on behalf of themselves, individually, and on
behalf of their respective corporations.
b. The undersigned shareholders and directors do herewith
authorize Xxxxxxx X. Xxxxxx, as a director and president
of both GAMECO and JEI, to execute this Agreement on
behalf of each of GAMECO and JEI, individually, and to
further execute the certificates of merger, attached
hereto as Exhibits A and B, on behalf of each of GAMECO
and JEI (collectively "Certificates").
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c. The undersigned shareholders and directors, by their
signatures hereon, do herewith authorize Xxxxxxx X.
Xxxxxx, as a director and president of both GAMECO and
JEI, to execute such additional documents and instruments
as may be necessary, in his sole discretion, to implement
and carry out the merger contemplated by this Agreement
and to do and take all such other actions as may be
necessary to carry out the other terms and conditions of
this Agreement.
d. The undersigned shareholders and directors agree that any
third party may rely upon the representations contained in
this Section 6 without further action of either GAMECO or
JEI and that the power and authority granted herein shall
remain in full force and effect notwithstanding the death
or incapacitation of any signatory hereto.
e. The undersigned do herewith waive any requirements of
notice and a meeting prior to the effectiveness of the
merger contemplated herein.
f. The "Effective Date", as used in this Agreement, shall be
the 22nd day of February, 2002.
g. Upon or following the Effective Date, as shall be
appropriate in his sole judgment, Xxxxxxx X. Xxxxxx shall
cause the Certificates to be duly executed and filed with
the appropriate state officials.
h. The directors of each of GAMECO and JEI may abandon this
Agreement prior to the Effective Date, in writing, without
the approval of the undersigned shareholders.
7. CONSENT TO SERVICE AND IRREVOCABLE APPOINTMENT OF STATUTORY
AGENT: GAMECO herewith consents to be sued and served with
process in the State of Ohio. Further, subject to Section 8
below, GAMECO does herewith irrevocably appoint the Secretary
of State for the State of Ohio as its agent to accept service
of process in any proceeding in the State of Ohio if: (a) the
agent appointed pursuant to Section 8 below cannot be found;
(b) GAMECO fails to designate another agent when required to
do so; or (c) GAMECO's license or registration to do business
in Ohio expires or is canceled.
8. APPLICATION OF GAMECO TO TRANSACT BUSINESS WITHIN THE STATE OF
OHIO: On the Effective Date, GAMECO shall, as part of its
merger
certificate, make application to conduct business as a
foreign corporation within the State of Ohio. GAMECO does
herewith appoint:
HL Statutory Agent, Inc.
0000 XX Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
to serve as its statutory agent for the service of any
process, notice or demand within the State of Ohio.
9. ADDRESS OF SURVIVING CORPORATION: The address, in the State of
Delaware, of GAMECO following the Effective Date shall be:
GAMECO, INC.,
The Corporation Trust Center
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
and GAMECO's statutory agent at such location shall be:
The Corporation Trust Company.
10. MISCELLANEOUS:
a. Amendments; Waiver: This Agreement may not be modified or
amended except by written instrument executed by all
parties. No waiver of any provision or condition hereof
shall be effective unless evidenced by an instrument, in
writing, duly executed by the party granting such waiver.
No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver
thereof.
b. Binding Effect: This Agreement shall be binding upon and
inure to the benefit of the parties and their respective
heirs, personal representatives, executors,
administrators, successors and assigns. Anything herein to
the contrary notwithstanding, the parties hereto
acknowledge that the foregoing is intended to be for the
benefit of the parties and their respective heirs,
personal representatives, executors, administrators,
successors and assigns, and except for the foregoing, no
third party shall be entitled to any rights, benefits or
privileges with respect hereto.
c. Heading: The headings used herein are for convenience of
reference only and do not form a part hereof and do not in
any manner modify, interpret or set forth the intentions
of the parties.
d. Exhibits: The exhibits attached to and referenced in this
Agreement are a part of this Agreement as if fully
rewritten herein.
e. Entire Agreement: This Agreement and the Exhibits attached
hereto contain the entire agreement between the parties
with respect to the transactions and merger contemplated
herein and supercede all previous written or oral
negotiations, commitments or writings.
f. Counterparts: This Agreement may be executed in one or
more counterparts, each of which when executed and
delivered shall constitute one and the same original.
g. Governing Law: This Agreement shall be governed by and
construed under the internal laws of the State of Delaware
and where applicable the laws of the State of Ohio. In the
event of a conflict between the laws of the States of
Delaware and Ohio, the laws of the State of Delaware shall
be controlling.
IN WITNESS WHEREOF, the parties have caused their authorized representatives to
execute this Agreement as of the date first written above.
Witnesses: "GAMECO"
GAMECO, INC., a Delaware corporation
___/s/ Xxxxx X. Boschen_____________ By:___/s/ Xxxxxxx X. Jacobs____________
Printed Name:__Linda B. Boschen_____ Xxxxxxx X. Xxxxxx, President
___/s/ Xxxxx Bonneau________________
Printed Name:__ Xxxxx Xxxxxxx ______
As to Sections 4, 5 and 6:
by its directors:
___/s/ Xxxxx X. Boschen_____________ By:___/s/ Xxxxxxx X. Jacobs____________
Printed Name:__Linda B. Boschen_____ Xxxxxxx X. Xxxxxx, Director
___/s/ Xxxxx Bonneau________________
Printed Name:__ Xxxxx Xxxxxxx ______
and:
__/s/ Xxxxxx X. Clinage_____________ __/s/ Xxxxxxx X. Xxxxxx _____
Printed Name:__ Xxxxxx X. Xxxxxxx __ Xxxxxxx X. Xxxxxx, Director
____________________________________
Printed Name:_______________________
and by its shareholders:
___/s/ Xxxxx X. Boschen_____________ By:___/s/ Xxxxxxx X. Jacobs____________
Printed Name:__Linda B. Boschen_____ Xxxxxxx X. Xxxxxx
___/s/ Xxxxx Bonneau________________
Printed Name:_ Xxxxx Xxxxxxx _______
The Xxxxxxx X. Xxxxxx Revocable
Living Trust, dated April 23, 1987
__/s/ Xxxxxx X. Clinage_____________ By:__/s/ Xxxxxxx X. Jacobs_____________
Printed Name:_ Xxxxxx X. Xxxxxxx ___ Xxxxxxx X. Xxxxxx, Trustee
____________________________________
Printed Name:_______________________
"JEI"
Xxxxxx Entertainment, Inc., an Ohio
corporation
___/s/ Xxxxx X. Boschen_____________ By:___/s/ Xxxxxxx X. Jacobs____________
Printed Name:__Linda B. Boschen_____ Xxxxxxx X. Xxxxxx, President
___/s/ Xxxxx Bonneau________________
Printed Name:_ Xxxxx Xxxxxxx _______
As to Sections 4, 5 and 6:
by its sole director:
___/s/ Xxxxx X. Boschen_____________ By:___/s/ Xxxxxxx X. Jacobs____________
Printed Name:__Linda B. Boschen_____ Xxxxxxx X. Xxxxxx, Director
___/s/ Xxxxx Bonneau________________
Printed Name:_ Xxxxx Xxxxxxx _______
and by its shareholder:
___/s/ Xxxxx X. Boschen_____________ By:___/s/ Xxxxxxx X. Jacobs____________
Printed Name:__Linda B. Boschen_____ Xxxxxxx X. Xxxxxx
STATE OF _Florida_______)
) ss.
COUNTY OF_Palm Beach____)
BEFORE ME a notary public in and for the aforesaid County and State,
did personally appear XXXXXXX X. XXXXXX, who did execute the foregoing Agreement
and Plan of Merger for himself individually, and as: (i) the President, Director
and a shareholder of Gameco, Inc., a Delaware corporation; and (ii) the
President, Director and shareholder of Xxxxxx Entertainment, Inc., an Ohio
corporation, and did acknowledge that such act was his free act and deed,
individually, and as such President, Director and shareholder of each of Gameco,
Inc. and Xxxxxx Entertainment, Inc.
In witness whereof, I have hereunto subscribed my name this 18th day of
February, 2002, at the City of Jupiter, State of Florida.
__ Xxxxx X. Boschen_______________
Notary Public
STATE OF _Ohio__________)
) ss.
COUNTY OF_Cuyahoga______)
BEFORE ME a notary public in and for the aforesaid County and State,
did personally appear XXXXXXX X. XXXXXX, who did execute the foregoing Agreement
and Plan of Merger for himself as Trustee of the Xxxxxxx X. Xxxxxx Revocable
Living Trust, dated April 23, 1987, and individually, and did acknowledge that
such act was his free act and deed, individually, and as such Trustee.
In witness whereof, I have hereunto subscribed my name this 20th day of
February, 2002, at the City of Cleveland, State of Ohio.
__Linda K. Moran____________
Notary Public
EXHIBIT A
[Certificate of Merger - Delaware]
CERTIFICATE OF OWNERSHIP AND MERGER
[Pursuant to Section 252 of the Delaware General Corporation Law]
GAMECO, INC., a Delaware corporation (the "Corporation"), does hereby certify:
FIRST: That the Corporation was incorporated and duly organized pursuant to
the General Corporation Law of the State of Delaware.
SECOND: That Xxxxxx Entertainment, Inc. ("JEI") was incorporated and duly
organized pursuant to the Revised Code of the State of Ohio.
THIRD: That the Corporation shall be the surviving corporation and that its
duly registered name is: GAMECO, INC.
FOURTH: That an Agreement and Plan of Merger (the "Agreement") has been
approved, adopted, certified, executed and acknowledged by each of the
Corporation and JEI in accordance with Section 252 of the General
Corporation Law of the State of Delaware.
FIFTH: That the Agreement is on file at the offices of the Corporation, within
the State of Delaware and located at: The Corporation Trust Center,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
SIXTH: That a copy of the Agreement will be furnished by the Corporation upon
request by and without cost to any stockholder of JEI.
SEVENTH: That prior to the effective date of the merger, as defined in the
Agreement, the authorized capital stock of JEI was EIGHT HUNDRED FIFTY
(850) shares of common stock each being without par value.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by
its duly authorized president, this __ day of February, 2002.
GAMECO, INC.,
a Delaware corporation
By:_/s/ Xxxxxxx X. Xxxxxx _______
Xxxxxxx X. Xxxxxx, President
EXHIBIT B
[Certificate of Merger - Ohio]
