PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER (hereinafter referred to as this
"Agreement") dated as of January 5, 2001 is made and entered into by and between
INCUBATE THIS! INC., a Colorado corporation ("INCUBATE COLORADO") and INCUBATE
THIS! INC., a Delaware corporation ("INCUBATE DELAWARE").
W-I-T-N-E-S-S-E-T-H:
WHEREAS, INCUBATE COLORADO is a corporation organized and existing
under the laws of the State of Colorado, having been incorporated on December 8,
1981; and
WHEREAS, INCUBATE DELAWARE is a wholly-owned subsidiary corporation of
INCUBATE COLORADO, having been incorporated on January____, 2001; and
NOW THEREFORE, in consideration of the premises, the mutual covenants
herein contained and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree that
INCUBATE COLORADO shall be merged into INCUBATE DELAWARE (the "Merger") upon the
terms and conditions hereinafter set forth.
ARTICLE I
Merger
On January _____, 2001 or as soon as practicable thereafter (the
"Effective Date"); INCUBATE COLORADO shall be merged into INCUBATE DELAWARE, the
separate existence of INCUBATE COLORADO shall cease and INCUBATE DELAWARE
(following the Merger referred to as "INCUBATE DELAWARE") shall continue to
exist under the name of "INCUBATE THIS! INC.," by virtue of, and shall be
governed by, the laws of the State of Delaware. The address of the registered
office of INCUBATE DELAWARE in the State of Delaware will be The Corporation
Trust Company, 1209 Orange Street, in the City of Wilmington, County of
Newcastle, State of Delaware.
ARTICLE II
Certificate of Incorporation of INCUBATE DELAWARE
The Certificate of Incorporation of INCUBATE DELAWARE as in effect on
the date hereof shall be the Certificate of Incorporation of INCUBATE DELAWARE
on the Effective Date without change unless and until amended in accordance with
applicable law.
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ARTICLE III
By Laws of INCUBATE DELAWARE
The By Laws of INCUBATE DELAWARE shall be the By Laws of INCUBATE
DELAWARE as in effect on the date hereof without change unless and until amended
or repealed in accordance with applicable law.
ARTICLE IV
Effect of Merger on Stock of Constituent Corporation
4.01 On the Effective Date, (i) each outstanding share of INCUBATE
COLORADO common stock, no par value ("INCUBATE COLORADO Common Stock") shall be
converted into one share of INCUBATE DELAWARE common stock, $0.001 par value,
("INCUBATE DELAWARE Common Stock"), except for those shares of INCUBATE COLORADO
Common Stock with respect to which the holders thereof duly exercise their
dissenters' rights under Colorado law, (ii) any fractional INCUBATE DELAWARE
Common Stock interests to which a holder of INCUBATE COLORADO Common Stock would
be entitled will be cancelled with the holder thereof being entitled to the next
highest number of shares of INCUBATE DELAWARE Common Stock which is cancelled
and (iii) each outstanding share of INCUBATE DELAWARE Common Stock held by
INCUBATE COLORADO shall be retired and cancelled and shall resume the status of
an authorized and unissued INCUBATE DELAWARE Common Stock.
4.02 All options and rights to acquire INCUBATE COLORADO Common Stock
under or pursuant to any options or warrants which are outstanding on the
Effective Date of the Merger will automatically be converted into equivalent
options and rights to purchase that whole number of INCUBATE DELAWARE Common
Stock into which the number of INCUBATE COLORADO Common Stock subject to such
options or warrants immediately prior to the Effective Date would have been
converted in the merger had such rights been exercised immediately prior thereto
(with any fractional INCUBATE DELAWARE Common Stock interest resulting from the
exercise being adjusted to the next highest whole share such holder would have
received for any such fraction in the merger had he exercised such warrants or
options immediately prior to the Merger). The option price per share of INCUBATE
DELAWARE Common Stock shall be the option price per share of INCUBATE COLORADO
Common Stock in effect prior to the Effective Date. All plans or agreements of
INCUBATE COLORADO under which such options and rights are granted or issued
shall be continued and assumed by INCUBATE DELAWARE unless and until amended or
terminated in accordance with their respective terms.
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4.03 (a) Interwest Transfer Co., Inc. shall act as exchange agent in
the Merger.
(b) Prior to, or as soon as practicable, after the Effective
Date, INCUBATE DELAWARE shall mail to each person who was, at the time of
mailing or at the Effective Date, a holder of record of issued and outstanding
INCUBATE COLORADO Common Stock (i) a form letter of transmittal and (ii)
instructions for effecting the surrender of the certificate or certificates,
which immediately prior to the Effective Date represented issued and outstanding
shares of INCUBATE COLORADO Common Stock ("INCUBATE COLORADO Certificates"), in
exchange for certificates representing INCUBATE DELAWARE Common Stock. Upon
surrender of a INCUBATE COLORADO Certificate for cancellation to INCUBATE
DELAWARE, together with a duly executed letter of transmittal, the holder of
such INCUBATE COLORADO Certificate shall subject to paragraph (f) of this
section 4.03 be entitled to receive in exchange therefor a certificate
representing that number of INCUBATE DELAWARE Common Stock into which INCUBATE
COLORADO Common Stock theretofore represented by INCUBATE COLORADO Certificate
so surrendered shall have been converted pursuant to the provisions of this
Article IV; and INCUBATE COLORADO Certificate so surrendered shall forthwith be
cancelled.
(c) No dividends or other distributions declared after the
Effective Date with respect to INCUBATE DELAWARE Common Stock and payable to
holders of record thereof after the Effective Date shall be paid to the holder
of any unsurrendered INCUBATE COLORADO Certificate with respect to INCUBATE
DELAWARE Common Stock which by virtue of the Merger are represented thereby, nor
shall such holder be entitled to exercise any right as a holder of INCUBATE
DELAWARE Common Stock; until such holder shall surrender such INCUBATE COLORADO
Certificate. Subject to the effect, if any, of applicable law and except as
otherwise provided in paragraph (f) of this Section 4.03, after the subsequent
surrender and exchange of a INCUBATE COLORADO Certificate, the holder thereof
shall be entitled to receive any such dividends or other distributions, without
any interest thereon, which became payable prior to such surrender and exchange
with respect to INCUBATE DELAWARE Common Stock represented by such INCUBATE
COLORADO Certificate.
(d) If any stock certificate representing INCUBATE DELAWARE
Common Stock is to be issued in a name other than that in which INCUBATE
COLORADO Certificate surrendered with respect thereto is registered, it shall be
a condition of such issuance that INCUBATE COLORADO Certificate so surrendered
shall be properly endorsed or otherwise in proper form for transfer and that the
person requesting such issuance shall pay any transfer or other taxes required
by reason of the issuance to a person other than the registered holder of
INCUBATE COLORADO Certificate surrendered or shall establish to the satisfaction
of INCUBATE DELAWARE that such tax has been paid or is not applicable.
(e) After the Effective Date, there shall be no further
registration of transfers on the stock transfer books of INCUBATE COLORADO of
the Shares of INCUBATE COLORADO Common Stock, or of any other shares of stock of
INCUBATE COLORADO, which were outstanding immediately prior to the Effective
Date. If after the Effective Date certificates representing such shares are
presented to INCUBATE COLORADO they shall be cancelled and, in the case of
INCUBATE COLORADO Certificates, exchanged for certificates representing INCUBATE
DELAWARE Common Stock as provided in this Article IV.
(f) No certificates or scrip representing fractional INCUBATE
DELAWARE Common Stock shall be issued upon the surrender for exchange of
INCUBATE COLORADO Certificates. In lieu thereof, the Exchange Agent shall issue
to each holder of INCUBATE COLORADO Common Stock the next highest number of
shares of INCUBATE DELAWARE Common Stock.
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ARTICLE V
Corporate Existence, INCUBATE COLORADO and Liabilities of INCUBATE COLORADO
5.01 On the Effective Date the separate existence of INCUBATE COLORADO
shall cease. INCUBATE COLORADO shall be merged with and into INCUBATE DELAWARE
in accordance with the provisions of this Agreement. Thereafter, INCUBATE
DELAWARE shall possess all the rights, privileges, powers and franchises as well
of a public as of a private nature, and shall be subject to all the
restrictions, disabilities and duties of each of the parties to this Agreement
and all and singular; the rights, privileges, powers and franchises of INCUBATE
COLORADO and INCUBATE DELAWARE, and all property, real, personal and mixed, and
all debts due to each of them on whatever account, shall be vested in INCUBATE
DELAWARE; and all property, rights, privileges, powers and franchises, and all
and every other interest shall be thereafter an effectually the property of
INCUBATE DELAWARE, as they were of the respective constituent entities, and the
title to any real estate whether by deed or otherwise vested in INCUBATE
COLORADO and INCUBATE DELAWARE or either of them, shall not revert to or be in
any way impaired by reason of the Merger; but all rights of creditors and all
liens upon any property of the parties hereto, shall be preserved unimpaired,
and all debts, liabilities and duties of the respective constituent entities,
shall thenceforth attach to INCUBATE DELAWARE, and may be enforced against it to
the same extent as if said debts, liabilities and duties had been incurred or
contracted by it.
5.02 INCUBATE COLORADO agrees that it will execute and deliver, or
cause to be executed and delivered, all such deeds, assignments and other
instruments, and will take or cause to be taken such further or other action as
INCUBATE DELAWARE may deem necessary or desirable in order to vest in and
confirm to INCUBATE DELAWARE title to and possession of all the property,
rights, privileges, immunities, powers, purposes and franchises, and all and
every other interest, of INCUBATE COLORADO and otherwise to carry out the intent
and purposes of this Agreement.
ARTICLE VI
Officers and Directors of INCUBATE DELAWARE
6.01 Upon the Effective Date, the officers and directors of INCUBATE
COLORADO shall be officers and directors of INCUBATE DELAWARE in office at such
date, and such persons shall hold office in accordance with the By Laws of
INCUBATE DELAWARE or until their respective successors shall have been appointed
or elected.
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6.02 If, upon the Effective Date, a vacancy shall exist in the Board of
Directors of INCUBATE DELAWARE, such vacancy shall be filled in the manner
provided by its By Laws.
ARTICLE VII
Approval by Shareholders; Amendment; Effective Date
7.01 This Agreement and the Merger contemplated hereby are subject to
approval by the requisite vote of shareholders in accordance with applicable
Colorado law. As promptly as practicable after approval of this Agreement by
shareholders in accordance with applicable law, duly authorized officers of the
respective parties shall make and execute Articles of Merger and a Certificate
of Merger and shall cause such documents to be filed with the Secretary of State
of Colorado and the Secretary of State of Delaware, respectively, in accordance
with the laws of the States of Colorado and Delaware. The Effective Date of the
Merger shall be the date on which the Merger becomes effective under the laws of
Colorado or the date on which the Merger becomes effective under the laws of
Delaware, whichever occurs later.
7.02 The Board of Directors of INCUBATE COLORADO and INCUBATE DELAWARE
may amend this Agreement at any time prior to the Effective Date, provided that
an amendment made subsequent to the approval of the merger by the shareholders
of INCUBATE COLORADO shall not (1) alter or change the amount or kind of shares
to be received in exchange for or on conversion of all or any of INCUBATE
COLORADO Common Stock (2) alter or change any term of the Certificate of
Incorporation of INCUBATE DELAWARE, 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 INCUBATE COLORADO Common Stock.
ARTICLE VIII
Termination of Merger
This Agreement may be terminated and the Merger abandoned at any time
prior to the filing of this Agreement with the Secretary of State of Colorado
and the Secretary of State of Delaware, whether before or after shareholder
approval of this Agreement, by the consent of the Board of Directors of INCUBATE
COLORADO and INCUBATE DELAWARE.
ARTICLE IX
Miscellaneous
In order to facilitate the filing and recording of this Agreement, this
Agreement may be executed in counterparts, each of which when so executed shall
be deemed to be an original and all such counterparts shall together constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers, all as of the day and year first above
written.
ATTEST: INCUBATE THIS! INC.
a Colorado corporation
By:
-------------------------------------
Sharone Perlstein, President
ATTEST: INCUBATE THIS! INC.
a Delaware corporation
By:
-------------------------------------
Sharone Perlstein, President
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