Exhibit 3.3
AGREEMENT AND PLAN OF CONVERSION
THIS AGREEMENT AND PLAN OF CONVERSION is entered into as of this 28th day
of July, 2004, by and among World Poker Tour, LLC, a Delaware limited liability
company (the "Company") and each of its undersigned members (each a "Member" and
collectively, the "Members").
BACKGROUND
A. The undersigned Members are all of the members of the Company.
B. As a precondition to consummating an initial public offering (the
"Offering") in accordance with that certain Registration Statement on Form S-1
(File No. 333-114479), as originally filed with the Securities and Exchange
Commission on April 15, 2004, or as subsequently amended (the "Registration
Statement"), the Company is required to, inter alia, convert from a Delaware
limited liability company to a Delaware corporation.
C. In order to facilitate the Offering, the Members desire to convert the
Company to a corporation (the "Corporation") under the Delaware General
Corporation Law (the "Act") and to have the Corporation engage in any business
permitted under the Act, with the conversion of the Company to the Corporation
(the "Conversion") to occur on or prior to the effective date of the
Registration Statement (the "Effective Time").
D. This Agreement is being entered into for the sole purpose of setting
forth the agreement as to the conversion of the Company to the Corporation under
the Act and to authorize the conversion as of the Effective Time.
NOW, THEREFORE, in consideration of the foregoing and the terms and
conditions contained herein, the parties agree as follows:
TERMS AND CONDITIONS
1. Incorporator. Xxxx X. Xxxxxxx (the "Incorporator"), as attorney-in-fact
for the Company, shall act as the sole incorporator of the Corporation and, as
such, shall duly execute and file under the Act a Certificate of Incorporation
in the form of Exhibit A attached hereto.
2. Certificate of Conversion. The Incorporator shall duly execute and file
under Section 265 of the Act a Certificate of Conversion in the form of Exhibit
B attached hereto.
3. Authorized Capital. The total authorized capital stock of the
Corporation shall be 100,000,000 shares of common stock and 20,000,000 shares of
preferred stock, each with a par value of $.001 per share.
4. Exchange of Membership Interest for Stock. Upon Conversion, each Member
hereby agrees to exchange his/her/its membership interest in the Company for
stock in the Corporation. Each Member hereby agrees to assign and transfer to
the Corporation his/her/its membership interest in exchange for issuance to
him/her/it of the Corporation's $.001 par value of common stock as follows: Each
unit of membership interest of the Company outstanding immediately prior to the
Effective Time shall, by virtue of the Conversion and without any action on the
part of the holder thereof, be retired and one hundred sixty (160) shares of the
Corporation's common stock shall be issued in respect thereof (such ratio of
exchange is referred to herein as the "Exchange Ratio"). Any existing
certificates of membership interest shall be canceled and certificates
representing the Members' stock ownership shall be issued in place thereof.
Prior to this exchange, the Members that owned 100% of the membership interests
in the Company shall, immediately after the exchange, own 100% of the issued and
outstanding stock of the Corporation.
5. Conversion of Unit Options. All unit options of the Company that are
outstanding immediately prior to the Effective Time and are convertible into or
exchangeable for membership units of the Company shall, by virtue of the
Conversion and without any action on the part of the holder thereof, be retired
and a stock option, granted under the Corporation's 2004 Stock Incentive Plan,
shall be issued in respect thereof, which stock option shall be convertible into
that number of shares of the Corporation's common stock as the holders thereof
would have been entitled to receive if such unit options had been converted into
or exercised in their entirety (without respect to vesting restrictions
applicable thereto) for member interests in the Company immediately prior to the
Conversion, based on the Exchange Ratio; provided, however, that the exercise
price per share of the Corporation's common stock underlying each such stock
option shall be equal to the quotient obtained by dividing the exercise price
per unit of membership interest under each outstanding unit option by the
Exchange Ratio.
6. Board/Bylaws. The Board of Directors of the Corporation shall initially
consist of the following persons: Xxxx Xxxxxx, Xxxxxxx X. Xxxx and Xxxxxx
Xxxxxxxx. The Board of Directors shall adopt the Bylaws of the Corporation in
the form of Exhibit C attached hereto.
7. Execution of Documents. The undersigned parties agree to execute
whatever documents are necessary and desirable to carry out the purposes and
intent of this Agreement, including, without limitation, any necessary or
desirable consent resolution. In the event, for any reason whatsoever, that any
of the undersigned parties shall neglect, refuse, or fail to execute any
document that is required or which may be expedient to implement the provisions
and intent of this Agreement, then this Agreement shall act in place thereof and
shall have the same effect as if such document were executed.
8. Transfer of Assets and Liabilities. The undersigned parties hereby
acknowledge and agree that pursuant to the Act and without any action on the
part of the Company, the Corporation or the Members, as of the Effective Time,
all of the assets and liabilities of the Company, of whatever kind or nature,
and including all rights in the property owned by the Company, shall be
transferred to the Corporation, all of the liabilities and obligations, of
whatever kind or nature, whether direct or indirect, absolute or contingent, due
or to become due, now existing or hereafter arising, of the Company shall be
assumed by the Corporation, and the Corporation shall continue to carry on its
business as heretofore conducted by the Company. The Incorporater is hereby
authorized to take any and all action necessary or appropriate and to execute
and deliver any and all documents as he may deem necessary or appropriate, to
effect the conversion of the Company to a Corporation under the Act in
accordance with this Agreement.
9. Termination of LLC Agreement; Waiver of Preemptive Rights. The
undersigned, being all the parties to a certain Limited Liability Company
Agreement dated as of March 4, 2004 (the "LLC Agreement"), pertaining to the
membership interests of the Company, hereby agree that the LLC Agreement shall
automatically terminate upon the Conversion, and that all duties and
obligations arising out of the LLC Agreement shall be deemed to have been
satisfied in full (the "Termination"). Each of the undersigned hereby
acknowledge and agree that, effective upon the Termination, he/she/they are
irrevocably and unconditionally releasing and waiving any and all rights under
the LLC Agreement, including, without limitation, any and all preemptive rights
contained therein.
10. Miscellaneous.
A. Benefit and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Company and its respective successors, assigns,
guardians, heirs and legal representatives.
B. Arbitration. No civil action concerning any controversy or claim
arising out of or relating to this Agreement or the breach thereof, shall be
instituted before any court, and all such controversies or claims shall be
submitted to final and binding arbitration in Minneapolis, Minnesota, before a
single arbitrator in accordance with the commercial rules then pertaining of the
American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof.
C. Construction. All the clauses of this Agreement are distinct and
severable and, if any clause shall be deemed illegal, void or unenforceable, it
shall not affect the validity, legality or enforceability of any other clause or
provision of this Agreement.
D. Entire Agreement and Amendment. This Agreement contains the
entire agreement with respect to the matters described herein and is a complete
and exclusive statement of the terms thereof and supersedes all previous
agreements with respect to such matters. This Agreement may not be altered or
modified except by a writing signed by both parties to this agreement.
E. Governing, Law and Choice of Forum. Delaware law shall govern the
construction and enforceability of this Agreement. Any and all actions
concerning any dispute arising hereunder shall be filed and maintained only in a
state or federal court sitting in the State of Delaware.
F. No Withdrawal or Alteration. Any withdrawal from or alteration of
this Agreement by either party hereto, shall constitute a breach of this
Agreement and shall subject the withdrawing or altering party to suit for legal
or equitable damages.
G. Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures were upon the same
instrument.
[signature page follows]
IN WITNESS WHEREOF, the Members and the Company have executed and
delivered this Agreement and Plan of Conversion as of the date first set forth
above.
MEMBERS:
LAKES POKER TOUR, LLC
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, Chairman of the Board
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
COMPANY:
WORLD POKER TOUR, LLC
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, Chairman of the Board
