EXHIBIT 2.1
FORM OF
AGREEMENT AND PLAN OF MERGER
OF INTERPLAY ENTERTAINMENT CORP.,
A DELAWARE CORPORATION
AND
INTERPLAY PRODUCTIONS,
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER, dated as of ________________, 1998 (this
"Agreement"), is between Interplay Entertainment Corp., a Delaware corporation
("Subsidiary"), and Interplay Productions, a California corporation ("Parent"),
which corporations are sometimes referred to herein as the "Constituent
Corporations."
R E C I T A L S
A. Subsidiary is a corporation duly organized and existing under the laws
of the State of Delaware and has an authorized capital of 55,000,000 shares,
50,000,000 of which are designated "Common Stock," $0.001 par value, and
5,000,000 of which are designated "Preferred Stock," $0.001 par value. As of
March 2, 1998, 1,000 shares of Common Stock were issued and outstanding, all of
which were held by Parent. No shares of Preferred Stock were outstanding.
B. Parent is a corporation duly organized and existing under the laws of
the State of California and has an authorized capital of 90,000,000 shares, all
of which are designated "Common Stock," no par value. As of , 1998,
_______ shares of Common Stock were outstanding.
C. The Board of Directors of Parent has determined that, for the purpose
of effecting the reincorporation of Parent in the State of Delaware, it is
advisable and in the best interests of Parent and its shareholders that Parent
merge with and into Subsidiary upon the terms and conditions herein provided.
D. The respective Boards of Directors of Subsidiary and Parent have
approved this Agreement and have directed that this Agreement be submitted to a
vote of their respective stockholders and executed by the undersigned officers.
NOW, THEREFORE, in consideration of the mutual agreements and covenants set
forth herein, Subsidiary and Parent 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 California General Corporation Law,
Parent shall be merged with and into Subsidiary (the "Merger"), the separate
existence of Parent shall cease and Subsidiary shall be, and is herein sometimes
referred to as, the "Surviving Corporation," and the name of the Surviving
Corporation shall be "Interplay Entertainment Corp."
1.2 FILING AND EFFECTIVENESS. The Merger shall become effective when the
following actions have been completed:
(a) This Agreement has been adopted and approved by the stockholders
of each Constituent Corporation in accordance with the requirements of the
Delaware General Corporation Law and the California General Corporation
Law;
(b) All of the conditions precedent to the consummation of the Merger
specified in this Agreement have been satisfied or duly waived by the party
entitled to satisfaction thereof; and
(c) An executed Certificate of Merger or an executed counterpart of
this Agreement meeting the requirements of the Delaware General Corporation
Law has been filed with the Secretary of State of the State of Delaware.
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 and corporate organization of Parent shall cease and
Subsidiary, as the Surviving Corporation, shall continue its corporate existence
under the laws of the State of Delaware.
II.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
Subsidiary as in effect immediately before 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 or repealed in accordance with the
provisions thereof and applicable law.
2.2 BYLAWS. The Bylaws of Subsidiary as in effect immediately before the
Effective Date of the Merger shall continue in full force and effect as the
Bylaws of the Surviving Corporation until duly amended or repealed in accordance
with the provisions thereof and applicable law.
2.3 DIRECTORS AND OFFICERS. The directors and officers of Parent
immediately before the Effective Date of the Merger shall be the directors and
officers of the Surviving Corporation until the expiration of their current
terms and until their successors have been duly elected and qualified, or
until
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their prior resignation, removal or death, subject to the Certificate of
Incorporation and the Bylaws of the Surviving Corporation.
III.
MANNER OF CONVERSION OF STOCK
3.1 PARENT SHARES. Upon the Effective Date of the Merger:
(a) Each share of Common Stock, no par value of Parent, issued and
outstanding immediately before the Effective Date of the Merger shall by virtue
of the Merger and without any action by the Constituent Corporations, by the
holder of such shares or by any other person be converted into and exchanged for
one (1) fully paid and nonassessable shares of Common Stock, $0.001 par value,
of the Surviving Corporation.
3.2 PARENT OPTIONS. Upon the Effective Date of the Merger, the Surviving
Corporation shall assume and continue Parent's 1997 Stock Incentive Plan and all
other employee benefit plans of Parent. A number of shares of the Surviving
Corporation's Common Stock shall be reserved for issuance upon the exercise of
stock options, equal to the number of shares of Parent's Common Stock so
reserved immediately before the Effective Date of the Merger.
3.3 SUBSIDIARY COMMON STOCK. Upon the Effective Date of the Merger, each
share of Common Stock, $0.001 par value, of Subsidiary issued and outstanding
immediately before the Effective Date of the Merger shall, by virtue of the
Merger and without any action by Subsidiary, by the holder of such shares or by
any other person be canceled 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 Common Stock of
Parent may, at such stockholder's option, surrender the same for cancellation to
the Surviving Corporation or to its transfer 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 Common Stock of Parent shall be deemed for all purposes
to represent the number of shares of the Surviving Corporation's Common Stock,
as adjusted pursuant to Section 3.1 above, into which such shares of Common
Stock of Parent 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 has been surrendered for transfer or conversion or
otherwise accounted for to the Surviving Corporation or the Exchange Agent, have
and be entitled to exercise 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 restrictions on transferability as the
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certificates of Parent so converted and given in exchange therefor, unless
otherwise determined by the Board of Directors of the Surviving Corporation in
compliance with applicable laws.
If any certificate for shares of Subsidiary 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 Subsidiary that such tax has been paid or is not payable.
IV.
TRANSFER OF ASSETS AND LIABILITIES
4.1 TRANSFER OF ASSETS AND LIABILITIES. On the Effective Date, (i) the
rights, privileges, powers and franchises, both of a public as well as of a
private nature, of each of the Constituent Corporations shall be vested in and
possessed by the Surviving Corporation, subject to all the disabilities, duties
and restrictions of or upon each of the Constituent Corporations; (ii) all
rights, privileges, powers and franchises of each of the Constituent
Corporations, all property, real, personal and mixed, of each of the Constituent
Corporations, all debts due to each of the Constituent Corporations on whatever
account and all things in action or belonging to each of the Constituent
Corporations shall be transferred to and vested in the Surviving Corporation;
(iii) all property, rights, privileges, powers and franchises, as well as all
other interests, shall be as effectively the property of the Surviving
Corporation as they were of the Constituent Corporations before the Effective
Date; and (iv) the title to any real estate vested by deed or otherwise in
either of the Constituent Corporations shall not revert to either of the
Constituent Corporations or be in any way impaired by reason of the Merger.
Notwithstanding the foregoing, (i) the liabilities of the Constituent
Corporations and of their stockholders, directors and officers shall not be
affected by the Merger; (ii) all rights of creditors and all liens upon any
property of either of the Constituent Corporations shall be preserved unimpaired
notwithstanding the Merger; and (iii) any claim existing or action or proceeding
pending by or against either of the Constituent Corporations may be prosecuted
to judgment as if the Merger had not taken place; provided, however, that the
claims and rights of the creditors of either or both of the Constituent
Corporations may be modified with the consent of such creditors; and, provided
further, that all debts, liabilities and duties of or upon each of the
Constituent Corporations shall attach to the Surviving Corporation and
accordingly may be enforced against it to the same extent as if such debts,
liabilities and duties had been incurred or contracted by it.
4.2 FURTHER ASSURANCES. From time to time, as and when required by
Subsidiary or by its successors or assigns, there shall be executed and
delivered on behalf of Parent 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 Subsidiary the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of Parent and otherwise to carry out the purposes of this Agreement,
and the officers and directors of Subsidiary are fully authorized in the name
and on behalf of Parent or otherwise to take all such actions and to execute and
deliver all such deeds and other instruments.
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V.
GENERAL
5.1 COVENANTS OF SUBSIDIARY. Subsidiary covenants and agrees that it
will, on or before the Effective Date of the Merger:
(a) Qualify to do business as a foreign corporation in the State of
California and in connection therewith irrevocably appoint an agent for
service of process as required under the provisions of Section 2105 of the
California General Corporation Law.
(b) File all documents with the California Franchise Tax Board
necessary for the assumption by Subsidiary of all of the franchise tax
liabilities of Parent.
(c) Take such other actions as may be required by the California
General Corporation Law.
5.2 DEFERRAL. Consummation of the merger may be deferred by the Board of
Directors of Parent for a reasonable period of time if the Board of Directors
determines that deferral would be in the best interests of Parent and its
shareholders.
5.3 AMENDMENT. The parties hereto, by mutual consent of their respective
Boards of Directors, may amend, modify or supplement this Agreement in such
manner as may be agreed upon by them in writing at any time before or after
adoption and approval of this Agreement by the stockholders of Subsidiary and
Parent, but not later than the Effective Date; provided, however, that no such
amendment, modification or supplement not adopted and approved by the
stockholders of Subsidiary and Parent shall affect the rights of such
stockholders or change any of the principal terms of this Agreement.
5.4 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 Parent or of Subsidiary, or of
both, notwithstanding the approval of this Agreement by the shareholders of
Parent or by the stockholders of Subsidiary, or by both. In the event of
abandonment of this Agreement, as above provided, this Agreement shall become
wholly void and of no effect, and no liability on the part of either Constituent
Corporation or its Board of Directors or its stockholders shall arise by virtue
of such termination except as provided in Section 5.5 hereof.
5.5 EXPENSES. If the Merger becomes effective, the Surviving Corporation
shall assume and pay all expenses in connection therewith not theretofore paid
by the respective parties. If for any reason the Merger shall not become
effective, Parent shall pay all expenses incurred in connection with all the
proceedings taken in respect of this Agreement or relating thereto.
5.6 REGISTERED OFFICE. The registered office of the Surviving Corporation
in the State of Delaware is located at Corporation Service Company, 0000 Xxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and Corporation Service Company is the
registered agent of the Surviving Corporation at such address.
5.7 AGREEMENT. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at 00000 Xxx Xxxxxx,
Xxxxxx, Xxxxxxxxxx 00000, and, upon
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request and without cost, copies thereof will be furnished to any stockholder of
either Constituent Corporation.
5.8 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
California General Corporation Law.
5.9 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.
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IN WITNESS WHEREOF, this Agreement having first been approved by
resolutions of the Boards of Directors of Subsidiary and Parent is hereby
executed on behalf of each of such two corporations and attested by their
respective officers thereunto duly authorized.
INTERPLAY ENTERTAINMENT CORP.
a Delaware corporation
____________________________________
Xxxxxxxxxxx X. Xxxxxxxxxx,
President
____________________________________
Xxxx X. Xxxxxx, Secretary
INTERPLAY PRODUCTIONS,
a California corporation
____________________________________
Xxxxxxxxxxx X. Xxxxxxxxxx,
President
____________________________________
Xxxx X. Xxxxxx, Secretary
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