Exhibit 2.2
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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
XXXXXX XXXXXXX BOXING, INC.,
XXXXXX XXXXXXX PROMOTIONS, LTD.,
BIG CONTENT ACQUISITION CORP.,
BIG CONTENT, INC.,
XXXXXX CHARITABLE REMAINDER TRUST
AND
XXXXXXXXXX INVESTMENTS, LLC
DATED AS OF MARCH 8, 2002
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TABLE OF CONTENTS
ARTICLE 1: MERGER OF NEWCO WITH AND INTO BIG CONTENT AND RELATED MATTERS.....1
1.1 The Merger...........................................................1
1.2 Conversion of Stock..................................................2
1.3 Merger and Other Consideration.......................................3
1.4 Zenascent Merger.....................................................4
1.5 Additional Rights; Taking of Necessary Action; Further Action........4
1.6 No Further Rights or Transfers.......................................4
ARTICLE 2: THE CLOSING.......................................................4
2.1 Closing Date.........................................................4
2.2 Closing Transactions.................................................5
ARTICLE 3: CERTAIN CORPORATE ACTION..........................................6
3.1 Big Content Action...................................................6
3.2 Boxing and Newco Corporate Action....................................6
ARTICLE 4: REPRESENTATIONS AND WARRANTIES....................................7
4.1 Representations and Warranties of Big Content........................7
4.2 Representations and Warranties of Boxing and Newco...................9
4.3 Representations and Warranties of Xxxxxxxxxx and Xxxxxx.............11
ARTICLE 5: AGREEMENTS OF THE PARTIES........................................12
5.1 Access to Information...............................................12
5.2 Confidentiality; No Solicitation....................................12
5.3 Interim Operations..................................................14
5.4 Consents............................................................15
5.5 All Reasonable Efforts..............................................15
5.6 Notification of Certain Matters.....................................16
5.7 Expenses............................................................16
5.8 Documents at Closing................................................16
5.9 Zenascent Merger....................................................16
5.10 Transfer of Certain Assets..........................................16
ARTICLE 6: CONDITIONS TO CONSUMMATION OF THE MERGER.........................17
6.1 Conditions to Obligations of Big Content............................17
6.2 Conditions to Boxing's Obligations..................................17
ARTICLE 7: TERMINATION......................................................18
7.1 Termination.........................................................18
7.2 Notice and Effect of Termination....................................19
7.3 Extension; Waiver...................................................19
7.4 Amendment and Modification..........................................19
ARTICLE 8: MISCELLANEOUS....................................................19
8.1 Certain Restrictions on the Transfer of Zenascent Stock.............19
8.2 Survival; Remedies..................................................20
8.3 Notices.............................................................20
8.4 Agreement; Assignment...............................................21
8.5 Binding Effect; Benefit.............................................21
8.6 Headings............................................................21
8.7 Counterparts........................................................21
8.8 Governing Law.......................................................21
8.9 Arbitration.........................................................21
8.10 Severability........................................................22
8.11 Certain Definitions.................................................22
EXHIBIT A: 10% Senior Promissory Note
EXHIBIT B: Consulting Agreement
EXHIBIT C: Pledge and Security Agreement
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), is made and entered
into as of March 8, 2002, by and among XXXXXX XXXXXXX BOXING, INC., a Delaware
corporation ("Boxing"), XXXXXX XXXXXXX PROMOTIONS, LTD., a New York corporation
and a wholly-owned subsidiary of Boxing ("CKP") BIG CONTENT ACQUISITION CORP., a
Delaware corporation and wholly owned subsidiary of Boxing ("Newco"), BIG
CONTENT, INC., a Delaware corporation ("Big Content"), XXXXXX CHARITABLE
REMAINDER TRUST, a Florida trust ("Xxxxxx"), and XXXXXXXXXX INVESTMENTS, LLC, a
Florida limited liability company ("Xxxxxxxxxx").
RECITALS
WHEREAS, Boxing and Big Content have determined that it is in the best
interests of their respective stockholders for Newco to merge with and into Big
Content upon the terms and subject to the conditions set forth in this
Agreement;
WHEREAS, the respective Boards of Directors of Boxing, Newco and Big
Content have each approved this Agreement, the consummation of the transactions
contemplated hereby and the execution and delivery of this Agreement;
WHEREAS, Xxxxxxxxxx, the majority shareholder of Big Content, has incurred
certain expenses on behalf of or related to Big Content and possesses certain
knowledge and expertise in connection with Big Content and its business that
will be of value to Boxing following the merger of Newco and Big Content, and,
accordingly, Boxing and Xxxxxxxxxx wish to enter into certain agreements in
connection with such merger as described herein; and
WHEREAS, for federal income tax purposes, it is intended that the merger
shall qualify as a reorganization under the provisions of Section 368 of the
Internal Revenue Code of 1986, as amended (the "Code");
NOW, THEREFORE, in consideration of the foregoing premises and
representations, warranties and agreements contained herein, and for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1: MERGER OF NEWCO WITH AND INTO
BIG CONTENT AND RELATED MATTERS
1.1 THE MERGER.
(a) Upon the terms and conditions of this Agreement, at the Effective Time
(as defined herein), Newco shall be merged with and into Big Content (the
"Merger") in accordance with the provisions of the Delaware General Corporation
Law (the "DGCL"), the separate corporate existence of Newco shall cease and Big
Content shall continue as the surviving corporation (the "Surviving
Corporation") under the laws of the State of Delaware. The Merger shall have the
effects set forth in Section 251 of the DGCL.
(b) Subject to the provisions of this Agreement, a certificate of merger
(the "Certificate of Merger") shall be duly prepared, executed and acknowledged
by the Surviving Corporation and thereafter delivered to the Secretary of State
of the State of Delaware for filing, as provided in the DGCL, as soon as
practicable on or after the Closing Date (as defined in Section 2.1). The Merger
shall become effective upon the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware or at such time thereafter as
provided in the Certificate of Merger pursuant to the mutual agreement of Boxing
and Big Content (the "Effective Time").
(c) At the Effective Time:
(i) Big Content shall continue its existence under the laws of the
State of Delaware as the Surviving Corporation;
(ii) the separate corporate existence of Newco shall cease;
(iii) all rights, title and interests to all assets, whether
tangible or intangible and any property or property rights owned by Newco
or Big Content shall be allocated to and vested in the Surviving
Corporation without reversion or impairment, without further act or deed,
and without any transfer or assignment having occurred, but subject to any
existing liens or other encumbrances thereon, and all liabilities and
obligations of Big Content or Newco shall be allocated to the Surviving
Corporation, which shall be the primary obligor therefor and, except as
otherwise provided by law or contract, no other party to the Merger, other
than the Surviving Corporation, shall be liable therefor;
(iv) the Certificate of Incorporation of the Surviving Corporation
shall be the Certificate of Incorporation of Newco as in effect
immediately prior to the consummation of the Merger;
(v) the By-Laws of the Surviving Corporation shall be the By-Laws of
Newco as in effect immediately prior to the consummation of the Merger,
and shall continue in full force and effect until thereafter amended as
provided by law and such By-Laws; and
(vi) the officers and directors of the Surviving Corporation shall
be the officers and directors of Newco as of the time immediately
preceding the Effective Time and such persons shall serve in such
positions for their respective terms provided by law or in the By-Laws of
the Surviving Corporation and until their respective successors are
elected and qualified.
1.2 CONVERSION OF STOCK.
(a) Conversion of Stock. At the Effective Time, by virtue of the Merger
and without any action on the part of any holder thereof:
(i) Each issued and outstanding share of common stock, par value
$0.01 per share, of Big Content (the "Big Content Common Stock") as of the
Closing shall be converted into and represent the right to receive, and
shall be exchangeable for a pro rata portion of the merger consideration
identified at Section 1.3(a) hereafter (the "Merger Consideration");
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(ii) each share of capital stock of Big Content held in treasury as
of the Effective Time shall be canceled without payment of any
consideration therefor and without any conversion thereof;
(iii) each share of common stock, par value $0.01 per share, of
Newco (the "Newco Common Stock") issued and outstanding prior to the
Effective Time shall be converted into and become a like number of fully
paid and nonassessable shares of common stock, par value $0.01 per share,
of the Surviving Corporation.
(b) Transfer; Delivery of Certificates after Effective Time. From and
after the Effective Time, there shall be no transfers on the stock transfer
books of Big Content of shares of Big Content Common Stock that were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
certificates for shares of Big Content Common Stock that were outstanding
immediately prior to the Effective Time shall be delivered to Big Content, they
shall be canceled and exchanged for the consideration to be received therefor in
connection with the Merger as provided in this Agreement.
1.3 MERGER AND OTHER CONSIDERATION.
(a) The Merger Consideration, consisting of the total purchase price
payable to the stockholders of Big Content in connection with the acquisition by
merger of Big Content, shall be delivered and shall consist exclusively of:
(i) With respect to all issued and outstanding shares of Big Content
held by Xxxxx XxXxxxxxx ("XxXxxxxxx") and Xxxxxxxxxx, there shall be
delivered Thirty (30) shares of common stock, $0.01 par value per share,
of Boxing (the "Boxing Common Stock"), of which Twenty-Four (24) such
shares of Boxing Common Stock shall be delivered to Xxxxxxxxxx, and Six
(6) such shares of Boxing Common Stock to XxXxxxxxx; and
(ii) With respect to all issued and outstanding shares of Big
Content held by Xxxxxx, a 10% Senior Promissory Note issued by Boxing to
Xxxxxx in the original principal amount of one million dollars
($1,000,000) in the form of Exhibit A hereto (the "Xxxxxx Note").
(b) As additional consideration, Xxxxxxxxxx shall receive $50,000 upon the
execution of this Agreement.
(c) It is intended that the delivery of the Merger Consideration specified
in Section 1.3(a)(i) shall qualify as a tax-free exchange under the Code.
(d) The Boxing Common Stock issuable pursuant to Section 1.3(a)(i) shall
be fully paid and non-assessable and shall be free and clear of all liens,
levies and encumbrances, except that such shares shall be "restricted
securities" pursuant to Rule 144 promulgated under the Securities Act of 1933,
as amended (the "Securities Act").
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1.4 ZENASCENT MERGER.
(a) Subject to Section 1.4(b), on or after the Closing Date, Zenascent
Newco Inc. ("ZN"), a Delaware corporation and a wholly owned subsidiary of
Zenascent, Inc., a Delaware corporation ("Zenascent") shall merge with and into
Boxing (the "Zenascent Merger") in accordance with the terms and conditions of
the Amended and Restated Agreement and Plan of Merger, dated as of February 21,
2002, by and among Zenascent, ZN, Boxing, Xxxxxx Xxxxxxx Promotions, Ltd., a New
York corporation ("CKP"), Xxxxxx Xxxxxxx and Xxxxx XxXxxxxxx (the "Zenascent
Merger Agreement"). As further described in the Zenascent Merger Agreement, upon
the consummation of the Zenascent Merger, Boxing shall become a wholly-owned
subsidiary of Zenascent and all outstanding shares of Boxing shall be exchanged
for securities of Zenascent.
(b) Promptly following the consummation of the Zenascent Merger, CKP shall
reimburse Xxxxxxxxxx and/or certain of its Affiliates (as designated by
Xxxxxxxxxx) in the amount of $100,000 in respect of certain expenses incurred by
Xxxxxxxxxx on behalf of or related to Big Content prior to the date hereof. As
soon as reasonably practicable following the Zenascent Merger (given the
available cash flow and expenses of Zenascent and Boxing), CKP shall reimburse
Xxxxxxxxxx and/or certain of its Affiliates (as designated by Xxxxxxxxxx) in the
amount of an additional $100,000 in respect of certain additional expenses
incurred by Xxxxxxxxxx on behalf of or related to Big Content prior to the date
hereof.
(c) Concurrently with the consummation of the Zenascent Merger, Zenascent,
CKP, Boxing, Big Content and Xxxxxxxxxx shall enter into a 10-year Consulting
Agreement in the form of Exhibit B hereto (the "Xxxxxxxxxx Consulting
Agreement").
1.5 ADDITIONAL RIGHTS; TAKING OF NECESSARY ACTION; FURTHER ACTION.
Each of Boxing, Newco and Big Content, respectively, shall use their best
efforts to take all such action as may be necessary and appropriate to
effectuate the Merger under the DGCL as promptly as possible.
1.6 NO FURTHER RIGHTS OR TRANSFERS.
At and after the Effective Time, the Big Content Common Stock outstanding
immediately prior to the Effective Time shall cease to provide the holder
thereof any rights as a stockholder of Big Content, except for the right to
surrender the certificate or certificates representing such shares and to
receive the Merger Consideration to be received in the Merger as provided in
this Agreement.
ARTICLE 2: THE CLOSING
2.1 CLOSING DATE.
Subject to satisfaction or waiver of all conditions precedent set forth in
Article 6 of this Agreement, the closing of the Merger (the "Closing") shall
take place at the offices of Xxxxxxxxx Traurig, LLP ("GT"), counsel to Boxing,
at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
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10166 on (a) the later of: (i) the first Business Day following the day upon
which all appropriate Boxing, Newco and Big Content corporate action has been
taken in accordance with Article 3 of this Agreement; or (ii) the day on which
the last of the conditions precedent set forth in Article 6 of this Agreement is
fulfilled or waived; or (b) at such other time, date and place as the parties
may agree, but in no event shall such date be later than March 31, 2002, unless
such date is extended by the mutual agreement of the parties. The date that the
Closing occurs is referred to herein as the "Closing Date."
2.2 CLOSING TRANSACTIONS.
At or prior to the Closing, the following transactions shall occur:
(a) Big Content shall take each of the following actions:
(i) Big Content shall execute and deliver, and file or cause to be
filed with the Secretary of State of the State of Delaware, the
Certificate of Merger with such amendments thereto as the parties hereto
shall deem mutually acceptable;
(ii) Big Content shall execute and deliver to Boxing and Newco a
certificate be executed by an authorized executive officer of Big Content
(A) attesting to the fact that all representations and warranties made by
Big Content in this Agreement are true and correct on and as of the
Closing, as though originally given to Boxing and Newco on said date, (B)
certifying that the Board and stockholders of Big Content have duly
approved the Merger, this Agreement, and the transactions contemplated
hereby in accordance with the DGCL and Big Content's Certificate of
Incorporation and By-Laws (and attaching resolutions of such Board and
stockholders evidencing the same) and (C) attesting to the fact that all
actions required to be taken, and all other obligations, pursuant to this
Section 2.2(a) and Section 6.1, have been taken or satisfied, as
applicable.
(iii) Big Content shall execute and deliver to Boxing and Newco a
certificate of good standing from the Secretary of State of the State of
Delaware, dated at or about the Closing Date;
(iv) Big Content shall execute and deliver to Boxing and Newco such
other documents and agreements as reasonably requested by Boxing and Newco
to effectively consummate the transactions contemplated under this
Agreement.
(b) Boxing and/or Newco, as applicable, shall take each of the following
actions:
(i) Boxing shall execute and deliver to Big Content a certificate
executed by an authorized executive officer of Boxing (A) attesting to the
fact that all representations and warranties made by Boxing in this
Agreement are true and correct on and as of the Closing, as though
originally given to Big Content on said date and (B) certifying that the
Board of Boxing has approved the Merger, this Agreement, and the
transactions contemplated hereby in accordance with the DGCL and Boxing's
Certificate of Incorporation and By-Laws (and attaching resolutions of
such Board evidencing the same);
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(ii) Newco shall execute and deliver to Big Content a certificate
executed by an authorized executive officer of Newco (A) attesting to the
fact that all representations and warranties made by Newco in this
Agreement are true and correct on and as of the Closing, as though
originally given to Big Content on said date, (B) certifying that the
Board and stockholders of Newco have duly approved the Merger, this
Agreement, and the transactions contemplated hereby in accordance with the
DGCL and Newco's Certificate of Incorporation and By-Laws (and attaching
resolutions of such Board and stockholders evidencing the same) and (C)
attesting to the fact that all actions required to be taken, and all other
obligations, pursuant to this Section 2.2(b) and Section 6.2, have been
taken or satisfied, as applicable;
(iii) Boxing shall execute and deliver to Big Content a certificate
of good standing from the Secretary of State of the State of Delaware
dated at or about the Closing Date;
(iv) Newco shall execute and deliver to Big Content a certificate of
good standing from the Secretary of State of the State of Delaware, dated
at or about the Closing Date; and
(v) Boxing and Newco shall execute and deliver to Big Content such
other documents and agreements as reasonably requested by Big Content to
effectively consummate the transactions contemplated under this Agreement;
and
(vi) Boxing shall deliver the Merger Consideration as contemplated
under this Agreement.
(c) The Surviving Corporation, Xxxxxxxxxx and Xxxxxx shall enter into a
Pledge and Security Agreement, in the form of Exhibit C hereto (the "Security
Agreement"), pursuant to which the Surviving Corporation will xxxxx Xxxxxxxxxx
and Xxxxxx a first-priority lien on all of its assets to secure (i) all
obligations of Boxing under the Xxxxxx Note and (ii) certain obligations of the
Surviving Corporation under the Xxxxxxxxxx Consulting Agreement.
ARTICLE 3: CERTAIN CORPORATE ACTION
3.1 BIG CONTENT ACTION.
Big Content shall cause to occur all corporate and stockholder action
necessary to effect the Merger and to consummate the other transactions
contemplated hereby.
3.2 BOXING AND NEWCO CORPORATE ACTION.
Boxing and Newco shall cause to occur all corporate and stockholder action
necessary to effect the Merger and to consummate the other transactions
contemplated hereby.
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ARTICLE 4: REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF BIG CONTENT
As a material inducement to Boxing and Newco to execute this Agreement and
consummate the Merger and other transactions contemplated hereby, Big Content
hereby makes the following representations and warranties to each of Boxing and
Newco as of the date hereof, each of which representations and warranties shall
be deemed repeated and reaffirmed in all material respects on and as of the
Closing Date.
(a) Corporate Existence and Power.
(i) Big Content is a corporation duly formed and in good standing
under the laws of the State of Delaware, and has all corporate powers and
all governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted, except where the failure to
have any of the foregoing would not have a Material Adverse Effect. Big
Content is duly qualified to do business as a foreign corporation in each
jurisdiction where the character of the property owned or leased by it or
the nature of its activities makes such qualification necessary, except
for those jurisdictions where the failure to be so qualified would not,
individually or in the aggregate, have a Material Adverse Effect. True,
correct and complete copies of the Certificate of Incorporation and
By-Laws of Big Content, as amended to date, are attached hereto as
Schedule 4.1(a)(i) and are incorporated herein by reference.
(ii) Except as set forth in Schedule 4.1(a)(ii), Big Content owns no
direct or indirect equity interest in any other Person.
(b) Due Authorization and Requisite Approvals.
(i) This Agreement has been duly authorized, executed and delivered
by Big Content and constitutes a valid and binding agreement of Big
Content, enforceable against Big Content in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium, and other similar laws relating to, limiting or
affecting the enforcement of creditors rights generally or by the
application of equitable principles. As of the Closing Date, all corporate
and stockholder action on the part of Big Content required under
applicable law in order to consummate the Merger will have occurred; and
(ii) The Board of Big Content has approved the execution of this
Agreement and the consummation of the Merger and related actions
contemplated hereby.
(c) No Contravention. The execution and delivery of the Agreement by Big
Content does not, and the consummation of the transactions contemplated hereby
will not:
(i) conflict with or result in any violation or default (with or
without notice or lapse of time, or both) under, or give rise to a right
of termination, cancellation or acceleration of a right or obligation or
loss under, (A) the Certificate of Incorporation or By-Laws and/or other
governing document, as applicable, of Big Content or (B) any
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Contract or, to the best of its Knowledge, any Legal Restriction,
applicable to Big Content or any of its properties or assets, or by which
Big Content or any of its properties or assets is bound, or result in an
Encumbrance on any of the assets of Big Content, except such as is not
reasonably likely to have a Material Adverse Effect or prevent Big Content
from consummating the transactions contemplated by this Agreement; or
(ii) require any consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other governmental authority or instrumentality, domestic
or foreign, except the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware.
(d) Capitalization and Share Ownership. The authorized capital stock of
Big Content consists of twelve million (12,000,000) shares, of which two million
(2,000,000) are shares of Preferred Stock, $.01 par value per share, and ten
million (10,000,000) are shares of Big Content Common Stock. There are currently
ten million (10,000,000) shares of Big Content Common Stock outstanding,
1,600,000 of which are owned by Xxxxxx, 6,400,000 of which are owned by
Xxxxxxxxxx and 2,000,000 of which are owned by Xxxxx XxXxxxxxx (collectively,
the "Big Content Stockholders"). The outstanding shares of capital stock of Big
Content have been duly authorized and validly issued and are fully paid and
nonassessable and free of preemptive rights. Except as set forth in this Section
4.1(d), there are outstanding (A) no shares of capital stock or other voting
securities of Big Content, (B) no securities of Big Content convertible into or
exchangeable for shares of capital stock or voting securities of Big Content and
(C) no options, warrants or other rights to acquire from Big Content or any
other person, and no obligation of Big Content to issue, any capital stock,
voting securities or securities convertible into or exchangeable for capital
stock or voting securities of Big Content, and there are no agreements or
commitments to do any of the foregoing. There are no voting trusts or voting
agreements applicable to any shares of capital stock of Big Content. The Big
Content Common Stock to be surrendered in the Merger will be owned of record and
beneficially by the Big Content Stockholders, free and clear of all liens and
encumbrances of any kind and nature, and have not been sold, pledged, assigned
or otherwise transferred. There are no agreements (other than as set forth in
this Agreement) to sell, pledge, assign or otherwise transfer such securities.
(e) Investment Banking Fees. There is no investment banker, broker, finder
or other similar intermediary which has been retained by, or is authorized by
Big Content or any of its stockholders to act on its behalf, who might be
entitled to any fee or commission from Big Content, or any of its affiliates or
stockholders upon consummation of the transactions contemplated by this
Agreement.
(f) Statements And Other Documents Not Misleading. Neither this Agreement,
including all exhibits and schedules and other closing documents, nor any other
financial statement, document or other instrument heretofore or hereafter
furnished by Big Content or Xxxxxxxxxx to Boxing in connection with the Merger
or the other transactions contemplated hereby, contains or will contain any
untrue statement of any material fact or omit or will omit to state any material
fact required to be stated in order to make such statement, information,
document or other instruments, in light of the circumstances in which they are
made, not misleading. There is no fact known to Big Content or Xxxxxxxxxx which
may have a Material Adverse Effect on the business, prospects, financial
condition or results of operations of Big
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Content or of any of its properties or assets which has not been set forth in
this Agreement as an exhibit or schedule hereto.
4.2 REPRESENTATIONS AND WARRANTIES OF BOXING AND NEWCO.
As a material inducement to Big Content to execute this Agreement and
consummate the Merger and other transactions contemplated hereby, each of Boxing
and Newco hereby makes the following representations and warranties to Big
Content as of the date hereof, which representations and warranties shall be
deemed repeated and reaffirmed in all material respects on and as of the Closing
Date.
(a) Corporate Existence and Power.
(i) Each of Boxing and Newco is presently a corporation duly
incorporated and in good standing under the laws of the State of Delaware,
and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business
as now conducted, except where the failure to have any of the foregoing
would not have a Material Adverse Effect. Each of Boxing and Newco is duly
qualified to do business as a foreign corporation in each jurisdiction
where the character of the property owned or leased by it or the nature of
its activities makes such qualification necessary, except for those
jurisdictions where the failure to be so qualified would not, individually
or in the aggregate, have a Material Adverse Effect. True, correct and
complete copies of the Certificate of Incorporation and By-Laws of Boxing
and Newco, as amended to date, are attached hereto as Schedule ---------
4.2(a) and are incorporated herein by reference. ------
(ii) Boxing owns no equity interest in any entity, other than a 100%
equity interest in (A) Xxxxxx Xxxxxxx Promotions, Ltd., a wholly owned
subsidiary of Boxing ("CKP") and (B) Xxxxxx Xxxxxxx Sports Network, Ltd,
an inactive New York corporation without any material liabilities.
(b) Due Authorization and Requisite Approvals.
(i) This Agreement and the other agreements described herein to
which Boxing or Newco, as applicable, will become a party have been, or as
of the Closing will be, duly authorized, executed and delivered by Boxing
or Newco, as applicable, and constitute, or as of the Closing will
constitute, a valid and binding agreement of Boxing or Newco, as
applicable, enforceable against Boxing or Newco, as applicable, in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, moratorium, and other similar laws
relating to, limiting or affecting the enforcement of creditors rights
generally or by the application of equitable principles. As of the Closing
all corporate action on the part of Boxing or Newco, as applicable,
required under applicable law in order to consummate the Merger will have
occurred; and
(ii) The Boards of Boxing and Newco have approved the execution of
this Agreement and the consummation of the Merger and related actions
contemplated hereby.
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(c) No Contravention. The execution and delivery of the Agreement by
Boxing and Newco does not, and the consummation of the transactions contemplated
hereby will not:
(i) conflict with or result in any violation or default (with or
without notice or lapse of time, or both) under, or give rise to a right
of termination, cancellation or acceleration of a right or obligation or
loss under, (A) the Certificate of Incorporation or By-Laws of Boxing or
Newco, as applicable or (B) any Contract or, to the best of their
Knowledge, any Legal Restriction, applicable to Boxing or Newco, or any of
their respective properties or assets, or by which Boxing or Newco or any
of its respective properties or assets are bound, or result in an
Encumbrance on any of the assets of Boxing or Newco, except such as is not
reasonably likely to have a Material Adverse Effect or prevent Boxing or
Newco from consummating the transactions contemplated by this Agreement;
or
(ii) require any consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other governmental authority or instrumentality, domestic
or foreign, except the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware.
(d) Capitalization and Share Ownership. The authorized capital stock of
Boxing consists of 1,000 shares of Boxing Common Stock, of which 429.5 shares
are outstanding. Except as set forth in this Section 4.2(d) and Schedule 4.2(d),
there are outstanding (A) no shares of capital stock or other voting securities
of Boxing, (B) no securities of Boxing convertible into or exchangeable for
shares of capital stock or voting securities of Boxing and (C) no options,
warrants or other rights to acquire from Boxing, and, other than as set forth in
this Agreement, no obligations of Boxing to issue, any capital stock, voting
securities or securities convertible into or exchangeable for capital stock or
voting securities of Boxing, and there are no agreements or commitments to do
any of the foregoing. There are no voting trusts or voting agreements applicable
to any shares of capital stock of Boxing. Except as set forth in this Agreement
or the Zenascent Merger Agreement, Boxing is not a party to any Contract to
sell, pledge, assign or otherwise transfer any such securities.
(e) Investment Banking Fees. There is no investment banker, broker, finder
or other similar intermediary which has been retained by Newco or Boxing, or is
authorized by Newco or Boxing, to act on its behalf, who might be entitled to
any fee or commission from Boxing, Newco, Big Content or any of their respective
affiliates upon consummation of the transactions contemplated by this Agreement.
(f) Merger Consideration. The Boxing Common Stock to be issued to the Big
Content stockholders pursuant to Section 1.3(a)(i) shall be duly authorized and
validly issued, free and clear of all liens and encumbrances of any kind and
nature.
(g) Certain Disclosure. Each of Newco and Boxing acknowledges that it is
aware of the disclosure concerning Big Content set forth on Schedule 4.2(g).
(h) Statements And Other Documents Not Misleading. Neither this Agreement,
including all exhibits and schedules and other closing documents, nor any other
financial
10
statement, document or other instrument heretofore or hereafter furnished by
Boxing or Newco to Big Content in connection with the Merger or the other
transactions contemplated hereby, contains or will contain any untrue statement
of any material fact or omit or will omit to state any material fact required to
be stated in order to make such statement, information, document or other
instruments, in light of the circumstances in which they are made, not
misleading. There is no fact known to Boxing which may have a Material Adverse
Effect on the business financial condition or results of operations of Boxing or
of any of their properties or assets which has not been set forth in this
Agreement as an exhibit or schedule hereto.
4.3 REPRESENTATIONS AND WARRANTIES OF XXXXXXXXXX AND XXXXXX
As a material inducement to Boxing and Newco to execute this Agreement and
consummate the Merger and other transactions contemplated hereby, each of
Xxxxxxxxxx and Xxxxxx hereby makes the following representations and warranties
to each of Boxing and Newco as of the date hereof, each of which representations
and warranties shall be deemed repeated and reaffirmed in all material respects
on and as of the Closing Date.
(a) Corporate Existence and Power. Each of Xxxxxxxxxx and Xxxxxx is an
entity duly formed and in good standing under the laws of its jurisdiction of
formation, and has all appropriate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, except where the failure to have any of the foregoing would not have
a Material Adverse Effect.
(b) Due Authorization and Requisite Approvals.
(i) This Agreement has been duly authorized, executed and delivered
by Xxxxxxxxxx and Xxxxxx and constitutes a valid and binding agreement of
Xxxxxxxxxx and Xxxxxx, enforceable against Xxxxxxxxxx and Xxxxxx in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, moratorium, and other similar laws
relating to, limiting or affecting the enforcement of creditors rights
generally or by the application of equitable principles; and
(ii) The Boards or other governing Person, as applicable, of each of
Xxxxxxxxxx and Xxxxxx has approved the execution of this Agreement and the
consummation of the Merger and related actions contemplated hereby.
(c) No Contravention. The execution and delivery of the Agreement by
Xxxxxxxxxx and Xxxxxx does not, and the consummation of the transactions
contemplated hereby will not:
(i) conflict with or result in any violation or default (with or
without notice or lapse of time, or both) under, or give rise to a right
of termination, cancellation or acceleration of a right or obligation or
loss under, (A) the Certificate of Incorporation or By-Laws and/or other
governing document, as applicable, of Xxxxxxxxxx or Xxxxxx or (B) any
Contract or, to the best of its Knowledge, any Legal Restriction,
applicable to Xxxxxxxxxx or Xxxxxx, or any of their respective properties
or assets, or by which Xxxxxxxxxx or Xxxxxx or any of their respective
properties or assets is bound, or result in an Encumbrance on any of the
assets of Xxxxxxxxxx or Xxxxxx, except such as is not
11
reasonably likely to have a Material Adverse Effect or prevent Xxxxxxxxxx
or Xxxxxx from consummating the transactions contemplated by this
Agreement; or
(d) require any consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, except the filing of the Certificate of Merger with the Secretary of
State of the State of Delaware.
ARTICLE 5: AGREEMENTS OF THE PARTIES
5.1 ACCESS TO INFORMATION.
At all times prior to the Closing or the earlier termination of this
Agreement in accordance with the provisions of Article 7, and in each case
subject to Section 5.2 below, each of Boxing, Newco and Big Content shall
provide to the other parties (and the other parties' authorized representatives)
full access during normal business hours and upon reasonable prior notice to the
premises, properties, books, records, assets, liabilities, operations,
contracts, personnel, financial information and other data and information of or
relating to such party (including without limitation all written proprietary and
trade secret information and documents, and other written information and
documents relating to intellectual property rights and matters), and will
cooperate with the other party in conducting its due diligence investigation of
such party. If so requested by Boxing, Big Content shall also provide such
access to Zenascent or its authorized representatives.
5.2 CONFIDENTIALITY; NO SOLICITATION.
(a) Confidentiality of Big Content-Related Information. With respect to
information concerning Big Content that is made available to Boxing pursuant to
the terms of this Agreement (including, without limitation, the existence of
this Agreement and the transactions contemplated hereby), Boxing agrees that it
shall hold such information in strict confidence, shall not use such information
except for the sole purpose of evaluating the Merger and related transactions
and shall not disseminate or disclose any of such information other than to its
directors, officers, employees, stockholders, affiliates, agents and
representatives who need to know such information for the sole purpose of
evaluating the Merger and the related transactions (each of whom shall be
informed in writing by Boxing or its representatives of the confidential nature
of such information and directed by Boxing in writing to treat such information
confidentially). If this Agreement is terminated pursuant to the provisions of
Article 7, Boxing shall immediately return all such information, all copies
thereof and all information prepared by Boxing based upon the same; provided,
however, that one copy of all such material may be retained by Boxing's outside
legal counsel for purposes only of resolving any disputes under this Agreement.
The above limitations on use, dissemination and disclosure shall not apply to
information that (i) is learned by Boxing from a third party entitled to
disclose it; (ii) becomes known publicly other than through Boxing or any party
who received the same through Boxing, provided that Boxing has no Knowledge that
the disclosing party was subject to an obligation of confidentiality; (iii) is
required by law or court order to be disclosed by Boxing; or (iv) is disclosed
with the express prior written consent thereto of Big Content. Boxing shall
undertake all necessary steps to
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ensure that the secrecy and confidentiality of such information will be
maintained in accordance with the provisions of this paragraph (a).
Notwithstanding anything contained herein to the contrary, in the event a party
is required by court order or subpoena to disclose information which is
otherwise deemed to be confidential or subject to the confidentiality
obligations hereunder, prior to such disclosure, the disclosing party shall: (A)
promptly notify the non-disclosing party and, if having received a court order
or subpoena, deliver a copy of the same to the non-disclosing party; (B)
cooperate with the non-disclosing party, at the expense of the non-disclosing
party in, obtaining a protective or similar order with respect to such
information; and (C) provide only such of the confidential information as the
disclosing party is advised by its counsel is necessary to strictly comply with
such court order or subpoena.
(b) Confidentiality of Boxing-Related Information. With respect to
information concerning Boxing that is made available to Big Content pursuant to
the provisions of this Agreement (including, without limitation, the existence
of this Agreement and the transactions contemplated hereby), Big Content agrees
that it shall hold such information in strict confidence, shall not use such
information except for the sole purpose of evaluating the Merger and the related
transactions, and shall not disseminate or disclose any of such information
other than to its directors, officers, employees, stockholders, affiliates,
agents and representatives who need to know such information for the sole
purpose of evaluating the Merger and the related transactions (each of whom
shall be informed in writing by Big Content or its representatives of the
confidential nature of such information and directed by such party in writing to
treat such information confidentially). If this Agreement is terminated pursuant
to the provisions of Article 8, Big Content agrees to return immediately all
such information, all copies thereof and all information prepared by Big Content
based upon the same; provided, however, that one copy of all such material may
be retained by Big Content's outside legal counsel for purposes only of
resolving any disputes under this Agreement. The above limitations on use,
dissemination and disclosure shall not apply to information that (i) is learned
by Big Content's from a third party entitled to disclose it; (ii) becomes known
publicly other than through Big Content or any party who received the same
through Big Content provided that Big Content has no Knowledge that the
disclosing party was subject to an obligation of confidentiality; (iii) is
required by law or court order to be disclosed by Big Content; or (iv) is
disclosed with the express prior written consent thereto of Boxing. Big Content
agrees to undertake all necessary steps to ensure that the secrecy and
confidentiality of such information will be maintained in accordance with the
provisions of this paragraph (b). Notwithstanding anything contained herein to
the contrary, in the event a party is required by court order or subpoena to
disclose information which is otherwise deemed to be confidential or subject to
the confidentiality obligations hereunder, prior to such disclosure, the
disclosing party shall: (A) promptly notify the non-disclosing party and, if
having received a court order or subpoena, deliver a copy of the same to the
non-disclosing party; (B) cooperate with the non-disclosing party at the expense
of the non-disclosing party in obtaining a protective or similar order with
respect to such information; and (C) provide only such of the confidential
information as the disclosing party is advised by its counsel is necessary to
strictly comply with such court order or subpoena.
(c) No Solicitation. In consideration of the substantial expenditure of
time, effort and money to be undertaken by Boxing in connection with the
transactions contemplated by this Agreement, neither Big Content nor any of its
affiliates will, prior to the earlier of the Closing or the termination of this
Agreement directly or indirectly, through any officer, director, agent or
13
otherwise: (i) solicit, initiate or encourage the submission of inquiries,
proposals or offers from any person or entity relating to any acquisition or
purchase of assets of or any equity interest in Big Content or any of their
respective affiliates or any tender offer (including a self-tender offer),
exchange offer, merger, consolidation, business combination, sale of a
substantial amount of assets or sale of securities, liquidation, dissolution or
similar transaction involving Big Content or any of their respective affiliates
(a "Transaction Proposal"); (b) enter into or participate in any discussions or
negotiations regarding a Transaction Proposal, or furnish to any other person or
entity any information with respect to the business, properties or assets of Big
Content or any of their respective affiliates in connection with a Transaction
Proposal; or (c) otherwise cooperate in any way with, or assist or participate
in, facilitate or encourage any effort or attempt by any other person to do or
seek a Transaction Proposal. Big Content shall promptly notify Boxing if any
such proposal or offer, or any inquiry or contact with any person or entity with
respect thereto is made.
5.3 INTERIM OPERATIONS.
During the period from the date of this Agreement and continuing until the
earlier of the Closing or the termination of this Agreement, Big Content agrees
(except as expressly contemplated by this Agreement, including any exhibits and
schedules hereto, or to the extent that Boxing shall otherwise consent in
writing) that:
(a) Ordinary Course. Big Content shall carry on its business in the usual,
regular and ordinary course in substantially the same manner as heretofore
conducted and, to the extent consistent with such business, use all reasonable
efforts to preserve intact its present business organizations, keep available
the services of its present officers and employees and preserve its
relationships with customers, suppliers and others having business dealings with
it;
(b) Dividends; Changes in Stock. Big Content shall not and shall not
propose to (a) declare, set aside or pay any dividend, on, or make other
distributions in respect of, any of its capital stock, (b) split, combine or
reclassify any of its capital stock or issue, authorize or propose the issuance
of any other securities in respect of, in lieu of or in substitution for shares
of its capital stock (c) redeem, repurchase or otherwise acquire any shares of
its capital stock or (d) otherwise change its capitalization or (e) propose to
do any of the foregoing.
(c) Issuance of Securities. Except as contemplated by this Agreement, Big
Content shall not sell, issue, pledge, authorize or propose the sale or issuance
of, pledge or purchase or propose the purchase of, any shares of its capital
stock of any class or securities convertible into, or rights, warrants or
options to acquire, any such shares or other convertible securities.
(d) Governing Documents. Big Content shall not amend its Certificate of
Incorporation or its By-Laws.
(e) No Dispositions. Big Content shall not sell, lease, pledge, encumber
or otherwise dispose of or agree to sell, lease, pledge, encumber or otherwise
dispose of, any of its material assets.
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(f) Indebtedness. Big Content shall not incur any indebtedness for
borrowed money or guarantee any such indebtedness or issue or sell any debt
securities or guarantee any debt securities of others.
(g) Benefit Plans; Etc. Big Content shall not adopt or amend in any
material respect any collective bargaining agreement or employee benefit plan.
(h) Executive Compensation. Big Content shall not grant to any executive
officer any increase in compensation or in severance or termination pay, or
enter into any employment agreement with any executive officer.
(i) Acquisitions. Big Content shall not acquire (by merger, consolidation
or acquisition of stock or assets or otherwise) any corporation, partnership or
other business organization or subdivision thereof, or make any investment by
either purchase of stock or securities, contributions to capital, property
transfer or purchase of any property or assets, of any other individual or
entity.
(j) Tax Elections. Big Content shall not make any material tax election or
settle or compromise any material federal, state, local or foreign tax
liability.
(k) Waivers and Releases. Big Content shall not waive, release, grant or
transfer any rights of material value or modify or change in any material
respect any material contract, lease or other agreement.
(l) Other Actions. Big Content shall not enter into any agreement or
arrangement to do any of the foregoing actions or transactions described in this
Section 5.3. Big Content shall not take any action, or fail to take any action,
that is reasonably likely to result in any of its representations and warranties
set forth in this Agreement becoming untrue in any material respect.
5.4 CONSENTS.
Boxing, Newco and Big Content shall cooperate and use their best efforts
to obtain, prior to the Closing, all licenses, permits, consents, approvals,
authorizations, qualifications and orders of governmental authorities and
parties to contracts as are necessary for the consummation of the transactions
contemplated by this Agreement; provided, however, that no loan agreement or
contract for borrowed monies shall be repaid and no contract shall be amended
materially to increase the amount payable thereunder or otherwise to be
materially more burdensome in order to obtain any such consent, approval or
authorization without first obtaining the written approval of the other parties
hereto.
5.5 ALL REASONABLE EFFORTS.
Subject to the terms and conditions of this Agreement and to the fiduciary
duties and obligations of the Boards of the parties hereto to their respective
stockholders, as advised by their counsel, each of the parties to this Agreement
shall use all reasonable efforts to take, or cause to be taken, all action and
to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations, or to remove any injunctions or other
15
impediments or delays, legal or otherwise, as soon as reasonable practicable, to
consummate the Merger and the other transactions contemplated by this Agreement.
5.6 NOTIFICATION OF CERTAIN MATTERS.
Big Content shall give prompt notice to Boxing, and Boxing shall give
prompt notice to Big Content of (a) the occurrence or non-occurrence of any
event, the occurrence or non-occurrence of which would cause any of its
representations or warranties in this Agreement to be untrue or inaccurate in
any material respect, as to Big Content, at or prior to the Closing, and, as to
Boxing or Newco, as of the Closing and (b) any material failure of Big Content,
on the one hand, or Boxing and Newco, on the other hand, as the case may be, to
comply with or satisfy any covenant, condition or agreement to be complied with
or satisfied by them under this Agreement; provided, however, the delivery of
any notice pursuant to this Section shall not limit or otherwise affect the
remedies available to the party receiving such notice under this Agreement as
expressly provided in this Agreement.
5.7 EXPENSES.
All costs and expenses incurred in connection with the Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses whether or not the Merger is consummated; provided that the costs and
expenses of any filings with governmental authorities required in connection
with the Merger shall be paid by Boxing.
5.8 DOCUMENTS AT CLOSING.
Each party to this Agreement agrees, subject to the terms and conditions
of this Agreement, to execute and deliver at the Closing those documents
identified in Section 2.2 that are required to be delivered by each such party.
5.9 ZENASCENT MERGER
Boxing shall (a) cause to occur all corporate and stockholder action
necessary to effect the Zenascent Merger and (b) take all corporate action
necessary to consummate the Zenascent Merger. Notwithstanding anything to the
contrary herein, the parties hereto shall, upon the written request of any such
party, take all actions reasonably required in order to unwind the Merger and
the transactions occasioned thereby, and to restore the parties hereto to their
respective positions prior to the consummation of the Merger and the carrying
out of such transactions, in the event (i) the Zenascent Merger is not
consummated on or before April 30, 2002 and (ii) the Xxxxxxxxxx Consulting
Agreement is not fully executed on or before April 30, 2002.
5.10 TRANSFER OF CERTAIN ASSETS
Each of Boxing, Newco, CKP hereby agrees that, for so long as there are
any amounts owed or payable to Xxxxxxxxxx or Xxxxxx pursuant to Section 1.3, the
Xxxxxx Note and/or the Xxxxxxxxxx Consulting Agreement, it and its successors
and assigns, shall Transfer to the Surviving Corporation (and, in the case of
Boxing, Boxing shall cause each of Xxxxxx Xxxxxxx and Xxxxx XxXxxxxxx to
Transfer to the Surviving Corporation) all of their respective interest in and
to any ideas, concepts, inventions, library, tapes, improvements, processes,
16
patents, copyrights, trademarks or application for patents, copyrights or
trademarks in connection with any boxing-related matters within the scope of the
existing or contemplated business of Big Content and its subsidiaries which any
of them (i) develop or conceive, alone or in conjunction with others or (ii)
have conceived prior to the date hereof. The assets to be Transferred to the
Surviving Corporation pursuant to this Section 5.10 shall include, without
limitation, the assets specified in Schedule A to the Security Agreement.
ARTICLE 6: CONDITIONS TO CONSUMMATION OF THE MERGER
6.1 CONDITIONS TO OBLIGATIONS OF BIG CONTENT.
The obligations of Big Content to consummate the Merger and the other
transactions contemplated to be consummated by it at the Closing are subject to
the satisfaction (or waiver by Big Content) at or prior to the Closing (or at
such other time prior thereto as may be expressly provided in this Agreement) of
each of the following conditions:
(a) The representations and warranties of Boxing and Newco set out in this
Agreement shall be true and correct in all material respects (other than
representations and warranties that contain materiality qualifications which
shall be true and correct in all respects) as of the date when made and at and
as of the Effective Time, with the same force and effect as though made as of
the Effective Time, except for changes expressly permitted by this Agreement or
where such representations or warranties are expressly limited by their terms to
a prior date;
(b) Boxing and Newco shall have each complied (i) in a timely manner and
in all material respects with the respective covenants and agreements or Boxing
and Newco, as applicable, set out in this Agreement and (other than any such
covenants or agreements which expressly state that they are to be performed at,
upon or following the consummation of the Zenascent Merger) (ii) fully with
their respective obligations under Sections 2.2(b) and 3.2 of this Agreement;
(c) The Merger shall have been approved by Newco in accordance with the
provisions of the DGCL;
(d) All consents and approvals, as well as all filings with, and all
necessary consents or approvals of, all federal, state and local governmental
authorities and agencies, as are required under this Agreement, applicable law
or any applicable contract or agreement (other than as contemplated by this
Agreement) to complete the Merger shall have been secured; and
(e) No statute, rule, regulation, executive order, decree, injunction or
restraining order shall have been enacted, entered, promulgated or enforced by
any court of competent jurisdiction or governmental authority that prohibits or
restricts the consummation of the Merger or the related transactions.
6.2 CONDITIONS TO BOXING'S OBLIGATIONS.
The obligation of Boxing to consummate the Merger and the other
transactions contemplated to be consummated by it at the Closing are subject to
the satisfaction (or waiver by
17
Boxing) at or prior to the Closing (or at such other time prior thereto as may
be expressly provided in this Agreement) of each of the following conditions:
(a) The representations and warranties of Big Content, Xxxxxxxxxx and
Xxxxxx set out in this Agreement shall be true and correct in all material
respects (other than representations and warranties that contain materiality
qualifications which shall be true and correct in all respects) as of the date
when made and at and as of the Effective Time, with the same force and effect as
though made as of the Effective Time, except for changes expressly permitted by
this Agreement or where such representations or warranties are expressly limited
by their terms to a prior date;
(b) Big Content and Xxxxxxxxxx shall have complied (i) in a timely manner
and in all material respects with the respective covenants and agreements of Big
Content or Xxxxxxxxxx, as applicable, set out in this Agreement (other than any
such covenants or agreements which expressly state that they are to be performed
at, upon or following the consummation of the Zenascent Merger) and (ii) fully
with their respective obligations under Sections 2.2(a) and 3.1 of this
Agreement;
(c) The Merger shall have been approved by Big Content in accordance with
the provisions of the DGCL;
(d) All consents and approvals, as well as all filings with, and all
necessary consents or approvals of, all federal, state and local governmental
authorities and agencies, as are required under this Agreement, applicable law
or any applicable contract or agreement (other than as contemplated by this
Agreement) to complete the Merger shall have been secured;
(e) No statute, rule, regulation, executive order, decree, injunction or
restraining order shall have been enacted, entered, promulgated or enforced by
any court of competent jurisdiction or governmental authority that prohibits or
restricts the consummation of the Merger or the related transactions.
ARTICLE 7: TERMINATION
7.1 TERMINATION.
This Agreement may be terminated and the Merger may be abandoned at any
time prior to or at the Closing:
(a) By mutual written consent of Boxing and Big Content.
(b) By either Boxing or Big Content:
(i) if the Closing shall not have occurred on or before March 31,
2002, unless otherwise extended in writing by all of the parties hereto;
provided, however, that the right to terminate this Agreement under this
Section 7.1(b)(i) shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before that date
(for purposes of
18
this Section 7.1(b)(ii) only, Xxxxxxxxxx'x failure to fulfill any
obligation hereunder shall be deemed a failure of Big Content to fulfill
an obligation hereunder); or
(ii) if any court of competent jurisdiction, or any governmental
body, regulatory or administrative agency or commission having appropriate
jurisdiction shall have issued an order, decree or filing or taken any
other action restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such order, decree, ruling
or other action shall have become final and non-appealable.
(c) By Big Content if any of the conditions specified in Section 6.1 have
not been met or if satisfaction of such a condition is or becomes impossible
(other than through the failure of Big Content or Xxxxxxxxxx to comply with
their respective obligations under this Agreement) and Big Content has not
waived such conditions on or before the Closing; or
(d) By Boxing if any of the conditions specified in Section 6.2 have not
been met or if satisfaction of such a condition is or becomes impossible (other
than through the failure of Boxing or Newco to comply with their respective
obligations under this Agreement) and Boxing has not waived such condition on or
before the Closing.
7.2 NOTICE AND EFFECT OF TERMINATION.
In the event of the termination and abandonment of this Agreement pursuant
to Section 7.1, written notice thereof shall forthwith be given to the other
party or parties specifying the provision pursuant to which such termination is
made. Upon termination, this Agreement shall forthwith become void and all
obligations of the parties under this Agreement will terminate without any
liability on the part of any party or its directors, officers or stockholders
and none of the parties shall have any claim or action against any other party,
except that the provisions of this Section 7.2 and Sections 5.2, 5.7, 8.8 and
8.9 shall survive any termination of this Agreement. Nothing contained in this
Section 7.2 shall relieve any party from any liability for any breach of this
Agreement other than in the event of a termination pursuant to Section 7.1.
7.3 EXTENSION; WAIVER.
Any agreement on the part of any party to any extension or waiver of the
obligations or other acts, or the waiver of any inaccuracies in the
representations or warranties, of any other party, shall be valid only if set
forth in an instrument in writing signed on behalf of such party from whom such
extension or waiver is requested.
7.4 AMENDMENT AND MODIFICATION.
This Agreement may be amended only by written agreement signed by each of
the parties hereto.
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ARTICLE 8: MISCELLANEOUS
8.1 CERTAIN RESTRICTIONS ON THE TRANSFER OF ZENASCENT STOCK.
For so long as (a) any amounts remain unpaid under the Xxxxxx Note or the
Consulting Agreement and (b) any shares of Series C Convertible Redeemable
Preferred Stock, par value $0.01 per share, of Zenascent are held by Xxxxxxxxxx,
Boxing shall cause each of the Surviving Corporation and CKP not to Transfer any
of their respective properties or assets, other than in the ordinary course of
business, without the prior written approval of Xxxxxxxxxx.
8.2 SURVIVAL; REMEDIES.
All representations, warranties, covenants and agreements of Boxing,
Xxxxxxxxxx and Xxxxxx contained in or made pursuant to this Agreement shall
survive the Closing for a period of two (2) years. The rights and remedies of
the parties to this Agreement are cumulative, not alternative.
8.3 NOTICES.
All notices requests, demands, waivers and other communications required
or permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given on the date if delivered personally, or upon the
next business day after it shall have been deposited with a nationally
recognized overnight courier (such as Federal Express), or sent by telecopier,
as follows (or at such other address or telecopier number for a party as shall
be duly specified by like notice):
(a) if to Boxing or Newco, with a copy to:
to it at:
Xxxxxx Xxxxxxx Boxing, Inc. Xxxxxxxxx Xxxxxxx, LLP
1 Montauk Highway 000 Xxxx Xxxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx, President Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
(b) f to Big Content, to it at: with a copy to:
c/o Xxxxxx Xxxxxxx Boxing, Inc. Law Offices of Xxxxxxxx X. Xxxxxxxx
0 Xxxxxxx Xxxxxxx 000 Xxxxxxx Xxxxx
Xxxxxxxxxxx, Xxx Xxxx 00000 Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxx, President Attn: Xxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000 Telecopier: (000) 000-0000
(c) if to Xxxxxxxxxx or Xxxxxx, with a copy to:
to it at:
000 Xxxxxxx Xxxxx Law Offices of Xxxxxxxx X. Xxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000 000 Xxxxxxx Xxxxx
Attn: Xxxxxxx X. English Xxxx Xxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000 Attn: Xxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
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8.4 AGREEMENT; ASSIGNMENT.
This Agreement, including all exhibits and schedules hereto, constitutes
the entire Agreement among the parties with respect to its subject matter and
supersedes all prior agreements and understandings, both written and oral, among
the parties or any of them with respect to such subject matter and shall not be
Transferred by operation of law or otherwise.
8.5 BINDING EFFECT; BENEFIT.
This Agreement shall inure to the benefit of and be binding upon the
parties and their respective successors and permitted assigns. Nothing in this
Agreement is intended to confer on any Person other than the parties to this
Agreement or their respective successors and permitted assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
8.6 HEADINGS.
The descriptive headings of the sections of this Agreement are inserted
for convenience only, do not constitute a part of this Agreement and shall not
affect in any way the meaning or interpretation of this Agreement.
8.7 COUNTERPARTS.
This Agreement may be executed in any number of counterparts and/or
delivered via facsimile, each of which counterparts shall be deemed to be an
original, and all of which together shall be deemed to be one and the same
instrument.
8.8 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the laws that might otherwise
govern under principles of conflicts of laws applicable thereto.
8.9 ARBITRATION.
If a dispute arises as to the interpretation of this Agreement, it shall
be decided finally in an arbitration proceeding conforming to the Rules of the
American Arbitration Association applicable to commercial arbitration then in
effect at the time of the dispute. Such arbitration proceeding shall be before a
panel of three arbitrators, one of whom shall be selected by each of the parties
thereto (or group of parties thereto whose interests are aligned in respect
thereof) and the third of whom, who shall serve as the chairperson of such
panel, shall be selected by the other two arbitrators selected hereunder. Such
arbitration shall take place in New York, New York. The decision of the
arbitrators shall be conclusively binding upon the parties and final, and such
decision shall be enforceable as a judgment in any court of competent
jurisdiction. In the case any action or dispute shall be brought hereunder, the
losing party or parties thereto shall pay all attorney fees, court costs and
fees and costs of the prevailing party or parties thereto incident to such
action or dispute or the appeal thereof.
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8.10 SEVERABILITY.
If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction, arbitration panel or other authority to be
invalid, void, unenforceable or against applicable public or regulatory policy,
the remainder of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
8.11 CERTAIN DEFINITIONS.
As used herein:
(a) "AFFILIATE" shall have the meanings ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Exchange Act.
(b) "BIG CONTENT COMMON STOCK" shall have the meaning ascribed to such
term in Section 1.2(a)(i).
(c) "BOARD" shall mean the board of directors of the Person specified.
(d) "BOXING COMMON STOCK" shall have the meaning ascribed to such term in
Section 1.3(a).
(e) "BUSINESS DAY" shall mean any day other than a Saturday, Sunday or a
day on which federally chartered financial institutions are not open for
business in the City of New York, New York.
(f) "CONTRACT" shall mean any loan or credit agreement, note, bond,
mortgage, indenture, real property or other lease, or any other agreement.
(g) "DEFINITIVE AMOUNT" shall have the meaning ascribed to such term in
Section 7.1(d).
(h) "ENCUMBRANCE" shall mean any lien, encumbrance, pledge, hypothecation,
claim or charge except for minor imperfections of title and encumbrances, if
any, which either individually or in aggregate, are not material in amount and
do not cause a Material Adverse Effect.
(i) "KNOWLEDGE" shall mean the actual current knowledge of the party,
and/or the executive management of the party to this Agreement, as the case may
be, to whom knowledge is ascribed.
(j) "LEGAL RESTRICTION" shall mean any statute, law, ordinance, rule,
regulation permit, concession, license, judgment, order, or decree
(k) "XXXXXXXXXX" shall have the meaning ascribed to such term in Section
1.3(a)(ii).
22
(l) "XXXXXXXXXX CONSULTING AGREEMENT" shall have the meaning ascribed to
such term in Section 1.4(c).
(m) "XXXXXX NOTE" shall have the meaning ascribed to such term in Section
1.3(a)(ii).
(n) "MATERIAL ADVERSE EFFECT" shall mean any adverse effect on the
business, condition (financial or otherwise) or results of operation of the
relevant party and its subsidiaries, if any, which is material to such party and
its subsidiaries, if any, taken as a whole.
(o) "PERSON" means any individual, corporation, partnership, association,
trust or other entity or organization, including a governmental or political
subdivision or any agency or institution thereof.
(p) "SURVIVING CORPORATION" shall have the meaning ascribed to such term
in Section 1.1(a).
(q) "TRANSFER" means to sell, pledge, hypothecate, assign or otherwise
transfer.
(r) "ZENASCENT" shall have the meaning ascribed to such term in Section
1.4(a).
(s) "ZENASCENT MERGER" shall have the meaning ascribed to such term in
Section 1.4(a).
(t) "ZENASCENT MERGER AGREEMENT" shall have the meaning ascribed to such
term in Section 1.4(a).
[Signatures of the parties hereto are set forth on following page]
23
IN WITNESS WHEREOF, each of the undersigned has signed or has caused this
Agreement to be signed by their respective officers hereunto duly authorized,
all as of the date first written above.
XXXXXX XXXXXXX BOXING, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx, President
XXXXXX XXXXXXX PROMOTIONS, LTD.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx, President
BIG CONTENT ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx, President
BIG CONTENT, INC.
By: /s/ Xxxxx XxXxxxxxx
-------------------------------------
Name: Xxxxx XxXxxxxxx
Title: President
XXXXXXXXXX INVESTMENTS, LLC
By: /s/ Xxxxxxx X. English
-------------------------------------
Xxxxxxx X. English, Managing Member
XXXXXX CHARITABLE
REMAINDER TRUST
By: /s/ Adrenee English
-------------------------------------
Name: Adrenee English
Title: Trustee
24
EXHIBIT A
XXXXXX XXXXXXX BOXING, INC.
10 % SENIOR PROMISSORY NOTE
SEE EXHIBIT 10.2
EXHIBIT B
CONSULTING AGREEMENT
SEE EXHIBIT 10.6
EXHIBIT C
PLEDGE AND SECURITY AGREEMENT
SEE EXHIBIT 10.8
