EXHIBIT 1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made and
entered into by and between Lions Gate Investment Limited, a Nevada corporation
("Lions Gate"), and DOBI Medical International, Inc., a Delaware corporation
("DOBI"), being sometimes referred to herein individually as the "Constituent
Corporation" and collectively as the "Constituent Corporations."
R E C I T A L S:
A. Lions Gate is a corporation duly organized, validly existing and in good
standing under the laws of the State of Nevada. Lions Gate has authorized
capital consisting of 100,000,000 shares of common stock, par value $.0001 per
share. As of December 9, 2003 (said date being the record date for determining
the stockholders of Lions Gate entitled to vote on the Merger Agreement),
37,537,712 shares of the common stock were issued and outstanding.
X. XXXX is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. DOBI has authorized capital
consisting of 150,000,000 shares, of which 140,000,000 shares are designated
common stock, par value $.000l per share, and 10,000,000 shares are designated
preferred stock, par value $.0001 per share. As of the date of execution hereof,
1,000 shares of the DOBI common stock were issued and outstanding, all of which
were held by Lions Gate. As of the date of execution hereof, no shares of DOBI
preferred stock were outstanding.
C. The Board of Directors of Lions Gate has determined that, for the
purpose of effecting the reincorporation of Lions Gate in the State of Delaware,
it is advisable and in the best interest of Lions Gate that Lions Gate merge
with and into DOBI upon the terms and conditions set forth herein.
D. The respective Board of Directors of the Constituent Corporations have
authorized and approved the merger of Lions Gate with and into DOBI in
accordance with the provisions of Sections 368(a) (1) (F) of the Internal
Revenue Code of 1986, as amended (the "Code"), and Sections 92A.005 et seq. of
the Nevada General Corporation Law (the "NGCL") and Sections 251 et seq. of the
General Corporation Law of Delaware (the "DGCL"), upon the terms and conditions
set forth in this Merger Agreement (the "Merger") and have approved this Merger
Agreement and directed that it be executed by the undersigned officers.
E. Holders of approximately 50.5% of the issued and outstanding common
stock of Lions Gate approved the Merger and the Merger Agreement by consent in
lieu of special meeting. The sole stockholder of DOBI also approved the Merger
and the Merger Agreement by consent in lieu of special meeting.
F. It is the intention of the Constituent Corporations that the Merger
shall be a tax-free reorganization pursuant to the applicable provisions of the
Code.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, and for the purpose of stating the
terms and conditions of the Merger, the mode of effectuating the same, and such
other details and provisions as are deemed desirable, the parties hereto have
agreed, and do hereby agree, subject to the terms and conditions hereinafter set
forth, as follows:
ARTICLE I
TERMS OF MERGER
1.1 Merger. On the Effective Date of the Merger (as hereinafter
defined), in accordance with the provisions of Sections 92A.005 et seq. of the
NGCL, Sections 251 et seq. of the DGCL and Section 368(a) (1) (F) of the Code,
Lions Gate shall be merged with and into DOBI, which shall be sometimes referred
to herein as the "Surviving Corporation," upon the terms and conditions set
forth in the subsequent provisions of this Merger Agreement.
1.2 Approval of Stockholders. The stockholders of the Constituent
Corporations have duly approved the Merger Agreement and the transactions
contemplated herein.
1.3 Filings and Effectiveness. As soon as practicable following
satisfaction of all requirements imposed by the NGCL, DGCL and federal
securities laws, Lions Gate and DOBI will cause (i) the Articles of Merger along
with any other required document to be filed with the Office of the Secretary of
State of Nevada pursuant to Sections 92A.005 et seq. of the NGCL and (ii) the
Certificate of Merger along with any other required document to be filed with
the Secretary of State of the State of Delaware pursuant to Sections 251 at seq.
of the DGCL. The Merger shall become effective when the last to occur of the
following actions shall have been completed:
(a) An executed Certificate of Merger or an executed
counterpart of this Merger Agreement meeting the requirements of the
DGCL shall have been filed with the Secretary of State of the State of
Delaware and said Secretary of State shall have issued a Certificate of
Merger; and
(b) An executed Articles of Merger or an executed counterpart
of this Merger Agreement meeting the requirements of the NGCL shall
have been accepted for recording by the secretary of State of the State
of Nevada and said Secretary of State shall have issued a Certificate
of Merger.
The date and time when the Merger shall become effective, as aforesaid,
is herein called the "Effective Date of the Merger."
1.4 Effect of Merger. DOBI, as the Surviving Corporation in the Merger,
will continue to be governed by the laws of the State of Delaware and the
separate corporate existence of DOBI and all of its rights, privileges,
immunities and franchises, public or private, and all of its duties and
liabilities as a corporation organized under the DGCL will continue unaffected
and unimpaired by the Merger. At the close of business on the Effective Date of
the Merger, the existence of Lions Gate as a distinct entity shall cease. At
that time all rights, franchises and interests of DOBI and Lions Gate,
respectively, in and to every type of property,
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whether real, personal or mixed, and choices in action shall be transferred to
and vested in DOBI by virtue of the Merger without any deed or other transfer.
DOBI, without any order or other action on the part of any court or otherwise,
shall possess all and singular the rights, privileges, powers and franchises,
and shall be subject to all the restrictions, disabilities and duties of Lions
Gate and DOBI, and all property, whether real, personal or mixed, of Lions Gate
and DOBI, and all debts due to Lions Gate or DOBI on whatever account, and all
other things in action or belonging to each of said corporations, shall be
vested in DOBI. All property, rights, privileges, powers and franchises, and all
and every other interest of Lions Gate or DOBI as of the Effective Date of the
Merger, including, but not limited to, all patents, trademarks, licenses,
registrations, and all other intellectual properties, shall thereafter be the
property of DOBI to the same extent and effect as such was of the respective
Constituent Corporations prior to the Effective Date of the Merger, and the
title to any real estate vested by deed or otherwise in Lions Gate and DOBI
shall not revert or be in any way impaired by reason of the Merger; provided,
however, that all rights of creditors and all liens upon any property of Lions
Gate or DOBI shall thenceforth attach to DOBI and may be enforced against it to
the same extent as if said debts, liabilities, and duties had been incurred or
contracted by DOBI. Neither the rights of creditors nor any liens or security
interests upon the property of either of the Constituent Corporations shall be
impaired by the Merger. DOBI shall carry on business with the assets of Lions
Gate and DOBI. The established offices and facilities of DOBI and Lions Gate
immediately prior to the Merger shall become the established offices and
facilities of DOBI.
All corporate acts, plans, policies, resolutions, approvals and
authorizations of the stockholders, Board of Directors, committees elected or
appointed by the Board of Directors, officers and agents of Lions Gate, which
were valid and effective immediately prior to the Merger shall be taken for all
purposes as the acts, plans, policies, resolutions, approvals and authorizations
of the Surviving Corporation and shall be as effective and binding thereon as
the same were with respect to Lions Gate. The employees of Lions Gate shall
become the employees of the Surviving Corporation and continue to be entitled to
the same rights and benefits which they enjoyed as employees of Lions Gate.
1.5 Disposition and Conversion of Shares. The mode of carrying the
Merger into effect and the manner and the disposition of the shares of Lions
Gate and DOBI shall be as follows:
(a) DOBI Shares. Each share of common stock, par value $.0001
per share, of DOBI issued and outstanding immediately prior to the
Effective Date of the Merger shall, by virtue of the Merger and without
any action by DOBI, the holder of such shares or by any other person,
be cancelled and returned to the status of authorized but unissued
shares, all rights in respect thereof shall cease to exist and no
shares of DOBI common stock or other securities of the Surviving
Corporation shall be issuable with respect thereto.
(b) Lions Gate Non-Dissenting Shares. Each share of common
stock, par value $.0001 per share, of Lions Gate issued and outstanding
immediately prior to the Effective Date of the Merger other than the
shares, if any, of Lions Gate for which appraisal rights shall be
perfected under Sections 92A.300 through 92A.500 of the NGCL (the
"Dissenting Shares") shall, by virtue of the Merger and without any
action by Lions
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Gate, the holder of such shares or any other person, be
converted into and exchanged for one fully paid and nonassessable share
of common stock, par value $.0001 per share, of the Surviving
Corporation.
(c) Lions Gate Dissenting Shares. The holders of Dissenting
Shares of Lions Gate common stock who have complied with all
requirements for perfecting the rights of appraisal of stockholders set
forth in Sections 92A.300 through 92A.500 of the NGCL with respect to
their Dissenting Shares of Lions Gate common stock shall be entitled to
their rights under the NGCL.
(d) Exchange of Certificates. Each outstanding certificate
theretofore representing shares of Lions Gate common stock that are not
Dissenting Shares (the "Non-Dissenting Shares") shall be deemed for all
purposes to represent the number of whole shares of the DOBI common
stock into which such Non-Dissenting Shares of Lions Gate common stock
were converted in the Merger and the holder thereof shall not be
required to surrender such certificate for a certificate issued by
DOBI. However, after the Effective Date of the Merger, each holder of
an outstanding certificate representing Non-Dissenting Shares of Lions
Gate common stock may, at such stockholder's option and sole
discretion, surrender the same for cancellation to The Nevada Agency
and Trust Company Limited, as the sole stock transfer and registrar of
the Lions Gate common stock and as exchange agent therefor (the
"Exchange Agent"), and each such holder shall be entitled to receive in
exchange therefor a certificate or certificates representing the number
of shares of the DOBI common stock into which the surrendered shares
were converted as herein provided.
The registered owner on the books and records of DOBI or the Exchange
Agent of any such outstanding certificate representing Non-Dissenting Shares of
Lions Gate common stock shall, until such certificate shall have been
surrendered for transfer or conversion or otherwise accounted for to the
Surviving Corporation or the Exchange Agent, have and be entitled to exercise
any voting and other rights with respect to and to receive dividends and other
distributions upon the shares of common stock of the Surviving Corporation
represented by such outstanding certificate as provided above.
Each certificate representing common stock of the Surviving Corporation
so issued in the Merger shall bear the same legends, if any, with respect to the
restrictions on transferability as the certificates of Lions Gate so converted
and given in exchange therefor, unless otherwise determined by the Board of
Directors of the Surviving Corporation in compliance with applicable laws.
If any certificate for shares of DOBI stock is to be issued in a name
other than that in which the certificate surrendered in exchange therefor is
registered, it shall be a condition of issuance thereof that the certificate so
surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and that the person requesting
such transfer pay to the Exchange Agent any transfer or other taxes payable by
reason of issuance of such new certificate in a name other than that of the
registered holder of the certificate surrendered or establish to the
satisfaction of DOBI that such tax has been paid or is not payable.
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(e) Validity of DOBI Common Stock. At the Effective Date of
the Merger, all shares of DOBI common stock into which the
Non-Dissenting Shares of Lions Gate common stock are to be converted
pursuant to the Merger shall be validly issued, fully paid and
nonassessable and shall be issued in full satisfaction of all rights
pertaining to the corresponding shares of Lions Gate common stock.
1.6 Certificate of Incorporation of Surviving Corporation. The
Certificate of Incorporation of DOBI as in effect immediately prior to the
Effective Date of the Merger 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.
1.7 Bylaws of Surviving Corporation. The Bylaws of DOBI 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 altered,
amended or repealed as provided in the Bylaws or as provided by applicable law.
1.8 Directors and Officers of Surviving Corporation. The directors and
officers of Lions Gate as of the Effective Date of the Merger shall be and
become the directors and officers of the Surviving Corporation, until their
successors shall be duly elected and qualified or until their sooner death,
resignation or removal.
1.9 Accounting Matters. The assets and liabilities of the Constituent
Corporations, as of the Effective Date of the Merger, shall be taken upon the
books of the Surviving Corporation at the amounts at which they shall be carried
at that time on the books of the respective Constituent Corporations. The amount
of the capital surplus and earned surplus accounts of the Surviving Corporation
after the Merger shall be determined by the Board of Directors of the Surviving
Corporation in accordance with the laws of the State of Delaware and generally
accepted accounting principles.
ARTICLE II
GENERAL PROVISIONS
2.1 Covenants of DOBI. DOBI covenants and agrees that on or before the
Effective Date of the Merger, it will qualify to do business as a foreign
corporation in the State of New Jersey and in connection therewith take such
other action as may be required by the New Jersey Business Corporation Act.
2.2 Binding Agreement. This Merger Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
assigns.
2.3 Amendments. The Board of Directors of Lions Gate and DOBI may amend
this Merger Agreement at any time prior to the filing of this Merger Agreement
(or a certificate in lieu thereof) with the Secretary of State of the State of
Delaware, provided that an amendment made subsequent to the adoption of this
Merger Agreement by the stockholders of either Lions Gate or DOBI shall not: (i)
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 Lions Gate or DOBI; (ii) alter or
change any term of the
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Certificate of Incorporation of the Surviving Corporation to be effected by the
Merger; or (iii) alter or change any of the terms and conditions of this Merger
Agreement if such alteration or change would adversely affect the holders of any
class or series of capital stock of either Lions Gate or DOBI.
2.4 Further Assurances. From time to time, as and when required by DOBI
or by its successors or assigns, there shall be executed and delivered on behalf
of Lions Gate such deeds and other instruments, and there shall be taken or
caused to be taken by Lions Gate 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 DOBI the title to and possession of all the property, rights,
privileges, powers, franchises, assets, immunities and authority of Lions Gate
and otherwise to carry out the purposes of this Merger Agreement. The officers
and directors of DOBI are fully authorized in the name and on behalf of Lions
Gate or otherwise to take any and all such action and to execute and deliver any
and all such deeds or other instruments.
2.5 Abandonment. At any time before the Effective Date of the Merger,
this Merger Agreement may be terminated and the Merger may be abandoned for any
reason whatsoever by the Board of Directors of either Lions Gate or DOBI, or by
both, by the adoption of appropriate resolutions and written notification
thereof to the other party to the Merger, notwithstanding the approval of this
Merger Agreement by the stockholders of Lions Gate or DOBI, or by both. In the
event of the termination of this Merger Agreement and the abandonment of the
Merger pursuant to the provisions of this Section, this Merger Agreement shall
become void and have no effect, without any liability on the part of either of
the Constituent Corporations or their respective officers, directors or
shareholders in respect thereof.
2.6 Governing Law. This Merger Agreement shall be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the Nevada
Business Corporation Act.
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IN WITNESS THEREOF, each of the undersigned corporations has caused this
Merger Agreement to be signed in its corporate name by its duly authorized
officer as of the ___ day of __________, 2004.
Lions Gate: DOBI:
Lions Gate Investment Limited DOBI Medical International, Inc.
By: By:
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Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
Chief Executive Officer Chief Executive Officer
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