AGREEMENT OF MERGER AND PLAN OF REORGANIZATION
THIS AGREEMENT OF MERGER ("Agreement") is entered into as of this ____
day of _________________, 1997, between Spintek Gaming Technologies, Inc., a
California corporation ("Old Spintek") and Spintek Gaming Technologies, Inc., a
Nevada corporation ("New Spintek").
WHEREAS, the Boards of Directors of Old Spintek and New Spintek have
resolved that Old Spintek be merged pursuant to the Nevada Revised Statutes and
the California Corporations Code into a single corporation existing under the
laws of the State of Nevada, to wit, New Spintek, which shall be the surviving
corporation ("Surviving Corporation") in a transaction qualifying as a
reorganization within the meaning of Section 368(a)(1)(F) of the Internal
Revenue Code; and
WHEREAS, the authorized capital stock of Old Spintek consists of One
Hundred Million (100,000,000) shares of common stock with a par value of $.002
per share (hereinafter referred to as "Old Spintek Common Stock"), of which
17,187,232 shares are issued and outstanding, and One Hundred Thousand (100,000)
shares of preferred stock (hereinafter referred to as "Old Spintek Preferred
Stock"), of which 8,741 shares are issued and outstanding; and
WHEREAS, the authorized capital stock of New Spintek consists of One
Hundred Million (100,000,000) shares of common stock with a par value of $.002
per share (hereinafter referred to as "New Spintek Common Stock"), 100 shares of
which are issued and outstanding, and One Hundred Thousand (100,000) shares of
preferred stock (hereinafter referred to as "New Spintek Preferred Stock"), of
which no shares are issued and outstanding; and
WHEREAS, the respective Boards of Directors of Old Spintek and New
Spintek have approved the merger upon the terms and conditions hereinafter set
forth and have approved this Agreement;
NOW, THEREFORE, in consideration of the promises and the mutual
agreements, provisions, and covenants herein contained, the parties hereto agree
as follows:
ARTICLE I
MERGER
1.1 THE MERGER. In accordance with the Nevada Revised Statutes and the
California Corporations Code, Old Spintek shall be, at the Effective Date (as
hereinafter defined), merged (hereinafter called "Merger") into a single
corporation existing under the laws of the State of Nevada, to wit, New Spintek,
which shall be the Surviving Corporation.
1.2 OLD SPINTEK STOCKHOLDERS' MEETING. Old Spintek shall call a meeting
of its stockholders to be held in accordance with the California Corporations
Code at the earliest practicable date, upon due notice thereof to its
stockholders to consider and vote upon, among other matters, adoption of this
Agreement.
1.3 ACTION BY OLD SPINTEK AS SOLE STOCKHOLDER OF NEW SPINTEK. On or
before ________________, Old Spintek, as the sole stockholder of New Spintek,
shall adopt this Agreement in accordance with the Nevada Revised Statutes.
1.4 FILING OF CERTIFICATE OF MERGER; EFFECTIVE DATE. If this Agreement
is adopted by the stockholders of Old Spintek in accordance with the California
Corporations Code, adopted by Old Spintek as the sole stockholder of New Spintek
in accordance with the Nevada Revised Statutes, and this Agreement is not
thereafter, and has not theretofore been, terminated or abandoned as permitted
by the provisions hereof, then a Certificate of Merger shall be filed and
recorded in accordance with the Nevada Revised Statutes and Articles of Merger
shall be filed in accordance with the California Corporations Code. The Merger
shall become effective on the date both of the above filings are completed
("Effective Date").
1.5 CERTAIN EFFECTS OF MERGER. On the Effective Date, the separate
existence of Old Spintek shall cease, and Old Spintek shall be merged into New
Spintek which, as the Surviving Corporation, shall succeed Old Spintek, without
other transfer, to all the rights and property of Old Spintek and shall be
subject to all the debts, obligations and liabilities of Old Spintek in the same
manner as if the Surviving Corporation had itself incurred them; all rights of
creditors and all liens upon the property of Old Spintek and New Spintek shall
be preserved unimpaired.
ARTICLE II
THE SURVIVING CORPORATION
2.1 NAME OF SURVIVING CORPORATION. The name of the Surviving
Corporation from and after the Effective Date shall be Spintek Gaming
Technologies, Inc.
2.2 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
New Spintek, as in effect on the date hereof, shall from and after the Effective
Date be, and continue to be, the Certificate of Incorporation of the Surviving
Corporation until changed or amended as provided by law.
2.3 BYLAWS. The Bylaws of New Spintek, as in effect immediately before
the Effective Date, shall from and after the Effective Date be, and continue to
be, the Bylaws of the Surviving Corporation until amended as provided therein.
2.4 DIRECTORS AND OFFICERS. The Directors and officers of Old Spintek
on the Effective Date shall be and become Directors and officers, holding the
same titles and positions, of New Spintek on the Effective Date, and after the
Effective Date shall serve in accordance with the Bylaws of New Spintek.
2.5 FURTHER ASSURANCES. The officers and Directors of Old Spintek shall
execute and deliver such deeds and other instruments, and there shall be taken
or cause to be taken by them such further and other action, as shall be
appropriate or necessary in order to vest or perfect in or to confer of record
or otherwise in New Spintek the title to and possession of all the property
interests, assets, rights, privileges, immunities, powers, franchises and
authority of Old Spintek, and otherwise
to carry out the purposes and intent of this Agreement, and the officers and
Directors of New Spintek are fully authorized in the name and on behalf of Old
Spintek or otherwise to take any and all such actions and to execute and deliver
any and all such deeds and other instruments.
ARTICLE III
STATUS AND CONVERSION OF SECURITIES
3.1 OLD SPINTEK COMMON STOCK. Each share of Old Spintek Common Stock
which shall be issued and outstanding immediately before the Effective Date
shall, by virtue of the Merger and without any action on the part of the holders
thereof, be converted at the Effective Date into one fully paid share of New
Spintek Common Stock, and outstanding certificates representing shares of Old
Spintek Common Stock shall thereafter represent shares of New Spintek Common
Stock.
3.2 OLD SPINTEK PREFERRED STOCK. Each share of Old Spintek Preferred
Stock which shall be issued and outstanding immediately before the Effective
Date shall, by virtue of the Merger and without any action on the part of the
holder thereof, be converted at the Effective Date into one fully paid share of
New Spintek Preferred Stock, and outstanding certificates representing shares of
Old Spintek Preferred Stock shall thereafter represent shares of New Spintek
Preferred Stock.
3.3 STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of Old
Spintek shall be deemed for all purposes to evidence ownership of and to
represent shares of New Spintek and to which the shares of Old Spintek
represented by such certificates have been converted as herein provided. The
registered owner on the books and records of Old Spintek or its transfer agent
of any such outstanding stock certificate shall have and shall be entitled,
until such certificate shall have been surrendered for transfer or otherwise
accounted for to New Spintek or its transfer agent, to exercise any voting or
other rights with respect to and receive any dividend or other distributions
upon the shares of New Spintek evidenced by such outstanding certificate as
provided above.
3.4 OPTIONS AND WARRANTS. Each option or warrant to purchase shares of
Old Spintek Common Stock granted by Old Spintek which is outstanding on the
Effective Date shall, by virtue of the Merger and without any action on the part
of the holder, be converted into and become an option or warrant to purchase the
same number of shares of New Spintek Common Stock at the same option or warrant
price per share, and upon the same terms and subject to the same conditions as
set forth in the Old Spintek option plan or warrant agreements under which such
options or warrants were granted, as in effect on the Effective Date. As of the
Effective Date, the Old Spintek stock option plan shall become the New Spintek
stock option plan and all obligations of the Old Spintek under the Old Spintek
stock option plan shall be assumed by New Spintek including all outstanding
options granted pursuant to the stock option plan. Upon approval of this
Agreement by stockholders of Old Spintek and New Spintek, the shareholders of
Old Spintek and New Spintek shall be deemed to have adopted and approved the
assumption of the Old Spintek stock option plan and warrant agreements granted
by Old Spintek by New Spintek under the same terms and conditions of Old
Spintek's stock option plan and warrant agreements.
3.5 OTHER EMPLOYEE BENEFIT PLANS. Upon the Effective Date, the
obligations of Old Spintek under or with respect to every plan, trust, program
and benefit then in effect or administered by Old Spintek on behalf or for the
benefit of the officers and employees of Old Spintek, including plans, trust,
programs and benefits administered by Old Spintek in which subsidiaries of Old
Spintek, their officers and employees currently are permitted to participate
(the "Employee Benefit Plans"), shall become the lawful obligations of New
Spintek and shall be implemented and administered in the same manner and without
interruption until the same are amended or otherwise lawfully altered or
terminated.
3.6 NEW SPINTEK COMMON STOCK HELD BY OLD SPINTEK. All issued and
outstanding shares of New Spintek Common Stock held by Old Spintek immediately
before the Effective Date shall, by virtue of the Merger and at the Effective
Date, cease to exist and certificates representing such shares shall be
cancelled.
ARTICLE IV
MISCELLANEOUS
4.1 ABANDONMENT. This Agreement of Merger may be terminated and the
proposed Merger abandoned at any time before the Effective Date of the Merger,
and whether before or after approval of this Agreement of Merger by the
shareholders of Old Spintek, if the Board of Directors of Old Spintek or of the
Surviving Corporation duly adopt a resolution abandoning this Agreement of
Merger.
4.2 AMENDMENT. Prior to shareholder approval, this Agreement may be
amended in any manner as may be determined in the judgment of the respective
Boards of Directors of New Spintek and Old Spintek. After shareholder approval,
this Agreement may be amended in any manner (except sections 3.1, 3.2, 3.3, and
any of the other principal terms that may not be amended without the approval of
the shareholders of Old Spintek) as may be determined in the judgment of the
respective Boards of Directors of New Spintek and Old Spintek to be necessary,
desirable or expedient in order to clarify the intention of the parties hereto
or to effect or to facilitate the purposes and intent of this Agreement.
4.3 COUNTERPARTS. For the convenience of the parties hereto and to
facilitate the filing of this Agreement of Merger, any number of counterparts
hereof may be executed, and each such counterpart shall be deemed to be an
original instrument.
IN WITNESS WHEREOF, this Agreement has been executed by Old Spintek and
New Spintek all on the date first above written.
SPINTEK GAMING TECHNOLOGIES, INC.,
a California corporation
By: ______________________________
Title:President
By: ______________________________
Title:Secretary
SPINTEK GAMING TECHNOLOGIES, INC.,
a Nevada corporation
By: ______________________________
Title:President
By: ______________________________
Title:Secretary
