EXHIBIT 10.1
AGREEMENT FOR PLAN OF MERGER
DATED NOVEMBER 30, 1999
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AGREEMENT
THIS AGREEMENT, made as of November 30, 1999 (the "Effective Date"),
is by and between Roller Coaster, Inc., a Nevada corporation ("Roller
Coaster") and San Diego Soccer Development Corporation, a California
corporation ("SDSD").
W I T N E S S E T H
WHEREAS, Roller Coaster and SDSD desire to merge.
NOW, THEREFORE, in consideration of the promises and respective
mutual agreements herein contained, it is agreed by and between the Parties
hereto as follows:
1. THE MERGER.
a. MERGER. Roller Coaster and SDSD will merge pursuant to the
terms of the form of the Plan of Merger, attached as Exhibit A and the form of
the Articles of Merger, attached as Exhibit B.
b. CONSULTANT FEES. SDSD shall pay to Shogun Investment Group,
Ltd. ("Shogun"), as agent for Roller Coaster, $200,000 payable $50,000 within
thirty days of the completion of the merger and the remainder payable in five
equal monthly installments of $30,000 each with 6% interest on the outstanding
balance due and payable by the 7th day of each month beginning the on the
month following the completion of the merger.
c. RIGHT OF FIRST REFUSAL. The merged entity will give a right
of first refusal to Shogun to purchase up to a maximum of 50% of the next
private placement of securities of the merged entity at the offering price and
on the offering terms.
2. CONDUCT OF BUSINESS. The Parties shall not take any action outside of
the ordinary course of business, including without limitation, the creation of
new debt or the sale of additional equity pending completion of the Closing,
during the 21 day period of time beginning upon the Effective Date of this
Agreement (the "Due Diligence Period"). Neither Party shall participate in
discussions nor actions intended to complete a transaction which would
frustrate the purpose of the Merger without the prior written consent of the
other party. During the Due Diligence, either Party, at its sole discretion,
may terminate this Agreement without further liability by sending written
notice of such termination to the other Party. This termination right expires
at the end of the Due Diligence Period.
3. CONFIDENTIALITY. Without the express written consent of all the
Parties hereto, each of the Parties hereto agrees to maintain in confidence
and not disclose the existence of this Agreement, the terms of the Merger, or
the information delivered in connection with the proposed due diligence
investigation, other than disclosures required to obtain the approvals for the
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transactions contemplated hereby, disclosures to those professionals and
advisors that have a need to know, or any other disclosure that may be
required by applicable law. This provision shall remain binding on the Parties
even if the Merger is not consummated.
4. ACCESS TO INFORMATION/DUE DILIGENCE. During the Due Diligence Period,
each Party, together with their appropriate attorneys, accountants and
representatives shall be permitted to make a full and complete investigation
of the business of each other Party and have full access to all of the books
and records of each Party during reasonable business hours. Notwithstanding
the foregoing, such Parties shall treat all such information as confidential
and shall not disclose such information without the prior written consent of
the other Party.
5. COSTS. The Parties shall each bear their own costs and expenses,
including without limitation, fees of legal counsel, accountants, and other
consultants or representatives incurred in connection with the transactions
contemplated hereby, whether or not they are consummated.
6. EXCLUSIVITY. In consideration of the time and resources that SDSD
will devote to the transactions contemplated hereby, Roller Coaster agrees
that, for the entire Due Diligence Period, it will not, and it will not allow
its affiliates, directors, officers, employees, representatives, attorneys,
and agents to, directly or indirectly, solicit or initiate or enter into
discussions or transactions with, or encourage, or provide any information to,
any corporation, partnership, or other entity or group (other than SDSD and
its designees) concerning any sale of stock by the stockholders of, or any
merger or sale of securities or substantial assets of, or any similar
transaction or alternative to Roller Coaster. Roller Coaster represents that
neither it nor any of its subsidiaries or affiliates are a party to or bound
by any agreement with respect to any such transaction other than as
contemplated by this Agreement.
7. CONDITIONS TO CLOSING. The closing of the Merger shall be subject to
the satisfaction of the following conditions:
a. Satisfactory completion of due diligence of each respective
Party into the financial condition and business of the other Party;
b. Execution by both Parties of the Plan of merger attached as
Exhibit A and the Articles of Merger attached as Exhibit B;
c. Shareholder and director approval of both Parties within 14
days following the expiration of the Due Diligence Period; and
d. The completion of any filings required for the Merger with
any governmental agencies.
8. MISCELLANEOUS. This Agreement constitutes the entire agreement among
the Parties and supersedes all prior communications, agreements, and
understandings, written or oral, with respect to the Merger. This Agreement
may be signed in counterparts, all of which
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shall constitute the same agreement, shall be governed by the laws of the
State of California, and shall bind and inure to the benefit of the Parties
and their respective successors and assigns.
SAN DIEGO SOCCER DEVELOPMENT CORPORATION
a California corporation
/s/ Xxx Xxxxxx
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By: Xxx Xxxxxx
Its: President, C.E.O.
/s/ Xxxxxx Xxxxxxx
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By: Xxxxxx Xxxxxxx
Its: Controller, Secretary
ROLLER COASTER, INC.,
a Nevada corporation
/s/ Xxxx Xxxxxxx
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By: Xxxx Xxxxxxx
Its: President
/s/ Xxxx Xxxxxx
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By: Xxxx Xxxxxx
Its: Secretary
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EXHIBIT A
PLAN OF MERGER
This Plan of Merger is made as of November 30, 1999, between San
Diego Soccer Development Corporation, a California corporation (the
"Disappearing Corporation") and Roller Coaster, Inc., a Nevada corporation
(the "Surviving Corporation"). (The corporations together are sometimes
referred to below as the "Constituent Corporations.")
The Constituent Corporations agree as follows:
1. DISAPPEARING CORPORATION is duly organized, existing and in
good standing under the laws of the State of California. It has authorized
20,000,000 shares of Common Stock, $..001 par value; and no shares of
Preferred Stock. It has a total of 4,755,519 shares of stock, options, and
warrants presently issued and outstanding.
2. SURVIVING CORPORATION is duly organized, existing and in
good standing under the laws of the State of Nevada. It has 25,000,000 shares
of authorized capital stock which is common stock, $.001 par value, of which
2,500,000 shares are issued and outstanding.
3. THE BOARD OF DIRECTORS OF THE CONSTITUENT CORPORATIONS deem
it in the best interests of the corporations and their shareholders that
Disappearing Corporation be merged with Surviving Corporation in accordance
with Nevada Revised Statutes, Section 92A.190. The Boards hereby adopt on
behalf of their corporations the Plan of Merger as set forth herein.
4. MERGER: Disappearing Corporation shall be merged with
Surviving Corporation, which shall survive the merger. Disappearing
Corporation's separate existence shall cease on the Effective Date (as defined
below) of the merger. Without any other transfer or documentation, on the
Effective Date, Surviving Corporation shall (i) succeed to all of Disappearing
Corporation's rights and property; and (ii) be subject to all Disappearing
Corporation's liabilities and obligations.
Notwithstanding the above, after the Effective Date, the Surviving
Corporation's proper officers and directors may perform any acts necessary or
desirable to vest or confirm Surviving Corporation's possession of and title
to any property or rights of Disappearing Corporation; or otherwise carry out
this Agreement's purposes. This includes execution and delivery of deeds,
assurances, assignments or other instruments.
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5. CONVERSION OF SHARES: By virtue of the merger and without
any action by any shareholder, upon the Effective Date, each security of
Disappearing Corporation outstanding immediately prior to the Effective Date
shall be converted into an equivalent security of Surviving Corporation on a
one to one ratio. After this conversion, a total of 4,755,519 shares of stock,
options, and warrants will be issued to the shareholders of Disappearing
Corporation.
Any Disappearing Corporation shareholder entitled to .50 or more of a
share of Surviving Corporation's parent stock shall receive the next higher
number of whole shares; and any such shareholder entitled to less than .50 of
a share of Surviving Corporation's parent stock shall receive the next lower
number of shares.
The shares of Surviving Corporation outstanding immediately prior to
the merger shall not be changed by reason of the merger.
6. STOCK CERTIFICATES: On or after the Effective Date, all of
the Disappearing Corporation's outstanding stock certificates shall be deemed
to represent ownership of Surviving Corporation's parent's shares, into which
Disappearing Corporation's shares have been converted (as provided above). The
holders of such certificates must surrender them to the Surviving Corporation
in whatever manner it may legally require. On receipt thereof, Surviving
Corporation shall issue and exchange certificates for like certificates
representing the number of shares to which the holder is entitled as provided
above.
Pending the surrender and exchange of certificates, the registered
owner on Disappearing Corporation's books of any outstanding stock certificate
shall be entitled to exercise all voting and other rights with respect to the
shares of Surviving Corporation represented by the certificates, as provided
above.
7. CHANGE IN ARTICLES OF INCORPORATION AND BYLAWS:
a. AMENDMENTS TO ARTICLES OF INCORPORATION. Surviving
Corporation's Articles of Incorporation as amended and in effect on the
Effective Date shall be amended as follows as a result of the merger:
i. The name of Surviving Corporation shall be
changed to San Diego Soccer Development Corporation, a Nevada corporation.
ii. The total number of shares Surviving
Corporation shall be authorized to issue are 100,000,000 shares of common
stock, $.001 par value; and 50,000,000 shares of preferred stock, $.001 par
value.
b. AMENDMENTS TO BYLAWS. Surviving Corporation's
Bylaws, as amended and in effect on the Effective Date shall be amended as a
result of the merger such that the Surviving Corporation shall have authorized
five directorships.
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8. OFFICERS AND DIRECTORS: Surviving Corporation's officers and
directors in effect on the Effective Date shall resign as of the Effective
Date and the following individuals shall fill the vacancies left by those
resignations for the full unexpired terms of their respective offices, or
until their successors have been duly elected or appointed and qualified:
Name Designation (Officer/Director)
---- ------------------------------
Xxx Xxxxxx Chief Executive Officer, President, Director
Xxx Xxxxxxxxxx Chairman of the Board, Director
Xxxxxx Xxxxxxx Controller, Secretary, Director
Xxxxx Xxxxx Chief Operating Officer, Director
Xxxxx Xxxxxxx Director
9. EFFECTIVE DATE. Provided this Agreement is not abandoned,
the Effective Date of merger shall be at the close of business on the date
when the Articles of Merger are duly filed in the office of the Nevada
Secretary of State in accordance with Nevada Revised Statutes Section 92A.200.
10. ABANDONMENT OF MERGER: Any time prior to the Effective Date,
this merger may be abandoned without further obligation or liability by action
of the board of directors of either of the Constituent Corporations,
notwithstanding approval of the merger by their shareholders.
11. COUNTERPARTS: This Agreement of Merger may be executed in
any number of counterparts, each of which shall constitute an original
instrument.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement
by their respective duly authorized officers, as of the date first written
above.
ROLLER COASTER, INC.,
a Nevada corporation
as Surviving Corporation
/s/ Xxxx Xxxxxxx
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By: Xxxx Xxxxxxx
Its: President
/s/ Xxxx Xxxxxx
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By: Xxxx Xxxxxx
Its: Secretary
SAN DIEGO SOCCER DEVELOPMENT CORPORATION
a California corporation
as Disappearing Corporation
----------------------------------------
By: Xxx Xxxxxx
Its: President, Chief Executive Officer
----------------------------------------
By: Xxxxxx Xxxxxxx
Its: Controller, Secretary
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EXHIBIT B
ARTICLES OF MERGER
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ARTICLES OF MERGER
Xxxx Xxxxxxx and Xxxx Xxxxxx hereby certify that:
1. They are respectively President and Secretary of Roller
Coaster, Inc., a Nevada corporation (the "Surviving Corporation").
2. These Articles of Merger are being filed pursuant to Section
92A.200 of the Nevada Revised Statutes to effect a merger (the "Merger")
between the Surviving Corporation and San Diego Soccer Development
Corporation, a California corporation (the "Disappearing Corporation"). The
Surviving Corporation and the Disappearing Corporation shall be referred to
collectively as the "Constituent Entities".
3. A Plan of Merger (the "Plan") has been adopted by each
Constituent Entity.
4. A special meeting of the board of directors and shareholders
of the Surviving Corporation was held on _____________, _____. At that
meeting, the Plan was approved by a vote of the directors of the Surviving
Corporation. Also, at that meeting, the Secretary reported that there were
______________ shares of the Surviving Corporation's capital stock issued and
outstanding and proxies voting "FOR" the Plan were received from the holders
of ____________ shares or ____% of the total outstanding capital stock.
Therefore, the Plan was approved by the directors and a majority of the
shareholders of the Surviving Corporation.
5. A special meeting of the board of directors and shareholders
of the Disappearing Corporation was held on __________. At that meeting, the
Plan was approved by a vote of the directors of the Surviving Corporation.
Also, at that meeting, the Secretary reported that there were _____________
shares of the Disappearing Corporation's capital stock issued and outstanding
and proxies voting "FOR" the Plan were received from the holders of
___________ shares or _____% of the total outstanding capital stock.
Therefore, the Plan was approved by the directors and a majority of the
shareholders of the Disappearing Corporation.
6. The amendments to the Articles of Incorporation of the
Surviving Corporation are as follows:
a. The name of Surviving Corporation is hereby changed
to San Diego Soccer Development Corporation, a Nevada corporation.
b. The total number of shares Surviving Corporation is
authorized to issue are 100,000,000 shares of common stock, $.001 par value;
and 50,000,000 shares of preferred stock, $.001 par value.
7. The complete executed Plan of Merger is on file at the
registered office of the Surviving Corporation.
They further declare under the penalty of perjury under the laws of
the State of Nevada that the matters set forth in these Articles of Merger are
true and correct of my own knowledge.
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ROLLER COASTER, INC.
a Nevada corporation as
Surviving Corporation
/s/ Xxxx Xxxxxxx
----------------------------------------
By: Xxxx Xxxxxxx
Its: President
/s/ Xxxx Xxxxxx
----------------------------------------
By: Xxxx Xxxxxx
Its: Secretary
Acknowledged:
SAN DIEGO SOCCER DEVELOPMENT CORPORATION
a California corporation as
Disappearing Corporation
/s/ Xxx Xxxxxx
----------------------------------------
By: Xxx Xxxxxx
Its: President, Chief Executive Officer
/s/ Xxxxxx Xxxxxxx
----------------------------------------
By: Xxxxxx Xxxxxxx
Its: Controller, Secretary
STATE OF _____________ )
) SS.
COUNTY OF ____________ )
On _______________________, 2000, before me, ________________________________,
Notary Public, personally appeared Xxxx Xxxxxxx, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
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Signature
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STATE OF _____________)
) SS.
COUNTY OF ____________)
On _______________________, 2000, before me, ________________________________,
Notary Public, personally appeared Xxxx Xxxxxx, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
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Signature
STATE OF _____________)
) SS.
COUNTY OF ____________)
On _______________________, 2000, before me, ________________________________,
Notary Public, personally appeared Xxx Xxxxxx, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
---------------------------------------
Signature
STATE OF ____________)
) SS.
COUNTY OF ___________)
On _______________________, 2000, before me, ________________________________,
Notary Public, personally appeared Xxxxxx Xxxxxxx, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
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Signature
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