AGREEMENT AND PLAN OF MERGER
MERGING
GRANITE BAY TECHNOLOGIES, INC.,
a California Corporation
INTO
INTERNATIONAL DISPLAYWORKS, INC.,
a Delaware Corporation
This Agreement and Plan of Merger is entered into this the 30th day of July
2001 by and between Granite Bay Technologies, Inc., a California corporation
("Granite Bay" or the "Terminating Corporation"), and International
DisplayWorks, Inc., a Delaware corporation ("IDW" or the "Surviving
Corporation").
1. Merger. Granite Bay and IDW shall, pursuant to the provisions of the
Delaware General Corporation Law and the California Corporation Code, be merged
with and into a single corporation, to wit, IDW, which shall be the Surviving
Corporation at the effective time and date of the merger and which is sometimes
hereinafter referred to as the "Surviving Corporation," and which shall continue
to exist as said Surviving Corporation under its present name, International
DisplayWorks, Inc., pursuant to the provisions of the laws of the jurisdiction
of its organization. The separate existence of Granite Bay, which is sometimes
hereinafter referred to as the "Terminating Corporation," shall cease at said
effective time and date in accordance with the provisions of the California
Corporation Code.
2. Effective Date. This Agreement shall become effective on October 31,
2001.
3. Shares Outstanding. As of the date hereof, the Terminating Corporation
has 40,000,000 shares of Common Stock, no par value, and 10,000,000 shares of
Preferred Stock, no par value, authorized and 19,150,537 shares of Common Stock
and no shares of Preferred Stock outstanding. As of the date hereof, the
Surviving Corporation has 40,000,000 shares of Common Stock, no par value, and
10,000,000 shares of Preferred Stock, no par value, authorized and 10 shares of
Common Stock and no Preferred Stock outstanding.
4. Corporate Documents. The Certificate of Incorporation of the Surviving
Corporation as in force and effect at the effective time and date of the merger
in the jurisdiction of its organization shall be the Certificate of
Incorporation of said Surviving Corporation and said Certificate of
Incorporation shall continue in full force and effect until amended and changed
in the manner prescribed by the laws of the jurisdiction of its organization.
5. Bylaws. The bylaws of the Surviving Corporation as in force and effect
at the effective time and date of the merger will be the bylaws of said
Surviving Corporation and will continue in full force and effect until changed,
altered, or amended as therein provided and in the manner prescribed by the
provisions of the laws of the jurisdiction of organization of said Surviving
Corporation.
6. Directors and Officers. The directors and officers in office of the
Terminating Corporation at the effective time and date of the merger shall be
the members of the first Board of Directors and the first officers of the
Surviving Corporation, all of whom shall hold their directorships and offices
until the election and qualification of their respective successors or until
their tenure is otherwise terminated in accordance with the bylaws of the
Surviving Corporation.
7. Shares. Each issued share of the Terminating Corporation immediately
prior to the effective time and date of the merger shall, on the Effective Date
of the merger, be converted into One (1) share of the Surviving Corporation. The
previously outstanding ten (10) shares of Common Stock of the Surviving
Corporation registered in the name of the Terminating Corporation shall not be
converted in any manner and shall be reacquired by the Surviving Corporation and
retired and shall resume the status of authorized and unissued shares of Common
Stock of the Surviving Corporation.
8. Share Certificates. On and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of the
Terminating Corporation shall be deemed for all purposes to evidence ownership
of and to represent shares of the Surviving Corporation into which the shares of
the Terminating Corporation represented by such certificates have been converted
as herein provided. The registered owner on the books and records of the
Terminating Corporation or its transfer agent of any such outstanding stock
certificate shall have and shall be entitled, until such certificate shall have
been surrendered for transfer or otherwise accounted for to the Surviving
Corporation or its transfer agent, to exercise any voting and other rights with
respect to and to receive any dividend and other distributions upon the shares
of the Surviving Corporation evidenced by such outstanding certificate as above
provided.
9. Other Rights to Stock. Upon the Effective Date, the options to purchase
shares of Common Stock of the Terminating Corporation which have been granted by
the Terminating Corporation pursuant to the Granite Bay Technologies, Inc. 2000
Equity Incentive Plan, Xxxxxx Snowboards, Inc. Employee Equity Incentive Plan,
as amended February 23, 1997, Xxxxxx Snowboards, Inc. Stock Option Plan for
Non-Employee Directors and Xxxxxx Snowboards, Inc. 1999 Stock Option Plan for
Non-Employee Directors (collectively the "Plans") or granted outside of the
Plans, shall be deemed to be options granted by the Surviving Corporation and
the obligations of the Terminating Corporation with respect thereto shall be
assumed by the Surviving Corporation with the same terms and conditions. Each
option to acquire one share of Common Stock of the Terminating Corporation which
is not exercised prior to the Effective Date shall be deemed to be an option to
acquire one share of Common Stock of the Surviving Corporation. Upon the
Effective Date, the Plans shall be deemed adopted and approved by the Surviving
Corporation and the Surviving Corporation shall be authorized to grant any and
all options, restricted stock, stock appreciation rights, stock units, other
stock grants according to the provisions of the Plans.
10. Shareholder Approval. The Agreement and Plan of Merger herein made and
approved shall be submitted to the shareholders of the Terminating Corporation
for their approval or rejection in the manner prescribed by the provisions of
the California Corporations Code and to the shareholders of the Surviving
Corporation for their approval or rejection in the manner prescribed by the laws
of the jurisdiction of its organization.
11. Assets and Rights. Upon the Effective Date, all rights, privileges,
franchises, and property of the Terminating Corporation, and all debts and
liabilities due or to become due to the Terminating Corporation, including
things in action and every interest or asset of conceivable value or benefit,
shall be deemed fully and finally and without any right of reversion transferred
to and vested in the Surviving Corporation without further act or deed, and the
Surviving Corporation shall have and hold the same in its own right as fully as
the same was possessed and held by the Terminating Corporation.
12. Liabilities. Upon the Effective Date, all debts, liabilities, and
obligations due or to become due and all claims or demands for any cause
existing against Terminating Corporation, shall be and become the debts,
liabilities, obligations of, and the claims and demands against, the Surviving
Corporation in the same manner as if the Surviving Corporation had itself
incurred or become liable for them.
13. Creditors' Rights and Liens. Upon the Effective Date, all rights of the
creditors of the Terminating Corporation, and all liens upon the property of the
Terminating Corporation, shall be preserved unimpaired, and limited to the
property affected by the liens immediately prior to the time of the merger.
14. Pending Actions. Upon Effective Date, any action or proceeding pending
by or against the Terminating Corporation shall not be deemed to have been
abated or discontinued, but may be prosecuted to judgment, with the right to
appeal or review as in other cases, as if the merger had not taken place, or the
Surviving Corporation may be substituted for the Terminating Corporation.
15. Abandonment. At any time before the Effective Date, this Agreement and
Plan of Merger may be terminated and the Merger contemplated hereby may be
abandoned by the Board of Directors of either the Surviving or Terminating
Corporation, notwithstanding approval of this Merger Agreement by the
shareholders of the Constituent Corporations.
16. Authorization. The Board of Directors and the proper officers of the
Terminating Corporation and of the Surviving Corporation, respectively, are
hereby authorized, empowered, and directed to do any and all acts and things,
and to make, execute, deliver, file, and/or record any and all instruments,
papers, and documents which shall be or may become necessary, proper or
convenient to carry out or put into effect any of the provisions of this
Agreement and Plan of Merger or of the merger herein provided for.
17. Further Assurances. Each of the Surviving Corporation and the
Terminating Corporation agree that at any time, or from time to time, as and
when requested by the Surviving Corporation, or by its successors and assigns,
it will execute and deliver, or cause to be executed and delivered in its name
by its last acting officers, or by the corresponding officers of the Surviving
Corporation, all such conveyances, assignments, transfers, deeds, or other
instruments, and will take or cause to be taken such further or other action as
the Surviving Corporation, its successors or assigns may deem necessary or
desirable, in order to evidence the transfer, vesting, or devolution of any
property right, privilege, or franchiser to vest or perfect in or confirm to the
Surviving Corporation, its successors and assigns, title to and possession of
all the property, rights, privileges, powers, immunities, franchises, and
interests referred to in this Section 1 and otherwise to carry out the intent
and purposes hereof.
18. Governing Law. This Agreement is made and entered into in the State of
California, and the laws of said State shall govern the validity and
interpretation hereof.
19. Counterparts. This Agreement may be executed simultaneously in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
[THIS SPACE WAS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the day and year first
above written.
GRANITE BAY TECHNOLOGIES, INC.
/s/ XXXXXXX X. XXXXXXX
-----------------------
Xxxxxxx X. Xxxxxxx,
Chief Executive Officer
/s/ XXXXXXX XXXXXXXX
-----------------------
Xxxxxxx Xxxxxxxx,
Assistant Secretary
INTERNATIONAL DISPLAYWORKS, INC.
/s/ XXXXXXX XXXXXXXX
---------------------
Xxxxxxx Xxxxxxxx,
President
/s/ XXXX XXXXX
--------------------
Xxxx Xxxxx,
Secretary
