EXHIBIT 10.1
AGREEMENT AND PLAN OF MERGER
AMONG
AMERICAN POWERHOUSE, INC.,
SIGN MEDIA SYSTEMS ACQUISITION COMPANY, INC.
AND
SIGN MEDIA SYSTEMS, INC.
AGREEMENT AND PLAN OF MERGER
AMONG
AMERICAN POWERHOUSE INC.,
SIGN MEDIA SYSTEMS ACQUISITION COMPANY, INC.
AND
SIGN MEDIA SYSTEMS, INC.
Dated as of November 17, 2003
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of November 17, 2003 (the
"Agreement"), by and among AMERICAN POWERHOUSE, INC., a Delaware corporation
(the "Company"), SIGN MEDIA SYSTEMS ACQUISITION COMPANY, INC., a
Florida corporation (the "Merging Corporation"), and SIGN MEDIA SYSTEMS, INC.,
a Florida corporation (the "Surviving Corporation").
WHEREAS, the Boards of Directors of the Company, the Merging
Corporation, and the Surviving Corporation deem it advisable and in the best
interests of their respective stockholders that the Surviving Corporation
acquire the Merging Corporation upon the terms and subject to the conditions
provided for in this Agreement; and
WHEREAS, the Boards of Directors of the Company, the Merging
Corporation, and the Surviving Corporation have approved the merger of the
Merging Corporation into the Surviving Corporation with the Surviving
Corporation being the surviving corporation upon the term and subject to the
conditions provided for in this Agreement.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement, and intending to be
legally bound hereby, the Company, the Merging Corporation, and the Surviving
Corporation agree as follows:
1. THE PLAN OF MERGER. The following constitutes the plan of merger (the "Plan
of Merger") for the Merging Corporation and the Surviving Corporation which Plan
of Merger is subject to all of the terms and conditions of this Agreement:
(a) The Merger shall be in accordance with the Florida Business
Corporation Act pursuant to Sections 607.1101 - 607.1107, Florida Statutes.
(b) The name and jurisdiction of the surviving corporation is Sign
Media Systems, Inc., a Florida Corporation (the "Surviving Corporation").
(c) The name and jurisdiction of the merging corporation is Sign Media
Systems Acquisition Company, Inc., a Florida Corporation (the "Merging
Corporation").
(d) Upon the Closing of the Plan of Merger, the Surviving Corporation
shall immediately cause articles of merger (the "Articles of Merger") to be
filed with the Department of State of Florida. For purposes of the Plan of
Merger, the date and time the Articles of Merger are received by the Department
of State of Florida as evidenced by the official stamp of the Department of
State of Florida on the Articles of Merger shall be the effective date and time
of the Merger (the "Effective Time").
(e) At the Effective Time, the Merging Corporation shall merge into the
Surviving Corporation pursuant to the terms and conditions of the Plan of Merger
(the "Merger"), and the separate corporate existence of the Merging Corporation
shall thereupon cease, and Surviving Corporation shall be the surviving
corporation in the Merger.
(f) At the Effective Time, the Articles of Incorporation of the
Surviving Corporation, as in effect immediately prior to the Effective Time,
shall be the Articles of Incorporation of the Surviving Corporation.
(g) At the Effective Time, the By-laws of the Surviving Corporation, as
in effect immediately prior to the Effective Time, shall be the By-laws of the
Surviving Corporation until amended in accordance with the Articles of
Incorporation and By-laws of the Surviving Corporation.
(h) The directors of the Surviving Corporation at the Effective Time
shall be the directors of the Surviving Corporation until their respective
successors are duly elected and qualified or their earlier death, resignation or
removal in accordance with the Articles of Incorporation and By-laws of the
Surviving Corporation.
(i) The officers of the Surviving Corporation at the Effective Time
shall be the officers of the Surviving Corporation until their respective
successors are duly elected and qualified or their earlier death, resignation or
removal in accordance with the Articles of Incorporation and By-laws of the
Surviving Corporation.
(j) At the Effective Time, by virtue of the Merger and without any
action on the part of the Surviving Corporation or the Company, each share of
the Merging Corporation Stock shall automatically be cancelled and retired and
shall cease to exist, and no consideration shall be delivered in exchange
therefore.
(k) The consideration which shall be paid by the Surviving Corporation
pro-rata to the stockholders of the Merging Corporation in consideration of the
Merger shall be Three Hundred Thousand (300,000) shares of the common stock of
the Surviving Corporation (the "Purchase Shares").
2. CLOSING. The closing of the transactions provided for in this Agreement (the
"Closing") shall occur within ten (10) days from the date of this agreement at
the offices of the Surviving Corporation and the Closing may take place by mail.
3. THE COMPANY'S REPRESENTATIONS AND WARRANTIES.
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, has the corporate
power and authority required for it to own its properties and assets and to
carry on its business as it is now being conducted. The Company is duly
qualified to do business and is in good standing in each jurisdiction in which
the ownership of its properties or the conduct of its business requires such
qualification.
(b) The Merging Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida, has the
corporate power and authority required for it to own its properties and assets
and to carry on its business as it is now being conducted. The Merging
Corporation is duly qualified to do business and is in good standing in each
jurisdiction in which the ownership of its properties or the conduct of its
business requires such qualification.
(c) The Company is the sole shareholder of the common stock of the
Merging Corporation. The authorized capital stock of the Merging Corporation is
100,000,000 shares of common stock ("Merging Corporation Common Stock") and
100,000,000 shares of serial preferred stock of which One Hundred (100) shares
of Merging Corporation Common Stock is issued and outstanding and no shares of
preferred stock are issued and outstanding. All of the outstanding shares of
Merging Corporation Common Stock are duly authorized, validly issued, fully paid
and non-assessable.
(d) The Company and the Merging Corporation have the corporate power
and authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of the Company and the Merging Corporation and, except
for the filing of the Articles of Merger, no other corporate proceedings on the
part of the Company or the Merging Corporation are necessary to authorize the
consummation of the transactions contemplated hereby.
(e) Except for the filing of the Articles of Merger, none of the
execution, delivery or performance of this Agreement by the Company or the
Merging Corporation, the consummation by the Company of the Merging Corporation
of the transactions contemplated hereby or compliance by the Company or the
Merging Corporation with any of the provisions hereof will (i) conflict with or
result in any breach of any provision of the articles of incorporation, by-laws
or similar organizational documents of the Company or the Merging Corporation or
any of their Subsidiaries, (ii) require any filing by the Company or the Merging
Corporation or any of their Subsidiaries with, or permit, authorization, consent
or approval of, any federal, regional, state or local court, arbitrator,
tribunal, administrative agency or commission or other governmental or other
regulatory authority or agency, whether U.S. or foreign ("Governmental Entity"),
(iii) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default (or give rise to any right of
termination, amendment, cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease, license,
contract, agreement or other instrument or obligation to which the Company or
the Merging Corporation or any of their Subsidiaries is a party or by which any
of them or any of their properties or assets may be bound, or (iv) violate any
order, writ, injunction, decree, judgment, permit, license, ordinance, law,
statute, rule or regulation applicable to the Company or the Merging
Corporation, any of their Subsidiaries or any of their properties or assets,
excluding from the foregoing clauses (ii), (iii) and (iv) such filings, permits,
authorizations, consents, approvals, violations, breaches or defaults which will
not, individually or in the aggregate, have a material adverse effect on the
Company or the Merging Corporation or prevent or substantially delay the
consummation of the transactions contemplated hereby.
(f) Neither the Company nor the Merging Corporation currently have any
securities registered under either the Securities Act of 1933 or the Securities
Exchange Act of 1934 (the "Exchange Act") and at this time neither the Company
nor the Merging Corporation is required to register any securities under the
Exchange Act.
(g) There are no claims, actions, suits, proceedings, arbitrations or
investigations pending (or, to the best knowledge of the Company, threatened)
against or affecting the Company, the Merging Corporation or their Subsidiaries,
or any of their respective properties or assets at law or in equity, by or
before any Governmental Entity which, individually or in the aggregate, will
have a material adverse effect on the Company or the Merging Corporation or
would prevent or substantially delay the Merger.
4. THE MERGING CORPORATION'S REPRESENTATIONS AND WARRANTIES.
(a) The Merging Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida, has the
corporate power and authority required for it to own its properties and assets
and to carry on its business as it is now being conducted. The Merging
Corporation is duly qualified to do business and is in good standing in each
jurisdiction in which the ownership of its properties or the conduct of its
business requires such qualification.
(b) The Company is the sole shareholder of the common stock of the
Merging Corporation. The authorized capital stock of the Merging Corporation is
100,000,000 shares of common stock ("Merging Corporation Common Stock") and
100,000,000 shares of serial preferred stock of which One Hundred (100) shares
of Merging Corporation Common Stock is issued and outstanding and no shares of
preferred stock are issued and outstanding. All of the outstanding shares of
Merging Corporation Common Stock are duly authorized, validly issued, fully paid
and non-assessable.
(c) The Merging Corporation has the corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors and Stockholders of the Merging Corporation and, except for
the filing of the Articles of Merger, no other corporate proceedings on the part
of the Merging Corporation are necessary to authorize the consummation of the
transactions contemplated hereby.
(d) Except for the filing of the Articles of Merger, none of the
execution, delivery or performance of this Agreement by the Merging Corporation,
the consummation by the Merging Corporation of the transactions contemplated
hereby or compliance by the Merging Corporation with any of the provisions
hereof will (i) conflict with or result in any breach of any provision of the
articles of incorporation, by-laws or similar organizational documents of the
Merging Corporation or any of its subsidiaries, (ii) require any filing by the
Merging Corporation or any of its subsidiaries with, or permit, authorization,
consent or approval of, any Governmental Entity, (iii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, amendment, cancellation or
acceleration) under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which the Merging Corporation or any of its
Subsidiaries is a party or by which any of them or any of their properties or
assets may be bound, or (iv) violate any order, writ, injunction, decree,
judgment, permit, license, ordinance, law, statute, rule or regulation
applicable to the Merging Corporation, any of its Subsidiaries or any of their
properties or assets, excluding from the foregoing clauses (ii), (iii) and (iv)
such filings, permits, authorizations, consents, approvals, violations, breaches
or defaults which will not, individually or in the aggregate, have a material
adverse effect on the Merging Corporation or prevent or substantially delay the
consummation of the transactions contemplated hereby.
(e) The Merging Corporation currently does not have any securities
registered under either the Securities Act of 1933 or the Securities Exchange
Act of 1934 (the "Exchange Act") and at this time the Merging Corporation is not
required to register any securities under the Exchange Act.
(f) There are no claims, actions, suits, proceedings, arbitrations or
investigations pending (or, to the best knowledge of the Merging Corporation,
threatened) against or affecting the Merging Corporation or its Subsidiaries or
any of their respective properties or assets at law or in equity, by or before
any Governmental Entity which, individually or in the aggregate, will have a
material adverse effect on the Merging Corporation or would prevent or
substantially delay the Offer or the Merger.
5. THE SURVIVING CORPORATION'S REPRESENTATIONS AND WARRANTIES.
(a) The Surviving Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida, has the
corporate power and authority required for it to own its properties and assets
and to carry on its business as it is now being conducted. The Surviving
Corporation is duly qualified to do business and is in good standing in each
jurisdiction in which the ownership of its properties or the conduct of its
business requires such qualification.
(b) The authorized capital stock of the Surviving Corporation is
100,000,000 shares of common stock (the "the Surviving Corporation Common
Stock") and 100,000,000 shares of serial preferred stock of which 8,094,000
shares of the Surviving Corporation Common Stock is issued and outstanding and
no shares of preferred stock are issued and outstanding. All the outstanding
shares of the Surviving Corporation Common Stock are duly authorized, validly
issued, fully paid and non-assessable. The Purchase Shares when issued will all
be duly authorized, validly issued, fully paid and non-assessable.
(c) The Surviving Corporation has the corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
Board of Directors of the Surviving Corporation and, except for the filing of
the Articles of Merger, no other corporate proceedings on the part of the
Surviving Corporation are necessary to authorize the consummation of the
transactions contemplated hereby.
(d) Except for the filing of the Articles of Merger, none of the
execution, delivery or performance of this Agreement by the Surviving
Corporation, the consummation by the Surviving Corporation of the transactions
contemplated hereby or compliance by the Surviving Corporation with any of the
provisions hereof will (i) conflict with or result in any breach of any
provision of the articles of incorporation, by-laws or similar organizational
documents of the Surviving Corporation or any of its Subsidiaries, (ii) require
any filing by the Surviving Corporation or any of its Subsidiaries with, or
permit, authorization, consent or approval of, any Governmental Entity, (iii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
amendment, cancellation or acceleration) under, any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, lease, license, contract,
agreement or other instrument or obligation to which the Surviving Corporation
or any of its Subsidiaries is a party or by which any of them or any of their
properties or assets may be bound, or (iv) violate any order, writ, injunction,
decree, judgment, permit, license, ordinance, law, statute, rule or regulation
applicable to the Surviving Corporation, any of its Subsidiaries or any of their
properties or assets, excluding from the foregoing clauses (ii), (iii) and (iv)
such filings, permits, authorizations, consents, approvals, violations, breaches
or defaults which will not, individually or in the aggregate, have a material
adverse effect on the Surviving Corporation or prevent or substantially delay
the consummation of the transactions contemplated hereby.
(e) The Surviving Corporation currently does not have any securities
registered under either the Securities Act of 1933 or the Securities Exchange
Act of 1934 (the "Exchange Act") and at this time the Surviving Corporation is
not required to register any securities under the Exchange Act.
(f) There are no claims, actions, suits, proceedings, arbitrations or
investigations pending (or, to the best knowledge of the Surviving Corporation,
threatened) against or affecting the Surviving Corporation or its Subsidiaries
or any of their respective properties or assets at law or in equity, by or
before any Governmental Entity which, individually or in the aggregate, will
have a material adverse effect on the Surviving Corporation or would prevent or
substantially delay the Offer or the Merger.
6. CONDITIONS TO CLOSING. The respective obligations of each party to effect the
Merger shall be subject to the fulfillment at or prior to the Effective Time of
the following conditions:
(a) Approval of the stockholders of the Merging Corporation to the
Merger shall have been obtained.
(b) Approval of the stockholders of the Surviving Corporation to the
Merger shall have been obtained.
(c) No statute, rule, regulation, executive order, decree, ruling or
permanent injunction shall have been enacted, entered, promulgated or enforced
by any Governmental Entity which prohibits the consummation of the Merger
substantially on the terms contemplated hereby.
7. COVENANTS AND AGREEMENTS. The parties covenant and agree as follows:
(a) Subject to the terms and conditions of this Agreement and
applicable law, each of the parties shall act in good faith and use reasonable
best efforts to take, or cause to be taken, all actions, and to do, or cause to
be done, all things necessary, proper or advisable to consummate and make
effective the transactions contemplated by this Agreement as soon as
practicable. Without limiting the foregoing, the parties shall (and shall cause
their respective Subsidiaries, and use reasonable best efforts to cause their
respective affiliates, directors, officers, employees, agents, attorneys,
accountants and representatives, to: (i) obtain the approval of the Merger by
the stockholders of the Surviving Corporation and the Merging Corporation; (ii)
obtain all consents, approvals, waivers, licenses, permits, authorizations,
registrations, qualifications or other permissions or actions by, and give all
necessary notices to, and make all filings with and applications and submissions
to, any Governmental Entity or other Person necessary in connection with the
consummation of the transactions contemplated by this Agreement as soon as
reasonably practicable; (iii) provide all such information concerning such
party, its Subsidiaries and its officers, directors, employees, partners and
affiliates as may be necessary or reasonably requested in connection with any of
the foregoing; (iv) avoid the entry of, or have vacated or terminated, any
decree, order, or judgment that would restrain, prevent, or delay the
consummation of the Merger, including but not limited to defending through
litigation on the merits any claim asserted in any court by any Person.
(b) The Company, the Merging Corporation and the Surviving Corporation
shall keep the other reasonably apprised of the status of matters relating to
completion of the transactions contemplated hereby, including promptly
furnishing the other with copies of notices or other communications received by
the Merging Corporation, the Surviving Corporation or the Company, as the case
may be, or any of their respective Subsidiaries, from any third party and/or any
Governmental Entity with respect to the transactions contemplated by this
Agreement.
8. MISCELLANEOUS.
(a) None of the representations and warranties in this Agreement or in
any instrument delivered pursuant to this Agreement shall survive the Closing.
(b) Except as otherwise expressly contemplated by this Agreement, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs
and expenses.
(c) This Agreement may be executed in two or more separate
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement. This Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by each of the other parties hereto.
(d) All notices and other communications hereunder shall be in writing
(including telecopy or similar writing) and shall be effective (i) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Subparagraph and the appropriate telecopy confirmation is received or
(ii) if given by any other means, when delivered at the address specified in
this Subparagraph:
To the Company or the Merging Corporation:
00000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Phone: 000.000.0000
Facsimile: 559.692,2476
To the Surviving Corporation:
0000 00xx Xxxxxx
Xxxxxxxx, XX 00000
Phone: 000.000.0000
Facsimile: 941.330.0252
(e) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted assigns. Any
assignment shall be null and void.
(f) Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement in any
other jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
(g) The parties hereto agree that money damages or other remedy at law
would not be sufficient or adequate remedy for any breach or violation of, or a
default under, this Agreement by them and that in addition to all other remedies
available to them, each of them shall be entitled to the fullest extent
permitted by law to an injunction restraining such breach, violation or default
or threatened breach, violation or default and to any other equitable relief,
including, without limitation, specific performance, without bond or other
security being required.
(h) This Agreement constitutes the entire agreement, and supersedes all
other prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof and hereof
and is not intended to and shall not confer upon any person or entity other than
the parties hereto any rights or remedies hereunder.
(i) Headings of the Paragraphs of this Agreement are for convenience of
the parties only, and shall be given no substantive or interpretive effect
whatsoever.
(j) This Agreement may only be amended by a written instrument executed
by all of the parties hereto which agreement has been previously approved by the
Board of Directors and Stockholders of each of the parties.
(k) The parties to this Agreement agree to execute any further
documents or instruments, including but not limited to the Articles of Merger,
necessary to consummate the transactions contemplated by this Agreement.
(l) References in this Agreement to (a) "Subsidiaries" of the Company,
the Merging Corporation or the Surviving Corporation shall mean any corporation
or other form of legal entity of which more than 50% of the outstanding voting
securities are on the date hereof directly or indirectly owned by the Company,
the Merging Corporation or the Surviving Corporation or in which the Company,
the Merging Corporation or the Surviving Corporation has the right to elect a
majority of the members of the board of directors or other similar governing
body; (b) "Person" shall mean an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including, without
limitation, a Governmental Entity.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the day
and year first above written.
SIGN MEDIA SYSTEMS, INC.
/s/ Xxxxxxx X. Xxxxxxx, III
--------------------------------------------
Xxxxxxx X. Xxxxxxx, III
PRESIDENT
SIGN MEDIA SYSTEMS ACQUISITION COMPANY, INC
/s/ Xxxxx X. Xxxxxxxxx
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XXXXX X. XXXXXXXXX
PRESIDENT
AMERICAN POWERHOUSE, INC.
/s/ Xxxxx X. Xxxxxxxxx
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XXXXX X. XXXXXXXXX
PRESIDENT
