Exhibit 2.01
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER is made and dated as of June 26,
1998, by and between I-Magic Mergeco, Inc., a North Carolina corporation (the
"Surviving Corporation"), and Interactive Magic, Inc., a Maryland corporation
(the "Acquired Corporation").
WHEREAS, the Surviving Corporation and the Acquired Corporation desire
to effect the merger of the Acquired Corporation with and into the Surviving
Corporation upon the terms set forth herein; and
WHEREAS, the boards of directors of the Surviving Corporation and the
Acquired Corporation by resolution duly approved this Plan and Agreement of
Merger and directed that this Plan and Agreement of Merger be submitted to the
shareholders of the Acquired Corporation for approval and adoption.
NOW, THEREFORE, the parties hereto do hereby approve and adopt this
Plan and Agreement of Merger for the purpose of setting forth the terms and
conditions of the merger referred to above and the mode of carrying the same
into effect.
ARTICLE I
THE MERGER
1.1 Merger. the Acquired Corporation shall be merged with and into the
Surviving Corporation (the "Merger") pursuant to Article 11 of the North
Carolina Business Corporation Act, as amended (the "NCBCA"), and Title 3 of the
Maryland General Corporation Law, as amended (the "MGCL").
1.2 Effective Time. The Merger shall be effected by the filing of
articles of merger with the Secretary of State of North Carolina in accordance
with the provisions of Article 11 of the NCBCA. In addition, articles of merger
shall be filed with the Maryland State Department of Assessments and Taxation in
accordance with the provisions of Title 3 of the MGCL (or such other instrument
or instruments as may be required by Title 3 of the MGCL). The time and date
when the Merger shall become effective as provided in the articles of merger
filed with the Secretary of State of North Carolina and the Maryland State
Department of Assessments and Taxation, and is herein referred to as the
"Effective Time."
1.3 Effect of the Merger. At the Effective Time, the separate corporate
existence of the Acquired Corporation shall cease, and the Surviving
Corporation, as the Surviving Corporation, shall continue its corporate
existence under the laws of the State of North Carolina and shall thereupon and
thereafter possess all of the rights, privileges, immunities, powers, and
franchises of each of the Acquired Corporation and the Surviving Corporation,
all of the property (real, personal and mixed) and every other asset of each of
the Acquired Corporation and the Surviving Corporation shall vest in the
Surviving Corporation without further act or deed; the Surviving Corporation
shall assume and be liable for all the liabilities and obligations of each of
the Acquired Corporation and the Surviving Corporation; and all other effects of
the Merger specified in Article 11 of the NCBCA and Title 3 of the MGCL shall
result therefrom. The name of the Surviving Corporation shall be "Interactive
Magic, Inc."
ARTICLE II
EFFECT OF MERGER ON OUTSTANDING SECURITIES
At the Effective Time, the outstanding shares and convertible
securities of the corporations participating in the merger will be impacted as
follows:
2.1 Surviving Corporation. The outstanding shares of the Surviving
Corporation will not be converted, exchanged or altered in any manner as a
result of the merger and will remain outstanding as shares of the Surviving
Corporation; provided, however, any shares of the Surviving Corporation owned by
the Acquired Corporation shall upon the Effective Time of the Merger, by virtue
of Section 55-6-31 of the NCBCA, constitute authorized but unissued shares of
the Surviving Corporation. No shares of the Surviving Corporation shall be
issued or cancelled as a result of the Merger.
2.2 Acquired Corporation. Each share of each class or series of Common
Stock or Preferred Stock of the Acquired Corporation issued and outstanding
immediately prior to the Effective Time (other than shares held by the Acquired
Corporation, all of which shall, by virtue of the Merger and without any action
on the part of the holder thereof, be canceled as a result of the Merger) shall
be converted into the right to receive 0.5 (the "Exchange Ratio") shares of the
same class or series of Common Stock or Preferred Stock of the Surviving
Corporation. The Surviving Corporation shall not be required to issue any
fractional shares, and any fractional share otherwise issuable hereunder shall
be cancelled.
Effective as of the Effective Time, the Surviving Corporation shall
assume and adopt the Acquired Corporation's 1998 Stock Plan and 1998 Employee
Stock Purchase Plan. Each then outstanding but unexercised option under the
Acquired Corporation's 1998 Stock Plan, the Acquired Corporation's 1998 Employee
Stock Purchase Plan, the Acquired Corporation's 1995 Employees' Incentive Stock
Option Plan Class A Common Stock (Voting), the Acquired Corporation's 1995
Employees' Incentive Stock Option Plan Class B Common Stock (Nonvoting) and the
Acquired Corporation's Interactive Creations Incorporated Incentive Stock Option
Plan, exercisable to purchase shares of the Acquired Corporation's Class A
Common Stock or Class B Common Stock, shall cease to be exercisable to purchase
shares of the Acquired Corporation's Class A Common Stock or Class B Common
Stock and shall become exercisable to purchase shares of the Surviving
Corporation's Class A Common Stock or Class B Common Stock, as the case may be,
on the following basis (and otherwise on the terms then in effect therefor,
including as to term, vesting and exercise):
(i) number of shares of the Surviving Corporation's Class A
Common Stock or Class B Common Stock, as the case may be, purchasable
upon the exercise of such option shall be the product of (x) the number
of shares of the Acquired Corporation's Class A Common Stock or Class B
Common Stock, as the case may be, that were purchasable upon the
exercise of such option, and (y) the Exchange Ratio; and
(ii) the exercise price per share of the Surviving
Corporation's Class A Common Stock or Class B Common Stock, as the case
may be, purchasable under such option shall be the quotient determined
by dividing (x) the exercise price per share of the Acquired
Corporation's Class A Common Stock or Class B Common Stock, as the case
may be, under such option, by (y) the Exchange Ratio.
As soon as practicable after the Effective Time, the Surviving Corporation shall
deliver to the holder of each such option appropriate notice setting forth a
number of shares of the Surviving Corporation's Class A Common Stock or Class B
Common Stock, as the case may be, purchasable and the corresponding exercise
price thereunder.
Each outstanding but unexercised warrant or option (other than options
described above) to purchase shares of the Acquired Corporation's Class A Common
Stock shall cease to be exercisable to purchase shares of the Acquired
Corporation's Class A Common Stock and shall become exercisable to purchase
shares of the Surviving Corporation's Class A Common Stock on the following
basis (and otherwise on the terms then in effect therefor, including as to term,
vesting and exercise periods, as provided in the applicable warrant or option
agreement):
(i) the number of shares of the Acquired Corporation's Class A
Common Stock purchasable upon the exercise of such warrant or option
shall be the product of (x) the number of shares of the Acquired
Corporation's Class A Common Stock that were purchasable upon the
exercise of such warrant or option and (y) the Exchange Ratio;
(ii) the exercise price per share of the Acquired
Corporation's Class A Common Stock purchasable under such warrant or
option shall be the quotient determined by dividing (x) the exercise
price per share of the Corporation's Class A Common Stock under such
warrant or option by (y) the Exchange Ratio.
After the Effective Time, the Surviving Corporation shall deliver to the holder
of each such warrant or option appropriate notice setting forth the number of
shares of the Surviving Corporation's Class A Common Stock purchasable in the
corresponding exercise price thereunder.
ARTICLE III
ARTICLES OF INCORPORATION; BYLAWS
3.1 Articles of Incorporation. The single sentence of Article I of the
Articles of Incorporation of the Surviving Corporation shall be deleted in its
entirety and the following shall be inserted in lieu thereof:
The name of the Corporation is INTERACTIVE MAGIC, INC.
The Articles of Incorporation of the Surviving Corporation shall be otherwise
identical to the Articles of Incorporation of the Surviving Corporation in
effect immediately prior to the Effective Time until thereafter amended as
provided by law.
3.2 Bylaws. The Bylaws of the Surviving Corporation shall be amended
upon the Effective Time to reflect that the name of the Surviving Corporation
shall be "Interactive Magic, Inc." The Bylaws of the Surviving Corporation shall
be otherwise identical to the Bylaws of the Surviving Corporation in effect
immediately prior to the Effective Time until thereafter amended as provided by
law.
ARTICLE IV
SUBMISSION TO SHAREHOLDERS; ABANDONMENT
4.1 Approval by Shareholders. This Plan and Agreement of Merger has
been submitted to the shareholders of the Acquired Corporation and the sole
shareholder of the Surviving Corporation for their approval and shall have no
force or effect unless approved by the shareholders of the Acquired Corporation
and the sole shareholder of the Surviving Corporation in the manner provided by
the NCBCA and the MGCL, as applicable.
4.2 Abandonment. This Merger may be abandoned at any time prior to the
Effective Time of the Merger, in the discretion of the boards of directors and
the officers of the Surviving Corporation or the Acquired Corporation,
respectively.
ARTICLE V
MISCELLANEOUS
5.1 Headings. The article and section captions used herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Plan and Agreement of Merger.
5.2 Counterparts. This Plan and Agreement of Merger may be executed in
two or more counterparts, all of which taken together shall constitute one
instrument.
IN WITNESS WHEREOF, the Surviving Corporation and the Acquired
Corporation have caused this Plan and Agreement of Merger to be duly executed
and delivered by their respective officers thereunto duly authorized, all as of
the day and year first above written.
I-MAGIC MERGECO, INC.
a North Carolina Corporation
By: /s/ X.X. Xxxxxxx
X.X. Xxxxxxx,
Chairman of the Board of Directors
and Chief Executive Officer
INTERACTIVE MAGIC, INC.
a Maryland Corporation
By: /s/ X.X.Xxxxxxx
X.X. Xxxxxxx,
Chairman of the Board of Directors
and Chief Executive Officer
