AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made as of
the 23rd day of June, 1999, by and between Silver King Resources, Inc., a
Florida corporation ("Silver King Florida"), and Silver King Resources
(Delaware), Inc., a Delaware corporation ("Silver King Delaware"). Silver King
Florida and Silver King Delaware are sometimes referred to herein as the
"Constituent Corporations."
RECITALS
A. Silver King Delaware is a corporation duly organized and existing under
the laws of the State of Delaware.
B. Silver King Florida is a company duly organized and existing under the
laws of the State of Florida.
C. On the date of this Merger Agreement, Silver King Delaware has authority
to issue: (i) 50,000,000 shares of Common Stock, par value $0.0001 per share
("Silver King Delaware Common Stock"), of which one share, held by Silver King
Florida, is issued and outstanding; and (2) 15,000,000 shares of Preferred
Stock, par value $0.0001 per share, of which no shares are issued and
outstanding.
D. On the date of this Merger Agreement, Silver King Florida has authority
to issue: (i) 50,000,000 shares of Common Stock, par value $0.001 per share, of
which, 18,075,000 shares are issued and outstanding ("Silver King Florida Common
Stock").
E. The respective Boards of Directors of Silver King Delaware and Silver
King Florida have determined that, for the purpose of effecting the
reincorporation of Silver King Florida in the State of Delaware, it is advisable
and to the advantage of such corporations and their respective shareholders that
Silver King Florida merge with and into Silver King Delaware upon the terms and
conditions herein provided.
F. The respective Boards of Directors of Silver King Delaware and Silver
King Florida have approved this Merger Agreement and have directed that this
Merger Agreement be submitted to the vote of their respective shareholders.
NOW, THEREFORE, in consideration of the mutual promises and on the terms
and conditions set forth below, the mutuality, adequacy and sufficiency of which
are hereby acknowledged, the parties do hereby adopt the plan of reorganization
encompassed by this Merger Agreement and do hereby agree that Silver King
Florida shall merge with and into Silver King Delaware:
I. TERMS AND CONDITIONS
1.1 Merger. Upon the date this Merger Agreement is made effective in
accordance with applicable Delaware and Florida law by filing a Certificate of
Merger with the Delaware Secretary of State and filing Articles of Merger with
the Florida Secretary of State (the "Effective Date"), Silver King Florida shall
be merged with and into Silver King Delaware (the "Merger"), and Silver King
Delaware shall be the surviving corporation of the Merger.
1.2 Succession. Upon the Effective Date, the separate existence of Silver
King Florida shall cease and Silver King Delaware shall succeed to all of the
rights, privileges, powers and property of Silver King Florida in the manner of
and as more fully set forth in Section 259 of the General Corporation Law of the
State of Delaware.
1.3 Silver King Florida Common Stock. Upon the Effective Date, by virtue of
the Merger and without any action on the part of the holder thereof or the
Constituent Corporations, each share of Silver King Florida Common Stock issued
and outstanding immediately prior thereto (other than dissenters' shares for
which appraisal rights are perfected in accordance with section 607.1320 of the
Florida Statutes of 1998 (the "Florida Statutes")) shall be changed and
converted into one fully paid and nonassessable share of Silver King Delaware
Common Stock. All of the shares of Silver King Florida Common Stock held in
treasury shall be canceled on the Effective Date.
1.4 Silver King Delaware Common Stock. Upon the Effective Date, by virtue
of the Merger and without any action on the part of the holder thereof or the
Constituent Corporations, each share of Silver King Delaware Common Stock issued
and outstanding immediately prior thereto shall be canceled.
1.5 Stock Certificates. Upon and after the Effective Date, all of the
outstanding certificates which prior to that time represented shares of Silver
King Florida Common Stock shall be deemed for all purposes to evidence ownership
of and to represent the shares of Silver King Delaware Common Stock into which
the shares of Silver King Florida Common Stock represented by such certificates
have been converted in the Merger. The registered owner on the books and records
of Silver King Florida or its transfer agent of any such outstanding stock
certificate shall, until such certificate shall have been surrendered for
transfer or conversion or otherwise accounted for to Silver King Delaware or its
transfer agent, have and be entitled to exercise any voting and other rights
with respect to and to receive any dividends and other distributions upon the
shares of Silver King Delaware Common Stock evidenced by such outstanding
certificate as provided above.
1.6 Employee Benefit Plans. Upon the Effective Date, Silver King Delaware
will assume all obligations of Silver King Florida under any and all employee
benefit plans in effect as of the Effective Date or with respect to which
employee rights or accrued benefits are outstanding as of the Effective Date.
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II. CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation and Bylaws. The Certificate of
Incorporation of Silver King Delaware as in effect immediately prior to the
Effective Date shall continue in full force and effect thereafter as the
Certificate of Incorporation of Silver King Delaware, as amended by the name
change set forth in Article Fourth of the Certificate of Merger filed with the
Delaware Secretary of State, and such Certificate of Incorporation upon the
filing of the Certificate of Merger in Delaware will be duly amended in
accordance with the provisions thereof and applicable law. The Bylaws of Silver
King Delaware in effect immediately prior to the Effective Date shall continue
in full force and effect thereafter as the Bylaws of Silver King Delaware
without change or amendment, until such Bylaws are duly amended in accordance
with the provisions thereof and applicable law.
2.2 Directors. The directors of Silver King Delaware immediately prior to
the Effective Date shall upon the Effective Date remain the directors of Silver
King Delaware and shall serve until the next annual meeting of shareholders of
Silver King Delaware and until their successors are duly elected and qualified
or until their earlier resignation, removal or death.
2.3 Officers. The officers of Silver King Delaware shall remain the
officers of Silver King Delaware upon the Effective Date and shall serve until
their successors are duly elected and qualified or their earliest resignation,
removal or death.
III. CONDITIONS TO CONSUMMATION OF THE MERGER
3.1 Conditions to Obligation of Silver King Florida. The obligation of
Silver King Florida to consummate the Merger is subject to the satisfaction
prior to the Effective Date of each of the following conditions:
(a) The Merger shall have been approved by the shareholders of Silver
King Florida in accordance with the Florida Statutes;
(b) All director, shareholder and other parties' consents and
approvals, as well as filings with, and all necessary consents or approvals of,
all federal, state and local governmental authorities and agencies, as are
required under this Merger Agreement or applicable law to complete the Merger
and the transactions related thereto shall have been secured; and
(c) No statute, rule, regulation, executive order, decree, injunction
or restraining order shall have been enacted, promulgated, entered or enforced
by any court of competent jurisdiction or governmental authority that prohibits
or restricts the consummation of the Merger or transactions related thereto.
3.2 Conditions to Obligation of Silver King Delaware. The obligation of
Silver King Delaware to consummate the Merger is subject to the satisfaction
prior to the Effective Date of each of the following conditions:
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(a) Payment or estimated payment of the fair value of the Silver King
Florida Common Stock held by shareholders of Silver King Florida who properly
exercise or intend to exercise their dissenters' rights under Section 607.1320
of the Florida Statutes, shall not exceed an amount which, in the opinion of
Silver King Delaware's Board of Directors, constitutes an unacceptable cash cost
in light of the current cash requirements of Silver King Florida and the
anticipated cash requirements of Silver King Delaware as the surviving entity of
the Merger;
(b) The Merger shall have been approved by the shareholders of Silver
King Delaware in accordance with the Delaware General Corporation Law, as
amended ("DGCL");
(c) All director, shareholder and other parties' consents and
approvals, as well as filings with, and all necessary consents or approvals of,
all federal, state and local governmental authorities and agencies, as are
required under this Merger Agreement or applicable law to complete the Merger
and the transactions related thereto shall have been secured; and
(d) No statute, rule, regulation, executive order, decree, injunction
or restraining order shall have been enacted, promulgated, entered or enforced
by any court of competent jurisdiction or governmental authority that prohibits
or restricts the consummation of the Merger or transactions related thereto.
IV. MISCELLANEOUS
4.1 Further Assurances. From time to time, as and when required by Silver
King Delaware or by its successors and assigns, there shall be executed and
delivered on behalf of Silver King Florida such deeds and other instruments, and
there shall be taken or caused to be taken by it such further and other actions,
as shall be appropriate or necessary in order to vest, perfect or confirm, of
record or otherwise, in Silver King Delaware the title to and possession of all
of the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of Silver King Florida and otherwise to carry out the
purposes of this Merger Agreement, and the proper officers and directors of
Silver King Delaware are fully authorized in the name and on behalf of Silver
King Florida or otherwise to take any and all such action and to execute and
deliver any and all such deeds and other instruments.
4.2 Amendment. At any time before or after approval by the shareholders of
the Constituent Corporations and subject to applicable law, this Merger
Agreement may be amended in any manner as may be determined in the judgment of
the respective Boards of Directors of Silver King Florida and Silver King
Delaware to be necessary, desirable or expedient in order to clarify the
intention of the parties hereto or to effect or facilitate the purposes and
intent of this Merger Agreement; provided, however, that an amendment made
subsequent to the adoption of this Merger Agreement by the shareholders of
either Constituent Corporation shall not: (1) alter or change the amount or kind
of shares, securities, cash, property and/or rights to be received in exchange
for or on conversion of all or any of the shares of any class or series thereof
such Constituent Corporation; (2) alter or change any term of the Certificate of
Incorporation of Silver
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King Delaware to be effected by the Merger; or (3) alter or change any of the
terms and conditions of this Merger Agreement if such alteration or change would
adversely affect the holders of any class or series of capital stock of either
Constituent Corporation.
4.3 Abandonment. At any time before the Effective Date, this Merger
Agreement may be terminated and the Merger may be abandoned by the Board of
Directors of either Silver King Florida or Silver King Delaware or both,
notwithstanding the approval of this Merger Agreement by the shareholders of
Silver King Florida and Silver King Delaware.
4.4 Governing Law. This Agreement shall in all respects be construed,
interpreted and enforced in accordance with and governed by the laws of the
State of Delaware and, so far as applicable, the merger provisions of the
Florida Statutes.
4.5 Counterparts. In order to facilitate the filing and recording of this
Merger Agreement, the same may be executed in any number of counterparts, each
of which shall be deemed to be an original.
IN WITNESS WHEREOF, this Merger Agreement, having first been duly approved
by the respective Boards of Directors of Silver King Florida and Silver King
Delaware, is hereby executed on behalf of each said corporation and attested by
their respective officers thereunto duly authorized.
SILVER KING RESOURCES, INC.
a Florida corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
SILVER KING RESOURCES
(DELAWARE), INC.
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: President
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