Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER ("Agreement"), dated as of the 1st day of
October, 1999, is by and between POWERSOFT TECHNOLOGIES INC., a Delaware
corporation located at 650 West Georgia Street - Suite 1600, P. O. Box 11586,
Vancouver, B. C., Canada V6B4N8 ("Technologies"), and ASIA SUPERNET CORPORATION,
a Colorado corporation located at 650 West Georgia Street - Suite 1600, P. O.
Box 11586, Vancouver, B. C., Canada V6B4N8.
RECITALS
Technologies and Asia desire to merge Technologies with and into Asia, all
in accordance with the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
conditions and agreements herein contained, and for other good and valuable
consideration, the receipt, adequacy and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
I. AGREEMENT
1. The Merger. Subject to the terms and conditions of this Agreement and in
accordance with the Delaware General Corporation Law ("Delaware Law") and the
Colorado Business Corporation Act ("Colorado Law"), Technologies shall merge
with and into Asia (the "Merger") and Asia shall be the "Surviving Corporation."
Thereafter the separate existence of Technologies (except as continued by
operation of law) shall cease to exist. Hereinafter, Asia shall be referred to
either as Asia or as the Surviving Corporation.
2. Execution and Filing of Articles of Merger. As soon as is practicable
after the satisfaction or waiver of the conditions set forth in Article V below,
the parties hereto shall duly execute a Certificate of Merger and Articles of
Merger in form satisfactory to each respective party and in compliance with
Section 252 of the Delaware Law and Section 7-111-107 of the Colorado Law, in
sufficient counterparts to provide copies for filing with the Secretaries of
State of the states of Delaware and Colorado and for all parties to the
transaction. Upon such filing of fully executed counterparts of the Certificate
of Merger and Articles of Merger pursuant to the Delaware Law and the Colorado
Law, the Merger of Technologies with and into Asia shall become effective (the
"Effective Date").
3. Surviving Corporation's Articles of Incorporation and Bylaws. Asia's
Articles of Incorporation and Bylaws in effect on the Effective Date shall be
the articles of incorporation and bylaws of the Surviving Corporation. The
initial number of directors of the Surviving Corporation shall be two.
II. CONVERSION OF SHARES
1. Conversion Rate in the Merger. Each share of Technologies $0.01 par
value common stock (the "Technologies Common Stock") which is issued but not
outstanding or is held as a treasury share on the Effective Date shall be
cancelled. Each share of Asia $0.001 par value common stock (the "Asia Common
Stock") which is issued and outstanding on the Effective Date shall be
cancelled. All shares of Technologies Common Stock which are issued and
outstanding on the Effective Date shall be converted automatically into shares
of Asia Common Stock, based upon a conversion ratio of one (1) share of Asia
Common Stock for each thirty (30) shares of Technologies Common Stock; provided,
however, that in the event such conversion ratio results in the issuance of a
partial share of Asia Common Stock to any stockholder, the number of shares of
Asia Common Stock issued to such stockholder shall be rounded up to the next
whole share of Asia Common Stock. After the Effective Date, all rights of
holders of Technologies Common Stock shall cease with respect to such shares,
except for the right to receive Asia Common Stock as provided herein. Such
shares of Technologies Common Stock shall not be transferred on the books of
Technologies or be considered to be outstanding for any purpose whatsoever.
2. Stock Certificates, Warrants and Convertible Debentures.
a. From and after the Effective Date, each certificate representing
shares of Technologies Common Stock will be deemed for all corporate
purposes to evidence ownership of shares of Asia Common Stock, based upon a
conversion ratio of one (1) share of Asia Common Stock for each thirty (30)
shares of Technologies Common Stock; provided, however, that in the event
such conversion ratio results in the issuance of a partial share of Asia
Common Stock to any stockholder, the number of shares of Asia Common Stock
issued to such stockholder shall be rounded up to the next whole share of
Asia Common Stock. In addition, from and after the Effective Date, each
option, warrant or other right to acquire Technologies Common Stock that
was outstanding immediately prior to the Effective Date will be deemed for
all corporate purposes to evidence ownership of an outstanding option,
warrant or right to acquire shares of Asia Common Stock, on the same terms
and conditions as in effect immediately prior to the Effective Date, except
that the exercise price and the number of shares of Asia common stock
underlying each option, warrant or other right will be adjusted to reflect
the 1 for 30 conversion ratio. In the event such conversion ratio results
in the issuance of a partial share of Asia Common Stock to any such holder
upon exercise of such options, warrants or rights, the number of shares of
Asia Common Stock issued to such holder upon exercise shall be rounded up
to the next whole share of Asia Common Stock.
b. Certificates representing Technologies Common Stock will be
replaced after the Effective Date only when submitted to the transfer agent
with a request that they be so replaced or when they are presented for
transfer.
c. If any holder of an outstanding certificate or certificates
representing Technologies Common Stock shall deliver to the Surviving
Corporation such affidavits, indemnity agreements or surety bonds as Asia
shall reasonably require in conformity with its customary procedure with
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respect to lost stock certificates, the Surviving Corporation shall treat
such delivery as surrender of any lost or misplaced or destroyed
certificate or certificates representing Technologies Common Stock.
3. Books and Records. The assets and liabilities of Technologies shall be
taken up on the books of the Surviving Corporation at the amount at which they
shall at that time be carried on the books of Technologies, subject to such
adjustments, if any, as may be necessary to conform to the Surviving
Corporation's accounting procedures.
4. Rights of Surviving Corporation. All of the rights, privileges,
immunities, powers and purposes of Technologies, all property, whether real,
personal and mixed, of Technologies, and all debts due to Technologies on
whichever account shall be vested in the Surviving Corporation, and all property
rights, privileges, immunities, powers and purposes and all and every other
interest shall be thereafter as effectually the property of the Surviving
Corporation as they were of Technologies, and all debts, liabilities,
obligations and duties of Technologies shall thenceforth attach to the Surviving
Corporation and may be enforced against it to the same extent as if said debts,
liabilities, obligations and duties had been incurred or contracted by it.
5. Further Assurances. The parties shall each take all such reasonable and
lawful action as may be necessary or appropriate in order to effectuate the
Merger as promptly as possible.
III. TECHNOLOGIES' REPRESENTATIONS AND WARRANTIES
As an inducement to Asia to enter into this Agreement and to consummate the
transactions contemplated herein, and with knowledge that Asia will rely
thereon, Technologies represents and warrants to Asia as follows:
1. Organization, Authority and Good Standing. Technologies is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Technologies has full corporate power and authority to make,
execute and perform this Agreement and the transactions contemplated hereby.
This Agreement is a valid and binding obligation of Technologies enforceable in
accordance with its terms.
2. Capitalization. The authorized capital stock of Technologies on the
Effective Date will consist of 30,000,000 shares of Technologies Common Stock
and 25,000,000 shares of Technologies $0.01 par value Preferred Stock. As of the
date hereof, 15,560,262 shares of Technologies Common Stock and no shares of
Technologies Preferred Stock are validly issued, fully paid and nonassessable.
3. Litigation. No litigation or proceeding is pending or threatened
relating to Technologies, which if adversely determined, would have an adverse
effect on or interfere in any way with the transactions contemplated under this
Agreement.
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4. No Further Representations and Warranties. Technologies makes no further
representations or warranties with respect to this Agreement or otherwise.
IV. ASIA'S REPRESENTATIONS AND WARRANTIES
As an inducement to Technologies to enter into this Agreement and to
consummate the transactions contemplated herein, and with knowledge that
Technologies will rely thereon, Asia represents and warrants to Technologies as
follows:
1. Organization, Authority and Good Standing. Asia is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Colorado. Asia has full corporate power and authority to make, execute and
perform this Agreement and the transactions contemplated hereby. This Agreement
is a valid and binding obligation of Asia enforceable in accordance with its
terms.
2. Capitalization. The authorized capital stock of Asia on the Effective
Date will consist of 900,000,000 shares of Asia Common Stock and 300,000,000
shares of Asia $0.001 par value preferred stock ("Asia Preferred Stock"). As of
the date hereof, 1,000 shares of Asia Common Stock are validly issued, fully
paid and nonassessable and no shares of Asia Preferred Stock are issued.
3. Litigation. No litigation or proceeding is pending or threatened
relating to Asia which if adversely determined, would have an adverse effect on
or interfere in any way with the transactions contemplated under this Agreement.
4. No Further Representations and Warranties. Asia makes no further
representations or warranties with respect to this Agreement or otherwise.
V. CONDITIONS
1. Conditions to Obligations of Each Party to Effect the Merger. The
respective obligations of each party to effect the Merger shall be subject to
the fulfillment or waiver at or prior to the Effective Date of the following
conditions:
a. Shareholder Approval. The Merger pursuant to the terms of this
Agreement shall have been approved and adopted by the requisite vote of the
shareholders of Technologies in accordance with Section 252 of the Delaware
Law and by the requisite vote of the shareholders of Asia in accordance
with Section 7-111-103 of the Colorado Law.
b. Representations and Warranties. The representations and warranties
of Technologies and Asia contained herein shall be true and accurate as of
the Effective Date.
c. Form of Documents. All actions to be taken by the parties in
connection with the consummation of the transactions contemplated hereby
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and all documents required to effect the transactions contemplated hereby
shall be satisfactory in form and substance to the other party.
VI. MISCELLANEOUS
1. Expenses. Technologies shall pay all costs and expenses incurred or to
be incurred in preparing this Agreement and the related documents and carrying
out the transactions contemplated by this Agreement.
2. Brokers' Fees. Each party hereto represents and warrants that it has not
utilized the services of, and that it does not and will not have any liability
to, any broker or finder in connection with this Agreement or the transactions
contemplated hereby.
3. Binding Effect. This Agreement shall be binding upon the successors and
assigns of the respective parties hereto.
4. Headings. The subject headings of the articles, sections, paragraphs and
subparagraphs of this Agreement are included for purposes of convenience only
and shall not affect the construction or interpretation of any of its
provisions.
5. Waivers. Any party to this Agreement may waive any right, breach or
default which it has the right to waive; provided that such waiver will not be
effective against the waiving party unless it is in writing and specifically
refers to this Agreement. No waiver will be deemed to be a waiver of any other
matter, whenever occurring and whether identical, similar or dissimilar to the
matter waived.
6. Entire Agreement. This Agreement, including the other documents referred
to herein which form a part hereof, embodies the entire agreement and
understanding of the parties hereto in respect to the subject matter contained
herein. There are no restrictions, promises, warranties, covenants or
undertakings, other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings among the parties
with respect to such subject matter.
7. Governing Law. This Agreement shall be construed in accordance with, and
governed by, the laws of the State of Colorado.
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IN WITNESS WHEREOF, the parties to this Agreement have duly executed it
effective as of the day and year first above written.
POWERSOFT TECHNOLOGIES INC.,
a Delaware corporation
By: /s/ Fai H. Chan
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Fai H. Chan, President
ASIA SUPERNET CORPORATION,
a Colorado corporation
By: /s/ Fai H. Chan
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Fai H. Chan, President
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