Exhibit 2(b)
AGREEMENT AND MERGER PLAN
BETWEEN MEDIA VISION PRODUCTIONS, INC.
AND MEDIA VISION PROPERTIES, INC.
AGREEMENT AND MERGER PLAN
This agreement and Merger Plan is entered into effective as of this 4th day
of January, 1999 by and among Media Vision Productions, Inc., a Delaware
Corporation, (hereinafter "Acquiror"), and Media Vision Properties, Inc., a
Delaware corporation (hereinafter "Acquiree"), and the undersigned
stockholders of Acquiree (hereinafter referred to as "Stockholders").
RECITALS
Stockholders own all of the issued and outstanding common stock of Acquiree.
Acquiror desires to acquire all of the issued and outstanding stock of
Acquiree, making Acquiree a wholly-owned subsidiary of Acquiror, and
Stockholders desire to make an exchange solely of their shares in Acquiree
for shares of Acquiror's common
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stock to be exchanged as set out herein with said stockholders. NOW,
THEREFORE, for the mutual consideration set out herein, the parties agree as
follows:
AGREEMENT
1. MERGER PLAN. The undersigned Stockholders of Acquiree are the sole
owners of all of the issued and outstanding stock of Acquiree. It is the
intention of the parties hereto that all of the issued and outstanding shares
of stock of Acquiree shall be acquired by Acquiror in exchange for Acquiror
common voting and preferred stock and other considerations as set forth
herein. It is the intention of the parties hereto that this transaction
qualify as a tax-free reorganization under section 368 (a) (1) (B) of the
Internal Revenue Code of 1986, as amended, and related sections thereunder to
the intent permitted by law.
2. EXCHANGE OF SHARES. Acquiror and Stockholders agree that all the issued
and outstanding shares of common stock of Acquiree shall be exchanged with
Acquiror for common stock valued at, Eight Cents ($.8) par value, (the
"Common Stock") of Acquiror, valued at the date of the Closing. The Common
Stock will, on the Closing Date (as hereafter defined), be delivered to
Stockholders in exchange for their shares in Acquiree. Stockholders agree
that they will hold such shares of Common Stock of Acquiror for investment
purposes and not for further public distribution, and agree that
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the shares shall be appropriately restricted. Acquiror agrees that it will
utilize its best efforts to complete a secondary offering of its common and
preferred stock within one year of the closing. Upon the requests of the
holders of the common stock, the company will register such shares, at the
shareholder's expense.
3. DELIVERY OF THE COMMON AND PREFERRED STOCK. On the Closing Date,
Stockholders of Acquiree shares will deliver via its transfer agent
certificates representing their shares of Acquiree duly endorsed so as to
make Acquiror the sole holder thereof, free and clear of all claims and
encumbrances; and on such Closing Date, delivery of the common and preferred
stock, which will be appropriately restricted as to transfer, will be made to
Stockholders as set forth herein.
4. REPRESENTATION OF ACQUIREE AND STOCKHOLDERS. Acquiree and Stockholders
hereby represent and warrant that, with respect to the shares of Acquiree and
as to the Acquiree, effective this date and the Closing Date, the
representations listed below are true and correct.
(a) Stockholders represent that their shares of Acquiree are free
from claims, liens, or other encumbrances and said Stockholders have the
unqualified right to transfer and dispose of such shares.
(b) Stockholders are the sole owners of all of the
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issued and outstanding shares of common stock of Acquiree.
(c) The Acquiree shares constitute validly issued shares of Acquiree,
fully paid and non-assessable.
(d) Acquiree shall deliver audited financial statements to Acquiror,
which are complete, accurate and fairly present the financial condition of
Acquiree as of the dates thereof. There are no material liabilities, either
fixed or contingent, not reflected in such financial statements other than
contracts or obligations in the ordinary and usual course of business: and no
such contracts or obligations in the usual course of business constitute
liens or other liabilities which, if disclosed, would materially alter the
financial condition of such Acquiree as reflected in such financial
statements. The financial statements are hereby incorporated herein by
reference and deemed to be a part hereof.
(e) Prior to the Closing Date there will not be any negative material
changes in the financial position of Acquiree, except changes arising in the
ordinary course of business, which changes will in no event materially and
adversely affect the financial position of Acquiree.
(f) Acquiree is not involved in any pending litigation or governmental
investigation or proceeding not reflected in such financial statement or
otherwise disclosed in writing to Acquiror and, to the best knowledge of
Stockholders, no litigation, claims,
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assessments, or governmental investigation or proceeding is threatened
against Acquiree, its principal stockholders or properties.
(g) As of the Closing Date, Acquiree will be in good standing in its
state of incorporation, and will be in good standing and duly qualified to do
business in each state where it is required to be so qualified.
(h) Acquiree has filed all governmental, tax or related returns and
reports due or required to be filed, and has paid or accrued all taxes or
assessments which have become due as of the Closing Date.
(i) Except as disclosed on any Exhibit hereto, Acquiree has not
materially breached any agreement to which it is a party.
(j) Acquiree has no subsidiary corporations other than as disclosed in
writing to Acquiror.
(k) The corporate financial records, minute books, and other corporate
documents, and records of Acquiree are to be available to present management
of Acquiror prior to the Closing Date and turned over in their entirety to
new management at Closing.
(l) The execution of this Agreement will not materially violate or
breach any agreement, contract, or commitment to which Acquiree or
Stockholders are a party, and has been duly authorized
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by all appropriate and necessary action.
(m) The authorized capitalization of Acquiree is as set forth in the
balance sheet of Acquiree. Acquiree has only the capital stock authorized as
set forth in said balance sheet and all outstanding shares have been duly
authorized, validly issued and are fully paid and non-assessable with no
personal liability attaching to the ownership thereof. There are no
outstanding convertible securities, warrants or options which may cause
authorized but unissued shares to be issued to any person.
(n) Acquiree has good and marketable title to and validly owns all
assets shown on its most recent balance sheet.
5. REPRESENTATIONS OF ACQUIROR. Acquiror hereby represents and warrants as
follows:
(a) As of the closing Date, the Common Stock, to be delivered to
Stockholders will constitute valid and legally issued shares of Acquiror,
fully paid and non-assessable, and will be legally equivalent in all respects
to the Common Stock of Acquiror issued and outstanding as of the date thereof.
(b) The officers of Acquiror are duly authorized to execute this
agreement and have taken all action required by law and agreements, charters,
By-laws, etc., to properly and legally execute this Agreement. The execution
hereof will not constitute a material breach of any agreement to which
Acquiror is a party.
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(c) Consolidated Balance Sheet, certified by Schuhalter, Xxxxxxxx
& Xxxxxx, C.P.A., reflects management's representations and warrants are
accurate and correct, and at the closing, shall deliver all of its financial
records. The financial statements of Acquiror are incorporated herein by
reference and deemed to be a part hereof. These financial statements are
true, complete and accurate; there are not presently and at Closing there
shall be no liabilities, either fixed or contingent, not reflected in such
financial statements and records. Said financial statements fairly and
accurately reflect the financial condition of the Acquiror as of the dates
thereof and the results of operations for the periods reflected therein. Such
statements have been prepared in accordance with generally accepted
accounting principles, consistently applied, except as otherwise stated
therein.
(d) Since the date of the financial statements there shall not
have been, and as of the Closing Date there shall not be, any material
adverse changes in the financial position of the Acquiror, except changes
arising in the ordinary course of business, which changes shall in no event
materially and adversely affect the financial condition of the Acquiror.
(e) Acquiror is not involved in any pending litigation, claims, or
governmental investigation or proceeding not reflected in such financial
statements or otherwise disclosed in writing to
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the Stockholders, and there are no law suits, claims, assessments,
investigations, or similar matters, to the best knowledge of management,
threatened or contemplated against Acquiror, its management or properties.
(f) As of the Closing Date and the date hereof, Acquiror is duly
organized, validly existing and in good standing under the laws of the State
of Delaware; it has the corporate power to own its property and to carry on
its business as now being conducted, and is duly qualified to do business in
any jurisdiction where so required.
(g) Acquiror has filed all federal, state, county and local income,
excise, property and other tax returns, forms or reports which are due or
required to be filed by it prior to the date hereof, and has paid or made
adequate provision for the payment of all taxes, fees or assessments which
have or may become due pursuant to such returns or pursuant to any
assessments received.
(h) Acquiror has not breached, nor is there any pending or
threatened claims or any legal basis for a claim that Acquiror has breached,
any of the terms or conditions of any agreements, contracts or commitments to
which it is a party or is bound and the execution and performance hereof will
not violate any provision of applicable law of any agreement to which
Acquiror is subject.
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(i) The capitalization of Acquiror comprises authorized and issued
preferred stock so disclosed in the attached Forms 10-K and 10-Q and
authorized common stock of 10,000,000 shares, $.8 par value, of which 364,255
Common Shares are presently and shall be issued and outstanding as of the
Closing Date. All outstanding shares of Acquiror have been duly authorized,
validly issued and fully paid, and there are no outstanding or presently
authorized securities, options or related commitments of any nature not
reflected in the current financial statements of Acquiror.
(j) The shares of Common Stock of Acquiror to be issued to
Stockholders at or about the time of Closing will be validly issued,
nonassessable and fully paid under Delaware corporation law, and will be
issued in a non-public sale and isolated transaction in compliance with all
federal and state securities laws.
(k) At the date of this Agreement, Acquiror has, and at the
Closing Date it will have, disclosed all events, conditions and facts
materially affecting the business of Acquiror. Acquiror has not now and will
not have at the Closing Date, withheld disclosure of any such events,
conditions and facts which it, through management, has knowledge of or has
reasonable grounds to, materially affect the business of Acquiror.
(l) The corporate financial records, minute books, and
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other documents and records of Acquiror are to be available to Stockholders
of Acquiree prior to the Closing Date and turned over to management in their
entirety at Closing.
(m) Acquiror is a public company and represents that it has no existing
or threatened liabilities, claims, law suits, or basis for the same with
respect to its original stock issuance or any other dealings with its
Stockholders, the public, brokers, the Securities and Exchange Commission,
state agencies or other persons. This includes matters relating to state or
federal securities laws as well as general common law or state corporate law
principles.
6. CLOSING DATE. The Closing Date herein referred to shall be upon such
date as the parties hereto may mutually agree upon, but is expected to be not
later than January 15, 1999. At the Closing, Acquiree Stockholders will be
deemed to have accepted delivery of the certificates of Acquiror stock issued
in their names, and in connection therewith will make delivery of their stock
in Acquiree to Acquiror. Certain exhibits, etc., may be delivered subsequent
to the closing Date upon the mutual agreement of the parties hereto.
7. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF ACQUIREE AND STOCKHOLDERS. All
obligations of Stockholders and Acquiree under this agreement are subject to
the fulfillment, prior to or as of
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the Closing Date, of each of the following conditions:
(a) The representations and warranties by or on behalf of Acquiror
contained in this Agreement or in any certificate or document delivered to
Stockholders pursuant to the provisions hereof shall be true in all material
respects at and as of the time of the closing, as though such representations
and warranties were made at and as of such time.
(b) Acquiror shall have performed and complied with all covenants,
agreements and conditions required by this Agreement to be performed or
complied with by it prior to or at the Closing on the closing Date.
(c) The present directors of Acquiror will recommend the appointment of
a member of Acquiree's management, namely Xxxx Xxxxxxx, to the Board of
Directors of Acquiror at closing.
(d) The Board of Directors of Acquiror shall have approved, by the
majority vote in accordance with Delaware law, all matters outlined herein.
(e) All instruments and documents delivered to Stockholders pursuant to
the provisions hereof shall be reasonably satisfactory to legal counsel for
Stockholders.
(f) Acquiror shall have delivered to Stockholders an opinion of its
counsel dated the closing Date to the effect that:
(i) Acquiror is a corporation duly organized,
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validly existing and in good standing under the laws of the state of Delaware;
(ii) Acquiror has the corporate power to carry on its business as
now being conducted, and is duly qualified to do business in any jurisdiction
where to required;
(iii) This Agreement has been duly authorized, executed and
delivered by Acquiror and is a valid and binding obligation of Acquiror
enforceable in accordance with its terms;
(iv) Acquiror through its Board of Directors and Stockholders,
has taken all corporate action necessary for performance under this Agreement;
(v) The documents executed and delivered to Stockholders
hereunder are valid and binding in accordance with their terms and vest in
Stockholders all right, title and interest in and to the stock of Acquiror,
and said stock, when, issued, will be fully and validly issued, fully paid
and non-assessable;
(vi) Except as referred to herein, such counsel knows of (a) no
actions, suits or other legal proceedings or investigations pending or
threatened against or relating to or materially adversely affecting Acquiror;
and (b) no unsatisfied judgements exist against Acquiror which would
materially adversely affect the financial condition of the Acquiror.
8. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF ACQUIROR. All
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obligations of Acquiror under this Agreement are subject to the fulfillment,
prior to or at the Closing on the Closing Date, of each of the following
conditions.
(a) The representations and warranties by Stockholders and Acquiree
contained in this Agreement in any certificate or document delivered to
Acquiror pursuant to the provisions hereof shall be true at and as of the
time of closing as though such representations and warranties were made at
and as of such time.
(b) Stockholders shall have performed and complied with all covenants,
agreements and conditions required by this Agreement to be performed or
complied with by them prior to or at the Closing, including the delivery of
the stock of Acquiree being exchanged hereunder.
(c) Stockholders shall deliver to Acquiror a letter commonly known as
an "investment letter" agreeing that the shares of stock in Acquiror are
being acquired for investment purposes.
(d) Stockholders hereby state that the materials, including current
financial statements, prepared and delivered by Acquiror to Stockholders,
have been read and understood by Stockholders, that they are familiar with
the business of Acquiror, that they are acquiring the Acquiror's shares under
section 4(2), commonly known as the private offering exemption of the
Securities Act of 1933, as amended, that the shares are restricted and may not
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be resold, except in reliance on an exemption under said Securities Act of
1933, as amended.
(e) Acquiree shall provide financial records and statements to fully
enable Acquiror to comply with its filing requirements under the Securities
Act of 1933 and the Securities and Exchange Act of 1934, and said financial
statements must fully comply with Regulation S-X and generally accepted
accounting principles.
(f) Acquiree shall have delivered to Acquiror an opinion of its counsel
dated the closing Date to the effect that Acquiree is a corporation duly
organized and validly existing in good standing under the laws of the State
of Delaware, and it is duly qualified to do business in any jurisdiction
where so required.
9. INDEMNIFICATION. Within the period provided in paragraph 10 hereof and
in accordance with the terms of that paragraph, each party to this Agreement
shall indemnify and hold harmless each other party at all times after the
date of this Agreement against and in respect of any liability, damage or
deficiency, all actions, suits, proceedings, demands, assessments,
judgements, costs and expenses, including attorney's fees, incident to any of
the foregoing, resulting from any misrepresentations, breach of covenant or
warrant, or non-fulfillment of any agreement on the part of such party under
this Agreement or from any
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misrepresentation in or omission from any certificate furnished or to be
furnished to a party hereunder.
10. Nature and Survival of Representations. All representations, warranties
and covenants made by any party in this Agreement shall survive the closing
hereunder and the consummation of the transactions contemplated hereby for
two years from the date hereof. All of the parties hereto are executing and
carrying out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement or at the Closing of the transaction herein provided for, and not
upon any investigation upon which it might have made or any representations,
warranties, agreements, promises or information, written or oral, made by the
other party or any other person other than as specifically set forth herein.
11. DOCUMENTS AT CLOSING. At the closing, the following transactions shall
occur, all of such transactions deemed to occur simultaneously:
(a) Stockholders will deliver, or cause to be delivered, to Acquiror
the following:
(i) stock certificates for the stock of Acquiree being tendered
hereunder, duly endorsed in blank:
(ii) all corporate records of Acquiree, including without
limitation, corporate minute books (which shall contain
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copies of the Articles of Incorporation and By-laws, as amended to the
Closing), stock books, stock transfer books, corporate seals, and other
corporate books and records as may reasonably be requested for review by
Acquiror and its counsel;
(iii) a certificate executed by principal Stockholders to the
effect that all representations and warranties made by Stockholders under
this agreement are true and correct as of the Closing, the same as though
originally given to Acquiror on said date;
(iv) a certificate from the Secretary of State of its
incorporation dated at or about the Closing Date, to the effect that Acquiree
is in good standing under the laws of said State;
(v) investment letter from Stockholders;
(vi) legal opinion of Acquiree's counsel;
(vii) such other instruments, documents and certificates, if any,
as are required to be delivered pursuant to the provisions of this Agreement.
(b) Acquiror will deliver or cause to be delivered to Stockholders:
(i) stock certificates representing Acquiror shares on Exhibit A;
(ii) a certificate of the President and Secretary of Acquiror to
the effect that all representations and warranties
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of Acquiror made under this Agreement are reaffirmed on the Closing Date, the
same as though originally given to Stockholder on said date;
(iii) the opinion of Acquiror's counsel set forth herein;
(iv) certified copies of resolutions by Acquiror's Board of
Directors and Stockholders authorizing this transaction;
(v) a certificate from the Secretary of State of Acquiror's
state of incorporation dated at or about the Closing Date, that Acquiror is
in good standing under the laws of said state;
(vi) such other instruments and documents as are required to be
delivered pursuant to the provisions of this Agreement.
(c) Acquiree will deliver or cause to be delivered to Acquiror a
certificate of the President and Secretary of Acquiree to the effect that all
representations and warranties of Acquiree made under this agreement are
reaffirmed on the Closing Date, the same as though originally given to
Acquiror on said date.
12. ADDITIONAL REPRESENTATIONS AND PROVISIONS.
(a) Acquiror intends to seek a listing of its common stock on NASDAQ or
another National Securities Exchange as soon as possible subsequent to
meeting all necessary listing requirements.
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(b) There will be employment agreements entered into with key personnel
of Acquiree as exhibited under attachment "A" herein.
(c) Acquiree shall become a wholly owned subsidiary of Acquiror and
shall continue to function in its usual capacity as such.
13. MISCELLANEOUS
(a) FURTHER ASSURANCES. At any time, and from time to time, after the
effective date, each party will execute such additional instruments and take
such other action as may reasonably be requested by the other party to
confirm or perfect title to any property transferred hereunder or otherwise
to carry out the intent and purposes of this Agreement.
(b) WAIVER. Any failure on the part of any party hereto to comply with
any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
(c) BROKERS. Neither party has employed any brokers or finders with
regard to this Agreement.
(d) NOTICES. All notices and other communications hereunder shall be in
writing, and shall be deemed to have been given if delivered in person or
sent by pre-paid, first class registered or certified mail, return receipt
requested, to the
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addresses shown below:
To Acquiror, at: To Acquiree, at:
Media Vision Productions Inc. Media Vision Properties, Inc.
Xxx Xxxxxxxx Xxxxxxxx, Xxxxx 000 Xxxx Xxxxx Xxxx Club
000 X. Xxxxxxxxx Xxxxxx 0000 Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000 Xxxxxxxxxx, XX 00000
(e) HEADINGS. The section and subsection headings in this
Agreement are inserted for convenience only, and shall not affect in any way
the meaning or interpretation of this Agreement.
(f) COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(g) GOVERNING LAW. This Agreement was negotiated and is being
contracted for in the State of Florida, and shall be governed by the laws of
the State of Florida.
(h) BINDING EFFECT. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties, their assigns.
(i) ENTIRE AGREEMENT. This Agreement is the entire agreement of
the parties covering everything agreed upon or understood in the
transaction. There are no oral promises, conditions, representations,
understandings, interpretations or
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terms of any kind as conditions or inducements to the execution hereof.
(j) TIME. Time is of the essence of performance of all obligations
in this agreement with the exception of the obligations of the acquiror set
forth in paragraphs 12(a) and 12(b).
(k) SEVERABILITY. If any part of this Agreement is deemed to be
unenforceable, the balance of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
"MEDIA VISION PRODUCTIONS, INC."
By: /s/ Xxxxxxx X'Xxxxxxxxx
------------------------------------
Xxxxxxx X'Xxxxxxxxx, Acting Chairman
"MEDIA VISION PROPERTIES, INC."
By: /s/ Xxxx Xxxxxxx
------------------------------------
Xxxx Xxxxxxx, Chairman
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