AGREEMENT AND PLAN OF MERGER
OF ATLANTIC INTERNATIONAL ENTERTAINMENT, LTD.
A DELAWARE CORPORATION
AND
CEEE GROUP CORPORATION
A COLORADO CORPORATION
THIS AGREEMENT AND PLAN OF MERGER dated as of November 18, 1996 (the
"Agreement") is between Atlantic International Entertainment, Ltd., a Delaware
corporation ("Atlantic") and CEEE Group Corporation, Ltd., a Colorado
corporation ("CEEE"). Atlantic and CEEE are sometimes referred to herein as the
"Constituent Corporations."
RECITALS
A. Atlantic is a corporation duly organized and
existing under the laws of the State of Delaware and has an authorized capital
of 100,000,000 shares designated "Common Stock", $.001 par value and 10,000,000
shares designated "Preferred Stock," $.001 par value. As of the date hereof,
1,000 shares of Common Stock are issued and outstanding, all of which are held
by CEEE. No shares of Preferred Stock were outstanding.
B. CEEE is a corporation duly organized and existing under the
laws of the State of Colorado and has an authorized capital of 10,000,000 shares
designated "Common Stock", $.001 par value. As of the date hereof, 9,386,733
shares of Common Stock are outstanding.
C. The Board of Directors of CEEE has determined that, for the
purpose of effecting the reincorporation of CEEE in the State of Delaware, it is
advisable and in the best interests of CEEE that it merge with and into Atlantic
upon the terms and conditions here provided.
D. The respective Boards of Directors of Atlantic and CEEE
have approved this Agreement and have directed that this Agreement be submitted
to a vote of their respective shareholders and executed by the undersigned
officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, Atlantic and CEEE hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
I. MERGER
1.1 MERGER. In accordance with the provisions of this Agreement,
the Delaware General Corporation Law and the Colorado Business Corporation Act
shall be merged with and into Atlantic (the "Merger"), the separate existence of
CEEE shall cease and Atlantic shall be, and is herein sometimes referred to as,
the "Surviving Corporation," and the name of the Surviving Corporation shall be
Atlantic International Entertainment, Ltd.
1.2 FILING AND EFFECTIVENESS. The Merger shall become effective
when the following actions shall have been completed:
(a) This Agreement and the Merger shall have been adopted and
approved by the shareholders of each Constituent Corporation in accordance with
the requirements of the Delaware General Corporation Law and the Colorado
Business Corporation Act;
(b) All of the conditions precedent to the consummation of the
Merger specified in this Agreement shall have been satisfied or duly waived by
the party entitled to satisfaction thereof;
(c) An executed Certificate of Merger or an executed counterpart
of this Agreement meeting the requirements of the Delaware General Corporation
Law shall have been filed with the Secretary of State of the State of Delaware;
and
(d) Executed Articles of Merger meeting the requirements of the
Colorado Business Corporation Act shall have been filed with the Secretary of
State of the State of Colorado.
The date and time when the Merger shall become effective, as aforesaid,
is herein called the "Effective Date of the Merger."
1.3 EFFECT OF THE MERGER. Upon the Effective Date of the Merger,
the separate existence of CEEE shall cease and Atlantic, as the Surviving
Corporation, (i) shall continue to possess all of its assets, rights, powers and
property as constituted immediately prior to the Effective Date of the Merger,
(ii) shall be subject to all actions previously taken by its and CEEE's Board of
Directors, (iii) shall succeed, without other transfer, to all of the assets,
rights, powers and property of CEEE in the manner more fully set forth in
Section 259 of the Delaware General Corporation Law, (iv) shall continue to be
subject to all of its debts, liabilities and obligations as constituted
immediately prior to the Effective Date of the Merger, and (v) shall succeed,
without other transfer, to all of the debts, liabilities and obligations of CEEE
in the same manner as if Atlantic had itself incurred them, all as more fully
provided under the applicable provisions of the Delaware General Corporation Law
and the Colorado Business Corporation Act.
II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation
of Atlantic as in effect immediately prior to the Effective Date of the Merger
shall continue in full force and effect as the Certificate of Incorporation of
the Surviving Corporation until duly amended in accordance with the provisions
thereof and applicable law.
2.2 BYLAWS. The Bylaws of Atlantic as in effect immediately prior
to the Effective Date of the Merger shall continue in full force and effect as
the Bylaws of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of CEEE
immediately prior to the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until their successors shall have been
duly elected and qualified or until as otherwise provided by law, the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
III. MANNER OF CONVERSION OF STOCK
3.1 CEEE COMMON SHARES. Upon the Effective Date of the Merger,
each three shares of CEEE Common Stock, $.001 par value, issued and outstanding
immediately prior thereto shall survive by virtue of the Merger and without any
action by the Constituent Corporations, the holder of such shares or any other
person, shall be converted into and exchanged for one fully paid and
nonassessable share of Common Stock, $.001 par value, of the Surviving
Corporation.
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3.2 CEEE OPTIONS, STOCK PURCHASE RIGHTS AND CONVERTIBLE
SECURITIES. Upon the Effective Date of the Merger, the Surviving Corporation
shall assume and continue, if any, the stock option plans and all other employee
benefit plans of CEEE. Each outstanding and unexercised option, or other right
to purchase, or security convertible into, CEEE Common Stock, if any, shall
become an option, or right to purchase, or a security convertible into the
Surviving Corporation's Common Stock on the basis of one share of the Surviving
Corporation's Common Stock for each three shares of CEEE Common Stock issuable
pursuant to any such option, or stock purchase right or convertible security, on
the same terms and conditions and at an exercise or conversion price per share
equal to one-third of the exercise or conversion price per share applicable to
any such CEEE option, stock purchase right or other convertible security at the
Effective Date of the Merger.
A number of shares of the Surviving Corporation's Common Stock shall be
reserved for issuance upon the exercise of options, stock purchase rights and
convertible securities equal to one-third of the number of shares of CEEE Common
Stock so reserved immediately prior to the Effective Date of the Merger.
3.3 ATLANTIC COMMON STOCK. Upon the Effective Date of the Merger,
each share of Atlantic Common Stock, $.001 par value, issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by Atlantic, the holder of such shares or any other person, be cancelled and
returned to the status of authorized but unissued shares.
3.4 EXCHANGE OF CERTIFICATES. After the Effective Date of the
Merger, each holder of an outstanding certificate representing shares of CEEE
Common Stock may, at such stockholder's option, surrender the same for
cancellation to Continental Stock Transfer & Trust Company, or such other entity
as the Company so designates as exchange agent (the "Exchange Agent"), and each
such holder shall be entitled to receive in exchange therefor a certificate or
certificates representing the number of shares of the Surviving Corporation's
Common Stock into which the surrendered shares were converted as herein
provided. Until so surrendered, each outstanding certificate theretofore
representing shares of CEEE Common Stock shall be deemed for all purposes to
represent the number of whole shares of the Surviving Corporation's Common Stock
into which such shares of CEEE Common Stock were converted in the Merger.
The registered owner on the books and records of the Surviving
Corporation or the Exchange Agent of any such outstanding certificate shall,
until such certificate shall have been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation or the Exchange Agent, have
and be entitled to exercise any voting and other rights with respect to and to
receive dividends and other distributions upon the shares of Common Stock of the
Surviving Corporation represented by such outstanding certificate as provided
above.
Each certificate representing Common Stock of the Surviving Corporation
so issued in the merger shall bear the same legends, if any, with respect to the
restrictions on transferability the certificates of CEEE so converted and given
in exchange therefore, unless otherwise determined by the Board of Directors of
the Surviving Corporation in compliance with applicable laws.
If any certificate for shares of Atlantic stock is to be issued in a
name other than that in which the certificate surrendered in exchange therefor
is registered, it shall be a condition of issuance thereof that the certificate
so surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and that the person requesting
such transfer pay to the Exchange Agent any transfer or other taxes payable by
reason of issuance of such new certificate in a name other than that of the
registered holder of the certificate surrendered or establish to the
satisfaction of Atlantic that such tax has been paid or is not payable.
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IV. GENERAL
4.1 COVENANTS OF ATLANTIC. Atlantic covenants and agrees that it
will take such actions as may be required by the Colorado Business Corporation
Act.
4.2 FURTHER ASSURANCES. From time to time, as and when required
by Atlantic or by its successors or assigns, there shall be executed and
delivered on behalf of CEEE such deeds and other instruments, and there shall be
taken or caused to be taken by it such further and other actions as shall be
appropriate or necessary in order to vest or perfect in or conform of record or
otherwise by Atlantic the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of CEEE and otherwise to carry out the purposes of this Agreement, and
the officers and directors of Atlantic are fully authorized in the name and on
behalf of CEEE or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
4.3 ABANDONMENT. At any time before the Effective Date of the Merger,
this Agreement may be terminated and the Merger may be abandoned for any reason
whatsoever by the Board of Directors of either CEEE or of Atlantic, or of both,
notwithstanding the approval of this Agreement by the shareholders of CEEE or by
the sole stockholder of Atlantic, or by both.
4.4 AMENDMENT. The Boards of Directors of the Constituent
Corporations may amend this Agreement at any time prior to the filing of this
Agreement or certificate in lieu thereof with the Secretary of State of the
State of Delaware, provided that an amendment made subsequent to the adoption of
this Agreement by the shareholders of either Constituent Corporation shall not:
(1) alter or change the amount or kind of shares, securities, cash, property
and/or rights to be received in exchange for or on conversion of all or any of
the shares of any class or series thereof of such Constituent Corporation, (2)
alter or change any term of the Certificate of Incorporation of the Surviving
Corporation to be effected by the Merger, or (3) alter or change any of the
terms and conditions of this Agreement if such alteration or change would
adversely affect the holders of any class or series of capital stock of either
Constituent Corporation.
4.5 REGISTERED OFFICE. The registered office of the Surviving
Corporation in the State of Delaware is located at 0000 Xxxxxx Xxxx, Xxxx xx
Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000, and The Xxxxxxxx-Xxxx
Corporation System, Inc. is the registered agent of the Surviving Corporation at
such address.
4.6 AGREEMENT. Executed copies of this Agreement will be on file at
the principal place of business of the Surviving Corporation at 0000 Xxxxxxxxx
Xxxx., Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 and copies thereof will be furnished
to any stockholder of either Constituent Corporation, upon request and without
cost.
4.7 GOVERNING LAW. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
Colorado Business Corporation Act.
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4.8 COUNTERPARTS. In order to facilitate the filing and recording
of this Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement having first been approved by the
resolutions of the Board of Directors of Atlantic and CEEE, is hereby executed
on behalf of each of such two corporations and attested by their respective
officers thereunto duly authorized, under penalties of perjury, hereby declaring
and certifying that this is their act and deed and the facts herein stated are
true.
ATLANTIC INTERNATIONAL ENTERTAINMENT, LTD.
a Delaware corporation
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
ATTEST:
/s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, Secretary
CEEE GROUP CORPORATION
a Colorado corporation
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
ATTEST:
/s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, Secretary
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