EXHIBIT 2.1
Agreement and Plan of Merger
AGREEMENT AND PLAN OF MERGER, dated as of April 27, 2005, pursuant to Section
253 of the Delaware General Corporation Law and Section 907 of the Business
Corporation Law of the State of New York, between Datameg Corporation, a
Delaware corporation (the "Surviving Corporation"), and Datameg Corporation, a
New York corporation (the "Merged Corporation").
WITNESSETH :
WHEREAS, the Merged Corporation has an authorized capital stock consisting of
(a) 340,000,000 shares of common stock, par value $0.01, and (b) 10,000,000
shares of preferred stock, par value $0.01, of which 294,529,617 shares of
Common Stock and no shares of Preferred Stock have been duly issued and are now
outstanding; and
WHEREAS, the Surviving Corporation has an authorized capital stock consisting of
(a) 493,000,000 shares of common stock, par value $0.0001, 100 shares of which
is issued and outstanding, and (b) 10,000,000 shares of Preferred Stock, par
value $0.0001, none of which is issued or outstanding; and
WHEREAS, all of the outstanding capital stock of the Surviving Corporation is
owned by the Merged Corporation; and
WHEREAS, the stockholders of the Merged Corporation and the Surviving
Corporation, and the Board of Directors of the Merged Corporation and Surviving
Corporation, respectively, deem it advisable and generally to the advantage and
welfare of the two constituent corporations and the stockholders of the Merged
Corporation that the Merged Corporation merge with and into the Surviving
Corporation under and pursuant to the provisions of the Delaware General
Corporation Law and of the Business Corporation Law of the State of New York.
NOW, THEREFORE, the corporations parties to this Agreement, in consideration of
the mutual covenants, agreements and provisions hereinafter contained, do hereby
prescribe the terms and conditions of said merger and the mode of carrying the
same into effect as follows:
1. The Merged Corporation shall be and hereby is merged with and into the
Surviving Corporation (the "Merger").
2. The Certificate of Incorporation of the Surviving Corporation shall be
the Certificate of Incorporation of the Surviving Corporation as of the
effective date of this Agreement, until the same shall be amended as provided by
law.
3. The Bylaws of the Surviving Corporation shall be the Bylaws of the
Surviving Corporation as of the effective date of this Agreement, until the same
shall be amended as provided by law.
4. The manner of converting the outstanding shares of the capital stock of
the Merged Corporation into the shares of the Surviving Corporation shall be
that each share of common stock, par value $0.01, of the Merged Corporation,
which shall be issued and outstanding on the effective date of this Agreement,
shall be changed and converted into one fully paid and non-assessable share of
Common Stock, par value $0.0001, of the Surviving Corporation. Separately, each
share of Common Stock, par value $0.0001, of the Surviving Corporation, which
was issued and outstanding immediately before the effective date of this
Agreement, all of which was held by the Merged Corporation, and all rights in
respect thereto, shall forthwith be cancelled.
5. On the Effective Date, the Surviving Corporation will assume and
continue the employee stock plans of the Company. The outstanding and
unexercised portions of all options to buy Common Stock of the Company shall
become options for the same number of shares of Common Stock of the Surviving
Corporation, with no other changes in the terms and conditions of such options,
including exercise prices and the date and extent of exercisability and
effective upon the Effective Date, the Surviving Corporation hereby assumes the
outstanding and unexercised portions of such options and the obligations of the
Company with respect thereto.
6. The members of the Board of Directors and the officers of the Surviving
Corporation on the Effective Date shall continue in office until the expiration
of their respective terms of office and until their successors have been elected
and qualified.
7. From time to time, as and when required by the Surviving Corporation or
by its successors and assigns, there shall be executed and delivered on behalf
of the Merged Corporation such deeds and other instruments, and there shall be
taken or caused to be taken by it such further and other action, as shall be
appropriate or necessary in order to vest or perfect in or to confirm of record
or otherwise in the Surviving Corporation the title to and possession of all the
property, interests, assets, rights, privileges, immunities, powers, franchises
and authority of the Corporation, and otherwise to carry out the purposes of
this Agreement and Plan of Merger, and the officers and directors of the
Corporation are fully authorize din the name and on behalf of the Corporation or
otherwise to take any and all such action and to execute and deliver any and all
such deeds and other instruments.
8. This Agreement and Plan of Merger and the legal relations between the
parties shall be governed by and construed in accordance with the laws of the
State of Delaware.
9. The effective date of the Merger shall be the date on which Articles of
Merger are filed with the Secretary of State of the State of New York and a
Certificate of Merger is filed with the Secretary of State of the State of
Delaware, whichever is later (if not the same date).
10. Upon the merger becoming effective, all the property, rights,
privileges, franchises, patents, trademarks, licenses, registrations and other
assets of every kind and description of the Merged Corporation shall be
transferred to, vested in and devolve upon the Surviving Corporation without
further act or deed and all property, rights, and every other interest in the
Surviving Corporation and the Merged Corporation shall be as of the effective
date the property of the Surviving Corporation as they were of the Surviving
Corporation and the Merged Corporation, respectively. The Merged Corporation
hereby agrees from time to time, as and when requested by the Surviving
Corporation or by its successors or assigns, to execute and deliver or cause to
be executed and delivered all such deeds and instruments and to take or cause to
be taken such further or other action as the Surviving Corporation may deem
necessary or desirable in order to vest in and confirm to the Surviving
Corporation title to and possession of any property of the Merged Corporation
acquired or to be acquired by reason of or as a result of the merger herein
provided for and otherwise to carry out the intent and purposes hereof, and the
proper officers and directors of the Merged Corporation and the proper officers
and directors of the Surviving Corporation are fully authorized in the name of
the Merged Corporation or otherwise to take any and all such action.
11. By signing below, the Surviving Corporation agrees that it may be served
with process in the State of New York in any proceeding for the enforcement of
any obligation of the Merged Corporation and in any proceeding for the
enforcement of the rights of a dissenting shareholder of the Merged Corporation
against the Surviving Corporation. The Surviving Corporation hereby appoints
the Secretary of State of the State of New York as its agent to accept service
of process in any such proceeding.
* * * *
IN WITNESS WHEREOF, the parties to this Agreement, pursuant to the approval and
authority duly given by resolutions adopted by their respective Boards of
Directors, have caused these presents to be executed as an instrument under seal
as of the date first above written.
DATAMEG CORPORATION
(Surviving Corporation)
By: /s/ Xxxx XxXxxxx
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Xxxx XxXxxxx
Chief Executive Officer and President
By: /s/ Xxxx XxXxxxx
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Xxxx XxXxxxx, Secretary
DATAMEG CORPORATION
(Merged Corporation)
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, President
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, Secretary
