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EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION DATED AS OF OCTOBER 12, 1999 BY
AND AMONG FGT, XXXX XXXXX, ALADDIN SYSTEMS, INC. AND THE
SHAREHOLDERS OF ALADDIN SYSTEMS, INC.
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AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (hereinafter the "Agreement")
is entered into effective as of this day of October 1999, by and among Foreplay
Golf & Travel Tours, Inc., a Nevada corporation (hereinafter "FGT"); Xxxx Xxxxx,
the sole officer and director of FGT (hereinafter "Xxxxx"); Aladdin Systems,
Inc., a Delaware corporation (hereinafter "Aladdin"), and the owners of the
outstanding shares of common stock of Aladdin (hereinafter the "Aladdin
Stockholders").
RECITALS:
WHEREAS, the Aladdin Stockholders own all of the issued and outstanding
common stock of Aladdin (the "Aladdin Common Stock"). FGT desires to acquire the
Aladdin Common Stock solely in exchange for voting common stock of FGT, making
Aladdin a wholly-owned subsidiary of FGT; and
WHEREAS, the Aladdin Stockholders (as set forth on Exhibit "A" to be
delivered on or before Closing) desire to acquire voting common stock of FGT in
exchange for the Aladdin Common Stock, as more fully set forth herein.
NOW THEREFORE, for the mutual consideration set out herein and other
good and valuable consideration, the legal sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. Plan of Reorganization. It is hereby agreed that the Aladdin Common
Stock shall be acquired by FGT in exchange solely for FGT common voting stock
(the "FGT Shares"). It is the intention of the parties hereto that all of the
issued and outstanding shares of capital stock of Aladdin shall be acquired by
FGT in exchange solely for FGT common voting stock and that this entire
transaction qualify as a corporate reorganization under Section 368(a)(1)(B)
and/or Section 351 of the Internal Revenue Code of 1986, as amended, and related
or other applicable sections thereunder.
2. Exchange of Shares. FGT and Aladdin Stockholders agree that on the
Closing Date or at the Closing as hereinafter defined, the Aladdin Common Stock
shall be delivered at Closing to FGT in exchange for the FGT Shares, after
giving effect to a 2.2 to 1 reverse stock split (the "FGT Reverse Stock Split")
as to all presently outstanding shares of FGT common stock, as follows:
(a) At Closing, FGT shall, subject to the conditions set forth herein,
issue an aggregate of 7,441,628 shares of FGT common stock (after giving effect
to the FGT Reverse Stock Split) for immediate delivery to the Aladdin
Stockholders in
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exchange for 100% of the Aladdin Common Stock. The 7,441,628 shares does not
include any shares reserved for issuance upon exercise of options granted by FGT
to optionholders of Aladdin at Closing in exchange for existing Aladdin options
as set forth on Exhibit "A".
(b) Each consenting Aladdin Stockholder shall execute this Agreement or
a written consent to the exchange of their Aladdin Common Stock for FGT Shares.
(c) Unless otherwise agreed by FGT and Aladdin this transaction shall
close only in the event FGT is able to acquire at least 80% of the outstanding
Aladdin Common Stock; however, it is the intent of the parties to have FGT
acquire all of the Aladdin Common Stock.
(d) In the event that on or prior to the Closing Date, any
optionholders of Aladdin shall waive any options granted to them, such number of
waived options shall be added to the 7,441,628 FGT Shares to be delivered at
Closing and the exchange ratio set forth in subsection (a) above shall be
recalculated to reflect such additional number of FGT Shares to be issued to the
Aladdin Stockholders.
3. Pre-Closing Events. The Closing is subject to the completion of the
following:
(a) FGT shall have authorized 50,000,000 shares of $.001 par value
common stock and at Closing shall amend its Articles of Incorporation to
authorize 1,000,000 shares of $.001 par value preferred stock. The preferred
stock shall be subject to issuance in such series and with such rights,
preferences and designations as determined in the sole discretion of the board
of directors.
(b) At or about the time of Closing, FGT shall have received 2,000
shares for cancellation and shall have then effectuated the FGT Reverse Stock
Split at or about the Closing, and shall have 650,000 shares of its common stock
issued and outstanding and no other shares of capital stock issued or
outstanding and there shall be no outstanding options, warrants or other rights
to purchase FGT securities.
(c) FGT shall have no material assets and no liabilities contingent or
fixed except the proceeds of the FGT Financing (as defined herein).
4. Exchange of Securities. As of the Closing Date each of the following
shall occur:
(a) All shares of Aladdin Common Stock issued and outstanding on the
Closing Date shall be exchanged for the FGT Shares (up to an aggregate amount of
7,441,628 FGT Shares to be delivered at Closing). The exchange ratio shall be
1.580287 FGT Shares for each outstanding Aladdin share. All such outstanding
shares of Aladdin Common Stock shall be deemed, after Closing, to be owned by
FGT. The holders of such certificates previously evidencing shares of Aladdin
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Common Stock outstanding immediately prior to the Closing Date shall cease to
have any rights with respect to such shares of Aladdin Common Stock except as
otherwise provided herein or by law;
(b) Any shares of Aladdin Common Stock held in the treasury of Aladdin
immediately prior to the Closing Date shall automatically be canceled and
extinguished without any conversion thereof and no payment shall be made with
respect thereto;
(c) The 650,000 shares of FGT common stock previously issued and
outstanding prior to the Closing, after giving effect to the FGT Reverse Split,
will remain outstanding.
5. Other Events Occurring at Closing. At Closing, the following shall
be accomplished:
(a) FGT shall file an amendment to its Articles of Incorporation with
the Secretary of State of the State of Nevada in substantially the form attached
hereto as Exhibit "B" effecting an amendment to its Articles of Incorporation to
reflect (1) a name change, (2) authorize 1,000,000 shares of preferred stock,
(3) an increase in shares of authorized common stock to 50,000,000, and (4) to
put of record the FGT Reverse Stock Split as set forth in the attached Exhibit
"B".
(b) The resignation of the existing FGT sole officer and director and
appointment of new officers and directors as directed by Aladdin.
(c) FGT shall have completed a limited offering under Regulation D,
Rule 504, as promulgated by the Securities and Exchange Commission ("SEC") under
the Securities Act of 1933, as amended, of 1,000,000 shares of its common stock
at $1.00 per share. The gross proceeds of this offering (the "FGT Financing")
shall be $1,000,000, which amount, less agreed upon costs, shall be delivered to
the control of new management of FGT at Closing in good funds. The FGT Financing
shall have been completed in compliance with all applicable state and federal
securities laws and the securities sold shall be delivered at Closing to the
investors in the FGT Financing.
(d) It is recognized by the parties hereto that Aladdin entered into an
agreement, including all amendments thereto (the "Baytree Agreement") dated July
14, 1999, with Baytree Capital Associates, LLC ("Baytree") wherein Baytree
agreed to identify a public company to be involved in a "reverse merger" with
Aladdin, and that FGT is the public company agreed to by Baytree and Aladdin.
Under said Baytree Agreement, at Closing of the transactions described herein,
FGT shall issue 50,000 shares of its common stock (after given effect to the FGT
Reverse Stock Split) to Baytree. These shares are deemed to be covered by the
defined term "FGT Shares" as set forth herein for purposes of all
representations and warranties of FGT and the legal opinion given on behalf of
FGT herein. Out of the proceeds of the FGT
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Financing (as further defined herein) there shall be paid at Closing, a
non-accountable expense allowance of $10,000 to Baytree and $20,000 in fees,
plus fees and costs of FGT's legal counsel not to exceed $35,000.00 (to be paid
from the proceeds of the FGT Financing). Furthermore, FGT recognizes and hereby
assumes, at Closing, the obligations of Aladdin set forth in the Baytree
Agreement.
(e) As of the Closing, FGT shall assume all unexercised stock options
issued by a Aladdin pursuant to Aladdin's current Incentive Stock Option Program
and shall issue to each holder of such options (an "Optionholder"), incentive
stock options in FGT, pursuant to an incentive stock option program (within the
meaning of Internal Revenue Code Section 422) to be adopted by FGT, in such
amount, at such exercise price and vesting schedule that each such Optionholder
has been granted by Aladdin.
For the purposes of Section, (a) the equivalent the number of FGT
options to be granted to an Optionholder shall be calculated by multiplying the
number of unexercised options such Optionholders currently hold by 1.580287, (b)
the equivalent exercise price shall be calculated by dividing the exercise price
of such Optionholders' current options by 1.580287 and (c) the vesting schedule
of the FGT options shall preserve such Optionholders' current vested option
exercise rights in an equivalent number of FGT options.
6. Delivery of Shares. On or as soon as practicable after the Closing
Date, Aladdin will use its best efforts to cause the Aladdin Stockholders to
surrender certificates for cancellation representing their shares of Aladdin
Common Stock, against delivery of certificates representing the FGT Shares for
which the shares of Aladdin Common Stock are to be exchanged at Closing.
7. Representations of Aladdin Stockholders. Each Aladdin Stockholder
hereby represents and warrants each only as to its own Aladdin Common Stock,
effective this date and the Closing Date as follows:
(a) Except as may be set forth in Exhibit "A", the Aladdin Common Stock
is free from claims, liens, or other encumbrances, and at the Closing Date said
Aladdin Stockholder will have good title and the unqualified right to transfer
and dispose of such Aladdin Common Stock.
(b) Said Aladdin Stockholder is the sole owner of the issued and
outstanding Aladdin Common Stock as set forth in Exhibit "A";
(c) Said Aladdin Stockholder has no present intent to sell or dispose
of the FGT Shares and is not under a binding obligation, formal commitment, or
existing plan to sell or otherwise dispose of the FGT Shares.
8. Representations of Aladdin. Aladdin hereby represents and warrants
as follows, which warranties and representations shall also be true as of the
Closing
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Date:
(a) Except as noted on Exhibit "A", the Aladdin Stockholders listed on
the attached Exhibit "A" are the sole record and beneficial owners of the issued
and outstanding common stock of Aladdin.
(b) Aladdin has no outstanding or authorized capital stock, warrants,
options or convertible securities other than as described in the Aladdin
Financial Statements or on Exhibit "A", attached hereto.
(c) The audited financial statements as of and for the periods ended
December 31, 1997 and 1998, which have been (or will be prior dissemination of
an Information Statement by FGT) delivered to FGT (hereinafter referred to as
the "Aladdin Financial Statements") fairly present the financial condition of
Aladdin as of the dates thereof and the results of its operations for the
periods covered. There are no material liabilities or obligations, either fixed
or contingent, not disclosed in the Aladdin Financial Statements or in any
exhibit thereto or notes thereto other than contracts or obligations in the
ordinary course of business; and no such contracts or obligations in the
ordinary course of business constitute liens or other liabilities which
materially alter the financial condition of Aladdin as reflected in the Aladdin
Financial Statements. Aladdin has good title to all assets shown on the Aladdin
Financial Statements subject only to dispositions and other transactions in the
ordinary course of business, the disclosures set forth therein and liens and
encumbrances of record. The Aladdin Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied
(except as may be indicated therein or in the notes thereto).
(d) Since the date of the Aladdin Financial Statements, there have not
been any material adverse changes in the financial position of Aladdin except
changes arising in the ordinary course of business, which changes will in no
event materially and adversely affect the financial position of Aladdin.
(e) Aladdin is not a party to any material pending litigation or, to
its best knowledge, any governmental investigation or proceeding, not reflected
in the Aladdin Financial Statements, and to its best knowledge, no material
litigation, claims, assessments or any governmental proceedings are threatened
against Aladdin.
(f) Aladdin is in good standing in its jurisdiction of incorporation,
and is in good standing and duly qualified to do business in each jurisdiction
where required to be so qualified except where the failure to so qualify would
have no material negative impact on Aladdin.
(g) Aladdin has (or, by the Closing Date, will have filed) all material
tax, governmental and/or related forms and reports (or extensions thereof) due
or required to be filed and has (or will have) paid or made adequate provisions
for all
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taxes or assessments which have become due as of the Closing Date.
(h) Aladdin has not materially breached any material agreement to which
it is a party. Aladdin has previously given FGT copies or access thereto of all
material contracts, commitments and/or agreements to which Aladdin is a party
including all relationships or dealings with related parties or affiliates.
(i) Aladdin has no subsidiary corporations except Transaction Services,
Inc., a California corporation.
(j) Aladdin has made all material corporate financial records, minute
books, and other corporate documents and records available for review to present
management of FGT prior to the Closing Date, during reasonable business hours
and on reasonable notice.
(k) The execution of this Agreement does not materially violate or
breach any material agreement or contract to which Aladdin is a party and has
been duly authorized by all appropriate and necessary corporate action under
Delaware or other applicable law and Aladdin, to the extent required, has
obtained all necessary approvals or consents required by any agreement to which
Aladdin is a party.
(l) All disclosure information provided by Aladdin which is to be set
forth in disclosure documents of FGT or otherwise delivered to FGT by Aladdin
for use in connection with the transaction (the "Acquisition") described herein
is true, complete and accurate in all material respects.
9. Representations of FGT and Xxxxx. FGT, and Xxxxx to the best of his
knowledge, hereby jointly and severally represent and warrant as follows, each
of which representations and warranties shall continue to be true as of the
Closing Date:
(a) As of the Closing Date, the FGT Shares, to be issued and delivered
to the Aladdin Stockholders hereunder will, when so issued and delivered,
constitute, duly authorized, validly and legally issued shares of FGT common
stock, fully-paid and nonassessable. FGT shall have completed its reverse stock
split wherein each holder of FGT Shares shall have received 1 share of the FGT
Shares for each 2.2 FGT Shares previously held. The total number of FGT shares
of common stock outstanding as of the Closing Date shall be 650,000.
(b) FGT has the corporate power and authority to enter into this
Agreement and to perform its respective obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action, including
the board of directors and shareholders of FGT. The execution and performance of
this Agreement will not constitute a material breach of any agreement,
indenture, mortgage, license or other instrument or document to which FGT is a
party or by
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which its assets and properties are bound, and will not violate any judgment,
decree, order, writ, rule, statute, or regulation applicable to FGT or its
properties. The execution and performance of this Agreement will not violate or
conflict with any provision of the Articles of Incorporation or by-laws of FGT.
(c) FGT has delivered to Aladdin a true and complete copy of its
audited financial statements for the years ended December 31, 1996, 1997, and
1998 and unaudited financial statements as of June 30, 1999, (the "FGT Financial
Statements"). The FGT Financial Statements are complete, accurate and fairly
present the financial condition of FGT as of the dates thereof and the results
of its operations for the periods then ended. There are no material liabilities
or obligations either fixed or contingent not reflected therein. The FGT
Financial Statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as may be indicated
therein or in the notes thereto) and fairly present the financial position of
FGT as of the dates thereof and the results of its operations and changes in
financial position for the periods then ended.
(d) Since June 30, 1999, there have not been any material adverse
changes in the financial condition of FGT except with regard to disbursements to
pay reasonable and ordinary expenses in connection with maintaining its
corporate status and pursuing the matters contemplated in this Agreement and the
disposition of FGT's remaining assets and the payment of all liabilities. Prior
to Closing, all accounts payable and other liabilities of FGT shall be paid and
satisfied in full and FGT shall, at Closing, have no obligations, debts, claims
or liabilities of any nature either contingent or fixed.
(e) FGT is not a party to or the subject of any pending litigation,
claims, decrees, orders, stipulations or governmental investigation or
proceeding not reflected in the FGT Financial Statements or otherwise disclosed
herein, and there are no lawsuits, claims, assessments, investigations, or
similar matters, to the best knowledge of Xxxxx, threatened or contemplated
against or affecting FGT, its management or its properties.
(f) FGT is duly organized, validly existing and in good standing under
the laws of the State of Nevada; 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 except where the failure to so
qualify would have no material negative impact on it.
(g) FGT has filed all federal, state, county and local income, excise,
property and other tax, governmental and/or related returns, forms, or reports,
which are due or required to be filed by it prior to the date hereof, except
where the failure to do so would have no material adverse impact on FGT, and has
paid or made adequate provision in the FGT Financial Statements for the payment
of all taxes, fees, or assessments which have or may become due pursuant to such
returns or
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pursuant to any assessments received. FGT is not delinquent or obligated for any
tax, penalty, interest, delinquency or charge.
(h) There are no existing options, calls, warrants, preemptive rights
or commitments of any character relating to the issued or unissued capital stock
or other securities of FGT, except as contemplated in this Agreement.
(i) The corporate financial records, minute books, and other documents
and records of FGT have been made available to Aladdin prior to the Closing and
shall be delivered to new management of FGT at Closing.
(j) FGT has not breached, nor is there any pending, or to the knowledge
of management, any threatened claim that FGT has breached, any of the terms or
conditions of any agreements, contracts or commitments to which it is a party or
by which it or its assets are is bound. The execution and performance hereof
will not violate any provisions of applicable law or any agreement to which FGT
is subject. FGT hereby represents that it has no business operations or material
assets and it is not a party to any material contract or commitment other than
appointment documents with its transfer agent, and that it has disclosed to
Aladdin all relationships or dealings with related parties or affiliates.
(k) FGT common stock is currently approved for quotation on the OTC
Bulletin Board under the symbol "FPLA" and there are no stop orders in effect
with respect thereto. FGT has provided Aladdin with copies of all correspondence
between FGT and NASDAQ and FGT and NASD. FGT has not been informed, and has no
reason to believe, that its common stock will be delisted by the NASD, except
that in the future it must comply with the NASD's "Eligibility Rule" put in
effect January 4, 1999.
(l) All information regarding FGT which has been provided to Aladdin or
otherwise disclosed in connection with the transactions contemplated herein, is
true, complete and accurate in all material respects. FGT has provided to
Aladdin all material information regarding FGT. FGT and Xxxxx specifically
disclaim any responsibility regarding disclosures as to Aladdin, its business or
its financial condition.
(m) As of Closing, the outstanding capitalization of FGT shall consist
of 10,050,000 shares of common stock giving effect to all matters contemplated
herein.
(n) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not (a) constitute a
violation (with or without the giving of notice or lapse of time, or both) of
any provision of law or any judgment, decree, order, regulation or rule of any
court or other governmental authority applicable to FGT, (b) require any
consent, approval or authorization of, or declaration, filing or registration
with, any person, except for compliance with applicable securities laws and the
filing of all documents necessary
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to consummate the transaction with any governmental entity, (c) result in a
default (with or without the giving of notice or lapse of time, or both) under,
acceleration or termination of, or the creation in any party of the right to
accelerate, terminate, modify or cancel, any agreement, lease, note or other
restriction, encumbrance, obligation or liability to which FGT is a party or by
which either is bound or to which any of their assets are subject, (d) result in
the creation of any material lien or encumbrance upon the assets of FGT or the
funds being delivered in connection herewith, or (e) conflict with or result in
a breach of or constitute a default under any provision of the charter documents
of FGT.
10. Closing. The Closing of the transactions contemplated herein shall
take place on such date (the "Closing") as mutually determined by the parties
hereto when all conditions precedent have been met and all required documents
have been delivered, which Closing is expected to take place within two weeks of
approval of the Company's application for registration of 1,000,000 shares of
common stock with the Nevada Securities Division, but no later than September
30, 1999, unless extended by mutual consent of all parties hereto. The "Closing
Date" of the transactions described herein (the "Acquisition"), shall be that
date on which all conditions set forth herein have been met and the FGT Shares
are issued in exchange for the Aladdin Common Stock.
11. Conditions Precedent to the Obligations of Aladdin. All obligations
of Aladdin under this Agreement are subject to the fulfillment, prior to or as
of the Closing and/or the Closing Date, as indicated below, of each of the
following conditions:
(a) The representations and warranties by or on behalf of Xxxxx and FGT
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof shall be true in all material respects at and as of the
Closing and Closing Date as though such representations and warranties were made
at and as of such time.
(b) FGT shall have performed and complied with all covenants,
agreements, and conditions set forth in, and shall have executed and delivered
all documents required by this Agreement to be performed or complied with or
executed and delivered by it prior to or at the Closing.
(c) On or before the Closing, the board of directors, and shareholders
representing a majority interest the outstanding common stock of FGT, shall have
approved in accordance with applicable state corporation law the execution and
delivery of this Agreement and the consummation of the transactions contemplated
herein.
(d) On or before the Closing Date, FGT shall have delivered to Aladdin
certified copies of resolutions of the board of directors and shareholders of
FGT approving and authorizing the execution, delivery and performance of this
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Agreement and authorizing all of the necessary and proper action to enable FGT
to comply with the terms of this Agreement including the election of Aladdin's
nominees to the Board of Directors of FGT and all matters outlined herein.
(e) The Acquisition shall be permitted by applicable law and FGT shall
have sufficient shares of its capital stock authorized to complete the
Acquisition.
(f) At Closing, the existing sole officer and director of FGT shall
have resigned in writing from all positions as director and officer of FGT
effective upon the election and appointment of the Aladdin nominees.
(g) At the Closing, all instruments and documents delivered to Aladdin
and Aladdin Stockholders pursuant to the provisions hereof shall be reasonably
satisfactory to legal counsel for Aladdin.
(h) The shares of restricted FGT capital stock to be issued to Aladdin
Stockholders and in the FGT Financing at Closing will be validly issued,
nonassessable and fully-paid under Nevada corporation law and will be issued in
compliance with all federal, state and applicable corporation and securities
laws.
(i) Aladdin and Aladdin Stockholders shall have received the advice of
their tax advisor, if deemed necessary by them, as to all tax aspects of the
Acquisition.
(j) Aladdin shall have received all necessary and required approvals
and consents from required parties and its shareholders.
(k) FGT shall have completed the FGT Financing for an aggregate amount
of $1,000,000 in compliance with all applicable laws.
(l) At the Closing, FGT shall have delivered to Aladdin an opinion of
its counsel dated as of the Closing to the effect that:
(i) FGT is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(ii) This Agreement has been duly authorized, executed and delivered by
FGT and is a valid and binding obligation of FGT enforceable in accordance with
its terms;
(iii) FGT through its board of directors and stockholders has taken all
corporate action necessary for performance under this Agreement;
(iv) The documents executed and delivered by FGT to Aladdin and Aladdin
Stockholders hereunder are valid duly executed and delivered, and binding in
accordance with their terms and vest in Aladdin Stockholders, as the case may
be, all right, title and interest in and to the FGT Shares to be issued pursuant
to the terms hereof, and the FGT Shares when issued will be duly and validly
issued, fully-paid
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and nonassessable;
(v) FGT has the corporate power to execute, deliver and perform under
this Agreement;
(vi) The execution, delivery and performance of this Agreement and the,
consummation of the transactions contemplated hereby will not (a) to the best of
such counsel's knowledge, constitute a violation (with or without the giving of
notice or lapse of time, or both) of any provision of law or any judgment,
decree, order, regulation or rule of any court or other governmental authority
applicable to FGT, (b) require any consent, approval or authorization of, or
declaration, filing or registration with, any person, except for compliance with
applicable securities laws and the filing of all documents necessary to
consummate the transaction with any governmental entity, (c) to the best of such
counsel's knowledge result in a default (with or without the giving of notice or
lapse of time, or both) under, acceleration or termination of, or the creation
in any party of the right to accelerate, terminate, modify or cancel, any
agreement, lease, note or other restriction, encumbrance, obligation or
liability to which FGT is a party or by which either is bound or to which any of
their assets are subject, (d) result in the creation of any material lien or
encumbrance upon the assets of FGT or the funds being delivered in connection
herewith, or (e) conflict with or result in a breach of or constitute a default
under any provision of the charter documents of FGT
(vii) Legal counsel for FGT is not aware of any liabilities, claims or
lawsuits involving FGT; and
12. Conditions Precedent to the Obligations of FGT. All obligations of
FGT under this Agreement are subject to the fulfillment, prior to or at the
Closing, of each of the following conditions:
(a) The representations and warranties by Aladdin and Aladdin
Stockholders contained in this Agreement or in any certificate or document
delivered pursuant to the provisions hereof shall be true in all material
respects at and as of the Closing as though such representations and warranties
were made at and as of such time.
(b) Aladdin shall have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by it prior to or at the Closing;
(c) Aladdin shall deliver on behalf of the Aladdin Stockholders a
letter commonly known as an "Investment Letter," signed by each of said
shareholders, in substantially the form attached hereto as Exhibit "C",
acknowledging that the FGT Shares are being acquired for investment purposes.
(d) Aladdin shall deliver an opinion of its legal counsel to the effect
that:
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(i) Aladdin is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation and is duly
qualified to do business in any jurisdiction where so required except where the
failure to so qualify would have no material adverse impact on Aladdin;
(ii) This Agreement has been duly authorized, executed and delivered by
Aladdin.
(iii) The documents executed and delivered by Aladdin and Aladdin
Stockholders to FGT hereunder are valid and binding in accordance with their
terms and vest in FGT all right, title and interest in and to the Aladdin Common
Stock, which stock is duly and validly issued, fully-paid and nonassessable.
13. Indemnification. For a period of one year from the Closing, FGT and
Xxxxx agree to jointly and severally indemnify and hold harmless Aladdin, and
Aladdin agrees to indemnify and hold harmless FGT and Xxxxx, 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, judgments,
costs and expenses including attorney's fees incident to any of the foregoing,
resulting from any material misrepresentations made by an indemnifying party to
an indemnified party, an indemnifying party's breach of covenant or warranty or
an indemnifying party's nonfulfillment of any agreement hereunder, or from any
material misrepresentation in or omission from any certificate furnished or to
be furnished hereunder.
To the extent there is a material breach in this Agreement pursuant to
which Aladdin is entitled to indemnification, Aladdin shall be entitled to issue
to the Aladdin Stockholders additional shares of FGT common stock based on its
fair market value at the time in an amount equal to any claim or liability which
may arise, all in addition to any other remedies which may be available.
14. Nature and Survival of Representations. All representations,
warranties and covenants made by any party in this Agreement shall survive the
Closing and the consummation of the transactions contemplated hereby for one
year from the Closing. 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 and not upon
any investigation upon which it might have made or any representation, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein.
15. Documents at Closing. At the Closing, the following documents shall
be delivered:
(a) Aladdin will deliver, or will cause to be delivered, to FGT the following:
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(i) a certificate executed by the President and Secretary of Aladdin to
the effect that all representations and warranties made by Aladdin under this
Agreement are true and correct as of the Closing, the same as though originally
given to FGT on said date;
(ii) a certificate from the jurisdiction of incorporation of Aladdin
dated at or about the Closing to the effect that Aladdin is in good standing
under the laws of said jurisdiction;
(iii) Investment Letters in the form attached hereto as Exhibit "C"
executed by each Aladdin Stockholder;
(iv) such other instruments, documents and certificates, if any, as are
required to be delivered pursuant to the provisions of this Agreement;
(v) certified copies of resolutions adopted by the shareholders and
directors of Aladdin authorizing this transaction; and
(vi) all other items, the delivery of which is a condition precedent to
the obligations of FGT as set forth herein.
(vii) the legal opinion required by Section 12(d) hereof.
(b) FGT will deliver or cause to be delivered to Aladdin:
(i) stock certificates representing the FGT Shares to be issued as a
part of the stock exchange as described herein;
(ii) a certificate of the President of FGT, to the effect that all
representations and warranties of FGT made under this Agreement are true and
correct as of the Closing, the same as though originally given to Aladdin on
said date;
(iii) certified copies of resolutions adopted by FGT's board of
directors and FGT's Stockholders authorizing the Acquisition and all related
matters described herein;
(iv) certificate from the jurisdiction of incorporation of FGT dated at
or about the Closing Date that FGT is in good standing under the laws of said
state;
(v) opinion of FGT's counsel as described in Section 11(l) above;
(vi) such other instruments and documents as are required to be
delivered pursuant to the provisions of this Agreement;
(vii) resignation of the existing officer and director of FGT;
15
(viii) all corporate and financial records of FGT; and
(ix) all other items, the delivery of which is a condition precedent to
the obligations of Aladdin, as set forth in Section 12 hereof, including net
cash proceeds of the FGT Financing.
16. Finder's Fees. FGT, represents and warrants to Aladdin, and Aladdin
represents and warrants to FGT that neither of them, or any party acting on
their behalf, has incurred any liabilities, either express or implied, to any
"broker" of "finder" or similar person in connection with this Agreement or any
of the transactions contemplated hereby other than the arrangements described in
Section 5(d) hereof. In this regard, FGT, on the one hand, and Aladdin on the
other hand, will indemnify and hold the other harmless from any claim, loss,
cost or expense whatsoever (including reasonable fees and disbursements of
counsel) from or relating to any such express or implied liability other than as
disclosed herein. It is recognized by the parties hereto that there is an
obligation on behalf of Aladdin to pay a $50,000 finders fee at Closing.
17. Miscellaneous.
(a) Further Assurances. At any time, and from time to time, after the
Closing Date, each party will execute such additional instruments and take such
action as may be reasonably 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) Amendment. This Agreement may be amended only in writing as agreed
to by all parties hereto.
(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
prepaid first class registered or certified mail, return receipt requested.
(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.
16
(g) Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Nevada.
(h) Binding Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) Entire Agreement. This Agreement and the attached Exhibits
constitute 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 terms of any kind as
conditions or inducements to the execution hereof.
(j) 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 have executed this Agreement the day
and year first above written.
FOREPLAY GOLF & TRAVEL TOURS, INC.
/s/Xxxx Xxxxx
-----------------------------------
By: Xxxx Xxxxx, President
/s/Xxxx Xxxxx
-----------------------------------
Xxxx Xxxxx, individually
ALADDIN SYSTEMS, INC.
/s/Xxxxxxxx Xxxx
-----------------------------------
By: Xxxxxxxx Xxxx, CEO
STOCKHOLDERS OF ALADDIN
SYSTEMS, INC.
/s/Xxxxx Xxxxxx
-----------------------------------
Xxxxx Xxxxxx
/s/Xxxxxxxx Xxxx
-----------------------------------
Xxxxxxxx Xxxx
/s/Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx
17
/s/Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx
/s/Xxxxxxx Xxxxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxxxx
/s/Xxxxxx Xxxxxx
-----------------------------------
Xxxxxx Xxxxxx
18
EXHIBIT "A"
TO AGREEMENT AND PLAN OF REORGANIZATION
NAME AND ADDRESS ALADDIN SHARES FGT SHARES
---------------- -------------- ----------
XXXXX X. XXXXXXXX 430,743 680,680
0000 X Xxxxxx XX #000
Xxxxxxxxxx, XX 00000
XXXXXXX XXXXXXXXX 130,680 206,500
000 Xxxx Xx. #0
Xxxxxxxxxxxx, XX 00000
XXXXXXXX XXXX 1,067,078 1,686,280
000 Xxxxxxxx Xxxxx
Xxxxx, XX 00000
XXXXXX XXXXXX 1,033,558 1,633,300
000 Xxxx Xxxxxx Xxxxx
Xxxxx, XX 00000
XXXXX XXXXXX 1,033,558 1,633,300
000 Xxxx Xxxxxx Xxxxx
Xxxxx, XX 00000
XXXXX XXXXXXXX 1,013,469 1,601,568
0000 XX 00xx Xxxxx
Xxxxxxxx, XX 00000-0000
--------- ---------
TOTAL 4,709,086 7,441,628
19
EXHIBIT "B"
TO AGREEMENT AND PLAN OF REORGANIZATION
Form of Amendment to Articles of Incorporation
CERTIFICATE OF AMENDMENT
TO THE ARTICLES OF INCORPORATION
OF
FOREPLAY GOLF & TRAVEL TOURS, INC.
Pursuant to the applicable provisions of the Nevada Business
Corporations Act, Foreplay Golf & Travel Tours, Inc. (the "Corporation") adopts
the following Articles of Amendment to its Articles of Incorporation:
FIRST: The present name of the Corporation is Foreplay Golf & Travel
Tours, Inc.
SECOND: The following amendments to its Articles of Incorporation were
adopted by the board of directors and by majority consent of shareholders of the
Corporation in the manner prescribed by applicable law.
(1) The Article entitled ARTICLE I - NAME, is amended to read as
follows:
ARTICLE I - NAME
The name of the corporation shall be: Aladdin Systems Holdings, Inc.
(2) The Article entitled ARTICLE IV - STOCK, is amended to read as
follows:
ARTICLE IV - STOCK
Common. The aggregate number of common shares which this Corporation
shall have authority to issue is 50,000,000 shares of Common Stock having a par
value of $.001 per share. All common stock of the Corporation shall be of the
same class, common, and shall have the same rights and preferences. Fully-paid
common stock of this Corporation shall not be liable to any further call or
assessment.
Preferred. The Corporation shall be authorized to issue 1,000,000
shares of
20
Preferred Stock having a par value of $.001 per share and with such rights,
preferences and designations determined by the board of directors.
THIRD: The Corporation has effectuated, effective with the commencement
of business on Tuesday, October 26, 1999, a 2.2 to 1 reverse stock split as to
its shares of common stock outstanding as of the opening of business on October
25, 1999, which decreases the outstanding shares as of that date from 1,434,400
shares to 650,000 shares. The forward split shall not change the number of
shares of Common Stock authorized for issuance by the Corporation.
FOURTH: The number of shares of the Corporation outstanding and
entitled to vote at the time of the adoption of said amendment was 1,434,400.
FIFTH: The number of shares voted for such amendments was 810,925
(56.5%) and no shares were voted against such amendment.
DATED this day of October, 1999.
FOREPLAY GOLF & TRAVEL TOURS, INC.
By: /s/Xxx Xxxxxx
---------------------------------
Xxx Xxxxxx, President/Secretary
VERIFICATION
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
The undersigned being first duly sworn, deposes and states: that the
undersigned is the President of Foreplay Golf & Travel Tours, Inc., that the
undersigned has read the Certificate of Amendment and knows the contents thereof
and that the same contains a truthful statement of the Amendment duly adopted by
the board of directors and stockholders of the Corporation.
/s/Xxx Xxxxxx
---------------------------------
Xxx Xxxxxx, President
21
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
Before me the undersigned Notary Public in and for the said County and
State, personally appeared the President and Secretary of Foreplay Golf & Travel
Tours, Inc., a Nevada corporation, and signed the foregoing Articles of
Amendment as her own free and voluntary acts and deeds pursuant to a corporate
resolution for the uses and purposes set forth.
IN WITNESS WHEREOF, I have set my hand and seal this day of October,
1999.
---------------------------------
NOTARY PUBLIC
Notary Seal:
22
EXHIBIT "C"
TO AGREEMENT AND PLAN OF REORGANIZATION
Form of Investment Letter
TO THE BOARD OF DIRECTORS OF FOREPLAY GOLF & TRAVEL TOURS, INC. ("CORPORATION")
The undersigned hereby represents to the Corporation, that (1) the shares
of the Corporation's common stock (the "Securities") which are being acquired by
the undersigned are being acquired for his own account and for investment and
not with a view to the public resale or distribution thereof; (2) the
undersigned will not sell, transfer or otherwise dispose of the securities
except in compliance with the Securities Act of 1933, as amended (the "Act");
and (3) he is aware that the Securities are "restricted securities" as that term
is defined in Rule 144 or the General Rules and Regulations under the Act.
The undersigned acknowledges that he has been afforded access to disclosure
documents and information regarding the Corporation as requested by the
undersigned.
The undersigned further acknowledges that he has had an opportunity to ask
questions of and receive answers from duly designated representatives of the
Corporation concerning the terms and conditions pursuant to which the Securities
are being purchased. The undersigned acknowledges that he has been afforded an
opportunity to examine such documents and other information which he has
requested for the purpose of verifying the information set forth in the
documents referred to above.
The undersigned acknowledges and understands that the Securities are
unregistered and must be held indefinitely unless they are subsequently
registered under the Act or an exemption from such registration is available.
The undersigned further acknowledges that he is fully aware of the
applicable limitations on the resale of the Securities. These restrictions for
the most part are set forth in Rule 144. The Rule permits sales of "restricted
securities" upon compliance with the requirements of such Rule. If the Rule is
available to the undersigned, the undersigned may make only routine sales of
securities, in limited amounts, in accordance with the terms and conditions of
that Rule.
The Company is the only person which may register its Securities under the
Act and it currently is not contemplating registering any of its Securities.
Furthermore,
23
the Company has not made any representations, warranties or covenants to the
undersigned regarding registration of the Securities or compliance with any
exemption under the Act.
By reason of my knowledge and experience in financial and business matters
in general, and investments in particular, I am capable of evaluating the merits
and risks of an investment by me in the Securities.
I am capable of bearing the economic risks of an investment in the
Securities. I fully understand the speculative nature of the Securities.
My present financial condition is such that I am under no present or
contemplated future need to dispose of any portion of the Securities to satisfy
any existing or contemplated undertaking, need, or indebtedness.
Any and all certificates representing the Securities, and any and all
securities issued in replacement thereof or in exchange therefor, shall bear the
following legend, which the undersigned has read and understands:
The shares represented by this Certificate have not been registered under the
Securities Act of 1933 (the "Act") and are "restricted securities" as that term
is defined in Rule 144 under the Act. The shares may not be offered for sale,
sold or otherwise transferred except pursuant to an effective registration
statement under the Act or pursuant to an exemption from registration under the
Act, the availability of which is to be established to the satisfaction of the
Company.
The undersigned further agrees that the Corporation shall have the right to
issue stop-transfer instructions to its transfer agent and acknowledges that the
Corporation has informed the undersigned of its intention to issue such
instructions.
Very truly yours,
---------------------------------
Date: , 1999
-----------------
