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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Left Right Marketing Technology Inc

Date:

2007

Size:

129KB total

Price:

$44

ID:

#2931323

► Plans ► Agreements ► Agreements & Plans of Merger

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EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (the ?Agreement?) dated as of July 24, 2007, is by and among, Power Play Development Corporation, a corporation duly organized under the laws of the State of Nevada and having its principal offices at 2 Watson Place, Building 3, Framingham, Massachusetts 01701 (?Power Play? or the ?Terminating Corporation?), Strategic Gaming Investments, Inc., a corporation duly organized under the laws of the State of Delaware and having its principal offices at 2580 Anthem Village Drive, Henderson, Nevada 89052 (?SGI? or the ?Surviving Corporation?) and the stockholders of Power Play and SGI identified herein (the ?Principal Stockholders?).

Whereas, the respective boards of directors of Power Play and SGI have approved and declared advisable this Agreement and the merger of Power Play with and into SGI (the ?Merger?), upon the terms and conditions in this Agreement.

Whereas, it is intended by the parties that the Merger qualify as a reorganization under the provisions of Section 368(a) of the United States Internal Revenue Code of 1986, as amended (the ?Code?), and the rules and regulations promulgated thereunder and that the Agreement constitute a plan of reorganization.

NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations and warranties contained in this Agreement, the receipt and sufficiency of which is hereby acknowledged, accepted and agreed to, the parties hereto, intending to be legally bound, hereby agree as follows:

Section 1. Definitions.

The capitalized terms used in this Agreement have the meanings as indicated below in this Section 1.

(a)	?Agreement? means this Agreement and Plan of Merger.

(b)	?Closing? has the meaning ascribed to it by Section 2(c).

(c)	?Effective Date? has the meaning ascribed to it by Section 2(c).

(d)	?Effective Time? has the meaning ascribed to it by Section 2(c).

(e)	?Merger Consideration? has the meaning ascribed to it by Section 2(g).

(f)	?Power Play? means Power Play Development Corporation, a corporation duly organized under the laws of the State of Nevada and having its principal offices at 2 Watson Place, Building 3, Framingham, Massachusetts 01701.

(g)	?Preferred Stock? means 25,000,000 shares of preferred stock of Strategic Gaming Investments, Inc.

(h)	?SGI? means Strategic Gaming Investments, Inc., a corporation duly organized under the laws of the State of Delaware and having its principal offices at 2580 Anthem Village Drive, Henderson, Nevada 89052.

(i)	?Surviving Corporation? means Strategic Gaming Investments, Inc.

(j)	?Terminating Corporation? means Power Play Development Corporation.

Section 2. The Merger.

(a) Merger. Upon the terms and conditions set forth herein and in accordance with applicable Delaware and Nevada law, at the Effective Time (as defined herein), Power Play shall be merged with and into SGI. As a result of the Merger, the separate corporate existence of Power Play shall cease and SGI shall continue as the surviving corporation of the Merger. SGI, in its capacity as the corporation surviving the Merger, is hereinafter sometimes referred to as the ?Surviving Corporation.?

(b) Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in the applicable provisions of Delaware and Nevada law. Without limiting the generality of the foregoing, at the Effective Time, and except as otherwise provided herein, all the property, rights and privileges, powers, immunities and franchises of Power Play and SGI shall vest in the Surviving Corporation, and all debts, liabilities, obligations, restrictions and duties of Power Play and SGI shall become the debts, liabilities and duties of the Surviving Corporation.

(c) Closing of Merger. The closing of the Merger (the ?Closing?) shall take place on the first business day after the satisfaction or waiver (subject to applicable laws) of all of the conditions in this Agreement, unless this Agreement has been terminated pursuant to its terms or unless another time or date is agreed to in writing by the parties to this Agreement, (the actual date of Closing being referred to herein as the ?Closing Date?). The Closing shall be held in the offices of Power Play or such other place and in such other manner as the parties agree or may take place remotely by the exchange of executed documents. As soon as practicable on or after the Closing Date, the parties hereto shall cause the Merger to be consummated by filing the necessary documentation in the States of Nevada and Delaware in the form of those certificates attached hereto as Exhibits A and B (the date and time all such filings are accepted, or if another date and time is specified in such filings, such specified date and time, being respectively the ?Effective Date? and the ?Effective Time). In addition, as soon as practicable following the Closing Date, a certificate of dissolution shall be filed with the Secretary of State of Nevada to dissolve Power Play.

(d) Certificate of Incorporation. At the Effective Time and without further action on the part of SGI and Power Play, the Certificate of Incorporation of SGI, as may be amended or restated, as in effect at the Effective Time shall be the Certificate of Incorporation of the Surviving Corporation until thereafter and further amended as provided therein and under applicable Delaware law.

(e) Bylaws. At the Effective Time and without further action on the part of SGI and Power Play, the Bylaws of SGI, as may be amended or restated, as in effect at the Effective Time shall be the Bylaws of the Surviving Corporation until thereafter and further amended or repealed in accordance with their terms or the Certificate of Incorporation and Bylaws of the Surviving Corporation and under applicable Delaware law.

(f) Directors and Officers of the Surviving Corporation. The initial directors of the Surviving Corporation shall be Michael Clebnik, Alan Miller, Roy Evans, Kevin Vonasek, Lawrence S. Schroeder and Anthony Marsiglia (the ?Surviving Corporation Initial Directors?), each to hold office in accordance with the Certificate of Incorporation and Bylaws of the Surviving Corporation. Lawrence S. Schroeder shall serve as Chairman of the Board. The officers of the Surviving Corporation shall be as follows: President, Lawrence S. Schroeder; Chief Executive Officer, Michael Clebnik; Treasurer, Roy Evans; Executive Vice President, Alan Miller and Secretary, Peter B. Finn, each to hold office in accordance with the Certificate of Incorporation and Bylaws of the Surviving Corporation. The parties acknowledge and agree that the Surviving Corporation shall have a Board of Directors consisting of seven (7) members, and that the remaining vacancy on the Board of Directors shall be appointed by the unanimous agreement of the Surviving Corporation Initial Directors. At or prior to the Effective Time, SGI shall take all action necessary so that, all current directors and officers not named in this Section 2(f) shall concurrently therewith resign.

(g) Conversion of Securities. At the Effective Time, by virtue of the Merger and without any action on the part of Power Play, SGI or the holders of any of the following securities, every one (1) share of Power Play common stock issued and outstanding immediately prior to the Effective Time shall be converted into the right to receive that number of shares of SGI common stock (?Merger Consideration?) as determined by the following formula:

[ (B / 0.3 ) - B] / A

A = # of outstanding shares of Power Play common stock, as well as shares of common stock underlying all outstanding options, warrants and other convertible securities, and

B = # of outstanding shares of SGI common stock, as well as shares of common stock underlying all outstanding options, warrants and other convertible securities.

All such shares of Power Play common stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and any right to receive a certificate representing such shares shall thereafter represent the right to receive the Merger Consideration payable in respect of such shares of Power Play common stock. All of the SGI common stock issued and outstanding as of the Closing Date shall remain unchanged.

(h) Power Play Stock Options and Warrants. At the closing, SGI shall automatically and without further action assume all options and warrants to acquire shares of Power Play stock that are outstanding immediately prior to the Effective Time (the ?Power Play Stock Options?). With respect to each share of Power Play common stock for which each Power Play Stock Option was exercisable immediately prior to the Effective Time, each Power Play Stock Option shall, immediately following the Effective Time, be deemed to be exercisable for that number of shares of SGI common stock as determined by the following formula:

[ (B / 0.3 ) - B] / A

A = # of outstanding shares of Power Play common stock, as well as shares of common stock underlying all outstanding options, warrants and other convertible securities, and

B = # of outstanding shares of SGI common stock, as well as shares of common stock underlying all outstanding options, warrants and other convertible securities.

The exercise price per share for each SGI Stock Option shall be established in accordance with the formula set forth immediately above so that the aggregate exercise price of all SGI Stock Options issued to holders of Power Play Stock Option shall remain unchanged. No fractional shares shall be issued upon the exercise of any Power Play Stock Option. In the event any Power Play Stock Option is, as a result of the Merger, exercisable for any fractional share, the number of shares for which the Power Play Stock Option is exercisable shall be rounded down to the nearest whole number.

(i) Exchange of Certificates. Promptly after the Effective Time, SGI shall instruct its transfer agent to mail to each Power Play stockholder a certificate or certificates representing shares of SGI common stock in satisfaction of the Merger Consideration. On or following the Effective Time, any right of a Power Play stockholder to receive a certificate representing the shares of Power Play common stock shall be deemed at any time after the Effective Time to represent only the right to receive the shares of SGI common stock that would otherwise be represented by such certificate. The shares of SGI common stock issued upon conversion of the shares of Power Play common stock in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such shares of Power Play common stock. No stock certificates representing the Merger Consideration and containing fractional shares shall be issued to Power Play stockholders. In lieu of any fractional shares that otherwise would have been issued, the shares of SGI common stock representing the Merger Consideration shall be rounded down to the nearest whole number.

(j) Taking of Necessary Action; Further Action. If at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement and to vest the Surviving Corporation with full right, title and possession to all assets, property, rights, privileges, powers and franchises of SGI and Power Play, the officers and directors of SGI are fully authorized to take, and will take, all such lawful and necessary action, so long as such action is not inconsistent with this Agreement.

(k) Dissenting Shares. Any shares of common stock of Power Play with respect to which a proper written demand for appraisal has been made in accordance with the Nevada Revised Statutes and which demand for appraisal has not been withdrawn prior to the Closing (each such share being referred to herein as a ?Dissenting Share?) shall not be converted into the right to receive a portion of the Merger Consideration as provided above, but rather each holder of Dissenting Shares shall be entitled to receive payment of the appraised value of such Dissenting Shares from the Surviving Corporation in accordance with the Nevada Revised Statutes. If any holder of Dissenting Shares shall thereafter withdraw such demand for appraisal or lose the right to such payment as provided by the Nevada Revised Statutes, each such Dissenting Share shall be deemed converted into the right to receive a portion of the Merger Consideration in the manner provided for in this Article 2.

(l) Notice of Dissenting Shares. Power Play will provide SGI with written notice promptly upon receipt of any written demand made by any shareholder for appraisal with respect to the Merger, any withdrawal of such demand, and any other instruments served upon SGI.

(m) Other. Simultaneous with the closing of the Merger, the Surviving Corporation shall use its best commercially reasonable efforts to enter into consulting agreements with Anthony Marsiglia (or Responsive Marketing Communications, Inc.), Ben Magee and Anthony Humphries on mutually acceptable terms and conditions.

Section 3. Representations and Warranties of SGI.

SGI hereby represents warrants and covenants as follows:

(a) Organization and Good Standing and Subsidiaries. SGI is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. SGI has the power and authority to carry on its business as presently conducted and presently proposed to be conducted, and is qualified to do business in all jurisdictions where the failure to be so qualified would have a material adverse effect on its business. Except as noted on Schedule 3(a): (i) SGI does not have any subsidiaries or own any direct or indirect interest in any capital stock, membership interest, joint venture interest or other equity interest in any other person and (ii) SGI does not have any investment in, loan to or material advance of cash or other extension of cash to any entity or individual, other than receivables of customers generated in the ordinary course of business.

(b) Authority; Conflicts. Other than approval of the Merger by SGI?s stockholders, SGI has the necessary power and authority to execute, deliver and perform this Agreement and any related agreements to which it will become a party. Other than approval of the Merger by SGI?s stockholders, the execution, delivery and performance of this Agreement by SGI and any related agreement to which SGI will become a party have been duly and validly authorized by all necessary corporate action. This Agreement has been duly executed and delivered by SGI and constitutes the valid and binding obligation of SGI, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors? rights generally and by equitable principles. The execution and delivery of this Agreement by SGI, and the consummation of the transaction contemplated hereby, do not violate any State, governmental or corporate restrictions governing these transactions. The execution and performance of this Agreement, ultimately effecting a change in control of SGI, will not constitute a breach of or a default under, result in the termination, amendment, suspension, modification, abandonment or acceleration of payment (or any right to terminate) or require a consent of another party under any agreement, indenture, mortgage, license or other instrument or document to which SGI is known by SGI to be a party and will not violate any judgment, decree, order, writ, rule, statute, or regulation applicable to SGI or its properties. The execution and performance of this Agreement will not violate or conflict with any provision of the laws of the State of Nevada, the laws of the State of Delaware, laws of the United States of America or the organizational documents of SGI that would have a material adverse effect on SGI or its properties.

(c) Approval of Merger; Meeting of Stockholders. SGI hereby represents and warrants that its board of directors has, by resolutions duly adopted, unanimously approved this Agreement and the transactions contemplated hereby, and resolved to recommend approval of the Merger by the SGI stockholders. None of the resolutions described in this Section 3(c) has been amended or otherwise modified in any respect since the date of adoption thereof and all such resolutions remain in full force and effect.

(d) Capitalization. The authorized capital stock of the SGI consists of 100,000,000 shares of common stock, of which 9,572,137 shares are issued and outstanding as of June 27, 2007, and 25,000,000 shares of Preferred Stock, of which no shares are issued and outstanding. Schedule 3(d) lists the names and addresses of each record holder of the issued and outstanding common stock of SGI, the number of shares held by each such holder. All issued and outstanding shares of SGI?s common stock are duly authorized, validly issued, fully paid and non-assessable, free of preemptive rights or any other third-party rights and in certificated form, and have been offered, sold and issued by SGI in compliance with applicable securities and corporate laws, contracts applicable to SGI and SGI?s organizational documents and in compliance with any preemptive rights, rights of first refusal or similar rights. The SGI Stock Option Plan (?SGI Option Plan?) pursuant to which 7,000,000 shares of SGI common stock may be issued pursuant to the exercise of options granted thereunder is in full force and effect (subject only to approval of a majority of the stockholders of SGI at the upcoming special meeting of stockholders to be held in conjunction with the transaction with Power Play) and is the only stock option plan approved for the issuance of SGI stock. A copy of the SGI Option Plan is attached hereto as Exhibit ?C.? Except as noted on Schedule 3(d), there is no option plan, option, warrant, call, subscription, convertible security, right (including preemptive right) or contract of any character to which SGI is a party or by which SGI is bound obligating SGI to issue, exchange, transfer, sell, repurchase, redeem or otherwise acquire any shares of capital stock of SGI or obligating SGI to grant or enter into any option, warrant, call, subscription, convertible security, right or contract. Except as set forth on Schedule 3(d), there are no registration rights, no voting trust, proxy or other contract and no restrictions on transfer with respect to any capital stock of SGI.

(e) Financial Statements; Books and Records. SGI will provide audited financial statements as of December 31, 2006 and reviewed financial statements as of June 30, 2007, (collectively, the ?SGI Financial Statements?) to Power Play by the Closing Date or such earlier date as may be practicable. These SGI Financial Statements shall fairly represent the financial position of SGI at those dates and the results of their operations for the periods then ended. The SGI Financial Statements will be prepared in accordance with accounting principles generally accepted in the United States applied on a consistent basis with prior periods, except as otherwise stated therein. The books of account and other financial records of SGI are complete and correct in all material respects and are maintained in accordance with good business and accounting practices. The minute books and stock or equity records of SGI, all of which have been made available to Power Play, are complete and correct. The minute books of SGI contain accurate records of all meetings held and actions taken by the holders of stock or equity interests, the board of directors and committees of board of directors or other governing bodies of SGI, and no meeting of any such holders, boards of directors or other governing bodies or committees has been held for which minutes are not contained in such minute books.

(f) No Material Adverse Changes. Except as described on Schedule 3(f), since December 31, 2006, there has not been:

(i) any material adverse changes in the financial position or operations of SGI except changes arising in the ordinary course of business, which changes will in no event materially and adversely affect the financial position of SGI;

(ii) any damage, destruction or loss materially affecting the assets, prospective business, operations or condition (financial or otherwise) of SGI whether or not covered by insurance;

(iii) any declaration setting aside or payment of any dividend or distribution with respect to any redemption or repurchase of SGI common stock, other than as agreed upon among the parties;

(iv) any sale of an asset (other than for fair consideration in the ordinary course of business) or any mortgage pledge by SGI of any properties or assets;

(v) adoption of any pension, profit sharing, retirement, stock bonus, stock option or similar plan or arrangement;

(vi) except in the ordinary course of business, incurred or assumed any indebtedness or liability, whether or not currently due and payable;

(vii) any loan or advance made to any SGI stockholder, officer, director, employee, consultant, agent or other representative or made any other loan or advance otherwise than in the ordinary course of business;

(viii) any material increase in the annual level of compensation of any director or executive employee of SGI;

(ix) any modification of any existing contract, agreement or transaction;

(x) any acceleration, suspension, termination, modification or cancellation of any material contract (or series of related contracts) to which SGI is a party or is bound;

(xi) any lien, claim or encumbrance imposed on any assets of SGI;

(xii) any capital expenditure (or series of related capital expenditures) or outside the ordinary course of business involving SGI;

(xiii) any issuance of any note, bond or other debt security or created, incurred, assumed or guaranteed any indebtedness for borrowed money (including advances on existing credit facilities, if any) or capitalized lease obligation outside the ordinary course of business involving SGI;

(xiv) any delay, postponement or acceleration of the payment of accounts payable or other liabilities or the receipt of any account receivable, in each case outside the ordinary course of business;

(xv) any cancellation, comprise, waiver or release of any right or claim (or series of related rights or claims) outside the ordinary course of business;

(xvi) any change made or authorized in the organizational documents of SGI;

(xvii) any change in accounting principles or practices from those utilized in the preparation of the SGI Financial Statements; or

(xviii) any commitment by SGI to take any of the actions described in this Section 3(f).

(g) Approvals and Permits. With the exception of any required filings with the United States Securities and Exchange Commission (the ?SEC?) or applicable state securities commissions relating to this Agreement, no approval, authorization, consent, order or other action of, or filing with, any person, firm or corporation or any court, administrative agency or other governmental authority is required in connection with the execution and delivery of this Agreement by SGI for the consummation of the transactions described herein, other than as set forth on Schedule 3(g); and SGI is in possession of all permits, consents, licenses, approvals needed for the operation or maintenance of its business as presently constituted and conducted.

(h) Actions and Proceedings. SGI is not a party to any pending litigation or, to the knowledge of SGI, after reasonable inquiry, any governmental investigation or proceeding not reflected in the SGI Financial Statements and, to its best knowledge, no litigation, claims, assessments or non-governmental proceedings are threatened against SGI except as set forth on Schedule 3(h) of this Agreement and in SGI?s periodic reports filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended. SGI is also not subject to any outstanding governmental order.

(i) Taxes. Except as set forth on Schedule 3(i), SGI has timely filed (or has had timely filed on its behalf) all tax, governmental and/or related forms and reports (or extensions thereof), all of which were correct and complete in all respects, due or required to be filed and has paid or made adequate provisions in the SGI Financial Statements for all taxes or assessments which were due, and there are no deficiency or audit notices outstanding. SGI has complied with all laws relating to the withholding of taxes and the payment thereof and timely and properly withheld from individual employee wages and paid over to the proper governmental entity all amounts required to be so withheld and paid over under applicable law. No extensions of time for the assessment of deficiencies for any tax period is in effect. No deficiency or audit notice is proposed or, to the knowledge of SGI, after reasonable inquiry, threatened against SGI. There are no liens, claims or encumbrances for taxes upon any assets of SGI.

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