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Exhibit 2.1
PLAN OF MERGER
MERGING
ISEMPLOYMENT.COM, INC., A DELAWARE CORPORATION
INTO
MAGICAL MARKETING, INC., A WYOMING CORPORATION
1. PARTIES TO THE MERGER; EFFECTIVE DATE. Pursuant to the provisions
of the Wyoming Statutes, ISEmployment.com, Inc. ("ISEmployment.com"), a Delaware
corporation, shall be merged with and into Magical Marketing, Inc. ("Magical"),
a Wyoming corporation. Magical shall be the surviving corporation. The merger
("Merger") shall become effective at such time (the "Effective Time") on the
date (the "Effective Date") that articles of merger are filed with the Secretary
of State of Wyoming.
2. CLOSING. The closing of the merger contemplated by this agreement
shalltake place on or before July 14, 2000 at the offices of Mays & Valentine,
L.L.P., 8201 Greensboro Drive, Suite 800, Tyson Corner, McLean, Virginia 22102,
or at such other date and place as the parties may mutually agree. The actual
date of such closing is referred to herein as the "Closing." At the Closing,
Magical shall deliver two certificates, each evidencing 200,000 shares of its
common stock, $.001 par value, with one certificate registered in the name of
Scott Murray and one certificate registered in the name of Frank Ulakovich, and
Scott Murray and Frank Ulakovich shall each deliver one certificate evidencing
1,000,000 shares (a total of 2,000,000 shares) of ISEmployment.com common stock,
with no par value, registered in the name of Magical and an aggregate of
$200,000. Also at the Closing, Daniel L. Hodges shall receive $200,000 and
Daniel L. Hodges will deliver one certificate, evidencing 800,000 shares of
Magical's common stock, to Magical, which shares will be retired and cancelled
by Magical.
2A. EFFECT OF THE MERGER. From and after the Effective Time, (i)
Magical shall continue its corporate existence as a Wyoming corporation and the
separate existence of ISEmployment.com shall cease; (ii) the corporate
charter/articles of incorporation and bylaws of Magical in effect immediately
prior the Effective Time shall continue to be its charter/articles of
incorporation and bylaws until amended or repealed in a manner provided by law;
(iii) each of the directors and officers of ISEmployment.com in office
immediately prior the Effective Time shall become the directors and officers of
Magical, if they have not resigned as of the Effective Time, until their
respective successors are duly elected or appointed; and (iv) Magical shall
change its name to ISEmployment.com, Inc.
3. REPRESENTATIONS OF MAGICAL. Magical hereby represents and warrants
to ISEmployment.com that:
3.1 Due Incorporation, etc. Magical is duly incorporated, validly
existing and in good standing under the laws of Wyoming and has all requisite
power and authority to execute and deliver this agreement and to perform the
obligations to be performed by it hereunder. Neither the execution or delivery
of this agreement nor the performance by Magical hereof will constitute a breach
of or default under the governing instruments of Magical or any agreement,
instrument, indenture, judgment or decree to which Magical is a party or by
which it is bound.
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Prior to the Closing, all consents and approvals, if any, required to be
obtained by Magical for its performance hereunder will have been obtained.
3.2 Due Execution, Validity and Effect. This agreement has been
duly authorized, executed and delivered by Magical and, assuming the due
authorization, execution and delivery by ISEmployment.com, this agreement
constitutes the valid, legal and binding obligation of Magical, enforceable in
accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
3.3 Title to the Shares. At Closing, Magical shall deliver the
shares of its common stock, with legal and valid title thereto, free and clear
of all liens, charges, pledges, claims and encumbrances of any kind or nature
whatsoever, other than those created by this agreement.
3.4 Board Approval. The Board of Directors of Magical has duly
approved the merger contemplated by this agreement.
3.5 Full Disclosure. No representation or warranty made by
Magical in this agreement and no certificate or document furnished or to be
furnished to ISEmployment.com pursuant to this agreement contains or will
contain any untrue statement of a material fact, or omits or will omit to state
a material fact necessary to make the statements contained herein or therein not
misleading.
4. REPRESENTATIONS OF ISEMPLOYMENT.COM. ISEmployment.com
represents and warrants to Magical that:
4.1 Due Incorporation, etc. ISEmployment.com is duly
incorporated, validly existing and in good standing under the laws of Delaware
and has all requisite power and authority to execute and deliver this agreement
and to perform the obligations to be performed by it hereunder. Neither the
execution or delivery of this agreement nor the performance by ISEmployment.com
hereof will constitute a breach of or default under the governing instruments of
ISEmployment.com or any agreement, instrument, indenture, judgment or decree to
which ISEmployment.com is a party or by which it is bound. Prior to the Closing,
all consents and approvals, if any, required to be obtained by ISEmployment.com
for its performance hereunder will have been obtained.
4.2 Due Execution, Validity and Effect. This agreement has been
duly authorized, executed and delivered by ISEmployment.com and, assuming the
due authorization, execution and delivery by Magical, this agreement constitutes
the valid, legal and binding obligation of ISEmployment.com, enforceable in
accordance with its terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
4.3 Full Disclosure. No representation or warranty made by
ISEmployment.com in this agreement and no certificate or document furnished or
to be furnished to Magical pursuant to this agreement contains or will contain
any untrue statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements contained herein or therein not
misleading.
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4.4 Board Approval. The Board of Directors of ISEmployment.com has
duly approved the merger contemplated by this agreement.
5. REPRESENTATIONS OF FRANK ULAKOVICH AND SCOTT MURRAY. Frank
Ulakovich and Scott Murray each represent that:
5.1 Title to ISEmployment.com Stock. At Closing, Frank Ulakovich and
Scott Murray shall deliver 2,000,000 shares of common stock of ISEmployment.com
common stock to Magical with such 2,000,000 shares representing all issued and
outstanding shares of such stock, with legal and valid title thereto, free and
clear of all liens, charges, pledges, claims and encumbrances of any kind or
nature whatsoever, other than those created by this agreement.
5.2 Unregistered Securities. Each agrees and understands that the
shares of common stock to be delivered by Magical at the Closing are not
registered under the Securities Act of 1933 (the "Act") in reliance upon the
exemption from registration afforded by either Section 4(2) or Regulation D of
the Act and that unregistered securities must be held indefinitely unless they
are subsequently registered under the Act or an exemption from such registration
is available.
5.3 Investment Intent; Restrictive Legends; Stop-Transfer
Instructions. Each represents that: by reason of his knowledge and experience in
financial and business matter he is capable of evaluating the merits and risks
of owning such shares and that he has had available such information with
respect to Magical as deemed necessary or appropriate to make such evaluation;
he is acquiring the shares of common stock of Magical for investment and not
with a view to distribution; he acknowledges and agrees that a restrictive
transfer legend shall be imprinted on the face of the certificates delivered;
and that stop-transfer instructions shall be issued to the transfer agent with
respect to such certificates.
6. CERTAIN FEES.
Neither party has incurred any liability for any brokers' or finders'
fees or commissions in connection with the merger contemplated by this Agreement
for which the other party is or would be liable. Each of the parties agree to
indemnify and hold harmless the other from and against any commission, fee or
claim of any person employed or retained by it to bring about the merger
contemplated hereby or to represent it in connection therewith.
7. SECURITIES ACT OF 1933.
7.1 Sections 5.1, 5.2 and 5.3 above, are incorporated herein by
reference as if fully set forth herein.
7.2 Resales. Each of Frank Ulakovich and Scott Murray understands and
agrees that any disposition of the shares of common stock of Magical in
violation of the Act shall be null and void, and that no transfer of the shares
shall be made by upon Magical's stock transfer books unless, in the opinion of
counsel satisfactory to Magical, there has been compliance with the Act.
8. CONDITIONS TO OBLIGATIONS OF THE PARTIES. All obligations of the
parties under this agreement are subject to the fulfillment or satisfaction,
prior to or at Closing, of each of the following conditions precedent (all of
which may be waived):
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(a) each of the representations and warranties of the parties herein
being true and correct in all material respects on the date hereof and as of the
Closing, and each of the parties having performed or complied with all
agreements and covenants contained in this agreement to be performed or complied
with by it or either of them, as the case may be, prior to or at the Closing;
(b) neither the Magical nor Isemployement.com's being precluded by an
order or preliminary or permanent injunction of a court of competent
jurisdiction from consummating the merger pursuant to this agreement (each party
agreeing to use its reasonable best efforts to have any such injunction lifted);
and
(c) there not having been any statute, rule or regulation enacted or
promulgated by any government body or agency after the date hereof which is
applicable to the merger pursuant to this agreement which would render the
consummation of the merger illegal.
9. SURVIVAL OF REPRESENTATIONS, ETC. All representations, warranties
and agreements made herein shall survive any investigation made by Magical and
ISEmployment.com and shall survive the Closing.
10. TERMINATION. This agreement may be terminated:
(a) on the date specified in a writing executed by Magical and
ISEmployment.com;
(b) by Magical, upon written notice to ISEmployment.com, if any
representation or warranty made in this agreement by ISEmployment.com shall have
been false or incorrect in any material respect when made or shall have become
false or incorrect in any material respect thereafter, of if ISEmployment.com
shall fail to perform or observe any material covenant or agreement made by
ISEmployment.com in this agreement; or
(c) by ISEmployment.com, upon written notice to Magical, if any
representation or warranty made in this agreement by Magical shall have been
false or incorrect in any material respect when made or shall have become false
or incorrect in any material respect hereafter, or if Magical shall fail to
perform or observe any material covenant or agreement made by it in this
agreement.
11. MISCELLANEOUS.
11.1 Binding Effect; Assignment. This agreement shall inure to the
benefit of and be binding upon the parties hereto, their respective legal
representatives and successors. This agreement may not be assigned.
11.2 Further Assurances, Cooperation. Each party shall, upon reasonable
request by the other party, execute and deliver any additional documents
necessary or desirable to complete the merger pursuant to and in the manner
contemplated by this agreement. The parties hereto agree to cooperate and use
their respective best efforts to consummate the transactions contemplated by
this agreement.
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11.3 Entire Agreement; Absence of Representation. This agreement
constitutes the entire agreement between the parties hereto and supersedes all
prior arrangements, understandings, and agreements, oral or written, between the
parties hereto with respect to the subject matter hereof. Magical and Scott
Murray and Frank Ulakovich hereby acknowledges that in acquiring the securities
in the merger hereunder, it and each of them has relied only upon the
representations and warranties expressly made in this agreement and that no
other statements, representations or warranties, oral or written, expressed or
implied, have been made or relied upon in connection with such acquisitions or
as an inducement therefor.
11.4 Execution in Counterparts. This agreement may be executed in
counterparts, each of which shall be deemed an original and all of which shall
be deemed to be one and the same instrument.
11.5 Notices. All notices, requests, permissions, waivers and
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person, by telegram, telex, facsimile transmission
or by mail (registered or certified mail, postage prepaid, return receipt
requested) to the respective parties at the following respective addresses or to
such other addresses as any party hereto shall specify in a notice to the other
parties hereto in accordance with the terms hereof:
If to Magical: Attention: Daniel L. Hodges
Magical Marketing, Inc.
5505 N. Indian Trail
Tucson, Arizona 85750
Facsimile Transmission: (609) 390-3050
If to ISEmployment.com Attention: Scott Murray
13-380 Pelis sier Street
Windsor, Ontario N9A 6W8
Canada
Facsimile Transmission: (800) 994-4045
With a copy (which shall not constitute notice) to:
Attention: David J. Levenson
Mays & Valentine, L.L.P.
8201 Greensboro Drive, Suite 800
McLean, Virginia 22102
Facsimile Transmission: (703) 734-4340
11.6 Amendments and Waivers. This agreement may not be modified or
amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought.
Magical may, by an instrument in writing, waive compliance by ISEmployment.com
or Scott Murray and Frank Ulakovich, as the case may be, with any term or
provision of this agreement on the part of any of them to be performed or
complied with. ISEmployment.com or Scott Murray and Frank Ulakovich may, by an
instrument in writing, waive compliance by Magical with any term or provision of
this
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agreement on the part of Magical to be performed or complied with. Any waiver of
a breach of any term or provision of this agreement shall not be construed as a
waiver of any subsequent breach.
11.7 Headings; Severability. The headings contained in this agreement
are for convenience of reference only and shall not affect the interpretation or
construction hereof. Any term or provision of this agreement which is invalid or
unenforceable in any jurisdiction shall, as to such 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, such provision shall be interpreted to be only
so broad as in enforceable.
11.8 Governing Law. This Agreement shall be construed (both as to
validity and performance) and enforced in accordance with and governed by the
laws of the State of Wyoming applicable to agreements made and to be performed
wholly within such jurisdiction and without regard to conflicts of laws.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of this 30th day of June, 2000.
MAGICAL MARKETING, INC.
By: /s/ Daniel L. Hodges
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President
ISEMPLOYMENT.COM, INC.
By: /s/ Scott Murray
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President
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Shareholders of ISEmployment.com, Inc.:
/s/ Frank Ulakovich
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Frank Ulakovich
/s/ Scott Murray
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Scott Murray
Shareholders of Magical Marketing, Inc.:
/s/ Daniel L. Hodges
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Daniel L. Hodges
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