AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (hereinafter called the "Merger
Agreement") is made as of June____, 2004, by and between TEN STIX, INC., a
Colorado corporation ("Ten Stix Colorado"), and TEN STIX, INC., a Nevada
corporation ("Ten Stix Nevada"). Ten Stix Colorado and Ten Stix Nevada are
sometimes referred to as the "Constituent Corporations."
The authorized capital stock of Ten Stix Colorado consists of five hundred
million one hundred thousand (500,100,000) shares, divided into five hundred
million (500,000,000) shares of Common Stock, par value $0.001 per share, and
one hundred thousand (100,000) shares of Preferred Stock, par value $0.001 per
share. The authorized capital stock of Ten Stix Nevada , upon effectuation of
the transactions set forth in this Merger Agreement, will consist of five
hundred twenty-five million (525,000,000) shares, divided into five hundred
million (500,000,000) shares of Common Stock par value $0.001, and twenty-five
million (25,000,000) shares of Preferred Stock par value of $0.001.
The directors of the Constituent Corporations deem it advisable and to the
advantage of the Constituent Corporations that Ten Stix Colorado merge into Ten
Stix Nevada upon the terms and conditions herein provided.
NOW, THEREFORE, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that Ten Stix Colorado
shall merge into Ten Stix Nevada on the following terms, conditions and other
provisions:
1. TERMS AND CONDITIONS.
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1.1 MERGER. Ten Stix Colorado shall be merged with and into Ten Stix Nevada
(the "Merger"), and Ten Stix Nevada shall be the surviving corporation (the
"Surviving Corporation") effective upon the date when this Merger Agreement is
filed with the Secretary of State of Nevada (the "Effective Date").
1.2 SUCCESSION. On the Effective Date, Ten Stix Nevada shall continue its
corporate existence under the laws of the State of Nevada, and the separate
existence and corporate organization of Ten Stix Colorado, except insofar as it
may be continued by operation of law, shall be terminated and cease.
1.3 TRANSFER OF ASSETS AND LIABILITIES. On the Effective Date, the rights,
privileges, powers and franchises, both of a public as well as of a private
nature, of each of the Constituent Corporations shall be vested in and possessed
by the Surviving Corporation, subject to all of the disabilities, duties and
restrictions of or upon each of the Constituent Corporations; and all and
singular rights, privileges, powers and franchises of each of the Constituent
Corporations, and all property, real, personal and mixed, of each of the
Constituent Corporations, and all debts due to each of the Constituent
Corporations on whatever account, and all things in action or belonging to each
of the Constituent Corporations shall be transferred to and vested in the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest, shall be thereafter the property
of the Surviving Corporation as they were of the Constituent Corporations, and
the title to any real estate vested by deed or otherwise in either of the
Constituent Corporations shall not revert or be in any way impaired by reason of
the Merger; provided, however, that the liabilities of the Constituent
Corporations and of their shareholders, directors and officers shall not be
affected and all rights of creditors and all liens upon any property of either
of the Constituent Corporations shall be preserved unimpaired, and any claim
existing or action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted to judgment as if the Merger had not taken place
except as they may be modified with the consent of such creditors and all debts,
liabilities and duties of or upon each of the Constituent Corporations shall
attach to the Surviving Corporation, and may be enforced against it to the same
extent as if such debts, liabilities and duties had been incurred or contracted
by it.
1.4 COMMON STOCK OF TEN STIX COLORADO AND TEN STIX NEVADA. On the Effective
Date, by virtue of the Merger and without any further action on the part of the
Constituent Corporations or their shareholders, (i) each share of the Common
Stock of Ten Stix Colorado issued and outstanding immediately prior thereto
shall be converted into shares of fully paid and nonassessable shares of the
Common Stock of Ten Stix Nevada at a ratio of one to one (1:1), each share of
Common Stock of Ten Stix Nevada issued and outstanding immediately prior thereto
shall be cancelled and returned to the status of authorized but unissued shares,
and (ii) each share of the Preferred Stock of Ten Stix Colorado issued and
Appendix D Page 1
outstanding immediately prior to thereto shall be converted into shares of fully
paid and nonassessable shares of Preferred Stock of Ten Stix Nevada at a ratio
of one to one (1:1), each share of Preferred Stock of Ten Stix Nevada issued and
outstanding immediately prior thereto shall be cancelled and returned to the
status of authorized but unissued shares.
1.5 STOCK CERTIFICATES. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of the
Common Stock of Ten Stix Colorado shall be deemed for all purposes to evidence
ownership of and to represent the shares of Ten Stix Nevada into which the
shares of Ten Stix Colorado represented by such certificates have been converted
as herein provided and shall be so registered on the books and records of the
Surviving Corporation or its transfer agents. The registered owner of any such
outstanding stock certificate shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to the
Surviving Corporation 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 shares of Ten Stix Nevada evidenced by such
outstanding certificate as above provided.
1.6 OPTIONS. On the Effective Date, the Surviving Corporation will assume
and continue Ten Stix Colorado's stock awards plans, if any, and the outstanding
and unexercised portions of all options to purchase Common Stock of Ten Stix
Colorado including without limitation all options outstanding under such stock
plan and any other outstanding options, shall be converted into options of Ten
Stix Nevada, such that an option for shares of Ten Stix Colorado shall be
converted into an option for shares of Ten Stix Nevada at a ratio of one to one
(1:1). No other changes in the terms and conditions of such options will occur.
Effective on the Effective Date, Ten Stix Nevada hereby assumes the outstanding
and unexercised portions of such options and the obligations of Ten Stix
Colorado with respect thereto.
2. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS.
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2.1 CERTIFICATE OF INCORPORATION AND BYLAWS. The Articles of Incorporation
and Bylaws of Ten Stix Nevada in effect on the Effective Date shall continue to
be the Articles of Incorporation and Bylaws of the Surviving Corporation.
2.2 DIRECTORS. The directors of Ten Stix Colorado immediately preceding the
Effective Date shall become the directors of the Surviving Corporation on and
after the Effective Date to serve until the expiration of their terms and until
their successors are elected and qualified.
2.3 OFFICERS. The officers of Ten Stix Colorado immediately preceding the
Effective Date shall become the officers of the Surviving Corporation on and
after the Effective Date to serve at the pleasure of its Board of Directors.
3. MISCELLANEOUS.
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3.1 FURTHER ASSURANCES. From time to time, and when required by the
Surviving Corporation or by its successors and assigns, there shall be executed
and delivered on behalf of Ten Stix Colorado such deeds and other instruments,
and there shall be taken or caused to be taken by it such further and other
action, as shall be appropriate or necessary in order to vest or perfect in or
to conform of record or otherwise, in the Surviving Corporation the title to and
possession of all the property, interests, assets, rights, privileges,
immunities, powers, franchises and authority of Ten Stix Colorado and otherwise
to carry out the purposes of this Merger Agreement, and the officers and
directors of the Surviving Corporation are fully authorized in the name and on
behalf of Ten Stix Colorado or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
3.2 AMENDMENT. At any time before or after approval by the shareholders of
Ten Stix Colorado this Merger Agreement may be amended in any manner (except
that, after the approval of the Merger Agreement by the shareholders of Ten Stix
Colorado the principal terms may not be amended without the further approval of
the shareholders of Ten Stix Colorado) as may be determined in the judgment of
the respective Board of Directors of Ten Stix Nevada and Ten Stix Colorado 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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3.3 CONDITIONS TO MERGER. The obligations of the Constituent Corporations
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
Constituent Corporations in its sole discretion to the extent permitted by law):
(a) the Merger shall have been approved by the shareholders of Ten
Stix Colorado in accordance with applicable provisions of the Corporations
and Associations Act of the State of Colorado; and
(b) Ten Stix Colorado as sole stockholder of Ten Stix Nevada, shall
have approved the Merger in accordance with the Revised Statutes of the
State of Nevada; and
(c) any and all consents, permits, authorizations, approvals, and
orders deemed in the sole discretion of Ten Stix Colorado to be material to
consummation of the Merger shall have been obtained.
3.4 ABANDONMENT OR DEFERRAL. At any time before the Effective Date, this
Merger Agreement may be terminated and the Merger may be abandoned by the Board
of Directors of either Ten Stix Colorado or Ten Stix Nevada or both,
notwithstanding the approval of this Merger Agreement by the shareholders of Ten
Stix Colorado or Ten Stix Nevada, the consummation of the Merger may be deferred
for a reasonable period of time if, in the opinion of the Boards of Directors of
Ten Stix Colorado and Ten Stix Nevada, such action would be in the best interest
of such corporations. In the event of termination of this Merger Agreement, this
Merger Agreement shall become void and of no effect and there shall be no
liability on the part of either Constituent Corporation or its Board of
Directors or shareholders with respect thereto, except that Ten Stix Colorado
shall pay all expenses incurred in connection with the Merger or in respect of
this Merger Agreement or relating thereto.
3.5 COUNTERPARTS. In order to facilitate the filing and recording of this
Merger Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original.
IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved
by the Board of Directors of Ten Stix Colorado and Ten Stix Nevada, is hereby
executed on behalf of each corporation and attested by their respective officers
thereunto duly authorized.
TEN STIX, INC. TEN STIX, INC.
a Colorado corporation a Nevada corporation
_______________________________ ______________________________
By: Xxxxxx X. Xxxxxx By: Xxxxxx X. Xxxxxx
Title: President Title: President
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