Exhibit 2.3
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER (this "Agreement") is made as of the 31st
day of July, 2002, by and between Interactive MOTORSPORTS AND ENTERTAINMENT
CORP., an Indiana corporation ("IMEC"), and PACIFIC INTERNATIONAL HOLDINGS,
INC., a Utah corporation ("PIH") (PIH and IMEC are collectively referred to
herein as the "Parties").
RECITALS
1. PIH is duly organized and validly existing as a corporation under the Utah
Revised Business Corporation Act (the "URBCA"). IMEC is duly organized and
validly existing as a corporation under the Business Corporation Law of
Indiana (the "IBCL"). PIH is the parent corporation and sole shareholder of
IMEC.
2. PIH, IMEC, Perfect Line, Inc., an Indiana corporation ("Perfect Line"), and
shareholders of Perfect Line have entered into an Agreement and Plan of
Reorganization, dated as of July 31, 2002 (the "Reorganization
Agreement"). Pursuant to the Reorganization Agreement, Perfect Line will
become a wholly owned subsidiary of PIH (the "Reorganization").
3. In connection with the Reorganization, the Parties agreed to enter into an
agreement providing for the merger of PIH into IMEC contemporaneous with
the Reorganization such that Perfect Line will become a wholly owned
subsidiary of IMEC.
4. The authorized capital stock of IMEC consists of 200,000,000 shares of
common stock, $0.0001 par value per share ("IMEC Common Stock"), and
10,000,000 shares of preferred stock, $0.0001 par value per share ("IMEC
Preferred Stock").
5. The authorized capital stock of PIH consists of 200,000,000 shares of
common stock, $0.0001 par value per share ("PIH Common Stock"), and
10,000,000 shares of preferred stock, $0.0001 par value per share ("PIH
Preferred Stock").
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Parties do hereby covenant and agree as
follows:
Section 1. The Merger. At the Effective Time (as such term is hereinafter
defined), in accordance with the provisions of the URBCA, the IBCL and the terms
of this Agreement, PIH will be merged with and into IMEC (the "Merger") with
IMEC surviving the Merger (the "Surviving Corporation"). The Merger shall have
all of the effects provided by the URBCA and the IBCL, as applicable.
Section 2. Effective Time of the Merger. The Merger shall become effective
(the "Effective Time") on the day and at the time that the later of the
following occurs: (i) the appropriate Articles of Merger shall have been
executed and filed in the office of the Secretary of State of the State of Utah,
pursuant to the applicable provisions of the URBCA; (ii) the appropriate
Articles of Merger shall have been executed and filed in the office of the
Secretary of State of Indiana, pursuant to the applicable provisions of the
IBCL; (iii) or the Reorganization becomes effective.
Section 3. Articles of Incorporation, By-Laws, Directors and Officers.
(a) The Articles of Incorporation of IMEC as in effect immediately
prior to the Effective Time shall be the Articles of Incorporation of the
Surviving Corporation from and after the Effective Time until further
amended in accordance with the laws of the State of Indiana.
(b) The By-Laws of IMEC as in effect immediately prior to the
Effective Time shall be the By-Laws of the Surviving Corporation from and
after the Effective Time until further amended in accordance with the laws
of the State of Indiana, the Articles of Incorporation and the By-Laws of
the Surviving Corporation.
(c) The directors and officers of IMEC in office immediately prior to
the Effective Time shall be the directors and officers of the Surviving
Corporation from and after the Effective Time, and each shall hold his
respective office or offices from and after the Effective Time until his
successor shall have been elected and qualified or as otherwise provided in
the By-Laws of the Surviving Corporation.
Section 4. Manner and Basis of Converting Stock.
(a) At the Effective Time and immediately after the Reorganization, by
virtue of the Merger, without any further action being required:
(i) Each share of PIH Common Stock that shall be outstanding
immediately after the Reorganization, by virtue of the Merger and
without any other action being required, shall be cancelled and
converted into four (4) shares of IMEC Common Stock;
(ii) Each share of PIH Preferred Stock that shall be outstanding
immediately after the Reorganization, by virtue of the Merger and
without any other action being required, shall be cancelled and
converted into four (4) shares of IMEC Preferred Stock;
(iii) Any shares of PIH Common Stock or PIH Preferred Stock held
in the treasury of PIH immediately prior to the Effective Time shall
be cancelled; and
(iv) Each option of PIH for the purchase of PIH Common Shares
that shall be outstanding immediately prior to the Effective Time
shall be converted into an Option for the purchase of IMEC Common
Shares on the terms provided in the respective option.
(b) Within a reasonable time after the Effective Time, IMEC shall
issue certificates to the holders of shares of PIH Common Stock that were
outstanding immediately after the Reorganization which represent the shares
of IMEC Common Stock into which such shares of PIH Common Stock were
converted at the Effective Time.
(c) Within a reasonable time after the Effective Time, IMEC shall
issue certificates to the holders of shares of PIH Preferred Stock that
were outstanding immediately after the Reorganization which represent the
shares of IMEC Common Stock into which such shares of PIH Preferred Stock
were converted at the Effective Time.
(d) All shares of IMEC Common Stock issued and outstanding before the
Effective Time shall be automatically cancelled and deemed surrendered by
virtue of the Merger at the Effective Time, and the subscription price
therefor shall be reimbursed or forgiven to PIH, as applicable.
Section 5. Approvals. PIH represents and warrants to IMEC that this
Agreement and the Merger have been duly approved by the board of directors and
shareholders of PIH in accordance with applicable law and the Articles of
Incorporation and Bylaws of PIH. IMEC represents and warrants to PIH that this
Agreement and the Merger have been duly approved by the board of directors and
shareholders of IMEC in accordance with applicable law and the Articles of
Incorporation and Bylaws of IMEC.
Section 6. Certain Effects of the Merger. The separate existence and
organization of PIH shall cease at the Effective Time except insofar as it may
be continued by law, and thereupon PIH and IMEC shall be a single Corporation,
sometimes hereinafter referred to as the Surviving Corporation. At the Effective
Time, the Surviving Corporation shall thereupon and thereafter possess all
rights, privileges, powers and franchises, both public and private in nature,
and all the property, real, personal and mixed, and all debts due on whatever
account, including, subscriptions for shares, and all other things in action or
belonging to PIH shall be vested in the Surviving Corporation, and all property,
rights, privileges, powers and franchises, and every other interest shall be
thereafter the property of the Surviving Corporation. All rights of creditors
and all liens upon any property of PIH shall be preserved unimpaired, and all
debts, liabilities, and duties of PIH shall attach to the Surviving Corporation
and may be enforced against it to the same extent as if those debts,
liabilities, and duties had been incurred or contracted by it.
IN WITNESS WHEREOF, each of the Parties has caused this Plan and Agreement
of Merger to be executed as of the date first written above.
INTERACTIVE MOTORSPORTS AND ENTERTAINMENT CORP.,
an Indiana corporation
By /s/ Xxxxxxx X. Xxxxxxxxx
Printed: Xxxxxxx X. Xxxxxxxxx
Its: CEO
PACIFIC INTERNATIONAL HOLDINGS, INC.,
an Utah corporation
By /s/ Kitty Chow
Printed: Kitty Chow
Its: President
