Exhibit 2.1
PLAN AND AGREEMENT OF MERGER
OF
PLAYSTAR CORPORATION ("PlayStar-DE")
(a Delaware corporation)
AND
PLAYSTAR WYOMING HOLDING CORP. ("PlayStar-WY")
(a Wyoming corporation)
PLAN AND AGREEMENT OF MERGER entered into as of June 30, 1998 by
PlayStar-DE, a business corporation of the State of Delaware, and approved by
resolution adopted by its Board of Directors on said date, and entered into on
June 30, 1998 by PlayStar-WY, a business corporation of the State of Wyoming,
and approved by resolution adopted by its Board of Directors on said date.
WHEREAS, PlayStar-DE is a business corporation of the State of
Delaware with its registered office therein located at c/o United Corporate
Services, Inc., 00 Xxxx Xxxxx Xxxxxx, Xxxxx, XX 00000; and
WHEREAS, the total number of shares of stock which PlayStar-DE has
authority to issue is 30,000,000, all of which are of one class and with a par
value of $.0001 per share (each, a "PlayStar-DE" Share); and
WHEREAS, PlayStar-WY is a business corporation of the State of
Wyoming with its registered office therein located at c/o CT Corporation, 0000
Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000; and
WHEREAS, the total number of shares of stock which PlayStar-WY has
authority to issue is 50,000,000 shares of common stock, each with a par value
of $0.0001 (each, a "PlayStar-WY Share"), and 1,000,000 shares of series
preferred stock, each with a par value of $0.0001; and
WHEREAS, the General Corporation Law of the State of Delaware
permits a merger of a business corporation of the State of Delaware with and
into a business corporation of another jurisdiction; and
WHEREAS, the Wyoming Business Corporation Act permits the merger of
a business corporation of another jurisdiction with and into a business
corporation of the State of Wyoming; and
WHEREAS, PlayStar-DE and PlayStar-WY and the respective Boards of
Directors thereof deem it advisable and to the advantage, welfare, and best
interests of said corporations and their respective stockholders to merge
PlayStar-DE with and into PlayStar-WY pursuant to the provisions of the General
Corporation Law of the State of Delaware and pursuant to the provisions of the
Wyoming Business Corporation Act upon the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreement of the parties hereto, being thereunto duly entered into by
PlayStar-DE and approved by a resolution adopted by its Board of Directors and
further approved by its shareholders and being thereunto duly entered into by
PlayStar-WY and approved by a resolution adopted by its Board of Directors and
further approved by its shareholders, the Plan and Agreement of Merger and the
terms and conditions thereof and the mode of carrying the same into effect,
together with any provisions required or permitted to be set forth therein, are
hereby determined and agreed upon as hereinafter in this Plan and Agreement set
forth.
1. PlayStar-DE and PlayStar-WY shall, pursuant to the provisions of the
General Corporation Law of the State of Delaware and the provisions of the
Wyoming Business Corporation Act, be merged with and into a single corporation,
to wit, PlayStar-WY, which shall be the surviving corporation from and after the
effective time of the merger, and which is sometimes hereinafter referred to as
the "surviving corporation", and which shall continue to exist as said surviving
corporation under its present name pursuant to the provisions of the Wyoming
Business Corporation Act. The separate existence of PlayStar-DE, which is
sometimes hereinafter referred to as the "terminating corporation", shall cease
at said effective time in accordance with the provisions of the General
Corporation Law of the State of Delaware.
2. Annexed hereto and made a part hereof is a copy of the Articles of
Incorporation, as amended, of the surviving corporation as the same shall be in
force and effect at the effective time in the State of Wyoming of the merger
herein provided for; and said Articles of Incorporation shall continue to be the
Articles of Incorporation of said surviving corporation until amended and
changed pursuant to the provisions of the Wyoming Business Corporation Act.
3. The present by-laws of the surviving corporation will be the by-laws of
said surviving corporation and will continue in full force and effect until
changed, altered or amended as therein provided and in the manner prescribed by
the provisions of the Wyoming Business Corporation Act.
4. The directors and officers in office of the surviving corporation at the
effective time of the merger shall be the members of the first Board of
Directors and the first officers of the surviving corporation, all of whom shall
hold their directorships and offices until the election and
qualification of their respective successors or until their tenure is otherwise
terminated in accordance with the by-laws of the surviving corporation.
5. Each issued share of the terminating corporation shall, at the effective
time of the merger, be converted into one share of the surviving corporation.
The issued shares of the surviving corporation shall not be converted or
exchanged in any manner, but each said share which is issued as of the effective
date of the merger shall continue to represent one issued share of the surviving
corporation.
6. (a) At the effective time of the merger, each outstanding option to
purchase PlayStar-DE Shares (a "Stock Option"), whether vested or unvested,
shall be deemed to constitute an option to acquire, on the same terms and
conditions as were applicable under such Stock Option, the same number of
PlayStar-WY Shares as the holder of such Stock Option would have been entitled
to receive pursuant to the merger had such holder exercised such option in full
immediately prior to the effective time of the merger (not taking into account
whether or not such option was in fact exercisable). In the case of any Stock
Option to which Section 421 of the Internal Revenue Code of 1986 (the "Code")
applies by reason of its qualification under any of Sections 422-423 of the Code
("qualified stock options"), the option price, the number of shares purchasable
pursuant to such option and the terms and conditions of exercise of such option
shall comply with Section 424(a) of the Code.
(b) As soon as practicable after the effective time of the merger,
PlayStar-WY shall deliver to each holder of an outstanding Stock Option, an
appropriate notice setting forth such holder's rights pursuant thereto and such
Stock Option shall continue in effect on the same terms and conditions.
PlayStar-WY shall comply with the terms of all such Stock Options and ensure, to
the extent required by, and subject to the provisions of, any such PlayStar-DE
Stock Option Plan that Stock Options which qualified as qualified stock options
prior to the effective time of the merger continue to qualify as qualified stock
options after the effective time of the merger. PlayStar-WY shall take all
corporate action necessary to reserve for issuance a sufficient number of
PlayStar-WY Shares for delivery pursuant to the terms set forth in this Section
6.
7. If appraisal rights are available under the Delaware General Corporation
Law ("DGCL") to holders of PlayStar-DE Shares in connection with the merger, any
issued and outstanding PlayStar-DE Shares which have not been voted for approval
of this Agreement and the transactions contemplated hereby and with respect to
which appraisal shall have been properly demanded in accordance with Section 262
of the DGCL ("Dissenting Shares") shall not be converted into the right to
receive consideration for the merger and the holders thereof shall have only
such rights as are provided in such Section 262 of the DGCL unless and until the
holder of any such PlayStar-DE Shares withdraws his demand for such appraisal in
accordance with Section 262(k) of the DGCL or otherwise loses his right to such
appraisal. If a holder of Dissenting Shares shall properly withdraw his demand
for appraisal or shall otherwise lose his right to such appraisal, then as of
the effective time of the merger or the occurrence of such event, whichever last
occurs, such holder's Dissenting Shares shall cease to be Dissenting Shares and
shall be converted into and represent the right to receive consideration for the
merger. Prior to the effective time of the merger, PlayStar-DE shall give
PlayStar-WY prompt notice of any
written demand for appraisal or withdrawals of demands for appraisal received by
PlayStar-DE and, except with the prior written consent of PlayStar-WY, shall not
settle or offer to settle any such demands.
8. In the event that this Plan and Agreement of Merger shall have been fully
approved and adopted upon behalf of the terminating corporation in accordance
with the provisions of the General Corporation Law of the State of Delaware and
upon behalf of the surviving corporation in accordance with the provisions of
the Wyoming Business Corporation Act, the said corporations agree that they will
cause to be executed and filed and recorded any document or documents prescribed
by the laws of the State of Delaware and by the laws of the State of Wyoming,
and that they will cause to be performed all necessary acts within the State of
Delaware and the State of Wyoming and elsewhere to effectuate the merger herein
provided for.
9. The Board of Directors and the proper officers of the terminating
corporation and of the surviving corporation are hereby authorized, empowered,
and directed to do any and all acts and things, and to make, execute, deliver,
file, and record any and all instruments, papers, and documents which shall be
or become necessary, proper, or convenient to carry out or put into effect any
of the provisions of this Plan and Agreement of Merger or of the merger herein
provided for.
10. The surviving corporation does hereby agree that it may be served with
process in the State of Delaware in any proceeding for enforcement of any
obligation of the terminating corporation, as well as for enforcement of any
obligation of the surviving corporation arising from the merger herein provided
for, including any suit or other proceeding to enforce the right of any
stockholder of the terminating corporation as and when determined in appraisal
proceedings pursuant to the provisions of Section 262 of the General Corporation
Law of the State of Delaware; does hereby irrevocably appoint the Secretary of
State of the State of Delaware as its agent to accept service of process in any
such suit or other proceedings; and does hereby specify the following address
without the State of Delaware to which a copy of such process shall be mailed by
the Secretary of State of the State of Delaware:
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xx. John's, Antigua BWI
West Indies
IN WITNESS WHEREOF, this Plan and Agreement of Merger is hereby
executed upon behalf of each of the constituent corporations parties thereto.
Executed As of June 30, 1998.
PLAYSTAR CORPORATION
(a Delaware corporation)
By: /s/ Xxxxxx Patta
-----------------------
Xxxxxx Patta
President
PLAYSTAR WYOMING
HOLDING CORP. (a Wyoming
corporation)
By: /s/ Xxxxxxx X.X. Xxxxxx
-----------------------
Xxxxxxx X.X. Xxxxxx
Chairman and Chief
Executive Officer
