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”).
WITNESSETH:
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 Corporation (the “Mandalay Preferred Stock”), with each share
of Mediavest Series A Preferred Stock converting into one (1) share of the
Series A Convertible Preferred Stock, par value $0.0001 per share, of Mandalay.
4.04
At
and after the Effective Time, each share of Mediavest Preferred Stock shall
be
cancelled and retired and, by virtue of the Merger and without further action,
shall cease to exist.
4.05
At
and after the Effective Time, all documentation which prior to that time
evidenced and represented Mediavest Common Stock or Mediavest Preferred Stock,
as applicable, shall be deemed for all purposes to evidence ownership of and
to
represent those shares of Mandalay Common Stock or Mandalay Preferred Stock,
as
applicable, into which the Mediavest Common Stock or Mediavest Preferred Stock,
as applicable, represented by such documentation has been converted as herein
provided and shall be so registered on the books and records of Mandalay. The
registered owner of any outstanding stock certificate evidencing Mediavest
Common Stock or Mediavest Preferred Stock, as applicable, shall, until such
certificate shall have been surrendered for transfer or conversion or otherwise
accounted for to Mandalay 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 Mandalay Common Stock or Mandalay
Preferred Stock, as applicable, evidenced by such outstanding certificate as
above provided.
ARTICLE
V
CORPORATE
EXISTENCE, POWERS AND
LIABILITIES
OF SURVIVING CORPORATION
5.01
On
the Effective Time, the separate existence of Mediavest shall cease and
Mediavest shall be merged with and into the Surviving Corporation in accordance
with the provisions of this Agreement. Thereafter, the Surviving Corporation
shall possess all of the rights, privileges, powers and franchises as well
of a
public as of a private nature, and shall be subject to all the restrictions,
disabilities and duties of Mediavest; and all rights, privileges, powers and
franchises of Mediavest, and all property, real, personal and mixed, and all
debts due to each of them on whatever account, as well as stock subscriptions
and all other things in action or belonging to Mediavest shall be vested in
the
Surviving Corporation; and all property, rights, privileges, powers and
franchises, and all and every other interest shall be thereafter effectually
the
property of the Surviving Corporation as they were of Mediavest, and the title
to any real estate, whether by deed or otherwise, vested in Mediavest shall
not
revert or be in any way impaired by reason of the Merger; but all rights of
creditors and all liens upon any property of Mediavest shall be preserved
unimpaired, and all debts, liabilities and duties shall thenceforth attach
to
the Surviving Corporation and may be enforced against it to the same extent
as
if said debts, liabilities and duties had been incurred or contracted by it.
5.02
Mediavest agrees that it will execute and deliver (or cause to be executed
and
delivered) all such deeds, assignments and other instruments, and will take
or
cause to be taken such further or other action as the Surviving Corporation
may
deem necessary or desirable in order to vest in and confirm to the Surviving
Corporation title to and possession of all the property, rights, privileges,
immunities, powers, purposes and franchises, and all and every other interest,
of Mediavest and otherwise to carry out the intent and purposes of this
Agreement.
ARTICLE
VI
OFFICERS
AND DIRECTORS
OF
SURVIVING CORPORATION
At
the
Effective Time, the officers and directors of Mediavest shall become the
officers and directors of the Surviving Corporation, and such persons shall
hold
office in accordance with the Bylaws of the Surviving Corporation or until
their
respective successors shall have been appointed or elected and qualified.
ARTICLE
VII
APPROVAL
BY STOCKHOLDERS;
AMENDMENT;
EFFECTIVE TIME
7.01
This
Agreement and the Merger contemplated hereby are subject to approval by the
requisite vote of the stockholders of Mediavest in accordance with New Jersey
law. As promptly as practicable after approval of this Agreement by such
stockholders in accordance with applicable law, duly authorized officers of
Mandalay and Mediavest shall make and execute a Certificate of Merger or other
applicable certificates or documentation effecting this Agreement and shall
cause such document or documents to be filed with the Secretaries of State
of
the States of Delaware and New Jersey, respectively, in accordance with the
applicable Delaware and New Jersey law.
7.02
The
respective Boards of Directors of Mandalay and Mediavest may amend this
Agreement at any time prior to the Effective Time, provided that an amendment
made subsequent to the approval of the Merger by the stockholders of Mediavest
shall not (1) alter or change the amount or kind of shares, securities, cash,
property or rights to be received in exchange for or on conversion of all or
any
Mediavest Common Stock or Mediavest Preferred Stock; (2) alter or change any
term of the Certificate of Incorporation of the Surviving Corporation; 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 Mediavest Common
Stock or Mediavest Preferred Stock.
ARTICLE
VIII
PAYMENT
OF FEES AND FRANCHISE TAXES
The
Surviving Corporation shall be responsible for the payment of all fees and
franchise taxes of Mediavest relating to or required to be paid in connection
with the Merger.
ARTICLE
IX
TERMINATION
OF MERGER
This
Agreement may be terminated and the Merger abandoned at any time prior to the
Effective Time, whether before or after stockholder approval of this Agreement,
by the consent of the Board of Directors of Mandalay and the Board of Directors
of Mediavest.
[Signature
page to follow]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their respective officers, all as of the day and year first above written.
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MANDALAY MEDIA, INC. |
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a Delaware corporation |
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By: /s/ James
Lefkowitz |
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Name:
James Lefkowitz |
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Title:
President |
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MEDIAVEST, INC. |
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a New Jersey corporation |
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By: /s/ James Lefkowitz |
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Name: James Lefkowitz |
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Title:
President |
[Signature
page to Merger Agreement]