EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is entered into this
4th day of February, 2000 among Asia Properties, Inc., a Nevada corporation
("API-Nevada"), and Asia Properties Investments, Inc., a British Virgin Islands
company and newly formed first-tier wholly owned subsidiary of API-Nevada
("API-BVI").
RECITALS
WHEREAS, the respective Boards of Directors of API-Nevada and API-BVI have
each determined that the merger of API-Nevada with and into API-BVI (the
"Merger") is advisable and is in their best interests and in the best interests
of their respective shareholders, and such Boards of Directors have approved
such Merger, upon the terms set forth in this Agreement;
WHEREAS, pursuant to the terms of this Agreement, upon the consummation of
the Merger, API-BVI will issue to the shareholders of API-Nevada, with respect
to their ownership of all of the shares of common stock, par value $.001 per
share, of API-Nevada ("API-Nevada Common Stock"), capital shares, par value $.01
per share, of API-BVI ("API-BVI Capital Shares") as set forth in Section 2.1
hereof;
WHEREAS, pursuant to the terms of this Agreement, upon the consummation of
the Merger, any outstanding options exercisable for shares of API-Nevada Common
Stock shall become exercisable for an equal number of shares of API-BVI Capital
Shares;
WHEREAS, API-BVI and API-Nevada, desire to make certain covenants and
agreements in connection with the transactions contemplated hereby; and
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein, and intending to be legally bound hereby, the parties hereto agree as
follows:
ARTICLE I
THE MERGER
Section 1.1 The Merger. Upon the terms set forth in this Agreement,
-----------
and in accordance with the corporate laws of Nevada and the British Virgin
Islands, API-Nevada shall be merged with and into API-BVI at the Effective Time
(as defined in Section 1.2). Following the Merger, the separate corporate
existence of API-Nevada shall cease and API-BVI shall continue as the surviving
corporation (the "Surviving Corporation") and shall succeed to and assume all
the rights and obligations of API-Nevada in accordance with the corporate laws
of Nevada and the British Virgin Islands.
Section 1.2 Effective Time. The parties shall execute and file a
---------------
certificate of merger or other appropriate documents (in any such case, the
"Certificate of Merger") in accordance with the relevant provisions of the
corporate laws of Nevada and the British Virgin Islands and shall make all other
filings or recordings required under the corporate laws of Nevada and the
British Virgin Islands. The Merger shall become effective at such time as the
Certificate of Merger is duly filed with the Nevada Secretary of State and the
Registrar of Companies in the British Virgin Islands, or at such subsequent time
as the parties shall agree, which subsequent time shall be specified in the
Certificate of Merger (the time the Merger becomes effective being hereinafter
referred to as the "Effective Time").
Section 1.3 Effects of the Merger. At and after the Effective Time,
-----------------------
the Merger shall have the effects set forth in the corporate laws of Nevada and
the British Virgin Islands. Without limiting the generality of the foregoing,
and subject thereto, at the Effective Time all the property, rights, privileges,
powers and franchises of API-Nevada and API-BVI shall be vested in the Surviving
Corporation, and all debts, liabilities and duties of API-BVI and API-Nevada
shall become the debts, liabilities and duties of the Surviving Corporation.
Section 1.4 Memorandum and Articles of Association. The memorandum and
--------------------------------------
articles of association of API-BVI as in effect at the Effective Time shall be
the memorandum and articles of association of the Surviving Corporation until
thereafter changed or amended as provided therein or by applicable law.
Section 1.5 Directors and Officers of Surviving Corporation. The
----------------------------------------------------
directors and officers of API-Nevada immediately prior to the Effective Time
shall be the directors and officers of the Surviving Corporation in the same
capacities, until the earlier of their resignation or removal or until their
respective successors are duly elected and qualified, as the case may be.
Section 1.6 Rights of Dissent. Each shareholder of API-Nevada from
-------------------
whom API-Nevada does not receive a consent to the Merger will be notified of
his, her or its right to dissent pursuant to Section 92A.300 to 92A.500 of the
Nevada General Corporation Law and the Surviving Corporation shall be
responsible for all claims made pursuant to API-Nevada shareholders rights of
dissent.
Section 1.7 Obligations of API-Nevada Not to Issue its Securities. As
-----------------------------------------------------
of the date of this Agreement and until the Effective Time, API-Nevada shall
not, unless mutually agreed to by the parties hereto, issue any additional
shares of common stock to any person or entity whatsoever, including as a result
of having previously issued any warrants to acquire common stock, any options to
acquire its securities as a result of any employee stock option plan or
otherwise, or pursuant to any employee benefit plan.
2
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT
CORPORATIONS AND EXCHANGE OF CERTIFICATES
Section 2.1 Effect on Capital Stock. At the Effective Time, by virtue
-----------------------
of the Merger:
(a) Conversion of API-Nevada Common Stock. The total number of
----------------------------------------
shares of BVI-Nevada Common Stock issued and outstanding immediately prior
to the Effective Time shall be automatically converted into a total of
5,921,434 API-BVI Capital Shares on a pro rata basis to the holders of
API-Nevada Common Stock. At the Effective Time, all such shares of
API-Nevada Common Stock shall cease to be outstanding and shall
automatically be canceled and retired and shall cease to exist, and the
holders of API-Nevada Common Stock shall thereafter cease to have any
rights with respect to such shares of API-Nevada Common Stock.
(b) Options to Purchase API-Nevada Common Stock. Any options
------------------------------------------------
exercisable for shares of API-Nevada Common Stock issued and outstanding
immediately prior to the Effective Time shall become exercisable for an
equal number of API-BVI Capital Shares in accordance with the terms of such
options.
(c) Outstanding Stock of API-BVI. At the Effective Time, the one
-----------------------------
API-BVI Capital Share presently issued and outstanding in the name of
API-Nevada shall be canceled and resume the status of an authorized and
unissued API-BVI Capital Share, and no API-BVI Capital Shares or other
securities of API-BVI shall be issued in respect thereof.
Section 2.2 Exchange of Certificates. From and after the Effective
------------------------
Time, all of the outstanding certificates which prior to that time represented
shares of API-Nevada Common Stock shall be deemed for all purposes to evidence
ownership and represent the API-BVI Capital Shares into which the shares of
API-Nevada Common Stock represented by such certificates have been converted as
herein provided. The registered owner on the books and records of API-Nevada or
its transfer agent or any such outstanding stock certificate shall, until such
certificate shall have been surrendered for transfer or otherwise accounted for
to API-BVI or its transfer agent, have and be entitled to exercise any voting
and other rights with respect to and to receive any dividend and other
distributions upon the API-BVI Capital Shares evidenced by such outstanding
certificate as above provided.
Section 2.3 Further Assurances. If at any time after the Effective
-------------------
Time, any further assignments or assurances in law or any other things are
necessary or desirable to vest or to perfect or confirm of record in the
Surviving Corporation the title to any property or rights of either API-BVI or
API-Nevada, or otherwise to carry out the purposes and provisions of this
Agreement, the officers and directors of the Surviving Corporation are hereby
authorized and empowered, in the name of and on behalf of API-BVI and
API-Nevada, to execute and deliver any and all things necessary or proper to
vest or perfect or confirm title to such property or rights in the Surviving
Corporation, and otherwise to carry out the purposes and provisions of this
Agreement.
3
ARTICLE III
CONDITIONS; ABANDONMENT AND DEFERRAL
Section 3.1 Conditions. The obligation of the parties to effect the
----------
transactions contemplated hereby is subject to satisfaction of the following
conditions (any or all of which may be waived by either of the parties in its
respective discretion to the extent permitted by law):
(a) the Merger shall have been approved by the shareholders of
API-Nevada in accordance with applicable provisions of the Nevada General
Corporation Law;
(b) the Merger shall have been approved by the sole shareholder of
API-BVI in accordance with applicable provisions of the laws of the British
Virgin Islands;
(c) any and all consents, permits, authorizations, approvals and
orders deemed in the sole discretion of API-Nevada to be material to
consummation of the Merger shall have been obtained;
(d) the securities issued by API-BVI in the Merger shall be issued
pursuant to an effective registration statement under the Securities Act of
1933, as amended; and
(e) any other requirements under applicable laws of Nevada and the
British Virgin Islands shall have been satisfied in connection with the
Merger.
Section 3.2 Abandonment or Deferral. At any time before the Effective
-----------------------
Time, this Agreement may be terminated and the Merger may be abandoned by the
Board of Directors of API-Nevada, notwithstanding the approval of the Merger by
the shareholders of API-Nevada or the consummation of the Merger may be deferred
for a reasonable period of time if, in the opinion of the Board of Directors of
API-Nevada, such action would be in the best interest of the parties hereto. In
the event of termination of this Agreement, this Agreement shall become void and
of no effect and there shall be no liability on the part of either party or its
Board of Directors or shareholders with respect thereto.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Counterparts and Facsimile Signatures. In order to
----------------------------------------
facilitate the execution of this Agreement, the same may be executed in any
number of counterparts and signature pages may be delivered by telefax.
Section 4.2 Assignment. Neither this Agreement nor any right created
----------
hereby shall be assignable by API-Nevada or API-BVI without the prior written
consent of the other parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person, other than the parties hereby and their
respective successors, assigns, heirs, executors, administrators, or personal
representatives, any rights or remedies under or by reason of this Agreement.
4
Section 4.3 Entire Agreement. This Agreement and the other documents
-----------------
delivered pursuant hereby constitute the full and entire understanding and
agreement between the parties with regard to the subject hereof and no party
shall be liable or bound to any other in any manner by any covenants or
agreements except as specifically set forth herein. All prior agreements and
understandings are superseded by this Agreement.
Section 4.4 Governing Law; Venue. This Agreement shall be governed by
--------------------
the laws of the State of Nevada, except that the laws of the British Virgin
Islands shall govern as to matters of corporate law pertaining to API-BVI. Any
action brought to enforce this Agreement or any term thereof shall be brought in
a court of competent jurisdiction in California and each party hereto
affirmatively agrees to submit to the jurisdiction in that state.
Section 4.5 Severability. In case any provision of this Agreement
------------
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
IN WITNESS WHEREOF, this Agreement is hereby duly executed by each party
hereto as of the date first written above.
API-BVI:
ASIA PROPERTIES INVESTMENTS, INC.,
a British Virgin Islands company
By:/s/ Xxxxxx X. XxXxxxxx
--------------------------
Name and Title: Xxxxxx X. XxXxxxxx, President
--------------------------------
API-Nevada:
ASIA PROPERTIES, INC.,
a Nevada corporation
By:/s/ Xxxxxx X. XxXxxxxx
--------------------------
Name and Title: Xxxxxx X. XxXxxxxx, President
--------------------------------
5
