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EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
OF BAY AREA MULTIMEDIA, INC.,
A DELAWARE CORPORATION,
AND
BAY AREA MULTIMEDIA, INC.
A CALIFORNIA CORPORATION
THIS AGREEMENT AND PLAN OF MERGER ("Agreement"), executed effective as of
SEPTEMBER 21 , 2000, is by and between Bay Area Multimedia, Inc., a Delaware
corporation ("BAMI-DE"), and Bay Area Multimedia, Inc., a California corporation
("BAMI-CA"). BAMI-DE and BAMI-CA are sometimes referred to herein as the
"Constituent Entities."
RECITALS
A. BAMI-DE is a corporation duly organized and existing under the laws
of the State of Delaware and has an authorized capital of Five Million Nine
Hundred Seventy Six Thousand Two Hundred Twenty (5,976,220) shares, Five Million
(5,000,000) of which are designed "Common Stock" and Nine Hundred Seventy Six
Thousand Two Hundred Twenty (976,220) of which are designated as "Preferred
Stock", all of which are designated as "Series A Preferred Stock". As of the
date of this Agreement, One Hundred (100) shares of Common Stock were issued and
outstanding, and no shares of Series A Preferred Stock were issued and
outstanding.
B. BAMI-CA is a corporation duly organized and existing under the laws
of the State of California and has an authorized capital of 5,976,220 shares,
Five Million (5,000,000) of which are designed "Common Stock" and Nine Hundred
Seventy Six Thousand Two Hundred Twenty (976,220) of which are designated as
"Preferred Stock", all of which are designated as "Series A Preferred Stock". As
of the date of this Agreement, Three Hundred Twelve Thousand Seven Hundred Sixty
(312,760) shares of Common Stock were issued and outstanding, and Nine Hundred
Seventy Six Thousand Two Hundred Twenty (976,220) shares of Series A Preferred
Stock were issued and outstanding.
C. The shareholders and the Board of Directors of BAMI-CA have approved
BAMI-CA's merging with and into BAMI-DE as the disappearing corporation upon the
terms and conditions of this Agreement.
D. The shareholder and the Directors of BAMI-DE have approved BAMI-DE's
merging with BAMICA as the surviving corporation upon the terms and conditions
of this Agreement.
E. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "Code"), and to cause the Merger to qualify as a
reorganization under the provisions of Section 368(a)(1)(A) and 368(a)(2)(E) of
the Code.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, BAMI-DE and BAMI-CA hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
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MERGER
1.1. Merger. In accordance with the provisions of this Agreement and the
General Corporation Law of Delaware and the California Corporations Code,
BAMI-CA shall be merged with and into BAMI-DE (the "Merger") as the disappearing
corporation, the separate existence of BAMI-CA shall cease and BAMI-DE shall
survive the Merger and shall continue to be governed by the laws of the State of
Delaware, and
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BAMI-DE shall be, and is herein sometimes referred to as, the "Surviving
Corporation," and the name of the Surviving Corporation shall be Bay Area
Multimedia, Inc.
1.2 Filing and Effectiveness. The Merger shall become effective when the
following actions have been completed (the "Effective Date of the Merger"):
(a) This Agreement and the Merger shall have been adopted and
approved by the shareholders of BAMI-DE and the shareholders of BAMI-CA
each in accordance with the applicable requirements of the Delaware
General Corporation Law and the California Corporations Code;
(b) All of the conditions precedent to the consummation of the
Merger specified in this Agreement shall have been satisfied or duly
waived by the party entitled to satisfaction thereof; and
(c) An executed Certificate of Merger or an executed,
acknowledged and certified counterpart of this Agreement meeting the
requirements of the Delaware General Corporation Law shall have been
filed with the Secretary of the State of Delaware.
1.3 Effect of the Merger. Upon the Effective Date of the Merger, the
separate existence of BAMI-CA shall cease and BAMI-DE, as the Surviving
Corporation, (i) shall continue to possess all of its assets, rights, powers and
property as constituted immediately prior to the Effective Date of the Merger,
(ii) shall be subject to all actions previously taken by its Board of Directors
and BAMI-DE's Board of Directors, (iii) shall succeed, without other transfer,
to all of the assets, rights, powers and property of BAMI-CA in the manner as
more fully set forth in Section 259 of the Delaware General Corporation Law,
(iv) shall continue to be subject to all of its debts, liabilities and
obligations as constituted immediately prior to the Effective Date of the
Merger, and (v) shall succeed, without transfer, to all of the debts,
liabilities and obligations of BAMI-CA in the same manner as if BAMI-DE had
itself incurred them, all as more fully provided under the applicable provisions
of the Delaware General Corporation Law.
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CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Articles of Incorporation. The Certificate of Incorporation of
BAMI-DE shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2 Bylaws. The Bylaws of BAMI-DE as in effect immediately prior to
the Effective Date of the Merger shall continue in full force and effect as the
Bylaws of the Surviving Corporation until duly amended in accordance with the
provisions thereof and applicable law.
2.3 Directors and Officers. The Directors and officers of BAMI-DE
immediately prior to the Effective Date of the Merger shall be the Directors and
officers of the Surviving Corporation until their respective successors shall
have been duly elected and qualified or until as otherwise provided by law, the
Articles of Incorporation of the Surviving Corporation or the Bylaws of the
Surviving Corporation.
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MANNER OF CONVERSION OF SECURITIES
3.1 BAMI-CA Common Stock, Preferred Stock, Stock Options and Other
Convertible Securities. Upon the Effective Date of the Merger, each share of
Common Stock of BAMI-CA outstanding immediately prior thereto shall, by virtue
of the Merger and without any action by the Constituent Entities, the holder of
such interest or any other person, be changed and converted into and exchanged
for one (1) fully paid and nonassessable share of Common Stock of the Surviving
Corporation. Upon the Effective Date of the Merger, each share of Series A
Preferred Stock of BAMI-CA outstanding immediately prior thereto shall, by
virtue
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of the Merger and without any action by the Constituent Entities, the holder of
such interest or any other person, be changed and converted into and exchanged
for one (1) fully paid and nonassessable share of Series A Preferred Stock of
the Surviving Corporation. Upon the Effective Date of the Merger, each option to
purchase one (1) share of Common Stock of BAMI-CA outstanding immediately prior
thereto shall, by virtue of the Merger and without any action by the Constituent
Entities, the holder of such option or any other person, be changed and
converted into and exchanged for an option to purchase one (1) fully paid and
nonassessable share of Common Stock of the Surviving Corporation.
3.2 BAMI-DE Common Stock. Upon the Effective Date of the Merger, each
share of Common Stock, $0.001 par value, of BAMI-DE issued and outstanding
immediately prior thereto shall, by virtue of the Merger and without any action
by BAMI-DE, the holder of such shares or any other person, be canceled and
returned to the status of authorized but unissued shares.
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GENERAL
4.1 Further Assurances. From time to time, as and when required by
BAMI-DE or by its successors or assigns, there shall be executed and delivered
on behalf of BAMI-CA such deeds and other instruments, and there shall be taken
or caused to be taken by BAMI-DE and BAMI-CA such further and other actions, as
shall be appropriate or necessary in order to vest or perfect in or conform of
record or otherwise by BAMI-DE the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises and
authority of BAMI-CA and otherwise to carry out the purposes of this Agreement,
and the officers and directors of BAMI-DE are fully authorized in the name and
on behalf of BAMI-CA or otherwise to take any and all such action and to execute
and deliver any and all such deeds and other instruments.
4.2 Abandonment. At any time before the filing of this Agreement with
the Secretary of State of Delaware, this Agreement may be terminated and the
Merger may be abandoned for any reason whatsoever by the Board of Directors of
BAMI-DE or the Board of Directors of BAMI-CA, or both, notwithstanding the
approval of this Agreement by the shareholders of BAMI-CA or by the shareholders
of BAMI-DE, or by both.
4.3 Amendment. The Directors of BAMI-DE and the Directors of BAMI-CA may
amend this Agreement at any time prior to the filing of this Agreement (or
certificate in lieu thereof) with the Secretary of State of California, provided
that any amendment made subsequent to the adoption of this Agreement by the
shareholders of BAMI-DE and the shareholders of BAMI-CA shall not: (1) alter or
change the amount or kind of shares, securities, cash, property and/or rights to
be received in exchange for or on conversion of all or any of the shares of any
class or series thereof of such Constituent Entity, (2) alter or change any term
of the Certificate of Incorporation of the Surviving Corporation to be effected
by the Merger, or (3) alter or change any of the terms and conditions of this
Agreement if such alteration or change would adversely affect the holders of any
class of shares or membership interest or series thereof of such Constituent
Entities.
4.4 Agreement. Executed copies of this Agreement will be on file at the
principal place of business of the Surviving Corporation at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and copies thereof will be
furnished to any shareholder or member of the Constituent Companies, upon
request and without cost.
4.5 Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by laws of the State of
California.
4.6 Counterparts. In order to facilitate the filing and recording of
this Agreement, the same may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
4.7 Tax and Accounting Consequences. It is intended by the parties that
the merger shall constitute a reorganization within the meaning of Section
368(a)(1)(A) and 368(a)(2)(E) of the Code.
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IN WITNESS WHEREOF, this Agreement, having first been approved by
resolutions of the Board of Directors of BAMI-DE and the Board of Directors of
BAMI-CA, is hereby executed on behalf of each of such two companies and attested
by their respective officers thereunto duly authorized.
BAMI-CA
Bay Area Multimedia, Inc.,
a California corporation
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
BAMI-DE:
Bay Area Multimedia, Inc., a
Delaware corporation
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President