AGREEMENT AND PLAN OF MERGER
OF
FESTIVE WORLD LLC
(A New York Limited Liability Company)
and
CASTLE & XXXXXX HOLDINGS, INC.
(A Delaware Corporation)
AGREEMENT AND PLAN OF MERGER, dated as of December __, 2003, by and
between Festive World LLC, a New York Limited Liability Company (hereinafter may
be known as "Festive World"), and Castle and Xxxxxx Holdings, Inc., a Delaware
corporation (hereinafter known as "Castle & Xxxxxx" or the "Surviving
Corporation").
W I T N E S S E T H
Festive World is a Limited Liability Company duly organized and
existing under the laws of the State of New York.
Castle & Xxxxxx, is a corporation duly organized and existing under the
laws of the State of Delaware on June 12, 2003 under the name FestiveWorld Corp.
The authorized number of units of Festive World is 20,000 Common Units.
The authorized number of shares of Surviving Corporation is Twenty Six
(26,000,000) Million shares of which Twenty Five (25,000,000) Million shares
shall be Common Stock, $.0001 par value per share and One (1,000,000) Million
shares shall be Preferred Shares, $.0001 par value per share.
The Boards of Directors of Festive World and the Surviving Corporation
deem it advisable for the mutual benefit of Festive World, the Surviving
Corporation, and their respective shareholders or unit holders, that Festive
World be merged with and into the Surviving Corporation and have approved this
Agreement and Plan of Merger (the "Agreement").
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements and provisions hereinafter contained, the parties hereto
agree that, in accordance with the applicable laws of the States of New York and
Delaware, Festive World shall be, at the Effective Date of the Merger (as
hereinafter defined), merged with and into the Surviving Corporation, which
shall be the surviving corporation, and that the terms and conditions of such
merger and the mode of carrying it into effect shall be as follows:
ARTICLE I
Merger
1.1 On the Effective Date of the Merger, Festive World shall be merged with and
into Surviving Corporation. The separate existence of Festive World shall cease
and the Surviving Corporation shall continue in existence and, without other
transfer, succeed to and posses all the properties, rights, privileges,
immunities, powers, purposes and franchises, of a public, as well as of a
private nature, and shall be subject to all of the obligations, liabilities,
restrictions, disabilities and duties of Festive World and Surviving
Corporation, all without further act or deed, as provided in Section 259 of the
Delaware General Corporation Law.
1.2 All rights of creditors and all liens upon the property of either Festive
World or Surviving Corporation shall be preserved unimpaired by the Merger, and
all debts, liabilities, obligations and duties, including, but not limited to,
the obligations of Festive World pursuant to any existing guarantees, leases,
stock options or other contracts or agreements, of either Festive World or the
Surviving Corporation shall, on the Effective Date of the Merger, become the
responsibility and liability of Surviving Corporation, and may be enforced
against it to the same extent as if said debts, liabilities, obligations and
duties had been incurred or contracted by it. All corporate acts, plans
(including but not limited to stock option plans), policies, arrangements,
approvals and authorizations of Festive World, its unit holders, board of
directors, officers and agents, which were valid and effective immediately prior
to the Effective Date of the Merger, shall be taken for all purposes as the
acts, plans, policies, arrangements, approvals and authorizations of the
Surviving Corporation and shall be as effective and binding thereon as the same
were with respect to Festive World.
1.3 Prior to the Effective Date of the Merger, Festive World and Surviving
Corporation shall take all such action as shall be necessary or appropriate in
order to effectuate the Merger. In case at any time after the Effective Date of
the Merger Surviving Corporation shall determine that any further conveyance,
assignment or other documents or any further actions necessary or desirable to
vest in or confirm to Surviving Corporation full title to all the properties,
assets, rights, privileges and franchises of Festive World, the officers and
directors of Festive World, at the expense of Surviving Corporation, shall
execute and deliver all such instruments and take all such action as Surviving
Corporation may determine to be necessary or desirable in order to vest in and
confirm to Surviving Corporation title to and possession of all such properties,
assets, rights, privileges and franchises, and otherwise to carry out the
purposes of this Agreement.
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ARTICLE II
Terms and Conditions of the Merger
The terms and conditions of the Merger, including the manner and basis
of converting the common units of Festive World into shares of capital stock of
Surviving Corporation shall be as follows:
2.1 Certificate of Incorporation. From and after the Effective Date of the
Merger and until thereafter amended as provided by law, the Certificate of
Incorporation of Surviving Corporation in effect on the date hereof, as set
forth in Exhibit B shall be the Certificate of Incorporation of Surviving
Corporation.
2.2 By-Laws. The By-laws of Festive World and/or the Surviving Corporation, as
the case may be, in effect on the Effective Date of the Merger shall continue in
force and be the By-laws of the Surviving Corporation until altered, amended or
repealed.
2.3 Directors and Officers. The directors and officers of Festive World in
office on the Effective Date of the Merger shall continue in office as, and be
and constitute, the directors and officers of Surviving Corporation, each to
hold office as provided by the By-laws until his successor shall have been
elected and shall have qualified or until his earlier death, resignation or
removal.
2.4 Conversion of Outstanding Shares, Common Units, Rights and Options. The
manner and basis of converting the common units, shares, rights and options to
purchase shares of Festive World into shares, rights and options to purchase
shares of the Surviving Corporation, and the cancellation and retirement of
shares of Surviving Corporation, shall be as follows:
2.4.1 Each common unit of Festive World issued and outstanding, or held in the
treasury of Festive World, on the Effective Date of the Merger shall forthwith
and without the surrender of stock certificates or any other action, be
converted into 3,527,801 fully paid and non-assessable shares of Common Stock,
par value $ .0001 per share, of Surviving Corporation, issued and outstanding or
held in the treasury of Surviving Corporation, as the case may be.
2.4.2 No options or rights to purchase common units of Festive World are
currently outstanding.
2.5 Dividends. The holders of common units of Festive World shall be entitled to
receive from Surviving Corporation (i) those dividends, if any, which were
declared by the Board of Directors of Festive World prior to, but not yet paid,
as of the Effective Date of the Merger and (ii) those dividends which may be
declared by the Board of Directors of Surviving Corporation subsequent to the
Effective Date of the Merger pursuant to the Certificate of Incorporation of
Surviving Corporation, and no holder of common units of Festive World shall be
entitled to any other dividends which might otherwise accrue on or prior to the
Effective Date of the Merger.
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ARTICLE III
Procedures Regarding Stock Certificates
From and after the Effective Date, each outstanding stock certificate
theretofore representing common units of Festive World shall represent 1 share
of Common Stock of the Surviving Corporation. Each holder of a certificate or
certificates theretofore representing common units of Festive World may, but
shall not be required to, surrender the same to Surviving Corporation for
cancellation and exchange or transfer, and such holder or his transferee shall
be entitled to receive certificates representing 1 share of the Common Stock of
Surviving Corporation for each common unit of Festive World represented by the
certificates surrendered. Until so surrendered for cancellation and exchange or
transfer each outstanding certificate which, prior to the Effective Time,
represented common units of Festive World, shall be deemed and treated for all
purposes to represent the ownership of 1 share of the Common Stock of Surviving
Corporation as though such surrender had taken place.
ARTICLE IV
Effective Date
This Agreement shall be submitted to the stockholder of Surviving
Corporation and the unit holders of Festive World at meetings which shall be
convened on or prior to December __, 2003, or such other dates as may be agreed
on by the parties, as provided by the applicable laws of the States of New York
and Delaware. If this Agreement is duly authorized and adopted by the requisite
votes of the holder of Common Stock of Surviving Corporation and holders of
common units of Festive World and this Agreement is not terminated pursuant to
the provisions of Article V hereof, then a certificate of merger shall be filed
in accordance with the laws of the State of Delaware and a certificate of merger
shall be filed in accordance with the laws of the State of New York. The Merger
shall become effective upon the filing of the certificates of merger with the
Secretaries of State of the States of New York and Delaware (the "Effective Date
of the Merger").
ARTICLE V
Approval of Shareholders and Unit Holders - Termination
5.1 This Agreement shall be submitted to the unit holders of Festive World and
the stockholders of Surviving Corporation as provided by law, and it shall take
effect and be deemed and be taken to be the Agreement and Plan of Merger of
Festive World and Surviving Corporation upon the approval or adoption thereof by
the unit holders of Festive World and the stockholder of Surviving Corporation,
in accordance with the requirements of the laws of the State of New York and the
State of Delaware, and upon the execution, filing and recording of such
documents and the doing of such other acts and things as shall be required for
accomplishing the merger under the provisions of the applicable statutes of the
State of New York and of the State of Delaware.
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5.2 At any time prior to the filing of the certificates of merger with the
Secretary of State of the States of Delaware and New York, this Agreement may be
terminated by the board of directors of either Festive World or Surviving
Corporation, notwithstanding the approval of this Agreement by either or both of
the unit holders of Festive World and the stockholders of Surviving Corporation,
if for any reason the board of directors of Festive World or Surviving
Corporation determines that it is inadvisable to proceed with the Merger,
including, without limitation, giving consideration to the number of shares for
which appraisal rights have been exercised and the cost to Festive World
thereof.
5.3 In the event of the termination and abandonment of this Agreement pursuant
to the provisions of Section 5.2, this Agreement shall become null and void and
have no effect, without any liability on the part of either Festive World or
Surviving Corporation or any of their respective unit holders, stockholders,
directors or officers.
ARTICLE VI
Certain Agreements of Surviving Corporation
6.1 Surviving Corporation, as the surviving corporation, hereby agrees that it
may be served with process in the State of New York in any proceeding for the
enforcement of any liability or obligation of Festive World or of the rights of
dissenting unit holders of Festive World.
6.2 Surviving Corporation, as the surviving corporation, hereby irrevocably
appoints the Secretary of the State of New York as its agent to accept service
of process in any action or proceeding described in Section 6.1.
6.3 Surviving Corporation, as the surviving corporation, hereby agrees that it
will promptly pay to dissenting unit holders, if any, of Festive World the
amount, if any, to which such dissenting unit holders shall be entitled pursuant
to the laws of the State of New York.
ARTICLE VII
Miscellaneous
7.1 This Agreement may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
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7.2 The headings of the several articles herein have been inserted for
convenience of reference only and are not intended to be a part or to affect the
meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, each of Festive World and Surviving Corporation,
pursuant to authority duly given by resolutions adopted by its Board of
Directors has caused these presents to be executed in its name by its President
or a Vice-President and its corporate seal to be affixed and attested by its
Secretary and Treasurer.
FESTIVE WORLD LLC.
(New York Limited Liability Company)
Attest:
/s/ Xxxxxxxxxxx Xxxx
By:______________________________
Xxxxxxxxxxx Xxxx, President
CASTLE & XXXXXX HOLDINGS, INC.
(Delaware Corporation)
(Corporate Seal)
Attest:
/s/ Xxxxxxxxxxx Xxxx
By:______________________________
Xxxxxxxxxxx Xxxx, President
