EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
BY AND AMONG
TELEDISCOUNT COMMUNICATIONS INC.
AND
MILLENNIUM ACQUISITION CORP.
AND
MILLENNIUM CAPITAL VENTURE HOLDINGS INC.
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
This AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (the "Agreement")
is made and entered into as of March 11, 2005, by and among Millennium Capital
Venture Holdings Inc., a Delaware corporation ("Millennium"), Millennium
Acquisition Corp., a Florida corporation ("Merger Sub") and wholly owned
subsidiary of Millennium, and Telediscount Communications Inc., a New York
corporation ("Company").
RECITALS
A. The Boards of Directors of Company, Millennium and Merger Sub believe
it is in the best interests of their respective companies and the
stockholders of their respective companies that Company and Merger Sub
combine into a single company through the statutory merger of Merger
Sub with and into Company (the "Merger") and, in furtherance thereof,
have approved the Merger.
B. Pursuant to the Merger, among other things, the outstanding shares of
Company Common Stock ("Company Common Stock"), shall be converted into
the right to receive shares of Millennium Common Stock ("Millennium
Common Stock"), at the rate set forth herein.
C. Company, Millennium and Merger Sub desire to make certain
representations and warranties and other agreements in connection with
the Merger.
D. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal
Revenue Code of 1986, as amended (the "Code"), and to cause the Merger
to qualify as a reorganization under the provisions of Sections 368 of
the Code, so that such exchange will constitute a tax-free share
exchange under the Code.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE 1
THE MERGER
1.1. THE MERGER. At the Effective Time (as defined in Section 1.2) and
subject to and upon the terms and conditions of this Agreement
including the exchange of shares between the Company, Millennium and
Merger Sub, Merger Sub shall be merged with and into Millennium, the
Company shareholders shall receive shares of Common Stock of
Millennium, the Merger Sub shall receive all the Common Stock of the
Company, and the separate corporate existence of Merger Sub shall cease
and Millennium shall continue as the surviving corporation. Millennium
as the surviving corporation after the Merger is hereinafter sometimes
referred to as the "Surviving Corporation."
1.2. CLOSING; EFFECTIVE TIME. The closing of the transactions contemplated
hereby (the "Closing") shall take place as soon as practicable after
the satisfaction or waiver of each of the conditions set forth in
Article VI hereof or at such other time as the parties hereto agree
(the "Closing Date"). The Closing shall be held at the offices of
Xxxxxxxxxxx Capital Inc. at 0 Xxxxx Xxxxx-Xxxxx Xxxxx, Xxxxxxxx,
Xxxxxx, X0X 0X0, or at such other location as the parties hereto agree.
Simultaneously with or as soon as practicable following the Closing,
the parties hereto shall cause the Merger to be consummated by filing
of a Certificate of Merger ("Certificate of Merger") with each
respective parties jurisdiction, in accordance with the relevant
provisions of each respective parties jurisdiction (the time of such
filing being the "Effective Time").
1.3. EFFECT OF THE MERGER. At the Effective Time, the effect of the Merger
shall be as provided in this Agreement, the Certificate of Merger and
the applicable provisions of Florida Law. Without limiting the
generality of the foregoing, and subject thereto, at the Effective
Time, all the property, rights, privileges, powers and franchises of
Company and Merger Sub shall vest in the Surviving Corporation, and all
debts, liabilities and duties of Company and Merger Sub shall become
the debts, liabilities and duties of the Surviving Corporation.
1.4. CERTIFICATE OF INCORPORATION; BYLAWS.
1.4.1. At the Effective Time, the Articles of Incorporation of
Company shall be the Articles of Incorporation of the
Surviving Corporation.
1.4.2. The Bylaws of Company, as in effect immediately prior to the
Effective Time, shall be the Bylaws of the Surviving
Corporation until thereafter amended.
1.5. DIRECTORS AND OFFICERS. At the Effective Time, the directors of the
Company shall be appointed as the directors of the Surviving
Corporation, in each case until their successors are elected or
appointed and qualified or until their earlier resignation or removal.
The officers of the Company shall be appointed as officers of the
Surviving Corporation, until their respective successors are duly
appointed and qualified or until their earlier resignation or removal.
1.6. EFFECT ON CAPITAL STOCK. By virtue of the Merger and without any action
on the part of Merger Sub, Company or the holders of any of the
following securities:
1.6.1.1. CONVERSION OF COMPANY COMMON STOCK. At the Effective Time, (i)
all of the shares of Company Common Stock issued and
outstanding immediately prior to the Effective Time will be
canceled and extinguished and be converted automatically into
the right to receive an aggregate of twenty million shares of
Millennium Common Stock (the "Exchange Ratio") (the "Merger
Consideration"); and (ii) Xxxxxxxxxxx Capital Inc and or it's
nominee will receive 700,000 restricted shares of Millennium
Common Stock. Each certificate evidencing shares represented
by the Merger Consideration issued pursuant to this Section
1.6.1 shall bear the following legend (in addition to any
legend required under applicable state securities laws):
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR
HYPOTHECATED UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, THE SALE IS
MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT, OR THE
CORPORATION RECEIVES AN OPINION OF COUNSEL FOR THE HOLDER OF
THESE SECURITIES REASONABLY SATISFACTORY TO THE CORPORATION
STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION
IS EXEMPT FROM REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT."
1.6.2. CAPITAL STOCK OF MERGER SUB. At the Effective Time, each share
of common stock, $.01 par value, of Merger Sub ("Merger Sub
Common Stock") issued and outstanding immediately prior to the
Effective Time shall be converted into and exchanged for one
validly issued, fully paid and nonassessable share of common
stock of the Company, and the Company shall be a wholly owned
subsidiary of the Millennium. Each stock certificate of Merger
Sub evidencing ownership of any such shares shall continue to
evidence ownership of such shares of capital stock of the
Company.
1.6.3. NO FRACTIONAL SHARES. No fractional shares of Millennium
Common Stock shall be issued in connection with the Merger,
and no certificates or scrip for any such fractional shares
shall be issued. Any holder of the Company Common Stock who
would otherwise be entitled to receive a fraction of a share
of Millennium Common Stock shall, in lieu of such fraction of
a share, be rounded up to the nearest whole number of shares
of Millennium Common Stock.
1.7. TAX CONSEQUENCES. It is intended by the parties hereto that the Merger
shall constitute a reorganization within the meaning of Section 368 of
the Code.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF COMPANY
In this Agreement, any reference to any event, change, condition or effect being
"material" with respect to any person means any material event, change,
condition or effect related to the condition (financial or otherwise),
properties, assets (including intangible assets), liabilities, business,
operations or results of operations of such person and its subsidiaries, taken
as a whole. In this Agreement, any reference to a "Material Adverse Effect" with
respect to any person means any event, change or effect that is materially
adverse to the condition (financial or otherwise), properties, assets,
liabilities, business, operations or results of operations of such person and
its subsidiaries, taken as a whole.
In this Agreement, any reference to a party's "Knowledge" means such party's
actual knowledge after reasonable inquiry of executive officers and directors
(within the meaning of Rule 405 under the Securities Act of 1933, as amended
("Securities Act")).
The Company represents and warrants to Millennium and Merger Sub as follows:
2.1 ORGANIZATION, STANDING AND POWER. The Company is a corporation duly
organized, validly existing and in good standing in the state of New York,
and no certificate of dissolution has been filed under the laws of its
jurisdiction of organization. The Company has no subsidiaries. The Company
has the power to own its properties and to carry on its business as now
being conducted and as presently proposed to be conducted and is duly
authorized and qualified to do business and is in good standing in each
jurisdiction in which the failure to be so qualified and in good standing
would have a Material Adverse Effect on Company. The Company is not in
violation of any of the provisions of its charter or bylaws or equivalent
organization documents.
2.2 AUTHORITY. Company has all requisite corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby
and thereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and thereby have been
duly authorized by all necessary corporate action on the part of Company,
subject only to the adoption of this Agreement by Company's stockholders
holding a majority of the outstanding shares of Company Common Stock. This
Agreement has been duly executed and delivered by Company and constitutes
the valid and binding obligation of Company enforceable against Company in
accordance with its terms, except as enforceability may be limited by
bankruptcy and other laws affecting the rights and remedies of creditors
generally and general principles of equity. The execution and delivery of
this Agreement by Company does not, and the consummation of the
transactions contemplated hereby will not, conflict with, or result in any
violation of, or default under (with or without notice or lapse of time, or
both), or give rise to a right of termination, cancellation or acceleration
of any obligation or loss of any benefit under (i) any provision of the
Company Articles of Incorporation or Bylaws of Company, as amended, or (ii)
any mortgage, indenture, lease, contract or other agreement or instrument,
permit, concession, franchise, license, judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to the Company or any of its
properties or assets. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other governmental authority or instrumentality
("Governmental Entity") is required by or with respect to Company in
connection with the execution and delivery of this Agreement by Company or
the consummation by Company of the transactions contemplated hereby, except
for (i) the filing of the Certificate of Merger as provided herein.
2.3 ABSENCE OF CERTAIN CHANGES. The Company has no liabilities or obligations
(whether known or unknown, absolute, accrued, contingent or otherwise and
whether due or to become due) other than those incurred in connection with
the execution of this Agreement.
2.4 COMPLIANCE WITH LAWS. The Company has complied with and is not in violation
of, and have not received any notices of violation with respect to, any
federal, state, local or foreign statute, law or regulation with respect to
the conduct of its business, or the ownership or operation of its business,
except for such violations or failures to comply as would not be reasonably
expected to have a Material Adverse Effect on Company.
2.5 BROKERS' AND FINDERS' FEES. The Company has not incurred, nor will it
incur, directly or indirectly, any liability for brokerage or finders' fees
or agents' commissions or investment bankers' fees or any similar charges
in connection with this Agreement or any transaction contemplated hereby. `
2.6 BOARD APPROVAL. The Board of Directors of Company has (i) approved this
Agreement and the Merger, (ii) determined that this Agreement and the
Merger are advisable and in the best interests of the stockholders of
Company and are on terms that are fair to such stockholders and (iii)
recommended that the stockholders of Company adopt and approve this
Agreement and the consummation of the Merger.
2.7 REPRESENTATIONS COMPLETE. None of the representations or warranties made by
Company herein or in any Schedule hereto, including the Company Disclosure
Schedule, or certificates furnished by Company pursuant to this Agreement,
when all such documents are read together in their entirety, contains or
will contain at the Effective Time any untrue statement of a material fact,
or omits or will omit at the Effective Time to state any material fact
necessary in order to make the statements contained herein or therein, in
the light of the circumstances under which made, not misleading. All
projected, forecasted or prospective financial information provided by
Company to Millennium has been prepared in good faith on the basis of
assumptions Company believes are reasonable and supportable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MILLENNIUM AND MERGER SUB
Millennium and Merger Sub represents and warrants to the Company as follows:
3.1 ORGANIZATION, STANDING AND POWER. Millennium is a corporation duly
organized in the state of Delaware and no certificates of dissolution
have been filed under the laws of its jurisdiction of organization.
Millennium represents and warrants that Millennium shall file all
applicable annual reports in the State of Delaware simultaneous with
the filing of Millennium's updated reports to the Securities And
Exchange Commission. Millennium has the power to own its properties and
to carry on its business as now being conducted and as presently
proposed to be conducted and is duly authorized and qualified to do
business and is in good standing in each jurisdiction in which the
failure to be so qualified and in good standing would have a Material
Adverse Effect on Millennium. Millennium and Merger Sub are not in
violation of any of the provisions of their respective charter or
bylaws or equivalent organization documents. Millennium is the owner of
all outstanding shares of capital stock of Merger Sub and all such
shares are duly authorized, validly issued, fully paid and
nonassessable. There are no outstanding subscriptions, options,
warrants, puts, calls, rights, exchangeable or convertible securities
or other commitments or agreements of any character relating to the
issued or unissued capital stock or other securities of any such
subsidiary, or otherwise obligating Millennium to issue, transfer,
sell, purchase, redeem or otherwise acquire any such securities.
3.2 CAPITAL STRUCTURE. The authorized capital stock of Millennium consists
of 100,000,000 shares of common stock, $.0001 par value and 20,000,000
shares of preferred stock, $.0001 par value. The shares of Millennium
Common Stock to be issued pursuant to the Merger will be duly
authorized, validly issued, fully paid, and non-assessable, free of any
liens or encumbrances imposed by Millennium or Merger Sub. There are no
other outstanding shares of capital stock or voting securities and no
outstanding commitments to issue any shares of capital stock or voting
securities after the date hereof. All outstanding shares of Millennium
Common Stock are duly authorized, validly issued, fully paid and
non-assessable and are free of any liens or encumbrances other than any
liens or encumbrances created by or imposed upon the holders thereof,
and are not subject to preemptive rights or rights of first refusal
created by statute, the Articles of Incorporation or Bylaws of
Millennium or any agreement to which Millennium is a party or by which
it is bound. There are no contracts, commitments or agreements relating
to voting, purchase or sale of Millennium's capital stock (i) between
or among Millennium and any of its stockholders and (ii) to the best of
Millennium's knowledge, between or among any of Millennium's
stockholders.
3.3 AUTHORITY. Millennium and Merger Sub have all requisite corporate power
and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part
of Millennium and Merger Sub. This Agreement has been duly executed and
delivered by Millennium and Merger Sub and constitutes the valid and
binding obligations of Millennium and Merger Sub enforceable against
Millennium and Merger Sub in accordance with its terms, except as
enforceability may be limited by bankruptcy and other laws affecting
the rights and remedies of creditors generally and general principles
of equity. The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, conflict
with, or result in any violation of, or default under (with or without
notice or lapse of time, or both), or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of
any benefit under
3.3.1 any provision of the Articles of Incorporation or Bylaws of
Millennium, as amended, or;
3.3.2 any mortgage, indenture, lease, contract or other agreement or
instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to
Millennium or its properties or assets. No consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Entity is required by or with respect to Millennium in
connection with the execution and delivery of this Agreement by
Millennium and Merger Sub or the consummation by Millennium and Merger
Sub of the transactions contemplated hereby, except for (i) the filing
of the Certificate of Merger as provided in Section 1.2; (ii) the
filing of a Form 8-K with the Securities and Exchange Commission within
15 days after the Closing Date; (iii) any filings as may be required
under applicable state securities laws and the securities laws of any
foreign country; and (iv) such other consents, authorizations, filings,
approvals and registrations which, if not obtained or made, would not
have a Material Adverse Effect on Millennium and would not prevent or
materially alter or delay any of the transactions contemplated by this
Agreement.
3.4 ABSENCE OF UNDISCLOSED LIABILITIES. Millennium has no material
obligations or liabilities of any nature (matured or unmatured, fixed
or contingent) other than those incurred in the ordinary course of
business since the Millennium Balance Sheet date and not reasonably
likely to have a Material Adverse Effect on Millennium, and those
incurred in connection with the execution of this Agreement.
3.5 LITIGATION. There is no private or governmental action, suit,
proceeding, claim, arbitration, audit or investigation pending before
any agency, court or tribunal, foreign or domestic, or, to the
knowledge of Millennium, threatened against Millennium or any of its
respective properties or any of its respective officers or directors
(in their capacities as such) that, individually or in the aggregate,
would reasonably be expected to have a Material Adverse Effect on
Millennium. There is no injunction, judgment, decree, order or
regulatory restriction imposed upon Millennium or any of its assets or
business, or, to the knowledge of Millennium, any of its directors or
officers (in their capacities as such), that would prevent, enjoin,
alter or materially delay any of the transactions contemplated by this
Agreement, or that could reasonably be expected to have a Material
Adverse Effect on Millennium.
3.6 RESTRICTIONS ON BUSINESS ACTIVITIES. There is no agreement, judgment,
injunction, order or decree binding upon Millennium which has or
reasonably could be expected to have the effect of prohibiting or
materially impairing any business practice of Millennium, any
acquisition of property by Millennium or the conduct of business by
Millennium.
3.7 CERTAIN AGREEMENTS AFFECTED BY THE MERGER. Neither the execution and
delivery of this Agreement nor the consummation of the transaction
contemplated hereby will (i) result in any entitlement, payment or
benefit (including, without limitation, severance, unemployment
compensation, golden parachute, bonus or benefit under any Millennium
plan or policy or otherwise) becoming due to any current or former
director or employee of Millennium, (ii) increase the amount of any
entitlements, payments or benefits otherwise payable by Millennium, or
(iii) result in the acceleration of the time of payment or vesting of
any such entitlements, payments or benefits.
3.8 INTERESTED PARTY TRANSACTIONS. Millennium is not indebted to any
director or officer of Millennium (except for amounts due as normal
salaries and bonuses and in reimbursement of ordinary expenses), and no
such person is indebted to Millennium, and there are no other
transactions of the type required to be disclosed pursuant to Items 402
or 404 of Regulation S-B under the Securities Act and the Exchange Act.
3.09 COMPLIANCE WITH LAWS. Millennium has complied with, are is in violation
of, and has not received any notices of violation with respect to, any
federal, state, local or foreign statute, law or regulation with
respect to the conduct of its business, or the ownership or operation
of its business, except for such violations or failures to comply as
would not be reasonably expected to have a Material Adverse Effect on
Millennium.
3.10 COMPLETE COPIES OF MATERIALS. Millennium has delivered or made
available true and complete copies of each document that has been
requested by Company or its counsel in connection with their legal and
accounting review of Millennium.
3.11 GOVERNMENTAL AUTHORIZATION. The Millennium has obtained each federal,
state, county, local or foreign governmental consent, license, permit,
grant, or other authorization of a Governmental Entity (i) pursuant to
which Millennium currently operates or holds any interest in any of its
properties or (ii) that is required for the operation of Millennium's
business or the holding of any such interest ((i) and (ii) herein
collectively called "Millennium Authorizations"), and all of such
Millennium Authorizations are in full force and effect, except where
the failure to obtain or have any of such Millennium Authorizations or
where the failure of such Millennium Authorizations to be in full force
and effect would not reasonably be expected to have a
3.12 BROKERS' AND FINDERS' FEES. Millennium has not incurred, nor will it
incur, directly or indirectly, any liability for brokerage or finders'
fees or agents' commissions or investment bankers' fees or any similar
charges in connection with this Agreement or any transaction
contemplated hereby.
3.13 BOARD APPROVAL. The Board of Directors of Millennium has (i) approved
this Agreement and the Merger, and (ii) approved the issuance of the
shares of Millennium Common Stock pursuant to this Agreement. The Board
of Directors of Merger Sub has approved this Agreement and the Merger,
and recommended that the sole stockholder of Merger Sub approve this
Agreement and the Merger. The affirmative vote of the Millennium's
stockholders is not required to approve the Merger and the affirmative
vote of Millennium as sole stockholder of Merger Sub is the only vote
of the holders of any of Millennium's or Merger Sub's capital stock
necessary to approve this Agreement and the transactions contemplated
hereby.
3.15 REPRESENTATIONS COMPLETE. None of the representations or warranties
made by Millennium or Merger Sub herein, when all such documents are
read together in their entirety, contains or will contain at the
Effective Time any untrue statement of a material fact, or omits or
will omit at the Effective Time to state any material fact necessary in
order to make the statements contained herein or therein, in the light
of the circumstances under which made, not misleading. All projected,
forecasted or prospective financial information provided by Millennium
to the Company has been prepared in good faith on the basis of
assumptions Millennium believes are reasonable and supportable.
ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE TIME
4.1 CONDUCT OF BUSINESS. During the period from the date of this Agreement
and continuing until the earlier of the termination of this Agreement
or the Effective Time, each of Millennium and Company agrees (except to
the extent expressly contemplated by this Agreement or as consented to
in writing by the other party), to carry on its business in the
ordinary course in substantially the same manner as heretofore
conducted, to pay and to cause its subsidiaries to pay debts and Taxes
when due subject to good faith disputes over such debts or taxes, to
pay or perform other obligations when due, and to use all reasonable
efforts consistent with past practice and policies to preserve intact
its and its subsidiaries' present business organizations, use its
reasonable best efforts consistent with past practice to keep available
the services of its present officers and key employees and use its
reasonable best efforts consistent with past practice to preserve its
relationships with customers, suppliers, distributors, licensors,
licensees, and others having business dealings with it or its
subsidiaries, to the end that its and its subsidiaries' goodwill and
ongoing businesses shall be unimpaired at the Effective Time. The
Millennium and Company agree to promptly notify the other of any
material event or occurrence not in the ordinary course of its or its
subsidiaries' business, and of any event that would have a Material
Adverse Effect on Millennium or Company.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY
The Company's obligation to enter into and complete the
Closing is conditioned upon the satisfaction or waiver in writing by the
Company, on or before the Closing Date, of all of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties made
by Millennium and Merger Sub contained in this Merger Agreement, the
schedules or exhibits hereto or in any certificate or document
delivered to the Company by Millennium and Merger Sub in connection
with the transactions contemplated by this Merger Agreement shall be
true in all respects (without giving effect to any materiality
qualifications or limitations therein) on and as of the Closing Date
with the same effect as though such representations and warranties were
made on such date except for such failures to be true and correct which
in the aggregate would not reasonably be expected to result in a
Material Adverse Effect on Millennium and Merger Sub.
6.2 PERFORMANCE OF COVENANTS. Millennium and Merger Sub shall have
performed and complied in all material respects with all of the
agreements and covenants required by this Merger Agreement to be
performed and complied with by it prior to or on the Closing Date.
6.3 LITIGATION. No injunction shall have been issued by any court or
Governmental Authority which restrains or prohibits this Merger
Agreement or the consummation of the transactions contemplated hereby.
6.4 ANTITRUST LAWS COMPLIANCE. There is an applicable exemption to rules
and regulations of the Antitrust Laws applicable to the transactions
contemplated by this Merger Agreement.
6.5 SHAREHOLDER APPROVAL. The Company Shareholder Approval required in
connection with the consummation of the Merger shall have been
obtained.
6.7 MATERIAL CHANGES. There shall not have been any change that has had or
could reasonably be expected to have a Material Adverse Effect on the
assets, properties, condition (financial or otherwise), prospects or
results of operations of the Millennium from the date hereof to the
Closing Date, nor shall there exist any condition which could
reasonably be expected to result in such a Material Adverse Effect, and
there shall have been delivered to Millennium a certificate, dated the
Closing Date, to such effect signed by an authorized officer of the
Millennium.
6.8 CERTIFICATE OF MERGER. Prior to the Effective Time, the Certificate of
Merger shall be accepted for filing with the Secretary of State of the
State of Delaware
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
MILLENNIUM AND MERGER SUB
The obligations of Millennium and Merger Sub to enter into and complete
the Closing are conditioned upon the satisfaction or waiver by Millennium on
behalf of itself and Merger Sub, on or before the Closing Date, of the following
conditions:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties made
by the Company contained in this Merger Agreement, the schedules or
exhibits hereto or in any certificate or document delivered to
Millennium or the Merger Sub by the Company in connection with the
transactions contemplated by this Merger Agreement shall be true in all
respects (without giving effect to any materiality qualifications or
limitations therein) on and as of the Closing Date with the same effect
as though such representations and warranties were made on such date,
except (i) as otherwise contemplated by this Merger Agreement and (ii)
for such failures to be true and correct which in the aggregate would
not reasonably be expected to result in a Material Adverse Effect on
the Company.
6.2 PERFORMANCE OF COVENANTS. The Company shall have performed and complied
in all material respects with all of the agreements and covenants
required by this Merger Agreement to be performed and complied with by
it prior to or on the Closing Date, except as otherwise contemplated by
this Merger Agreement. The Company shall have paid a $US 10,000
non-refundable advance legal fee to Xxxxxxxxxxx Capital Inc. and or
Xxxxxx Xxxx Attorney as consideration for the legal services rendered.
6.3 LITIGATION. No injunction shall have been issued by any court or
Governmental Authority which restrains or prohibits this Merger
Agreement or the consummation of the transactions contemplated hereby.
6.4 ANTITRUST LAWS ACT COMPLIANCE. There is an applicable exemption to
rules and regulations of the Antitrust Laws Act applicable to the
transactions contemplated by this Merger Agreement.
6.5 CONSENTS AND APPROVALS. The consents and approvals specified herein
shall have been obtained in form and substance satisfactory to
Millennium in its reasonable discretion.
6.6 MATERIAL CHANGES. There shall not have been any change that has had or
could reasonably be expected to have a Material Adverse Effect on the
assets, properties, condition (financial or otherwise), prospects or
results of operations of the Company from the date hereof to the
Closing Date, nor shall there exist any condition which could
reasonably be expected to result in such a Material Adverse Effect, and
there shall have been delivered to Millennium a certificate, dated the
Closing Date, to such effect signed by an authorized officer of the
Company.
6.7 SHAREHOLDER APPROVAL. The Company Shareholder Approval required in
connection with the consummation of the Merger shall have been
obtained.
6.8 CERTIFICATE OF MERGER. Prior to the Effective Time, the Certificate of
Merger shall be accepted for filing with the Secretary of State of the
State of New York.
ARTICLE VII
TERMINATION
7.1 TERMINATION EVENTS. This Merger Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time without
prejudice to any other rights or remedies either party may have by
written agreement, duly authorized by the Boards of Directors of
Millennium, Merger Sub and the Company;
7.2 EFFECT OF TERMINATION. In the event this Merger Agreement is terminated
pursuant to Section 7.1, all further obligations of the parties
hereunder shall terminate. Each party's right of termination hereunder
is in addition to any other rights it may have hereunder or otherwise
and the exercise of a right of termination shall not be an election of
remedies.
8.3 AMENDMENT. To the extent permitted by applicable law, this Merger
Agreement may be amended by action taken by or on behalf of the
respective Boards of Directors of the Company, Millennium and Merger
Sub at any time; provided, however, that, following approval by the
Stockholders of the Company, no amendment shall be made which under the
New York Corporate Law would require the further approval of the
Stockholders of the Company without obtaining such approval. This
Merger Agreement may not be amended except by an instrument in writing
signed on behalf of all of the parties hereto.
8.4 WAIVER. At any time prior to the Effective Time any party hereto may,
to the extent legally allowed, (i) extend the time for the performance
of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties made
to such party contained herein or in any document delivered pursuant
hereto and (iii) waive compliance with any of the agreements or
conditions for the benefit of such party 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 an instrument in writing signed on
behalf of such party.
ARTICLE VIII
MISCELLANEOUS
8.1 CAPTIONS AND HEADINGS. The Article and paragraph headings throughout
this Agreement are for convenience and reference only, and shall in no
way be deemed to define, limit, or add to the meaning of any provision
of this Agreement.
8.2 NO ORAL CHANGE. This Agreement and any provision hereof, may not be
waived, changed, modified, or discharged orally, but only by an
agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, or discharge is sought.
8.3 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to
the laws that might otherwise govern under applicable principles of
conflicts of law. Each of the parties hereto irrevocably consents to
the exclusive jurisdiction of any court located within the State of
Delaware in connection with any matter based upon or arising out of
this Agreement or the matters contemplated herein, agrees that process
may be served upon them in any manner authorized by the laws of the
State of Delaware for such persons and waives and covenants not to
assert or plead any objection which they might otherwise have to such
jurisdiction and such process.
8.4 PUBLIC ANNOUNCEMENTS. Subject to any requirement of applicable law or
stock exchange listing agreement, all public announcements or similar
publicity with respect to this Merger Agreement or the transactions
contemplated hereby shall be issued only with the consent of Millennium
and the Company. Unless consented to by each party hereto in advance
prior to the Closing, all parties hereto shall keep the provisions of
this Merger Agreement strictly confidential and make no disclosure
thereof to any Person, other than such party's respective legal and
financial advisors, subject to the requirements of applicable law or
securities exchange regulations.
8.5 SUCCESSORS. This Merger Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors
and permitted assigns.
8.6 FURTHER ASSURANCES. Each of the parties hereto agrees that it will,
from time to time after the date of this Merger Agreement, execute and
deliver such other certificates, documents and instruments and take
such other action as may be reasonably requested by the other party to
carry out the actions and transactions contemplated by this Merger
Agreement.
8.7 CONFIDENTIALITY. The Confidentiality Agreement between Millennium and
the Company is incorporated by reference herein and shall continue in
full force and effect in accordance with the terms thereof. In the
event of termination or abandonment of the transactions contemplated by
this Agreement pursuant to Section 8.1, the Confidentiality Agreement
shall continue in full force and effect. The definition of
"Confidential Information" contained in the Confidentiality Agreement
is hereby amended to include this Agreement and all information
obtained pursuant to of this Agreement.
8.8 NOTICES. All notices requests, demands, and other communications under
this Agreement shall be in writing and shall be deemed to have been
duly given on the date of service if served personally on the party to
whom notice is to be given, or on the third day after mailing if mailed
to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, and properly addressed, and
by fax, as follows:
If to Millennium or Merger Sub:
Millennium Capital Venture Holdings Inc.
0 Xxxxx Xxxxx-Xxxxx, Xxxxx 0000
Xxxxxxxx, XX
X0X 0X0
Attention: Xxxxxxx Xxxxxxx
Telephone:
With a copy to:
Xxxxxx X. Emas
Attorney at Law
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
If to the Company:
Telediscount Communications Inc.
Attention:
Telephone:
Facsimile:
With a copy to:
8.9 NON-WAIVER. Except as otherwise expressly provided herein, no waiver of
any covenant, condition, or provision of this Agreement shall be deemed
to have been made unless expressly in writing and signed by the party
against whom such waiver is charged; and (i) the failure of any party
to insist in any one or more cases upon the performance of any of the
provisions, covenants, or conditions of this Agreement or to exercise
any option herein contained shall not be construed as a waiver or
relinquishment for the future of any such provisions, covenants, or
conditions, (ii) the acceptance of performance of anything required by
this Agreement to be performed with knowledge of the breach or failure
of a covenant, condition, or provision hereof shall not be deemed a
waiver of such breach or failure, and (iii) no waiver by any party of
one breach by another party shall be construed as a waiver with respect
to any other or subsequent breach.
8.10 TIME OF ESSENCE. Time is of the essence of this Agreement and of each
and every provision hereof.
8.11 REMEDIES CUMULATIVE. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any
one remedy will not preclude the exercise of any other remedy.
8.12 SEVERABILITY. If any provision of this Agreement, or the application
thereof, becomes or is declared by a court of competent jurisdiction to
be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision
to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with
a valid and enforceable provision that will achieve, to the extent
possible, the economic, business and other purposes of such void or
unenforceable provision.
8.13 ENTIRE AGREEMENT. This Agreement contains the entire Agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings.
8.14 RULES OF CONSTRUCTION. The parties hereto agree that they have been
represented by counsel during the negotiation, preparation and
execution of this Agreement and, therefore, waive the application of
any law, regulation, holding or rule of construction providing that
ambiguities in an agreement or other document will be construed against
the party drafting such agreement or document.
8.15 EXPENSES. Except as expressly otherwise provided herein, each party
shall bear its own expenses incurred in connection with the
preparation, execution and performance of this Merger Agreement and the
transactions contemplated hereby, including all fees and expenses of
agents, representatives, counsel and accountants. All such expenses
incurred by the Company ("Company Transaction Expenses") shall be
repaid in full at the Closing.
8.16 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other parties,
it being understood that all parties need not sign the same
counterpart.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Merger Agreement as
of the date first above written.
MILLENNIUM THE COMPANY
Millennium Capital Venture Holdings Inc. Telediscount Communications Inc.
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ ---------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxx Xxxxxx
Title: Chief Executive Officer Title: Chief Executive Officer
MERGER SUB
Millennium Acquisition Corp.
By: /s/ Xxxxxx X. Emas
-----------------------
Name: Xxxxxx X. Emas
Title: President
