1
EXHIBIT 2.02
AGREEMENT OF MERGER
OF
INLAND ACQUISITION CORPORATION
WITH AND INTO
CYBERWORKS, INC.
This Agreement of Merger ("Agreement") is entered into as of August 27,
1998 by and between Cyberworks, Inc., a California corporation ("Cyberworks")
(survivor) and Inland Acquisition Corporation, a Utah corporation ("Acquisition
Corp.") (merging corporation) that is a wholly-owned subsidiary of Inland
Entertainment Corporation, a Utah corporation ("Inland").
1. Effective Date of Merger. Pursuant to the California Corporations
Code and the Utah Revised Business Corporations Act, Acquisition Corp. will be
merged with and into Cyberworks in a reverse triangular merger (the "Merger"),
with Cyberworks to be the surviving corporation of the Merger. The Merger will
be effective (the "Effective Date") on August 27, 1998, the date on which a copy
of this Agreement and all required officers' certificates and other appropriate
documents are filed with the Secretary of State of California.
2. Conversion of Securities.
(a) Conversion of Cyberworks Shares. At the Effective Date, each
share of Cyberworks common stock, $1.00 par value ("Cyberworks Common"),
issued and outstanding immediately prior to the Effective Date, will, by
virtue of the Merger and without further action on the part of any
holder thereof, be converted into the right to receive (i) 750 shares of
fully paid and nonassessable shares of Inland Common Stock, $.001 par
value ("Inland Common Stock"), and (ii) $500.00 cash.
(b) Surrender and Exchange of Outstanding Cyberworks Share
Certificates. Each certificate which immediately before the Effective
Date evidenced shares of Cyberworks Common will, from and after the
Effective Date until such certificate(s) is surrendered to Inland or its
transfer agent, be deemed, for all corporate purposes, to evidence the
right to receive the consideration described above; provided, however,
that until such certificate is so surrendered by Xxxxxxx X. Xxxxxxxx
(the "Shareholder"), no dividend or other distribution payable to the
Shareholder after the Effective Date will be paid in respect of the
shares of Inland Common Stock represented by such certificate. Upon
surrender, all dividends and distributions, if any, therefore declared
and accrued but unpaid in respect of such shares, will be paid. The
Shareholder will be requested to surrender to Inland or its transfer
agent, as soon as practicable after the Effective Date, the certificate
or certificates representing all the shares of Cyberworks Common issued
and outstanding immediately prior to the Effective Date. Upon such
surrender, the Shareholder will be entitled to receive (i)
2
certificate(s) evidencing ownership of the shares of Inland Common Stock
which are deemed to be represented by the certificate or certificates
surrendered, and (ii) cash equal to the amount called for under Section
2(a). As soon as practicable following such surrender Inland, or, with
respect to such certificate(s), its transfer agent, will deliver to the
Shareholder such certificate(s) and the applicable amount of cash.
(c) Conversion of Acquisition Corp. Shares. Each share of
Acquisition Corp. common stock, $.001 par value ("Acquisition Corp.
Common") that is issued and outstanding immediately prior to the
Effective Date, by virtue of the Merger and without further action on
the part of the sole shareholder of Acquisition Corp., will be converted
into and become one (1) share of Cyberworks Common and the shares of
Cyberworks Common into which the shares of Acquisition Corp. Common are
so converted shall be the only shares of Cyberworks Common that are
issued and outstanding immediately from and after the Effective Date.
3. Plan. Inland, Acquisition Corp., Cyberworks and the Shareholder are
parties to the Agreement and Plan of Reorganization dated as of August 25, 1998
(the "Plan"). The Plan and this Agreement are intended to be construed together
in order to effectuate their purposes.
4. Effects of Merger. At the Effective Date: (a) the separate existence
of Acquisition Corp. will cease and Acquisition Corp. will be merged with and
into Cyberworks and Cyberworks will be the surviving corporation pursuant to the
terms of this Agreement; (b) the Articles of Incorporation of Cyberworks will be
amended as attached hereto as Exhibit A; (c) each share of Cyberworks Common
outstanding immediately prior to the Effective Date will be converted as
provided in Section 2 of this Agreement; (d) each share of Acquisition Corp.
Common outstanding immediately prior to the Effective Date will be converted as
provided in Section 2 of this Agreement; and (e) the Merger will, at and after
the Effective Date, have all of the effects provided by applicable law.
5. Further Assignments. After the Effective Date, Cyberworks and its
officers and directors may execute and deliver such deeds, assignments and
assurances and do all other things necessary or desirable to vest, perfect or
confirm title to Acquisition Corp.'s property or rights in Cyberworks and
otherwise to carry out the purposes of the Plan in the name of Acquisition Corp.
or otherwise.
6. Termination. This Agreement may be terminated and the proposed Merger
abandoned at any time prior to the Effective Date, whether before or after
approval of this Agreement by the Shareholder of Cyberworks, by either party
hereto upon termination of the Plan or by the mutual consent of the Boards of
Directors of Acquisition Corp. and Cyberworks.
7. Assignment. Neither party hereto may assign any of its rights or
obligations hereunder without the prior written consent of the other party
hereto. This Agreement will be binding
-2-
3
upon and inure to the benefit of the parties hereto and their respective
successors, personal representatives and permitted assigns.
8. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of California applicable to contracts
entered into and to be performed wholly within the State of California without
regard to principles of conflict of laws.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be an original as regards any party whose
signature appears thereon and all of which together will constitute one and the
same instrument.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
-3-
4
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on the date and year first above written.
INLAND ACQUISITION CORPORATION
By: /s/ L. Xxxxxx Xxxxx, XX
---------------------------------
L. Xxxxxx Xxxxx, XX
Chairman of the Board,
Chief Executive Officer and
President
By: /s/ Xxxxxxxxxxx Xx. Voisin
---------------------------------
Xxxxxxxxxxx Xx. Xxxxxx
Secretary
CYBERWORKS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
President and Secretary
SIGNATURE PAGE TO
ACQUISITION CORP./CYBERWORKS AGREEMENT OF MERGER
-4-
5
EXHIBIT A
RESTATED ARTICLES OF INCORPORATION
OF
CYBERWORKS, INC.
ARTICLE I
The name of the corporation is CYBERWORKS, INC.
ARTICLE II
The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the California
Corporations Code other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE III
The liability of the directors of the corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law.
Unless applicable law otherwise provides, any amendment, repeal or modification
of this Article III shall not adversely affect any right of any director under
this Article III that existed at or prior to the time of such amendment, repeal
or modification.
ARTICLE IV
The corporation is authorized to provide indemnification of agents (as
defined in Section 317 of the California Corporations Code) through bylaw
provisions, by agreements with agents, vote of shareholders or disinterested
directors or otherwise, in excess of the indemnification otherwise permitted by
Section 317 of the California Corporations Code, subject only to the applicable
limits on such excess indemnification set forth in Section 204 of the California
Corporations Code. Unless applicable law otherwise provides, any amendment,
repeal or modification of any provision of this Article IV shall not adversely
affect any contract or other right to indemnification of any agent of the
corporation that existed at or prior to the time of such amendment, repeal or
modification.
ARTICLE V
The corporation is authorized to issue only one class of shares of
stock, which shall be designated "Common Stock" and which shall have $1.00 par
value. The total number of shares of Common Stock the corporation is authorized
to issue is 1,000 shares.
A-1
6
CERTIFICATE OF APPROVAL OF MERGER
OF
INLAND ACQUISITION CORPORATION
WITH AND INTO
CYBERWORKS, INC.
L. Xxxxxx Xxxxx, XX and Xxxxxxxxxxx Xx. Xxxxxx hereby certify that:
1. They are the President and Secretary, respectively, of Inland
Acquisition Corporation, a Utah corporation (the "Corporation").
2. The Agreement of Merger to which this certificate is attached (the
"Agreement of Merger"), was approved by the Board of Directors of the
Corporation on August 19, 1998 and by the written consent of the sole
shareholder of the Corporation on August 19, 1998.
3. The Corporation has authorized capital stock consisting of 1000
shares of Common Stock, $.001 par value. The total number of outstanding shares
of the Corporation's capital stock entitled to vote on the Agreement of Merger
was 1000 shares of Common Stock.
4. The percentage vote required to approve the Agreement of Merger was
the affirmative vote of at least a majority of the outstanding shares of the
Corporation's capital stock.
5. The Agreement of Merger was approved by the vote of a number of
shares of the Corporation's capital stock which equaled or exceeded the vote
required.
6. No vote of the stockholders of Inland Entertainment Corporation, a
Utah corporation of which the Corporation is a wholly-owned subsidiary and whose
equity securities are to be issued in the merger, was required.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
7
We further declare under penalty of perjury under the laws of the State
of California that the matters set forth in this certificate are true and
correct of our own knowledge.
Dated: August 27, 1998.
/s/ L. Xxxxxx Xxxxx, XX
----------------------------
L. Xxxxxx Xxxxx, XX
President
/s/ Xxxxxxxxxxx Xx. Voisin
----------------------------
Xxxxxxxxxxx Xx. Xxxxxx
Secretary
SIGNATURE PAGE TO CERTIFICATE OF APPROVAL OF MERGER
2
8
CERTIFICATE OF APPROVAL OF MERGER
OF
INLAND ACQUISITION CORPORATION
WITH AND INTO
CYBERWORKS, INC.
Xxxxxxx X. Xxxxxxxx hereby certifies that:
1. He is the President and Secretary of CYBERWORKS, INC., a California
corporation ("Cyberworks").
2. The Agreement of Merger to which this certificate is attached was
approved by the Board of Directors of Cyberworks on August 19, 1998 and by the
unanimous written consent of the sole shareholder of the outstanding capital
stock of Cyberworks on August 19, 1998.
3. Cyberworks has authorized capital stock consisting of 10,000 shares
of Common Stock, $1.00 par value. The total number of outstanding shares of
Cyberworks' capital stock entitled to vote on the Agreement of Merger was 1,000
shares of Common Stock.
4. The percentage vote required to approve the Agreement of Merger was
the affirmative vote of at least a majority of the outstanding shares of
Cyberworks' capital stock.
5. The Agreement of Merger was approved by the vote of a number of
shares of Cyberworks' capital stock which equaled or exceeded the vote required.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
9
I further declare under penalty of perjury under the laws of the State
of California that the matters set forth in this certificate are true and
correct of my own knowledge.
Dated: August 27, 1998.
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxx
President
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxx
Secretary
SIGNATURE PAGE TO CERTIFICATE OF APPROVAL OF MERGER
2
