AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is entered into as
of the 16th day of July, 2001, by and between RADIOTV NETWORK, Inc., a Florida
corporation ("RTV"), SUN EXPRESS GROUP, INC., a Florida corporation ("Sun"), and
SUN EXPRESS MERGER CORP., a Florida corporation and wholly-owned subsidiary of
Sun ("Merger Corp"), and is made with respect to the following facts:
A. RTV, Sun and Merger Corp, on the terms and conditions hereinafter
set forth, desire that Merger Corp merge with and into RTV in a "statutory
merger" as a result of which Merger Corp will disappear and RTV will continue as
the surviving corporation and all of the issued and outstanding shares of
capital stock of RTV will be converted into and become shares of Sun common
stock as described in this Agreement.
B. RTV, Sun and Merger Corp desire to adopt a plan of reorganization
which will result in a tax-free reorganization pursuant to the provisions of
Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code").
C. The respective Board of Directors and stockholders of RTV, Sun and
Merger Corp, have approved this Agreement and determined that it is advisable
and for the benefit of the respective corporations that RTV merge with and into
Merger Corp on the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements herein contained, THE
PARTIES HERETO AGREE AS FOLLOWS:
1. Definitions.
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1.01 Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Affiliate" means a Person that directly or indirectly
controls, is controlled by, or is under common control with, a specified Person.
A Person shall be deemed to control another Person if such Person possesses,
directly or indirectly, the power to direct or cause the direction of the
management policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise.
"Code" means the Internal Revenue Code of 1986, as amended,
through the date first set forth above.
"Florida Law" means the Florida Business Corporation Act.
"Governmental Entity" means any government or any agency,
bureau, commission, court, department, official, political subdivision, tribunal
or other instrumentality of any government, whether federal, state or local,
domestic or foreign.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, and the related regulations and published
interpretations.
"Law" means any constitutional provision, statute or other
law, rule, regulation, or interpretation thereof and any order of any
Governmental Entity.
"NASD" means the National Association of Securities Dealers.
"Person" means and includes natural persons, corporations,
limited partnerships, general partnerships, joint stock companies, joint
ventures, limited liability companies, limited liability partnerships,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"Rights" means any options, warrants, shares of capital stock,
convertible securities, evidence of indebtedness, or other securities,
obligations or rights, however denominated, to subscribe or exchange for,
purchase, convert into or otherwise acquire any capital stock with or without
payment of additional consideration in cash or property, either immediately or
upon the occurrence of a specified date or a specified event or the satisfaction
or happening of any other condition or contingency.
"SEC" means the Securities and Exchange Commission.
1.02 Additional Defined Terms. The following additional terms
shall have the meaning ascribed thereto in the Section indicated below next to
such term:
Defined Term Section Defined Term Section
15c Filing 8.09 RTV Balance Sheet Date 6.06
Arbitrator 12.12 RTV Financial Statements 6.06
Blue Sky Laws 7.06 RTV Rights 5.02(b)
Closing 3.03 RTV Shares 5.02(a)
Effective Time 3.02 Securities Act 7.06
Employment Agreement 8.11 Sun Introduction
Merger 3.01 Sun Balance Sheet Date 7.08
Merger Corp Introduction Sun Common Stock 5.02(a)
Merger Shares 5.02(a) Sun Corporate Changes 8.08
Private Placement 8.12 Sun Financial Statements 7.08
RTV Introduction Surviving Corporation 3.01
1.03 Terms Generally; Certain Rules of Construction. The
definitions in Sections 1.01 and 1.02 hereof shall apply equally to both the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and "including" shall be deemed to
be followed by the phrase "without limitation." The words "herein," "hereof" and
"hereunder" and words of similar import refer to this Agreement in its entirety
and not to any part hereof unless the context shall otherwise require. All
references herein to Sections, Exhibits and Schedules shall be deemed references
to and Sections of, and Exhibits and Schedules to, this Agreement unless the
context shall otherwise require. Unless otherwise expressly provided herein or
unless the context shall otherwise require, any references as of any time to the
"Certificate of Incorporation," "Articles of Incorporation," "charter,"
"organizational or constituent documents" or "Bylaws" of any Person, to any
agreement (including this Agreement) or other contract, instrument or document
or to any statute or regulation or any specific section or other provision
thereof are to it as amended and supplemented through such time (and, in the
case of a statute or regulation or specific section or other provision thereof,
to any successor of such statute, regulation, section or other provision). Any
reference in this Agreement to a "day" or number of "days" (without the explicit
qualification of "business") shall be interpreted as a reference to a calendar
day or number of calendar days. If any action or notice is to be taken or given
on or by a particular calendar day, and such calendar day is not a business day,
then such action or notice shall be deferred until, or may be taken or given on,
the next business day. Unless otherwise expressly provided herein or unless the
context shall otherwise require, any provision of this Agreement using a defined
term (by way of example and without limitation, such as "Stockholders") which is
based on a specified characteristic, qualification, feature or status shall, as
of any time, refer only to such Persons who have the specified characteristic,
qualification, feature or status as of that particular time. The word "property"
includes property and assets of any kind, whether real or personal, tangible or
intangible.
2. Adoption of Plan. RTV, Sun and Merger Corp hereby adopt the plan of
merger hereinafter set
forth.
3. Plan of Merger.
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3.01 Statutory Merger. Upon the terms and subject to the
conditions set forth in this Agreement, and in accordance with Florida Law, at
the Effective Time (as hereinafter defined), Merger Corp shall be merged with
and into RTV, which shall survive and continue and be governed by the laws of
the State of Florida (the "Merger"). As a result of the Merger, Merger Corp
shall disappear and its separate limited liability company existence shall
thereupon cease and RTV shall continue as the surviving corporation and succeed
to and assume all of the rights and obligations of Merger Corp in accordance
with Florida Law. RTV is sometimes referred to herein as the "Surviving
Corporation."
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3.02 Effective Time. The Merger shall become effective as of
the date and time of the filing of a duly executed Certificate of Merger
(referred to in Section 3.03 hereof) with the Secretary of State of the State of
Florida. Such date and time are referred to herein as the "Effective Time."
3.03 The Closing and Filing of Merger Documents.
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(a) The Closing. Promptly after the satisfaction of
the conditions or, if permissible, waiver of the conditions set forth in Section
9 hereof, the closing (the "Closing") shall be held at the offices of Sun, 0000
Xxxxxxxxxx Xx., Xxxxx 000x, Xxxxx Xxxxxxx, Xxxxxxx 00000-0000 or at some other
date, place or time as the parties shall otherwise agree upon in writing.
(b) Filing of Merger Documents. At the Closing, the
parties hereto shall execute in the manner required by Florida Law and file with
the Secretary of State of Florida a Certificate of Merger incorporating such
information as is required by such Law; and the parties hereto shall take such
other and further actions as may be required by law to make the Merger
effective.
3.04 Certain Effects of the Merger.
(a) The Merger shall have the effects set forth in
Florida Law.
(b) If at any time the Surviving Corporation shall be
advised that any further assignment or assurances in law or any other things are
necessary or desirable to vest in the Surviving Corporation according to the
terms hereof, the title of any property or rights of Merger Corp, the directors
and officers of Merger Corp shall execute and make all such proper assignments
and assurances and do all things necessary or proper to vest title in such
property or rights in the Surviving Corporation, and otherwise to carry out the
purposes of this Agreement.
4. Certificate, By-Laws, Directors and Officers of the Surviving
Corporation.
4.01 Certificate and By-Laws. The Certificate of Incorporation
and Bylaws of RTV in effect at the Effective Time shall be the Certificate of
Incorporation and Bylaws of the Surviving Corporation, to remain unchanged until
amended as provided by Law.
4.02 Directors. The Board of Directors of the Surviving
Corporation at the Effective Time shall be comprised of two directors as
follows: T. Xxxxxx Xxxxxxx and Xxxxxxx X. Xxxxxxx. Each such director shall hold
office from the Effective Time until his successor is duly elected or appointed
and qualified in the manner provided in the Certificate of Incorporation and
Bylaws of the Surviving Corporation, or as otherwise provided by Law.
4.03 Officers. The officers of the Surviving Corporation at
the Effective Time shall be as follows: T. Xxxxxx Xxxxxxx, Chief Executive
Officer, President, Chief Financial Officer and Secretary. Except as otherwise
provided in an employment agreement, each officer shall hold office from the
Effective Time at the pleasure of the Board of Directors of the Surviving
Corporation.
5. Conversion of Capital Stock.
5.01 Conversion of Shares of Merger Corp into Shares of the
Surviving Corporation. At the Effective Time of the Merger (i) all of the shares
of the common stock of Merger Corp issued and outstanding at such time
(excluding any shares held in the treasury of Merger Corp, which treasury shares
shall be cease to exist) shall thereupon be converted into an equal number of
fully paid and nonassessable shares of Common Stock of the Surviving
Corporation; (ii) all other shares of capital stock of Merger Corp issued and
outstanding at such time shall be canceled, shall cease to exist and no
consideration shall be delivered in exchange therefor; and (iii) each option,
warrant or right granted by Merger Corp to acquire any shares of capital stock
of Merger Corp issued and outstanding at such time shall be canceled, shall
cease to exist and no consideration shall be delivered in exchange therefor.
Until new certificates are issued to the former holder of common stock of Merger
Corp, each certificate of Merger Corp evidencing ownership of any such shares
shall continue to evidence ownership of the same number of shares of common
stock of the Surviving Corporation.
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5.02 Conversion of Shares of RTV into Common Stock of Sun. At
the Effective Time, all of the shares of capital stock of RTV shall be converted
into shares of Sun common stock as follows:
(a) Outstanding Common Stock. Subject to Sections
5.03 and 5.04 hereof, all of the issued and outstanding shares of common stock
of RTV ("RTV Shares"), shall be converted into 40,000,000 fully paid and
nonassessable shares of Sun Common Stock ("Merger Shares"). The Merger Shares
shall be issued to the shareholders of RTV in the proportions set forth on
Exhibit 6.05 attached hereto and incorporated herein by this reference. Each
certificate evidencing any Merger Shares shall contain the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") OR THE
SECURITIES LAWS OF ANY STATE. THESE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE
DISTRIBUTION THEREOF. THESE SECURITIES MAY NOT BE TRANSFERRED UNLESS A
REGISTRATION STATEMENT UNDER THE ACT AND STATE SECURITIES LAWS IS IN
EFFECT AS TO THESE SECURITIES OR THERE IS AN OPINION OF COUNSEL,
SATISFACTORY TO THE COMPANY, THAT AN EXEMPTION THEREFROM IS AVAILABLE
Each certificate shall also contain any and all restrictive legends required by
any applicable State "Blue Sky" securities laws as reasonably determined by Sun
and RTV.
(b) Stock Rights. Each Right granted by RTV to
acquire any shares of capital stock of RTV issued and outstanding at the
Effective Time ("RTV Rights") shall, by virtue of the Merger and without any
further action on the part of any holder thereof, be canceled, shall cease to
exist and no consideration shall be delivered in exchange therefor.
(c) Treasury Shares. Each shares of capital stock
held in the treasury of RTV shall be canceled, shall cease to exist and no
consideration shall be delivered in exchange therefor.
5.03 Fractional Shares. Notwithstanding anything contained in
this Agreement to the contrary, in no event shall Sun be required to issue
fractional shares to the holders of RTV Shares or to make any payment in cash or
otherwise with respect to any fractional shares; but rather, the number of
shares to be issued and delivered pursuant hereto shall be rounded to the
nearest whole number of shares.
5.04 Anti-Dilution and Adjustment Provisions. For all relevant
purposes of this Agreement, appropriate adjustments shall be made so as to take
into account any recapitalization, reclassification merger, consolidation, stock
splits, stock dividends, reverse stock splits or like changes in the
capitalization of Sun declared or effected after the date hereof and prior to
the Effective Time.
6. Representations and Warranties of RTV. Subject to Section 11 hereof,
RTV hereby represents, warrants and covenants to Sun as follows:
6.01 Organization, Standing and Power. RTV is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware. RTV has the limited liability power and
authority to conduct its business as presently conducted and to own, lease and
operate the properties utilized in connection with its business.
6.02 Authorization. RTV has the limited liability company
power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary limited liability company actions on the
part of RTV and this Agreement constitutes a valid and binding obligation of
RTV, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally.
6.03 No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby nor
compliance by RTV with any of the provisions hereof will violate any provision
of the Charter or Operating Agreement of RTV or any material order, writ,
injunction, decree, statute, rule or regulation applicable to RTV or any of its
material properties or assets.
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6.04 No Consents. Except for exception from federal and state
securities laws on the exchange and issuance of the shares in the Merger, no
consent, authorization or approval of, or exemption by, any governmental, public
or self-regulatory body or authority is required in connection with the
execution, delivery and performance by RTV of this Agreement or consummation of
the transactions contemplated hereby.
6.05 Capital Stock. The number of authorized shares of capital
stock, par value, and the number of issued and outstanding shares of RTV is set
forth on Exhibit 6.05. There are no outstanding Rights or contracts or other
rights to restructure or recapitalize RTV. Other than as set forth on Exhibit
6.05, there are, and will be immediately prior to the Effective Time, no
outstanding shares of capital stock or Rights of RTV. All shares of capital
stock of RTV that are and will be outstanding immediately prior to the Effective
Time are duly authorized, validly issued, fully paid and nonassessable. Each
shareholder listed on Exhibit 6.05 owns all of its RTV Shares free and clear of
all liens and encumbrances, except for restrictions on transfer imposed by the
Securities Act and state "blue sky" securities laws.
6.06 Financial Statements. Prior to the Closing, RTV shall
deliver to Sun a balance sheet for RTV at December 31, 2000 ("RTV Balance Sheet
Date") and the related statement of operations and cash flow for RTV's fiscal
year then ended (the "RTV Financial Statements"). The RTV Financial Statements
will be prepared in conformity with GAAP applied on a consisted basis and
audited by Xxxxxxx & Company, P.A. The statements of income will present fairly
the results of operations of RTV for the respective periods covered, and the
balance sheets will present fairly the financial condition of RTV as of their
respective dates. At the dates of such balance sheets, RTV had no material
liability (actual, contingent or accrued) that, in accordance with GAAP, applied
on a consistent basis, should have been shown or reflected therein but were not.
6.07 No Material Adverse Changes. Since the RTV Balance Sheet
Date, there has not been (a) any material adverse change, or material adverse
effect on, in the business of RTV; (b) any casualty, loss, damage or destruction
(whether or not covered by insurance) materially and adversely affecting the
business of RTV; and/or (c) any change in the assets, licenses, permits or
franchises which change is material and adverse to the business of RTV other
than the acquisition of the assets of Radio TV Network, LLC, a Delaware limited
liability company.
6.08 Legal Proceedings. There is no legal action (whether or
nor purportedly on behalf of RTV) pending or, to the knowledge of RTV
threatened, nor are there orders binding upon RTV enjoining it in respect of, or
the effect of which is to prohibit, any business practice which is material to
its business, or the acquisition of any material amount of property or the
conduct of any material amount of business in any area.
6.09 Securities Representations. Each shareholder of RTV is
acquiring the Merger Shares for its own account for investment purposes only and
not with a view to the sale or other distribution thereof; and presently has no
intention of offering, selling, transferring, pledging, hypothecating or
otherwise disposing of all or any part of the Merger Shares at any particular
time, for any particular price, or upon the happening of any particular event or
circumstances.
6.10 No Brokers or Finders. No agent, broker, finder or
investment or commercial banker, or other person or firm engaged by or acting on
behalf of RTV in connection with the negotiation, execution or performance of
this Agreement or the transactions contemplated by this Agreement, is or will be
entitled to any brokerage or finder's or similar fee or other commission as a
result of this Agreement or such transactions.
7. Representations and Warranties of Sun and Merger Corp. Subject to
Section 11 hereof, Sun and Merger Corp, jointly and severally, hereby represent,
warrant and covenant to RTV as follows:
7.01 Organization, Standing and Power. Each of Sun and Merger
Corp is a corporation duly are organized, validly existing and in good standing
under the laws of the State of Florida. Each of Sun and Merger Corp has the
corporate power and authority to conduct its business as presently conducted and
to own, lease and operate the properties utilized in connection with its
business.
7.02 Authorization. Each of Sun and Merger Corp has the
corporate power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by all necessary corporate actions on the part of each of Sun
and Merger Corp and this Agreement constitutes a valid and binding obligation of
each of Sun and Merger Corp, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally.
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7.03 No Violation. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby nor
compliance by each of Sun and Merger Corp with any of the provisions hereof will
violate any provision of its Charter or Bylaws or any material order, writ,
injunction, decree, statute, rule or regulation applicable to Sun and/or Merger
Corp or any of its material properties or assets.
7.04 No Consents. Except for exception from federal and state
securities laws on the exchange and issuance of the Merger Shares in the Merger,
no consent, authorization or approval of, or exemption by, any governmental,
public or self-regulatory body or authority is required in connection with the
execution, delivery and performance by each of Sun and Merger Corp of this
Agreement or consummation of the transactions contemplated hereby.
7.05 Capital Stock. The number of authorized shares of capital
stock (and their par value), and the number of issued and outstanding shares of
capital stock of each of Sun and Merger Corp, is set forth on Exhibit 7.05.
Exhibit 7.05 also sets forth the Rights of Sun that are issued and outstanding.
Other than as set forth on Exhibit 7.05, there are, and will be immediately
prior to the Effective Time, no outstanding shares of capital stock or Rights or
contracts or other rights to restructure or recapitalize Sun or Merger Corp. All
capital stock or other equity securities of each of Sun and Merger Corp that are
outstanding immediately prior to the Effective Time are duly authorized, validly
issued, fully paid and nonassessable. There are no preemptive rights in respect
of any capital stock or other equity securities of Sun or Merger Corp.
7.06 The Merger Shares. After giving effect to the issuance of
the Merger Shares, on the Effective Date the Merger Shares will constitute 62.5%
of the issued and outstanding shares of Sun common stock on a fully diluted
basis. All of the Merger Shares will be duly authorized, validly issued, fully
paid and nonassessable.
7.07 Compliance with Securities Laws. The issuance of the
Merger Shares in the Merger will not by itself, or when integrated with one or
more other offers, sales or issuances of securities by Sun and/or any other
Person, have to be registered under the registration requirements of Section 5
of the Securities Act of 1933, as amended (together with the rules and
regulations promulgated thereunder, the "Securities Act"). Each of the offering,
issuance and sale of the Merger Shares in the Merger is exempt from the
registration provisions of the Securities Act and is either exempt from, or will
be qualified or registered under, the registration or qualification provisions
of all applicable "blue sky" state (or other jurisdictional) securities laws.
7.08 Financial Statements. Sun has delivered to RTV a balance
sheet for Sun at July 31, 2000 ("Sun Balance Sheet Date") and the related
statement of operations and cash flow for Sun's fiscal year then ended (the "Sun
Financial Statements"). The Sun Financial Statements will be prepared in
conformity with GAAP applied on a consisted basis and audited by Xxxxxxx &
Company, P.A. The statements of income will present fairly the results of
operations of Sun for the respective periods covered, and the balance sheets
will present fairly the financial condition of Sun as of their respective dates.
At the dates of such balance sheets, Sun had no material liability (actual,
contingent or accrued) that, in accordance with GAAP, applied on a consistent
basis, should have been shown or reflected therein but were not.
7.09 No Material Adverse Changes. Since the Sun Balance Sheet
Date, there has not been (a) any material adverse change, or material adverse
effect on, in the business of Sun; (b) any casualty, loss, damage or destruction
(whether or not covered by insurance) materially and adversely affecting the
business of Sun; and/or (c) any change in the assets, licenses, permits or
franchises which change is material and adverse to the business of Sun.
7.10 Legal Proceedings. There is no legal action (whether or
nor purportedly on behalf of Sun) pending or, to the knowledge of Sun
threatened, nor are there orders binding upon Sun enjoining it in respect of, or
the effect of which is to prohibit, any business practice which is material to
its business, or the acquisition of any material amount of property or the
conduct of any material amount of business in any area.
7.11 No Brokers or Finders. No agent, broker, finder, or
investment or commercial banker, or other person or firm engaged by or acting on
behalf of Sun in connection with the negotiation, execution or performance of
this Agreement or the transactions contemplated by this Agreement, is or will be
entitled to any brokerage or finder's or similar fee or other commission as a
result of this Agreement or such transactions.
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8. Certain Covenants.
8.01 Operation in the Ordinary Course. Each of the parties
hereto agrees as to itself and its subsidiaries that (except as expressly
contemplated or permitted by this Agreement or to the extent that the other
party hereto shall otherwise consent in advance, which consent shall not be
unreasonably withheld and shall subsequently be confirmed in writing) to carry
on its respective business in the usual, regular and ordinary course and it
shall, and shall cause its subsidiaries to, use all reasonable efforts to
preserve intact their present business organizations, keep available the
services of their present officers and employees and preserve their
relationships with customers, suppliers and others having business dealings with
it and its subsidiaries.
8.02 Access to Information. Upon reasonable notice and subject
to restrictions contained in confidentiality agreements to which the parties are
subject, each party hereto shall, and shall cause each of its subsidiaries to,
afford to the other party and to their officers, employees, accountants, counsel
and other representatives access, during normal business hours to all their
respective properties, books, contracts, commitments and records and, during
such period, such party shall (and shall cause each of its subsidiaries to)
furnish promptly to the other party all other information concerning its
business, properties and personnel as the other party may reasonably request.
Subject to the requirements of applicable law, and except for such steps as are
necessary to disseminate the documents necessary to consummate the Merger, each
party hereto and its agents shall hold in confidence all non-public information
received from the other party, shall use such information only in connection
with the Merger and, if this Agreement shall be terminated, shall, upon request,
deliver, and shall use their best efforts to cause its agents to deliver, to the
other party all copies of such non-public information then in their possession
or control.
8.03 Reasonable Efforts. Each of the parties hereto agrees to
use its reasonable efforts to take, or cause to be taken, all actions necessary
to comply promptly with all legal requirements which may be imposed on itself
with respect to the Merger (which actions shall include furnishing all
information required under the HSR Act and in connection with approvals of or
filings with any other Governmental Entity) and shall promptly cooperate with
and furnish information to each other in connection with any such requirements
imposed upon any of them or any of their subsidiaries in connection with the
Merger. Each party hereto will, and shall cause its subsidiaries to, use its
reasonable efforts to take all reasonable actions necessary to obtain (and will
cooperate with each other in obtaining) any consent, authorization, order or
approval of, or any exemption by, any Governmental Entity or other public or
private third party required to be obtained or made by any party hereto or any
of their subsidiaries in connection with the Merger or the taking of any action
contemplated by this Agreement, except that no party need waive any substantial
rights or agree to any substantial limitation on its operations or to dispose of
or hold separate any material assets.
8.04 Confidentiality. Prior to the Closing, the parties hereto
shall, and shall cause their Affiliates and its and their employees, agents,
accountants, legal counsel and other representatives and advisers to, hold in
strict confidence all, and not divulge or disclose any information of any kind
concerning the other parties hereto and their business; provided, however, that
the foregoing obligation of confidence shall not apply to (a) information that
is or becomes generally available to the public other than as a result of a
disclosure by such party, any of its Affiliates or any of their respective
employees, agents, accountants, legal counsel or other representatives or
advisers, (b) information that is or becomes available to such party, any of its
Affiliates or any of their respective employees, agents, accountants, legal
counsel or other representatives or advisers on a non-confidential basis, and
(c) information that is required to be disclosed by the such party, any of its
Affiliates or any of their respective employees, agents, accountants, legal
counsel or other representatives or advisers as a result of any applicable Law,
rule or regulation of any Governmental Authority; and provided further that such
party promptly shall notify the disclosing party of any disclosure pursuant to
clause (c). Promptly after any termination of this Agreement, each party and its
representatives shall return to the other party or destroy all copies of
documentation with respect to the other party that were supplied by or on behalf
of the other party pursuant to this Agreement, without retaining any copy
thereof, and destroy any notes or analyses such party and/or its representatives
may have prepared containing information derived from such materials.
8.05 Intentionally Deleted.
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8.06 Publicity. Except as otherwise required by law, for so
long as this Agreement is in effect, neither RTV nor Sun shall, or shall permit
any of its subsidiaries to, issue or cause the publication of any press release
or other public announcement with respect to the transactions contemplated by
this Agreement without the consent of the other party, which consent shall not
be unreasonably withheld or delayed.
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8.07 Event Notices. From and after the date of this Agreement
until the Effective Time, each party hereto will promptly notify the other party
hereto of (a) the occurrence or nonoccurrence of any event the occurrence or
nonoccurrence of which would be likely to cause any condition to the obligations
of such party to effect the Merger and the other transactions contemplated by
this Agreement not to be satisfied and (b) the failure of such party to comply
with any covenant or agreement to be complied with by it pursuant to this
Agreement which would be likely to result in any condition to the obligations of
such party to effect the Merger and the other transactions contemplated by this
Agreement not to be satisfied. No delivery of any notice pursuant to this
Section will cure any breach of any representation or warranty of such party
contained in this Agreement or otherwise limit or affect the remedies available
hereunder to the party receiving such notice.
8.08 Sun Corporate Changes. Prior to the Effective Time, Sun
shall effect the following changes and take the following actions ("Sun
Corporate Changes"): (a) amend its Certificate of Incorporate to change its
corporate name to Sun Network Group, Inc.; (b) amend its Bylaws to provide for a
Board of Directors of four members; and (c) effect a reverse stock split to
decrease the number of its authorized common stock and to reverse split each of
its issued and outstanding shares of common stock into 0.3333 of a share of
common stock. Immediately prior to the Effective Time, there will be
approximately 24,000,000 shares of Sun common stock issued and outstanding on a
fully diluted basis.
8.09 Filing of Reports with the SEC and NASD and Free Trading
of Sun Common Stock. Sun shall use its best efforts (a) to prepare and file with
the SEC and the NASD as soon as possible after the execution of this Agreement
all of the reports, financial statements, information and other items and
material required by Rule 15c2-11 under the Securities Exchange Act of 1934, as
amended ("15c Filing"), and (b) to cause as soon as possible its issued and
outstanding shares of common stock to be "free trading" in accordance with Rule
15c2-11 ("Free Trading").
8.10 Sun Board of Directors. Prior to the Effective Time, Sun
shall cause its Board of Directors to consist of the following four individuals:
Xxxxxxx Xxxxxxx (Chairman), Dr. Xxx X. Xxxxxxx, T. Xxxxxx Xxxxxxx and Xxxxxxx X.
Xxxxxxx.
8.11 Employment Agreement. Prior to the Effective Time, Sun
and T. Xxxxxx Xxxxxxx shall execute an Employment Agreement in the form of
Exhibit 8.11 attached hereto ("Employment Agreement").
8.12 Sun Private Placement of Common Stock. Promptly after the
Effective Time, Sun shall use its best efforts to raise $5,000,000 by the
issuance of up to 5,000,000 shares of Sun common stock in a private placement
("Private Placement").
8.13 Securities Laws Compliance. Sun shall cause that each of
the offering, issuance and sale of the shares of Sun capital stock in the Merger
and the Private Placement is exempt from the registration provisions of the
Securities Act and is either exempt from, or will be qualified or registered
under, the registration or qualification provisions of all applicable "blue sky"
state (or other jurisdictional) securities laws.
8.14 Fees and Expenses. All fees and expenses incurred in
connection with the Merger, this Agreement and the transactions contemplated by
this Agreement shall be paid by the party incurring such fees or expenses,
whether or not the Merger is consummated.
9. Conditions.
----------
9.01 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligation of each party to effect the Merger shall be
subject to the satisfaction prior to the Closing of the following conditions:
(a) All consents, authorizations, orders and
approvals of (or filings or registrations with) any Governmental Entity or other
regulatory body required in connection with the execution, delivery and
performance of this Agreement, the failure to obtain which would prevent the
consummation of the Merger or have a material adverse effect on RTV or Sun,
shall have been obtained without the imposition of any condition having a
material adverse effect on RTV or Sun;
(b) Early termination shall have been granted or
applicable waiting periods shall have expired under the HSR Act, if applicable;
(d) No Governmental Entity or other regulatory body
(including any court of competent jurisdiction) shall have enacted, issued,
promulgated, enforced or entered any law, rule, regulation, executive order,
decree, injunction or other order (whether temporary, preliminary or permanent)
which is then in effect and has the effect of making illegal, materially
restricting or in any way preventing or prohibiting the Merger or the
transactions contemplated by this Agreement; and
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(e) All authorizations, consents, waivers and
approvals from parties to contracts or other agreements to which RTV or its
subsidiaries is a party, or by which any of them is bound, as may be required to
be obtained by them in connection with the performance of this Agreement, the
failure to obtain which would prevent the consummation of the Merger or have,
individually or in the aggregate, a material adverse effect on RTV, shall have
been obtained.
9.02 Conditions to Obligations of Sun to Effect the Merger.
The obligations of Sun to effect the Merger are further subject to satisfaction
or waiver at or prior to the Effective Time of the following conditions.
(a) There shall not have occurred any change,
condition, event or development that has resulted in, or could reasonably be
expected to result in, a material adverse effect on RTV;
(b) The representations and warranties of RTV in this
Agreement that are qualified by materiality shall be true and correct in all
respects as of the date of this Agreement and as of the Effective Time;
(c) The representations and warranties of RTV in this
Agreement that are not qualified by materiality shall be true and correct in all
material respects as of the date of this Agreement and as of the Effective Time;
(d) RTV shall have performed in all material respects
all obligations required to be performed by it under this Agreement; and
(e) T. Xxxxxx Xxxxxxx shall have executed the
Employment Agreement.
9.03 Conditions to Obligations of RTV to Effect the Merger.
The obligations of RTV to effect the Merger are further subject to satisfaction
or waiver at or prior to the Effective Time of the following conditions:
(a) The representations and warranties of Sun and
Merger Corp in this Agreement that are qualified by materiality shall be true
and correct in all respects as of the date of this Agreement and as of the
Effective Time;
(b) The representations and warranties of Sun and
Merger Corp in this Agreement that are not qualified by materiality shall be
true and correct in all material respects as of the date of this Agreement and
as of the Effective Time;
(c) Sun and Merger Corp shall have performed in all
material respects all obligations required to be performed by them under this
Agreement;
(d) Sun shall have effected all of the Sun Corporate
Changes, made the 15c Filing and the shares of Sun common stock shall be Free
Trading as reasonably determined by RTV; and
(e) Sun shall have executed the Employment Agreement.
10. Termination and Amendment.
-------------------------
10.01 Termination. This Agreement may be terminated at any
time prior to the Effective Time, whether before or after approval of the terms
of this Agreement by the RTV Stockholder Approval:
(a) By mutual written consent of the parties hereto
to terminate;
(b) By any party hereto if any Governmental Entity
shall have issued an order, decree or ruling or taken any other action
permanently enjoining, restraining or otherwise prohibiting the exchange of
shares pursuant to the Merger and such order, decree or ruling or other action
shall have become final and nonappealable; provided, however, that the right to
terminate this Agreement pursuant to this Section 10.01(b) shall not be
available to any party that has failed to perform its obligations under Section
8.04;
(c) By any party hereto if this Agreement shall fail
to receive the requisite vote for approval and adoption by the RTV stockholders
at the Stockholders Meeting;
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(f) By Sun if
(i) Any representation or warranty of RTV
shall not have been true and correct in all material respects when made, except
in any case where such failure to be true and correct would not, in the
aggregate, have a material adverse effect on RTV, or prevent or materially delay
consummation of the Merger;
(ii) RTV shall have failed to comply in any
material respect with any of its material obligations or covenants contained
herein, except in any case where such failure would not, in the aggregate, have
a material adverse effect on RTV, or prevent or materially delay consummation of
the Merger; or
(iii) There shall have been a material
adverse change with respect to RTV; provided that RTV shall, if curable, have a
reasonable period in which to cure any failure described in clause (i), (ii) or
(iii) above;
(g) By RTV, if
(i) Any representation or warranty of Sun
and/or Merger Corp shall not have been true and correct in all material respects
when made or shall have ceased at any later date to be true and correct in all
material respects as if made at such later date;
(ii) Sun and/or Merger Corp fail to comply
in any material respect with any of their material obligations or covenants
contained herein; or
(iii) There shall have been a material
adverse change with respect to Sun or Merger Corp; provided that Sun or Merger
Corp shall, if curable, have a reasonable period in which to cure any failure
described in clause (i), (ii) or (iii) above;
(iv) If the Effective Time shall not have
occurred on or before September 30, 2001, unless extended by agreement of RTV.
10.02 Effect of Termination. In the event of a termination of
this Agreement by either RTV or Sun as provided in Section 10.01 hereof, this
Agreement shall forthwith become void and there shall be no liability or
obligation on the part of Sun, Merger Corp, RTV or their respective officers,
directors, shareholders or affiliates except for the provisions of Section 8.06
hereof; provided, however, that nothing herein shall relieve any party for
liability for any breach hereof.
10.03 Amendment. This Agreement may be amended by the parties
hereto, by action taken or authorized by their respective Boards of Directors
and shareholders. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
10.04 Extension; Waiver. At any time prior to the Effective
Time, the parties hereto, by action taken or authorized by their respective
Managers and Boards of Directors, may, to the extent legally allowed, (a) extend
the time for the performance of any of the obligations or other acts of the
other parties hereto, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto or (c)
waive compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in a written instrument signed on behalf of such party.
The failure of any party to this Agreement to assert any of its rights under
this Agreement or otherwise shall not constitute a waiver of those rights.
11. Non-Survival of Representations and Warranties. None of the
representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive, and they shall all terminate upon, the
Effective Time.
12. Miscellaneous.
--------------
12.01 Captions. Captions herein are for convenience only and
shall not be construed to limit or define the subject matter or modify the
meaning of any provision hereof.
12.02 Notice. Except as otherwise specifically provided, any
notices to be given hereunder shall be deemed given upon personal delivery, upon
the next business day immediately following the day sent if sent by overnight
express carrier, or upon the third business day following the day sent if sent
postage prepaid by certified or registered mail, return receipt requested, to
the following addresses (or to such other address or addresses as shall be
specified in any notice given):
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In the case of Sun
or Merger Corp: Sun Express Group, Inc.
0000 Xxxxxxxxxx Xx., Xxxxx 000x
Xxxxx Xxxxxxx, Xxxxxxx 00000-0000
Attn. Chairman
In the case of RTV: RadioTV Network, Inc.
0000 Xxxxxxxxxx Xx., Xxxxx 000x
Xxxxx Xxxxxxx, Xxxxxxx 00000-0000
12.03 Interpretation. Each of the parties acknowledges that it
has been represented by independent counsel of its choice throughout all
negotiations that have preceded the execution of this Agreement and that it has
executed the same with consent and upon the advise of said independent counsel.
Each party and its counsel cooperated in the drafting and preparation of this
Agreement and the documents referred to herein, and any and all drafts relating
thereto shall be deemed the work product of the parties and may not be construed
against any party by reason of its preparation. Accordingly, any rule of law,
including but not limited to, California Civil Code Section 1654 or any legal
decision that would require interpretation of any ambiguities in this Agreement
against the party that drafted it, is of no application and is hereby expressly
waived. The provisions of this Agreement shall be construed as a whole and in
accordance with its fair meaning to effect the intentions of the parties and
this Agreement. Captions are for convenience only and shall not be used in
construing meaning.
12.04 Governing Law. This Agreement and all the schedules or
exhibits incorporated herein by reference shall be interpreted in accordance
with the laws of the State of Florida with respect to agreements fully performed
within such state.
12.05 Entire Agreement. This Agreement, together with the
documents and exhibits referred to herein, embodies the entire understanding
among the parties with respect to the subject matter hereof, and merges all
prior discussions or communications among them, and no party shall be bound by
any definitions, conditions, warranties or representations other than as
expressly stated in this Agreement or as subsequently set forth in writing
signed by the duly authorized representatives of all of the parties hereto.
12.06 Further Assurances. Each of the parties hereto agree to
execute and deliver to the other party hereto, at any time and from time to time
upon written request by such other party, such additional documents or
instruments consistent herewith and to perform such further acts as such other
party may reasonably require to fully effectuate the purposes and intent of this
Agreement.
12.07 Counterparts. This Agreement may be executed in several
counterparts and all so executed shall constitute one agreement which shall be
binding on all the parties hereto, notwithstanding that all of the parties are
not signatory to the original or the same counterpart. Further, executed copies
of this Agreement delivered by facsimile shall be deemed an original signed copy
of this Agreement.
12.08 Binding Effect. This Agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their respective
successors and assigns. Nothing herein is intended to confer on any party other
than the parties hereto or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
12.09 Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the respective successors and assigns of the
parties hereto, but any such assignment by either party hereto shall not relieve
such assigning party of any of its obligations or agreements hereunder unless
expressly agreed to in writing by the other party hereto.
12.11 Severability. If any provision of this Agreement shall
be held or deemed to be or shall, in fact, be inoperative or unenforceable as
applied in any particular case because it conflicts with any other provision or
provisions hereof or any constitution or statute or rule of public policy, or
for any other reason, such circumstances shall not have the effect of rendering
the provision in question inoperative or unenforceable in any other case or
circumstances, or of rendering any other provision or provisions herein
contained invalid, inoperative or unenforceable to any extent whatsoever. The
invalidity of any one or more phrases, sentences, clauses, sections or
subsections of this Agreement shall not effect the remaining portions of this
Agreement.
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12.12 Exclusive Venue. The parties hereby agree that the sole
and exclusive venue and forum for any and all actions or proceedings initiated
by any party hereto and arising directly or indirectly out of this Agreement
shall be the Superior Court of the State of California, County of Los Angeles,
or the United States District Court for the Central District of the State of
California. The parties hereby expressly submit and consent in advance to such
jurisdiction in any action or proceeding commenced in any of such courts and
hereby waive personal service of the summons and complaint, or other process of
papers issued therein, and agree that service of such summons and complaint or
other process or papers may be made by registered or certified mail addressed to
any of the parties at the address to which notices are to be sent pursuant to
this Agreement. The parties hereto waive any claim that Los Angeles, California
is an inconvenient forum or an improper forum based on lack of venue. The
exclusive choice of forum for the parties set forth in this Section shall not be
deemed to preclude the enforcement of any judgment obtained in any other forum
or the taking of any action to enforce the same in any other appropriate
jurisdiction, and the parties hereby waive the right to collaterally attack any
such judgment or action.
(signature page follows)
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"RTV" RADIOTV NETWORK, INC.,
A Florida corporation
By
--------------------------------
T. Xxxxxx Xxxxxxx, President
ATTEST:
---------------------------
T. Xxxxxx Xxxxxxx, Secretary
"SUN" SUN EXPRESS GROUP, INC.,
A Florida corporation
By
--------------------------------
Name
-------------------------
Title
-------------------------
ATTEST:
---------------------------
Name
----------------------
Secretary
"MERGER CORP" SUN EXPRESS MERGER CORP.,
A Florida corporation
By
--------------------------------
Name
-------------------------
Title
-------------------------
ATTEST:
---------------------------
Name
----------------------
Secretary
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EXHIBIT 6.05
RTV FULLY DILUTED CAPITAL STOCK
RTV has as of the date of this Agreement:
1,000,000 shares of Common Stock, 0.001 par value, authorized of which
400,000 shares of Common Stock are outstanding.
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EXHIBIT 7.05
SUN FULLY DILUTED CAPITAL STOCK
Sun has as of the date of this Agreement:
_________ shares of Common Stock, ______ par value, authorized of which
______ shares of Common Stock are outstanding.
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EXHIBIT 8.11
EMPLOYMENT AGREEMENT
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