AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "AGREEMENT") dated as of ________, 1997
(the "EFFECTIVE DATE") by and between Pacific MultiMedia, Inc., a Washington
corporation ("MULTIMEDIA") and Pacific Audio Recordings, Inc., a California
corporation ("P.A.R.").
RECITALS
WHEREAS, MultiMedia and P.A.R. desire to merge; and
WHEREAS, the boards of directors of MultiMedia and P.A.R. have duly
approved the merger of P.A.R. with and into MultiMedia and the consummation of
the transactions contemplated hereby, upon the terms and subject to the
conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 THE MERGER. Upon the terms and subject to the conditions of
this Agreement, at the Effective Time (as hereinafter defined), in accordance
with the Washington Business Corporation Act, as amended (the "WBCA") and the
California Corporations Code, as amended (the "CCC"), P.A.R. shall be merged
with and into MultiMedia and the separate existence of P.A.R. shall thereupon
cease (the "MERGER"). MultiMedia shall be the surviving corporation in the
Merger (hereinafter referred to as the "SURVIVING CORPORATION" or "MULTIMEDIA").
SECTION 1.2 EFFECTIVE TIME OF THE MERGER. The Merger shall become
effective pursuant to Section 23B.01.230 of the WBCA as of the close of business
on the date on which the requisite Articles of Merger pursuant to
Section 23B.11.050 of the WBCA and any other documents necessary to effect the
Merger in accordance with the WBCA are filed with the Washington Secretary of
the State (the "EFFECTIVE TIME"). Upon filing of an Officer's Certificate with
the California Secretary of State in accordance with the provisions of Section
1108 of the CCC, the merger shall be effective in California as of the Effective
Time.
SECTION 1.3 EFFECTS OF MERGER. The Merger shall have the effects set
forth in Section 23B.11.060 of the WBCA.
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.1 ARTICLES OF INCORPORATION. At the Effective Time, the
Articles of Incorporation of MultiMedia, as in effect immediately prior to the
Effective Time, shall be the Articles of Incorporation of the Surviving
Corporation until duly amended.
SECTION 2.2 BYLAWS. At the Effective Time, the Bylaws of MultiMedia, as
in effect immediately prior to the Effective Time, shall be the Bylaws of the
Surviving Corporation until duly amended.
SECTION 2.3 DIRECTORS AND OFFICERS. At and after the Effective Time,
the directors and officers of MultiMedia immediately prior to the Effective Time
shall be the directors and officers of the Surviving Corporation, in each case
until their respective successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the Surviving Corporation's Restated Articles of Incorporation and Bylaws.
ARTICLE III
CONVERSION OF P.A.R. COMMON SHARES
SECTION 3.1 CONVERSION OF SHARES. At the Effective Time, by virtue of
the Merger and without any action on the part of any holder of any capital stock
of MultiMedia or P.A.R., each of the issued and outstanding shares of P.A.R.
common stock (the "P.A.R. COMMON STOCK") shall be converted into, and MultiMedia
shall thereupon issue to each of the shareholders of P.A.R., 6.66667 shares of
MultiMedia common stock (the "MULTIMEDIA COMMON STOCK") for every share of
P.A.R. Common Stock held by each shareholder. On the Effective Date, the
shareholders shall surrender their certificate(s) representing a total of 60,000
shares of P.A.R. Common Stock to MultiMedia or a designated exchange agent
together with such duly executed documentation as may be reasonably required by
MultiMedia or the exchange agent to effect a transfer of such shares, and upon
such surrender MultiMedia shall issue a total of 400,000 shares of MultiMedia
Common Stock represented by certificates in the name of each respective
shareholder. The shares of MultiMedia Common Stock into which the shares of
P.A.R. Common Stock shall be converted in the Merger shall be deemed to have
been issued at the Effective Time.
SECTION 3.2 CLOSING OF TRANSFER BOOKS. From and after the Effective
Time, the stock transfer books of P.A.R. (but not of MultiMedia) shall be closed
and no transfer of shares of P.A.R. Common Stock shall thereafter be made except
in accordance with this Article III.
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ARTICLE IV
MISCELLANEOUS
SECTION 4.1 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
SECTION 4.2 NOTICES. Any notices or other communications required or
permitted hereunder shall be in writing and shall be deemed duly given upon
(a) transmitter's confirmation of a receipt of a facsimile transmission,
(b) confirmed delivery by a standard overnight carrier or by hand delivery or
(c) the expiration of five (5) business days after the day when mailed by
certified or registered mail, postage prepaid, addressed at the addresses if by
each party.
SECTION 4.3 CHOICE OF LAW This Agreement shall be governed in all
respects, including validity, interpretation and effect, by the laws of the
State of Washington (without giving effect to the provisions thereof relating to
conflicts of law).
SECTION 4.4 INTERPRETATION. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation."
SECTION 4.5 INTEGRATION. This Agreement (including the documents and
instruments referred to herein): (i) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof;
and (ii) shall not be assigned by operation of law or otherwise without the
prior written consent of the other parties hereto.
SECTION 4.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
SECTION 4.7 PARTIES IN INTEREST. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective permitted successors and assigns, and nothing in this Agreement,
express or implied, is intended to confer upon any other person any rights or
remedies of any nature whatsoever under or by reason of this Agreement.
SECTION 4.8 SEVERABILITY. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
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IN WITNESS WHEREOF, MultiMedia and P.A.R. have each caused this Agreement
to be signed, where applicable by their respective officers thereunto duly
authorized, as of the date first set forth above.
PACIFIC AUDIO RECORDINGS, INC. PACIFIC MULTIMEDIA, INC.
By _______________________________ By _______________________________
Its ______________________________ Its_______________________________
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