EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is executed by PHAST
Corporation, a Delaware corporation (the "Non-Surviving Corporation"), and Panja
Inc., a Texas corporation (the "Surviving Corporation"), to be effective March
31, 2000.
RECITALS:
The respective Boards of Directors of the Non-Surviving Corporation and the
Surviving Corporation deem it advisable for the Non-Surviving Corporation to
merge with and into the Surviving Corporation (the "Merger") as authorized by
the Texas Business Corporation Act ("Texas Act"), and the Delaware General
Corporation Law ("DGCL") and on the terms set forth herein.
NOW, THEREFORE, in consideration of the promises and the mutual agreements,
covenants and provisions herein contained, the parties hereto agree as follows:
ARTICLE I
The Merger
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1.1 Merger. At the Effective Time (as defined in Section 1.2), the Non-
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Surviving Corporation shall be merged with and into the Surviving Corporation,
the separate existence of the Non-Surviving Corporation shall cease, and the
Surviving Corporation, as the surviving corporation of such merger, shall
continue to exist by virtue of and shall be governed by the laws of the State of
Texas.
1.2 Effective Time of Merger. On March 31, 2000 (or such earlier or later
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date as may be agreed upon by the Surviving Corporation and the Non-Surviving
Corporation), Articles of Merger setting forth the information required by, and
otherwise in compliance with, the Texas Act shall be delivered for filing with
the Secretary of State of the State of Texas, and a Certificate of Merger
setting forth the information required by, and otherwise in compliance with, the
DGCL shall be delivered for filing with the Secretary of State of the State of
Delaware and the Merger shall become effective upon the later of (i) the date
and at the time the Secretary of State of the State of Texas files a certificate
of merger with respect to the Merger and (ii) the date and at the time the
Secretary of State of Delaware files a certificate of merger with respect to the
Merger (the time of such effectiveness is herein called the "Effective Time").
1.3 Effect of Mergers. At the Effective Time, the Surviving Corporation
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without further action, as provided by the laws of the State of Texas and the
State of Delaware, shall succeed to and possess all the rights, privileges, and
powers, of a public as well as of a private nature, of the Non-Surviving
Corporation; all property, real, personal and mixed, and all debts due on
whatsoever account, including subscriptions to shares, and all other causes in
action, and all and every other interest, of or belonging to or due to the Non-
Surviving Corporation, shall be deemed to be vested in the Surviving Corporation
without further act or deed; and the title to any real estate, or any interest
therein, vested in the Surviving Corporation or the Non-Surviving Corporation
shall not revert or be in any way impaired by reason of the Merger. Such
transfer to and vesting in the Surviving Corporation shall be deemed to occur by
operation of law and no consent or approval of any other person shall be
required in connection with any such transfer or vesting unless such consent or
approval is specifically required in the event of merger or consolidation by law
or express provision in any contract, agreement, decree, order or other
instrument to which the Surviving Corporation or the Non-Surviving Corporation
is a party or by which any of then is bound. The Surviving Corporation shall
thenceforth be responsible and liable for all debts, liabilities and duties of
the Non-Surviving Corporation, which may be enforced against the Surviving
Corporation to the same extent as if said debts, liabilities and duties had been
incurred or contracted by it. Neither the rights of creditors nor any liens
upon the property of the Surviving Corporation or the Non-Surviving Corporation
shall be impaired by the Merger.
1.4 Articles of Incorporation. The Articles of Incorporation of the
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Surviving Corporation as in effect at the Effective Time shall be the Articles
of Incorporation of the Surviving Corporation, as the surviving corporation, and
shall continue in full force and effect until amended or changed in the manner
prescribed by the Texas Act.
1.5 Bylaws. The Bylaws of the Surviving Corporation as in effect at the
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Effective Time shall be the Bylaws of the Surviving Corporation, as the
surviving corporation, until the same shall thereafter be amended or repealed in
accordance with law, the Surviving Corporation's Articles of Incorporation or
such Bylaws.
1.6 Officers. The officers of the Surviving Corporation who are serving
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as such at the Effective Time shall be the officers of the Surviving
Corporation, as the surviving corporation, from and after the Effective Time,
each such individual to serve until his or her successor has been duly elected
or appointed and qualified or until his or her earlier death, resignation or
removal in accordance with law, the Surviving Corporation's Articles of
Incorporation and its Bylaws.
1.7 Directors. The directors of the Surviving Corporation who are serving
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as such immediately prior to the Effective Time shall be the directors of the
Surviving Corporation, as the surviving corporation, from and after the
Effective Time, each such individual to serve until his or her successor has
been duly elected or appointed and qualified or until his or her earlier death,
resignation or removal in accordance with law, the Surviving Corporation's
Articles of Incorporation and its Bylaws.
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ARTICLE II
Conversion of Shares in the Mergers
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2.1 At the Effective Time of the Merger, all outstanding shares of the
Non-Surviving Corporation shall be canceled without the payment of any
consideration therefor.
ARTICLE III
Miscellaneous
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3.1 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed an original, but all of which
collectively shall constitute one and the same instrument.
3.2 Governing Law. This Agreement shall be governed by, and construed in
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accordance with, the laws of the State of Texas.
3.3 Section Headings. The section headings contained in this Agreement
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are inserted for convenience of reference only and shall not affect the meaning
or interpretation of this Agreement.
3.4 Amendment. This Merger Agreement may be amended in any manner
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(except that any of the principal terms may not be amended without the approval
of the shareholders of the Non-Surviving Corporation as may be determined in the
judgment of the respective Boards of Directors of the Non-Surviving Corporation
and the Surviving Corporation to be necessary, desirable or expedient in order
to clarify the intention of the parties hereto or to effect or facilitate the
purpose and intent of this Merger Agreement).
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date or dates indicated below, to be effective as of the date first set forth
above.
PANJA INC.
a Texas corporation
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
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Title: President and Chief Executive Officer
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PHAST CORPORATION
a Delaware corporation
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
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Title: President
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