PLAN AND AGREEMENT OF MERGER
THIS
PLAN AND AGREEMENT OF MERGER (this “Agreement”),
dated as of September 27, 2007, is made and entered into by
and between
MANDALAY MEDIA, INC .,
a Delaware corporation (“Mandalay”), and
MEDIAVEST, INC .,
a New Jersey corporation (“Mediavest”).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS,
Mandalay is a corporation duly organized and existing under
the laws of the State of Delaware, having been incorporated on
September 14, 2007;
WHEREAS,
Mediavest is a corporation duly organized and existing under
the laws of the State of New Jersey, having been incorporated
on November 6, 1998; and
WHEREAS,
the Boards of Directors and the stockholders representing at
least a majority of the outstanding shares of voting capital
stock entitled to vote of Mandalay and Mediavest, have
approved this Agreement under which Mediavest shall be merged
with and into Mandalay with Mandalay being the surviving
corporation (such merger being hereinafter referred to as the
“Merger”).
NOW,
THEREFORE, in consideration of the premises, the mutual
covenants herein contained and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that Mediavest shall be
merged with and into Mandalay on the terms and conditions
hereinafter set forth.
ARTICLE I
MERGER
Effective
the later to occur of (i) 12:01 a.m. Eastern Standard time, on
or about November 5, 2007, or (ii) the time the Certificate of
Merger is accepted for filing in New Jersey and the
Certificate of Merger is accepted for filing in Delaware (the
“Effective Time”), Mediavest shall be merged with
and into Mandalay in accordance with the Delaware General
Corporation Law and the Business Corporation Act of the State
of New Jersey, and the separate existence of Mediavest shall
cease and Mandalay (hereinafter sometimes referred to as the
“Surviving Corporation”) shall continue to exist
under the name of Mandalay by virtue of, and shall be governed
by, the laws of the State of Delaware. The address of the
registered office of the Surviving Corporation in the State of
Delaware will be 615 South Dupont Highway, City of Dover,
County of Kent. The name of the Surviving Corporation’s
registered agent at such address is National Corporate
Research, Ltd.
ARTICLE II
CERTIFICATE OF INCORPORATION
OF THE SURVIVING CORPORATION
The
Certificate of Incorporation of the Surviving Corporation
shall be the Certificate of Incorporation of Mandalay without
change, as in effect immediately prior to the Effective Time,
unless and until thereafter amended as provided by applicable
law.
ARTICLE III
BYLAWS OF THE SURVIVING CORPORATION
The
Bylaws of Mandalay shall be the Bylaws of the Surviving
Corporation as in effect immediately prior to the Effective
Time without change, unless and until amended or repealed in
accordance with applicable law.
ARTICLE IV
EFFECT OF MERGER ON STOCK
OF CONSTITUENT CORPORATIONS
4.01
At the Effective Time, each authorized share of common stock
of Mediavest, consisting
of 100,000,000 shares of Common Stock, par value $0.0001 per
share (the
“Mediavest Common Stock”) ,
of which 21,730,000 shares are, as of the date hereof, issued
and outstanding ,
shall be converted into one (1) share of common stock, par
value $0.0001 per share, of the Surviving Corporation (the
“Mandalay Common Stock”).
4.02
At and after the Effective Time, each share of Mediavest
Common Stock shall be cancelled and retired and, by virtue of
the Merger and without further action, shall cease to
exist.
4.03
At the Effective Time, each authorized share of preferred
stock of Mediavest, consisting
of 1,000,000 shares of Preferred Stock, par value $0.0001 per
share (the
“Mediavest Preferred Stock”) ,
of which 100,000
shares
of Series A Convertible Preferred Stock, par value $0.0001 per
share (the “Mediavest Series A Preferred Stock”),
are, as of the date hereof, issued and outstanding
,
shall be converted into one (1) share of preferred stock, par
value $0.0001 per share, of the Surviving
|
