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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and The ▇▇▇▇▇▇▇▇-▇▇▇▇
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 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
CEEE GROUP CORPORATION
a Colorado corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
ATTEST:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
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