Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AND REORGANIZATION
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION dated as of December
____, 2000 (the "Agreement"), by and among CELEBRITY ENTERTAINMENT GROUP, INC.,
a Wyoming Corporation ("Celebrity"), SHARP FLORIDA ACQUISITION CORP., a Florida
corporation ("Florida") and newly-formed and wholly-owned subsidiary of
Celebrity, and SHARP TECHNOLOGY, INC., a Delaware corporation ("Sharp").
RECITALS
A. The Boards of Directors of Celebrity, Florida and Sharp have
each determined that it is advisable and in the best interest
of their respective corporations and stockholders for Sharp to
be acquired by Celebrity pursuant to a merger of Florida into
Sharp upon the terms and subject to the conditions set forth
herein (the "Merger").
X. Xxxxx has outstanding 19,554,743 shares of Common Stock, par
value $.001 per share (the "Sharp Common Stock").
C. The holders of at least a majority in interest of the voting
capital stock of Sharp have authorized the Merger pursuant to
the Delaware General Corporation Law.
D. The respective Boards of Directors of each of the parties have
approved this Agreement as a plan of reorganization within the
provisions of Section 368(a) of the Internal Revenue Code of
1986, as amended.
AGREEMENT
In consideration of the Recitals and of the mutual agreements contained
in this Agreement, the parties hereto agree as set forth below.
1. MERGER. Sharp shall be merged with and into Florida (the "Merger").
2. EFFECTIVE DATE. The Merger shall become effective immediately upon
satisfaction of the conditions of consummation of the Merger and upon the filing
of articles of merger with the Secretary of States of Florida and Delaware in
accordance with the Florida Business Corporation Act and the Delaware General
Corporation Act; provided, however, that if such articles of merger specify a
later time, then the Merger shall become effective upon such specified later
time. The time of such effectiveness is hereinafter called the "Effective Date."
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3. SURVIVING CORPORATION. Sharp shall be the surviving corporation of
the Merger and shall continue to be governed by the laws of the State of
Delaware. On the Effective Date, the separate corporate existence of Florida
shall cease.
4. CERTIFICATE OF INCORPORATION. The Certificate of Incorporation of
Sharp as they exist on the Effective Date (including any amendments thereto
implemented on the Effective Date) shall be the Certificate of Incorporation of
Sharp following the Effective Date, unless and until the same shall thereafter
be amended or repealed in accordance with the laws of the State of Delaware.
5. BYLAWS. The Bylaws of Sharp as they exist on the Effective Date
shall be the Bylaws of Sharp following the Effective Date, unless and until the
same shall be amended or repealed in accordance with the provisions thereof and
the laws of the State of Delaware.
6. BOARD OF DIRECTORS AND OFFICERS. The members of the Board of
Directors and the officers of Sharp immediately prior to the Effective Date
shall be the members of the Board of Directors and the officers of Sharp
following the Effective Date, and such persons shall serve in such offices for
the terms provided by law or in Sharp's Certificate of Incorporation and Bylaws,
or until their respective successors are elected and qualified.
7. TREATMENT OF OUTSTANDING FLORIDA COMMON STOCK. Upon the Effective
Date, each existing outstanding share of Florida Common Stock and all rights in
respect thereof shall be converted into 50,000 shares of Sharp Common Stock.
8. CONVERSION OF OUTSTANDING SHARP STOCK. Upon the Effective Date, each
issued and outstanding share of Sharp Common Stock and all rights in respect
thereof shall be converted into 1/3 of a share of Celebrity Common Stock (as
hereinafter defined), for an aggregate of 6,518,248 fully-paid and
non-assessable shares of Celebrity Common Stock, and each certificate
representing shares of Sharp Common Stock shall on the Effective Date for all
purposes be deemed to evidence the ownership of the applicable number of shares
of Celebrity Common Stock. At the Closing (as defined below), Celebrity will
cause to be delivered certificates representing the shares of Celebrity Common
Stock issuable as Merger consideration hereunder to the stockholders of Sharp as
of the date of Closing in such amounts and registered in such names as set forth
on EXHIBIT A hereto.
9. TAX-FREE REORGANIZATION. It is intended by the parties hereto that
the Merger constitute a tax-free reorganization within the meaning of Section
368 of the Internal Revenue Code of 1986 (the "Code"). The parties hereto agree
to use commercially reasonable efforts and to cooperate with each other to cause
the Merger to be a tax-free reorganization within the meaning of Section 368(a)
of the Code.
10. REPRESENTATIONS AND WARRANTIES OF SHARP.
10.1 ORGANIZATION AND GOOD STANDING. Sharp is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased or
operated and such business is now conducted. Sharp is duly licensed or qualified
and in good standing as a foreign entity where the character of the properties
owned by it or the nature of the business transacted by it make such licenses or
qualifications necessary, except where the failure to do so would not have a
material adverse effect on the business or financial condition of Sharp (a
"Sharp Material Adverse Effect"). The authorized capital stock of Sharp consists
of 50,000,000 shares of Common Stock of which approximately 19,554,744 shares
will be issued and outstanding as of the Closing Date, and 10,000,000 shares of
Preferred Stock, no shares of which are outstanding. The outstanding options and
warrants of Sharp are listed on SCHEDULE 10.1(a) and SCHEDULE 10.1(b). Sharp
does not have any subsidiaries. Except as set forth in SCHEDULE 10.1(a) AND
SCHEDULE 10.1(b), there are no outstanding subscriptions, rights, options,
warrants or other agreements obligating either Sharp or its shareholders to
issue, sell or transfer any equity interest or other securities of Sharp.
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10.2 FINANCIAL STATEMENTS, BOOKS AND RECORDS. The following Sharp
financial statements are attached hereto as EXHIBIT B: the audited balance sheet
of Sharp as at December 31, 1999 and the unaudited balance sheet as at November
30, 2000 (the "Balance Sheet"), and the related audited statement of operations
for the year and period then ended (the "Financial Statements"). The Financial
Statements are true and accurate and fairly represent the financial position of
Sharp as at such dates and the results of its operations for the periods then
ended, and have been prepared in accordance with generally accepted accounting
principles consistently applied, except for the omission of footnotes or
otherwise as indicated therein.
10.3 NO MATERIAL ADVERSE CHANGES. Since the date of the Balance Sheet
there has not been:
(i) any change which could reasonably be expected to have a
Sharp Material Adverse Effect;.
(ii) any damage, destruction or loss which could reasonably be
expected to have a Sharp Material Adverse Effect;
(iii) any declaration, setting aside or payment of any
distribution or with respect to any redemption or repurchase of Sharp's capital
stock;
(iv) any sale of an asset (other than in the ordinary course
of business) or any mortgage or pledge by Sharp of any properties or assets; or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
10.4 TAXES. Except as set forth in SCHEDULE 10.4, Sharp has prepared
and filed all appropriate federal, state and local tax returns for all periods
prior to and through the date hereof for which any such returns have been
required to be filed by it and has paid all taxes shown to be due by said
returns or on any assessments received by it or has made adequate provision for
the payment thereof.
10.5 COMPLIANCE WITH LAWS. Sharp has complied with all federal, state,
county and local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with could reasonably be expected to have a Sharp Material Adverse
Effect.
10.6 NO BREACH. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provision of any operational or organizational
documents of Sharp;
(ii) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which Sharp is a party or by or to which it or any of its assets or properties
may be bound or subject;
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(iii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against, or binding
upon, Sharp or upon the properties or business of Sharp; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein, which in the
case of (ii), (iii) and (iv) could reasonably be expected to have a Sharp
Material Adverse Effect.
10.7 ACTIONS AND PROCEEDINGS. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving Sharp. There is no action, suit or
claim or legal, administrative or arbitral proceeding or (whether or not the
defense thereof or liabilities in respect thereof are covered by insurance)
pending or threatened against or involving Sharp or any of its properties or
assets. Except as set forth on SCHEDULE 10.7, there is no fact, event or
circumstances known to Sharp that may give rise to any suit, action, claim,
investigation or proceeding.
10.8 BROKERS OR FINDERS. Except as set forth in SCHEDULE 10.8, no
broker's or finder's fee will be payable by Sharp in connection with the
transactions contemplated by this Agreement, nor will any such fee be incurred
as a result of any actions by Sharp.
10.9 REAL ESTATE. Except as set forth on SCHEDULE 10.9, Sharp neither
owns real property nor is a party to any leasehold agreement.
10.10 TANGIBLE ASSETS. Sharp has full title and interest in all
machinery, equipment, furniture, leasehold improvements, fixtures, vehicles,
structures, owned or leased by Sharp, any related capitalized items or other
tangible property material to the business of Sharp (the "Tangible Assets").
Sharp holds all rights, title and interest in all the Tangible Assets owned by
it on the Sharp Balance Sheet or acquired by it after the date of the Sharp
Balance Sheet, free and clear of all liens, pledges, mortgages, security
interests, conditional sales contracts or any other encumbrances except as set
forth on SCHEDULE 10.10. All of the Tangible Assets are in good operating
condition and repair and are usable in the ordinary course of business of Sharp.
10.11 LIABILITIES. Sharp does not have any direct or indirect
indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation, any liability on account of taxes, any other governmental
charge or lawsuit (all of the foregoing collectively defined to as
"Liabilities"), which were not fully, fairly and adequately reflected on the
Sharp Balance Sheet or thereafter incurred in the ordinary course of business.
As of the Closing Date, Sharp will not have any Liabilities, other than
Liabilities fully and adequately reflected on the Sharp Balance Sheet, except
for Liabilities incurred in the ordinary course of business.
10.12 OPERATIONS OF SHARP. Except as set forth on SCHEDULE 10.12, from
the date of the Sharp Balance Sheet and through the Closing Date hereof Sharp
has not and will not have:
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any member or made any direct or indirect
redemption, retirement, purchase or other acquisition of any securities or other
capital interest;
(iii) made any loan or advance to any shareholder, manager,
officer, director, employee, consultant, agent or other representative or made
any other loan or advance otherwise than in the ordinary course of business;
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(iv) except in the ordinary course of business, incurred or
assumed any indebtedness or liability (whether or not currently due and
payable);
(v) disposed of any assets of Sharp except in the ordinary
course of business;
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(vi) materially increased the annual rate of compensation of
any executive employee of Sharp;
(vii) increased, terminated, amended or otherwise modified any
plan for the benefit of employees of Sharp;
(viii) issued any equity securities or interest or rights to
acquire such equity securities or interest; or
(ix) except in the ordinary course of business, entered into
or modified any contract, agreement or transaction.
10.13 CAPITALIZATION. Except as set forth in SCHEDULE 10.1(a) AND
SCHEDULE 10.1(b), Sharp has not granted, issued or agreed to grant, issue or
make available any capital or membership interests, warrants, options,
subscription rights or any other commitments of any character relating to the
issued or unissued capital stock of Sharp.
10.14 FULL DISCLOSURE. No representation or warranty by Sharp in this
Agreement or in any document or schedule to be delivered by them pursuant
hereto, and no written statement, certificate or instrument furnished or to be
furnished to Florida pursuant hereto or in connection with the negotiation,
execution or performance of this Agreement, contains or will contain any untrue
statement of a material fact or omits or will omit to state any fact necessary
to make any statement herein or therein not materially misleading or necessary
to a complete and correct presentation of all material aspects of the businesses
of Sharp.
11. REPRESENTATIONS AND WARRANTIES OF FLORIDA AND CELEBRITY
11.1 ORGANIZATION AND GOOD STANDING. Florida is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Florida and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased, or
operated and such business is now conducted. Celebrity is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Wyoming and is entitled to own or lease its properties and to carry on its
business as and in the places where such properties are now owned, leased or
operated and such business is now conducted. The authorized capital stock of
Celebrity consists of 100,000,000 shares of Common Stock ("Celebrity Common
Stock"), of which approximately 2,600,000 shares will be issued and outstanding
as of the Closing Date. There are no shares of preferred stock authorized or
issued. The authorized capital stock of Florida consists of 1,000 shares of
Common Stock ("Florida Common Stock"), of which 10 shares are presently issued
and outstanding. Florida and Celebrity are each duly licensed or qualified and
in good standing as a foreign corporation where the character of the properties
owned by them or the nature of the business transacted by them make such license
or qualification necessary, except where the failure to do so would not have a
material adverse effect on the business or financial condition of
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Florida or Celebrity. Except for Florida, Celebrity does not have any
subsidiaries. Florida does not have any subsidiaries.
All of such issued and outstanding shares of Celebrity and
Florida have been and all of the shares of Celebrity and Florida to be issued
hereby will be, at the Closing, duly authorized and validly issued and are and
will be at the Closing fully paid and non-assessable. None of the shares that
were issued and none of the shares to be issued hereby will be in violation of
any preemptive rights. There are no outstanding securities of Celebrity or
Florida convertible into or evidencing the right to purchase or subscribe for
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any shares of capital stock of Celebrity or Florida, there are no outstanding or
authorized options, warrants, calls, subscriptions, rights, commitments or any
other agreements of any character obligating Celebrity or Florida to issue any
shares of its capital stock or any securities convertible into or evidencing the
right to purchase or subscribe for any shares of such stock.
11.2 THE SHARES. The 6,518,248 shares of Celebrity Common Stock to be
issued by Celebrity have been duly authorized by all necessary corporate and
shareholder actions and are validly issued, fully paid and non-assessable.
11.3 FINANCIAL STATEMENTS; BOOKS AND RECORDS. There has been previously
delivered to Sharp, the audited balance sheet of Celebrity as at December 31,
1999 and the unaudited balance sheet as at September 30, 2000 (the "Celebrity
Balance Sheet") and the related statements of operations for the periods then
ended (the "Celebrity Financial Statements"). The Celebrity Financial Statements
are true and accurate and fairly represent the financial position of Celebrity
as at such dates and the results of its operations for the periods then ended,
and have been prepared in accordance with generally accepted accounting
principles consistently applied.
11.4 NO MATERIAL ADVERSE CHANGES. Since the date of the Celebrity
Balance Sheet and except as otherwise substantially disclosed in Celebrity's
reports or filings made under the Securities Exchange Act of 1934, there has not
been:
(i) any material adverse change in the assets, operations,
condition (financial or otherwise) or prospective business of Celebrity;
(ii) any damage, destruction or loss materially affecting the
assets, prospective business, operations or condition (financial or otherwise)
of Celebrity, whether or not covered by insurance;
(iii) any declaration, setting aside or payment of any
dividend or distribution with respect to any redemption or repurchase of capital
stock;
(iv) any sale of an asset (other than in the ordinary course
of business) or any mortgage or pledge by Celebrity of any properties or assets;
or
(v) adoption of any pension, profit sharing, retirement, stock
bonus, stock option or similar plan or arrangement.
11.5 TAXES. Each of Celebrity and Florida has prepared and filed all
appropriate federal, state and local tax returns for all periods prior to and
through the date hereof for which any such returns have been required to be
filed by each of them and have each paid all taxes shown to be due by said
returns or on any assessments received by either of them or have made adequate
provision for the payment thereof.
11.6 COMPLIANCE WITH LAWS. Each of Celebrity and Florida has complied
with all federal, state, county and local laws, ordinances, regulations,
inspections, orders, judgments, injunctions, awards or decrees applicable to
their businesses, including Federal and State securities laws, which, if not
complied with, would materially and adversely affect the business of Celebrity
or Florida, as the case may be.
11.7 NO BREACH. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
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(i) violate any provision of the Articles of Incorporation or
By-Laws of Celebrity and Florida;
(ii) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any contract or other agreement to
which Celebrity or Florida is a party or by or to which their or any of their
assets or properties may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against, or binding
upon, Celebrity or Florida or upon the properties or business of Celebrity or
Florida; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein which could have
a material adverse effect on the business or operations of Celebrity or Florida.
11.8 ACTIONS AND PROCEEDINGS. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving Celebrity or Florida. There is no
action, suit or claim or legal, administrative or arbitral proceeding or
(whether or not the defense thereof or liabilities in respect thereof are
covered by insurance) pending or threatened against or involving Celebrity or
Florida or any of their properties or assets. Except as set forth on SCHEDULE
11.8, there is no fact, event or circumstances that may give rise to any suit,
action, claim, investigation or proceeding.
11.9 BROKERS OR FINDERS. No broker's or finder's fee will be payable by
Celebrity or Florida in connection with the transactions contemplated by this
Agreement, nor will any such fee be incurred as a result of any actions by
Celebrity or Florida.
11.10 LIABILITIES. Neither Celebrity nor Florida has any direct or
indirect indebtedness, liability, claim, loss, damage, deficiency, obligation or
responsibility, known or unknown, fixed or unfixed, liquidated or unliquidated,
secured or unsecured, accrued or absolute, contingent or otherwise, including,
without limitation, any liability on account of taxes, any other governmental
charge or lawsuit (all of the foregoing collectively defined to as
"Liabilities"), which were not fully fairly and adequately reflected on the
Celebrity Balance Sheet or thereafter incurred in the ordinary course of
business. As of the Closing Date, neither Celebrity nor Florida, will not have
any Liabilities, other than Liabilities fully and adequately reflected on the
Celebrity Balance Sheet, except for Liabilities incurred in the ordinary course
of business.
11.11 OPERATIONS OF CELEBRITY AND FLORIDA. Except as set forth on
SCHEDULE 11.11 or in Celebrity's reports or filings made under the Securities
Exchange Act of 1934, since the date of the Celebrity Balance Sheet and through
the Closing Date hereof, neither Celebrity nor Florida has or will have:
(i) incurred any indebtedness for borrowed money;
(ii) declared or paid any dividend or declared or made any
distribution of any kind to any shareholder, or made any direct or indirect
redemption, retirement, purchase or other acquisition of any shares in its
capital stock;
(iii) made any loan or advance to any shareholder, officer,
director, employee, consultant, agent or other representative or made any other
loan or advance otherwise than in the ordinary course of business;
(iv) except in the ordinary course of business, incurred or
assumed any indebtedness or liability (whether or not currently due and
payable);
(v) disposed of any assets of Florida or Celebrity except in
the ordinary course of business;
(vi) materially increased the annual level of compensation of
any executive employee of Florida or Celebrity;
(vii) increased, terminated amended or otherwise modified any
plan for the benefit of employees of Florida or Celebrity;
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(viii) issued any equity securities or rights to acquire such
equity securities; or
(ix) except in the ordinary course of business, entered into
or modified any contract, agreement or transaction.
11.12 AUTHORITY TO EXECUTE AND PERFORM AGREEMENTS. Each of Celebrity
and Florida has the full legal right and power and all authority and approval
required to enter into, execute and deliver this Agreement and to perform fully
its obligations hereunder. This Agreement has been duly executed and delivered
and is the valid and binding obligation of each of Florida and Celebrity
enforceable in accordance with its terms, except as may be limited by
bankruptcy, moratorium, insolvency or other similar laws generally affecting the
enforcement of creditors' rights. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and the performance
by each of Florida and Celebrity of this Agreement, in accordance with its
respective terms and conditions will not:
(i) require the approval or consent of any governmental or
regulatory body, and except by the sole shareholder of Florida, the approval or
consent of any other person;
(ii) conflict with or result in any breach or violation of any
of the terms and conditions of, or constitute (or with any notice or lapse of
time or both would constitute) a default under, any order, judgment or decree
applicable to Celebrity or Florida, or any instrument, contract or other
agreement to which Celebrity or Florida is a party or by or to which Celebrity
or Florida is bound or subject; or
(iii) result in the creation of any lien or other encumbrance
on the assets or properties of Celebrity or Florida.
11.13 DELIVERY OF PERIODIC REPORTS; COMPLIANCE WITH 1934 ACT. Celebrity
has provided or made available to Sharp Florida all of its reports ("Periodic
Reports") filed with the Securities and Exchange Commission since December 31,
1998. Celebrity has filed all required Periodic Reports and is in compliance
with its reporting obligations under the Securities Exchange Act of 1934. All
reports filed pursuant to such Act are complete and correct in all material
respects. All material contracts relative to Celebrity are included in the
Periodic Reports.
11.14 TANGIBLE ASSETS. Each of Celebrity and Florida has full title and
interest in all machinery, equipment, furniture, leasehold improvements,
fixtures, vehicles, structures, owned or leased by Celebrity and Florida any
related capitalized items or other tangible property material to the business of
Celebrity (the "Tangible Assets"). Each of Celebrity and Florida holds all
rights, title and interest in all the Tangible Assets owned by each of them on
the Celebrity Balance Sheet or acquired by it after the date of the Celebrity
Balance Sheet, free and clear of all liens, pledges, mortgages, security
interests, conditional sales contracts or any other encumbrances. All of the
Tangible Assets are in good operating condition and repair and are usable in the
ordinary course of business of Celebrity and Florida.
11.15 CAPITALIZATION. The authorized capitalization is as set forth in
Celebrity's Form 10-QSB for the quarterly period ended September 30, 2000, with
the exception that Celebrity does not have any shares of preferred stock
authorized, issued, or outstanding. Neither Celebrity nor Florida has granted,
issued or agreed to grant, issue or make available any warrants, options,
subscription rights or any other commitments of any character relating to the
issued or unissued shares of capital stock of Celebrity and Florida except as
described in the Periodic Reports.
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11.16 FULL DISCLOSURE. No representation or warranty by Celebrity or
Florida in this Agreement or in any document or schedule to be delivered by it
pursuant hereto, and no written statement, certificate or instrument furnished
or to be furnished to Sharp pursuant hereto or in connection with the execution
or performance of this Agreement contains or will contain any untrue statement
of a material fact or omits or will omit to state any fact necessary to make any
statement herein or therein not materially misleading or necessary to a complete
and correct presentation of all material aspects of the business of Celebrity
and Florida.
11.17 REPRESENTATIONS AND WARRANTIES ON CLOSING DATE. The
representations and warranties contained in this Section 11 shall be true and
complete on the Closing Date with the same force and effect as through such
representations and warranties had been made on and as of the Closing Date.
12. CONDITIONS TO CONSUMMATION OF THE MERGER. Consummation of the
Merger is subject to the satisfaction prior to the Effective Date of the
following conditions: (a) this Agreement and the Merger shall have been adopted
and approved by the affirmative vote of the holders of a majority of the votes
represented by the shares of Sharp Common Stock and by the affirmative vote of
the holders of a majority of the votes represented by the shares of Florida
Common Stock outstanding on the record date fixed for determining the
shareholders of Sharp entitled to vote thereon; and (b) each of Sharp and
Florida shall have received all consents, orders and approvals, investment
letters and satisfaction of all other requirements prescribed by law that are
necessary for the consummation of the Merger. At or prior to the closing, Xxxx
Xxxxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxxxxx will be confirmed or
elected as Directors of Celebrity, and the following persons will be elected as
officers of Celebrity: Xxxxxx Xxxxx shall be President, Secretary, and Chief
Executive Officer; Xxxxxx Xxxxxxx shall be Treasurer and Chief Financial
Officer; and Xxx Xxxxxxxx shall be Vice President.
13. STOCK OPTIONS, WARRANTS AND CONVERTIBLE DEBT. Upon the Effective
Date, each Sharp warrant listed on Schedule 10.1(a), and each Sharp option
listed on Schedule 10.1(b), shall be converted into Celebrity options and
Celebrity warrants, respectively, on the same terms, but subject to the
conversion ratio used to convert Sharp Common Stock to Celebrity Common Stock,
as described in Section 8.
14. THE CLOSING. The Closing of the transactions contemplated by this
Agreement (the "Closing") shall take place on December ____, 2000, or such other
time as the parties shall agree. The date on which the Closing actually occurs
is referred to herein as the "Closing Date."
15. TERMINATION. This Agreement may be terminated and abandoned by the
parties hereto, subject to any contractual rights, without further shareholder
action, in the manner determined by the respective boards of directors of Sharp,
Celebrity and Florida at any time prior to the Effective Date.
16. INDEMNIFICATION
16.1 OBLIGATION OF CELEBRITY AND FLORIDA TO INDEMNIFY. Celebrity and
Florida jointly and severally hereby agree to indemnify, defend and hold
harmless Sharp and its shareholders from and against all losses, liabilities,
damages, deficiencies, costs or expenses (including interest, penalties and
reasonable attorneys' fees and disbursements) (a "Loss") based upon, arising out
of or otherwise due to any inaccuracy in or any breach of any representation,
warranty, covenant or agreement of Celebrity and Florida contained in this
Agreement or in any document or other writing delivered pursuant to this
Agreement.
16.2 OBLIGATION OF SHARP TO INDEMNIFY. Sharp agrees to indemnify,
defend and hold harmless Celebrity and Florida from and against any loss, based
upon, arising out of or otherwise due to any inaccuracy in or any breach of any
representation, warranty, covenant or agreement made by any of them and
contained in this Agreement or in any document or other writing delivered
pursuant to this Agreement.
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17. GENERAL PROVISIONS
17.1 SURVIVAL. All statements contained in any certificate or other
instrument delivered by or on behalf of Sharp, Celebrity or Florida pursuant to
this Agreement or in connection with the transactions contemplated by this
Agreement shall be considered representations and warranties by Sharp, Celebrity
or Florida as the case may be, with the same force and effect as if contained in
this Agreement. All representations, warranties, covenants and agreements by
Sharp, Celebrity or Florida notwithstanding any investigation at any time by or
on behalf of any party to which such representation or warranty was given, and
shall not be considered waived by the consummation of the Merger contemplated by
this Agreement with knowledge of any breach of misrepresentation by any of the
parties hereto.
17.2 NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered if delivered personally, three days after being
sent by registered or certified mail (postage prepaid, return receipt
requested), one day after dispatch by recognized overnight courier (provided
delivery is confirmed by the carrier) and upon transmission by telecopy,
confirmed received, to the parties at the following addresses (or at such other
address for a party as shall be specified by like changes or address):
If to Celebrity or Florida or the Shareholders of Celebrity:
c/o Xxxx Xxxxxxx
00000 Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
If to Sharp:
Sharp Technology, Inc.
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Mr. Xxxxxx Xxxxx, CEO
17.3 AMENDMENT. The Boards of Directors of the parties hereto may amend
this Agreement at any time prior to the Effective Date; provided, that an
amendment made subsequent to the approval of this Agreement by the shareholders
of either of the parties hereto shall not: (a) change the amount or kind of
shares, securities, cash, property or rights to be received in exchange for or
on conversion of all or any of the shares of the parties hereto, (b) change any
term of the Articles of Incorporation of Florida or (c) change any other terms
or conditions of this Agreement if such change would adversely affect the
holders of any capital stock of either party hereto.
17.4 WAIVER. Any party hereto may with respect to any other party
hereto (a) extend the time for the performance of any of the obligations or
other acts, (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (c) waive
compliance with any of the agreements or conditions contained herein. Any such
extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
17.5 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
17.6 SEVERABILITY. If any term or other provision of this Agreement is
held to be invalid, illegal or incapable of being enforced under any rule of law
or public policy by a court of competent jurisdiction, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse or any party.
17.7 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties and supersedes all prior agreements and undertakings both
written and oral, among the parties, or any of them, with respect to the subject
mater hereof.
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17.8 ASSIGNMENT. This Agreement shall not be assigned by operation of
law or otherwise, except by the mutual written consent of the parties hereto.
17.9 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
17.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure
or delay on the part of any party hereto in the exercise of any right hereunder
shall impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty or agreement herein, nor shall any
single or partial exercise of any such right preclude other or further exercise
thereto or of any other right. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
17.11 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware without regard
to conflict of law principles.
17.12 FEES AND EXPENSES. Each party to this Agreement shall bear its
own costs and expenses in connection with the transactions contemplated by this
Agreement, including without limitation, attorney's fees, accounting fees and
fees of any investment bankers or other financial advisors.
17.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts and by facsimile, each of which when executed shall be deemed an
original and all of which taken together shall constitute one and the same
Agreement.
17.14 EXHIBITS AND SCHEDULES. All Exhibits and Schedules attached
hereto or delivered pursuant to this Agreement are incorporated by reference
into, and made a part of this Agreement.
IN WITNESS WHEREOF, Celebrity, Florida and Sharp have cause this
Agreement to be executed as of the date first written above.
CELEBRITY ENTERTAINMENT GROUP,
INC., a Wyoming corporation
By: /s/ Xxxx Xxxxxxx
---------------------------
Xxxx Xxxxxxx, President
SHARP FLORIDA ACQUISITION CORP.,
a Florida corporation
By: /s/ Xxxx Xxxxxxx
---------------------------
Xxxx Xxxxxxx, President
SHARP TECHNOLOGY, INC., a Delaware
corporation
By: /s/ Xxxxxx Xxxxx
---------------------------
Xxxxxx Xxxxx, President
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