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EXHIBIT 2.1
AGREEMENT OF MERGER
BETWEEN
TRIBEWORKS, INC.
AND
TRIBEWORKS ACQUISITION CORP.
AGREEMENT OF MERGER ("Agreement") by and between Tribeworks, Inc., a
California corporation ("Tribeworks"), and Tribeworks Acquisition Corp., a
Delaware corporation (the "Sub") and a wholly owned subsidiary of Pan World
Corporation, a Nevada Corporation ("Pan World").
WHEREAS, Tribeworks and the Sub have entered into a Plan of Merger,
dated August 19, 1999 (the "Plan of Merger"), pursuant to which the Sub is to
merge with and into Tribeworks, with Tribeworks as the surviving corporation
(the "Surviving Corporation");
WHEREAS, Surviving Corporation and the Sub are entering into this
Agreement pursuant to the terms of the Plan of Merger, to consummate the
transactions set forth therein;
FIRST: The Sub shall be merged into Surviving Corporation.
SECOND: The Articles of Incorporation of the Surviving Corporation shall
be amended and restated in their entirety in the form attached hereto as Exhibit
A.
THIRD: (a) At the Effective Time (i) the separate existence of Sub shall
cease and Sub shall be merged with and into Surviving Corporation (Sub and
Surviving Corporation are sometimes referred to herein as the "Constituent
Corporations"), (ii) the Articles of Incorporation of Surviving Corporation as
amended and restated shall be the Articles of Incorporation of the Surviving
Corporation, and (iii) the Bylaws of Surviving Corporation as in effect
immediately prior to the Effective Time shall be the Bylaws of the Surviving
Corporation.
(b) The directors of Sub immediately prior to the Effective Time
shall become the directors of the Surviving Corporation, each to hold office in
accordance with the Articles of Incorporation and Bylaws of the Surviving
Corporation, and the officers of Sub immediately prior to the Effective Time
shall become the officers of the Surviving Corporation, in each case until their
respective successors are duly elected or appointed and qualified.
FOURTH: Upon the effectiveness of the merger, the capital stock of
Surviving Corporation and the Sub shall be converted as follows:
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(a) At the Effective Time, by virtue of the Merger and without
any action on the part of the holder of any shares of the capital stock of
Surviving Corporation or Sub, each issued and outstanding share of the capital
stock of Sub shall be converted into and become one fully paid and nonassessable
share of Common Stock, $0.01 per share, of the Surviving Corporation.
(b) Each issued and outstanding share of Surviving Corporation
Common Stock shall, by virtue of the Merger and without any action on the part
of the holder thereof, be converted into the right to receive 2.033537474 shares
of fully paid and nonassessable shares of Pan World Common Stock, and each
issued and outstanding share of Surviving Corporation Series A Preferred Stock
("Surviving Corporation Preferred Stock") shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into the
right to receive 2.033537474 shares of fully paid and nonassessable shares of
Pan World Common Stock. All such shares of Surviving Corporation Common Stock
and Surviving Corporation Preferred Stock, when so converted, shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares shall cease
to have any rights with respect thereto, except the right to receive the shares
of Pan World Common Stock in the case of Surviving Corporation Common Stock or
Surviving Corporation Preferred Stock, upon the surrender of such certificates
of Surviving Corporation capital stock.
(c) All options to purchase Surviving Corporation Common Stock
(the "Surviving Corporation Options") issued and outstanding under Surviving
Corporation's 1999 Equity Incentive Plan (the "Surviving Corporation Stock
Option Plan"), whether or not exercisable, whether or not vested, and whether or
not performance-based, shall remain outstanding following the Effective Time. At
the Effective Time, the Surviving Corporation Options shall, by virtue of the
Merger and without any further action on the part of Surviving Corporation or
the holder thereof, be assumed by Pan World. Each such Surviving Corporation
Option so assumed by Pan World under this Agreement shall continue to have, and
be subject to, the same terms and conditions set forth in the Surviving
Corporation Stock Option Plan immediately prior to the Effective Time, except
that (i) such Surviving Corporation Option will be exercisable for that number
of whole shares of Pan World Common Stock equal to the product of the number of
shares of Surviving Corporation Common Stock that were issuable upon exercise of
such Surviving Corporation Option immediately prior to the Effective Time
multiplied by the Option Exchange Ratio (defined below) and rounded down to the
nearest whole number of shares of Pan World Common Stock, and (ii) the per share
exercise price for the shares of Pan World Common Stock issuable upon exercise
of such assumed option will be equal to the quotient determined by dividing the
exercise price per share of Surviving Corporation Common Stock at which such
Surviving Corporation Option was exercisable immediately prior to the Effective
Time by the Option Exchange Ratio, rounded down to the nearest whole cent. The
Option Exchange Ratio shall be 1.00.
(d) For purposes of this Agreement, the term "Effective Time"
shall mean the time upon which the due and valid filing of this Agreement with
the Secretary of State of the State of California has occurred.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement of
Merger to be executed by their respective officers thereunto duly authorized on
this 2nd day of November, 1999.
TRIBEWORKS, INC.
/s/ Duncan Kennedy
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Name: Duncan Kennedy
Title:President
/s/ Arman Pahlavan
------------------------------------
Name: Arman Pahlavan
Title:Secretary
TRIBEWORKS ACQUISITION CORP.
/s/ Duncan Kennedy
------------------------------------
Name: Duncan Kennedy
Title:President
/s/ Arman Pahlavan
------------------------------------
Name: Arman Pahlavan
Title:Secretary
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EXHIBIT A
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
----------------------------
TRIBEWORKS, INC.
----------------------------
ARTICLE I
The name of this corporation is Tribeworks Development Corporation (the
"Corporation").
ARTICLE II
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General Corporation
Law of California other than the banking business, the trust company business or
the practice of a profession permitted to be incorporated by the California
Corporations Code.
ARTICLE III
The Corporation is authorized to issue only one class of shares of
stock; and the total number of shares which the Corporation is authorized to
issue is 1,000 shares of Common Stock, par value $0.01.
ARTICLE IV
The liability of the directors of the Corporation for monetary damages
shall be eliminated to the fullest extent permissible under California law.
ARTICLE V
The Corporation is authorized to provide indemnification of agents, as
that term is defined in Section 317 of the California General Corporation Law
for breach of duty to the corporation and its shareholders, in excess of that
expressly permitted by said Section 317, under any bylaw, agreement, vote of
shareholder of disinterested directors or otherwise, to the fullest extent such
indemnification may be authorized hereby, subject to the limits on such excess
indemnification set forth in Section 204 of the California General Corporation
Law. The Corporation is further authorized to provide insurance for agents as
set forth in Section 317 of the California Corporations Code, provided that, in
cases where the corporation owns all or a portion of the shares of the company
issuing the insurance policy, the company and/or the policy must meet on the two
sets of conditions set forth in Section 317, as amended. Any repeal or
modification of the foregoing provisions of this Article V by the shareholders
of this Corporation shall not adversely
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affect any right of protection of an agent of this Corporation existing at the
time of such repeal or modification.
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