EXHIBIT 2.1
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, 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,
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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 29th day of January, 2004.
Lions Gate: DOBI:
Lions Gate Investment Limited DOBI Medical International, Inc.
By:/s/Xxxxxxx X. Xxxxxx By:/s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx
Chief Executive Officer Chief Executive Officer
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