EXHIBIT 10.18
PLAN AND AGREEMENT OF MERGER
----------------------------
CINEPORTS, INC.
(surviving corporation)
AND
CINEPORTS.COM, INC.
(merging corporation)
This PLAN AND AGREEMENT OF MERGER, dated this 15th day of June, 2002,
made pursuant to the applicable provisions of the corporation laws of the
states of Delaware and Nevada, by and between:
CINEPORTS, INC., a Nevada corporation having its principal business
office located at 12868 Via Latina, Del Mar, California 92014 (hereinafter
sometimes referred to as the "surviving corporation");
AND
CINEPORTS.COM, INC., a Delaware corporation, having its principal
business office located at 1000 Vermont Avenue, NW, Suite 450, Washington,
D.C. 20005 (hereinafter sometimes referred to as the "merging corporation");
AND
CAVALCADE OF SPORTS MEDIA, INC., a Nevada corporation having its
principal business office located at 12868 Via Latina, Del Mar, California
92014, being the parent of Cineports, Inc., the surviving corporation
(hereinafter sometimes referred to as "CAVALCADE")
WITNESSETH THAT:
WHEREAS, the parties desire to have a forward triangular merger whereby
CINEPORTS, INC., a wholly-owned subsidiary of CAVALCADE, and CINEPORTS.COM,
INC. (hereinafter jointly referred to as the "constituent corporations") merge
into a single corporation so as to merge the business and assets of the
Delaware corporation, Cineports.com, Inc., with and into the Nevada
corporation, Cineports, Inc., with CAVALCADE issuing shares of its common
stock and warrants for the purchase of its common stock;
NOW THEREFORE, the constituent corporations, in consideration of the
mutual covenants, agreements and provisions hereinafter contained do hereby
prescribe the terms and conditions of their Merger and the mode of carrying
the same into effect, as follows:
ARTICLE I
THE MERGER
1. Immediately following execution hereof, each of the parties shall
call a meeting of its Board of Directors which by resolution, shall approve
and adopt this Plan and Agreement of Merger as a plan of reorganization within
the provisions of Section 368 (a)(1)(A) of the Internal Revenue Code.
2. (a) Upon approval of this Plan and Agreement of Merger by the
Board of Directors of Cineports.com, Inc. this Plan and Agreement shall be
presented to the stockholders of such corporation for approval.
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(b) Upon approval of this Plan and Agreement of Merger by the Board of
Directors of Cineports, Inc. this Plan and Agreement shall be presented to
CAVALCADE as the sole stockholder of such corporation for approval.
(c) CAVALCADE as the sole stockholder of Cineports, Inc., hereby waives any
and all mailing of this Plan and Agreement of Merger prior to the filing of
the Articles/ Certificate of Merger.
(d) Articles/Certificate of Merger shall be filed on or before July 11,
2002.
3. Upon effectiveness of this Plan and Agreement of Merger,
Cineports, Inc. shall merge Cineports.com, Inc. into itself and Cineports.com,
Inc. shall merge into and with Cineports, Inc. which shall be the surviving
corporation and Cineports, Inc. shall continue for all purposes while the
separate existence of Cineports.com, Inc. shall cease.
4. On or before July 11, 2002, following effectiveness of this Plan
and Agreement of Merger, the officers of the surviving corporation shall
prepare, execute, and file Articles/Certificate of Merger with the Nevada and
Delaware Departments of State and take all other actions necessary to
formalize the Merger, pursuant to the applicable sections of the corporation
laws of Nevada and Delaware.
5. Upon the Merger becoming effective:
(a) The Articles of Incorporation of Cineports, Inc. as in effect on the
date of the Merger becoming effective shall continue in full force and effect
as the Certificate of Incorporation of the surviving corporation.
(b) The Bylaws of Cineports, Inc. as in effect on the date of the Merger
becoming effective shall continue in full force and effect as the Bylaws of
the surviving corporation.
(c) The directors and officers of the merging Delaware corporation shall
become as the directors and officers of such surviving corporation, except
that Edward Litwak shall be Chairman of the Board of Directors of such
corporation, and serve until the next annual meeting of shareholders and until
their successors shall have been elected and qualified.
(d) All the property, rights, privileges, franchises, patents,
trademarks, licenses, registrations and other assets of every kind and
description of the merging corporation shall be transferred to, vested in and
devolve upon the surviving corporation without further act or deed and all
property, rights, and every other interest of the surviving corporation and
the merging corporation shall be as effectively the property of the surviving
corporation as they were of the surviving corporation and the merged
corporation respectively.
7. All rights of creditors and all liens upon any property of the
constituent corporations shall be preserved unimpaired and all debts,
liabilities, and duties of the merging corporation shall thenceforth attach to
the surviving corporation and may be enforced against it to the same extent as
if such debts, liabilities and duties had been incurred or contracted by such
surviving corporation.
8. The merging corporation hereby agrees that, from time to time, as
and when requested by the surviving corporation or by its successors or
assigns, to execute and deliver or cause to be executed and delivered all such
deeds, bills of sale, assignments, documents, and instruments, and to take or
cause to be taken such further or other action as the surviving corporation
may deem necessary or desirable in order to vest in and confirm to the
surviving corporation title to and possession of any property of the merging
corporation acquired or to be acquired by reason of or as a result of the
Merger herein provided for and otherwise to carry out the intent and purposes
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hereof and the proper officers and directors of the surviving corporation are
fully authorized in the name of the merging corporation or otherwise to take
any and all such action.
9. The issued and outstanding shares of Common Stock of
Cineports.com, Inc. shall be canceled. To effectuate the Merger, CAVALCADE
shall issue its Common Stock and Warrants as follows:
A. For the 1,135,519 shares of Cineports' Series A Preferred
Stock, CAVALCADE shall issue 567,780 shares of its Common Stock, or one
(1)share of CAVALCADE's Common Stock for each two (2) shares of the
Series A;
B. For the 80,000 shares of Cineports' Series B Preferred Stock,
CAVALCADE shall issue 100,000 shares of its Common Stock, or one and a
quarter (1.25) shares of CAVALCADE's Common Stock for each one (1) share
of the Series B; and
C. For the 10,304,556 shares of Cineports' Common Stock,
CAVALCADE shall issue (i) 4,121,822 shares of CAVALCADE's Common Stock
(subject to such adjustments as may be required by rounding) and (ii)
6,182,733 Warrants (subject to such adjustments as may be required by
rounding), each giving the holder the right to purchase a share of
CAVALCADE's Common Stock, within a two year period after issuance, at an
exercise price of One Dollar and Twenty Cents ($1.20); or four-tenths of
a share of CAVALCADE's Common Stock and one (1) Warrant for each share
of Cineports' Common Stock.
10. The surviving corporation shall pay all the reasonable and
ordinary expenses of carrying this Agreement into effect and of accomplishing
the Merger, and shall make all requisite payments to any dissenting
shareholders.
11. Except as herein specifically set forth, the identity, existence,
purposes, powers, objects, franchises, privileges, rights, and immunities of
Cineports, Inc. shall continue unaffected and unimpaired by the Merger and the
corporate franchises, existence and rights of Cineports.com, Inc. shall be
merged into Cineports, Inc. and Cineports, Inc. shall, as the surviving
corporation, be fully vested therewith. At the effective time of the Merger,
the separate existence of Cineports.com, Inc. shall cease, and in accordance
with the terms of this agreement the surviving corporation shall possess all
the rights, privileges, powers, and franchises, as well of a public as of a
private nature, and be subject to all the restrictions, disabilities, and
duties, of each of the constituent corporations, and all and singular, the
rights, powers, and franchises and all property, real, personal, and mixed,
and all debts due on whatever account, including stock subscriptions, and all
other things in action and all and every other interest of or belonging to or
due to each of the constituent corporations shall be taken and deemed to be
transferred to and vested in the surviving corporation without further act or
deed; and all property, rights, privileges, powers, and franchises and all and
every other interest shall be thereafter as effectually the property of the
surviving corporation as they were of the merging corporation; and the title
to any real estate, or interest therein, whether by deed or otherwise, under
the laws of Nevada and Delaware vested in such corporation, shall not revert
or be in any way impaired by reason of the Merger. The surviving corporation
shall thenceforth be responsible and liable for all the liabilities and
obligations of the constituent corporations, and any claim existing or action
or proceeding pending by or against the merging corporation may be prosecuted
as if the Merger had not taken place, or the surviving
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corporation may be substituted in its place. Neither the rights of creditors
nor any liens upon the property of either of the constituent corporations
shall be impaired by the Merger, and all debts, liabilities, and duties of
each of said constituent corporations shall attach to the surviving
corporation, and may be enforced against it to the same extent as if said
debts, liabilities, and duties had been incurred or contracted by it.
ARTICLE II
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
OF
CINEPORTS.COM, INC.
Cineports.com, Inc. intending CAVALCADE, Cineports, Inc., and their
officers, directors and stockholders to rely thereon, represents, warrants and
agrees as follows:
1. Cineports.com, Inc. shall be, as of the date of the merger, a validly
existing corporation in good standing, duly organized pursuant to the laws of
the State of Delaware, with all legal and corporate authority and power to
conduct its business as now being conducted and to own its properties and it
possesses all necessary permits and licenses required in connection with the
conduct of its business.
2. The conduct of Cineports.com, Inc.'s business shall be in full
compliance with all applicable, federal, state and local governmental
statutes, rules, regulations, ordinances and decrees.
3. The execution and delivery of this Agreement, the consummation of
the transactions herein contemplated and compliance with the terms of this
Agreement will not result in a breach of any of the terms or provisions of, or
constitute a default under, the Articles of Incorporation or By-Laws of
Cineports.com, Inc. upon incorporation and adoption; or of any indenture,
other agreement or instrument to which the corporation may be a party or by
which it or its assets may be bound; or any applicable regulation, judgment,
order or decree of any governmental instrumentality or court, domestic or
foreign, having jurisdiction over the corporation, its securities or its
properties.
4. Cineports.com, Inc. is not a party to any written or oral agreement
which grants an option or right of first refusal or other arrangement to
acquire any of the stock or to any agreement that affects the voting rights of
any of the stock, nor has the company made any commitment of any kind relating
to the issuance of shares of any of its stock, whether by subscription, right
of conversion, option or otherwise.
5. The execution, delivery and performance of this Agreement and the
transactions contemplated hereby do not require the consent, authority or
approval of any other person or entity except such as have been obtained.
The foregoing representations, warranties and agreements shall be true
and correct as of the effective date of the Merger. Such representations,
warranties and agreements shall survive the Merger until July 15, 2003. None
of such representations, warranties and agreements contain, or shall contain
as of the effective date of the Merger, any false or misleading statement of a
material fact or omit, as of the effective date of the Merger, to state any
material fact necessary in order to make the representations, warranties and
agreements not misleading.
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ARTICLE III
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
OF
CINEPORTS,INC.
Cineports, Inc., intending Cineports.com, Inc. to rely thereon,
represents, warrants and agrees as follows:
1. Cineports, Inc. is, as of the date of this Agreement, a validly
existing corporation in good standing, duly organized pursuant to the laws of
the State of Nevada, with all legal and corporate authority and power to
conduct its business as now being conducted and to own its properties and it
possesses all necessary permits and licenses required in connection with the
conduct of its business.
2. The conduct of Cineports, Inc.'s business is in full compliance
with all applicable, federal, state and local governmental statutes, rules,
regulations, ordinances and decrees.
3. Pursuant to its Articles of Incorporation Cineports, Inc. is
authorized to issue 10,000 shares of Preferred Stock, $.001 par value per
share, of which no shares are issued and outstanding, and 100,000 shares of
Common Stock, $.001 par value per share, of which 1,000 shares of Common Stock
are issued and outstanding. There are no other authorized or outstanding
securities of any class or of any kind or character of the corporation and,
except as reflected in this Agreement, there are no outstanding subscriptions,
options, warrants or other agreements or commitments obligating the
corporation, to issue or to sell any additional shares of Cineports, Inc.'s
stock or any options or rights with respect thereto, or any securities
convertible into any shares of stock of any class.
4. The execution and delivery of this Agreement, the consummation of
the transactions herein contemplated and compliance with the terms of this
Agreement will not result in a breach of any of the terms or provisions of, or
constitute a default under, the Articles of Incorporation or By-Laws of
Cineports, Inc.; any indenture, other agreement or instrument to which the
corporation is a party or by which it or its assets are bound; or any
applicable regulation, judgment, order or decree of any governmental
instrumentality or court, domestic or foreign, having jurisdiction over the
corporation, its securities or its properties.
5. Cineports, Inc. is not a party to any written or oral agreement
which grants an option or right of first refusal or other arrangement to
acquire any of the stock or to any agreement that affects the voting rights of
any of the stock, nor has the company made any commitment of any kind relating
to the issuance of shares of any of its stock, whether by subscription, right
of conversion, option or otherwise.
6. The execution, delivery and performance of this Agreement and the
transactions contemplated hereby do not require the consent, authority or
approval of any other person or entity except such as have been obtained.
The foregoing representations, warranties and agreements shall be true
and correct as of the effective date of the Merger. Such representations,
warranties and agreements shall survive the Merger until July 15, 2003. None
of such representations, warranties and agreements contain, or shall contain
as of the effective date of the Merger, any false or misleading statement of a
material fact or omit, as of the effective date of the Merger, to state any
material fact necessary in order to make the representations, warranties and
agreements not misleading.
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ARTICLE IV
CONDUCT OF
CINEPORTS.COM, INC.
BEFORE CLOSING
From the execution of this Agreement to Closing, Cineports.com, Inc.
shall not take any action, or enter into any agreement, that would constitute
or cause any inducement, representation or warranty of Cineports.com, Inc.
contained in this Agreement to become untrue, nor to take any action or enter
into any agreement, that would constitute, or cause, a breach of this
Agreement. Cineports.com, Inc. will use its best efforts to preserve intact
its business organization, to keep available to it the services of its present
officers and employees, to preserve its present relationships with persons
having significant business relations with it, to maintain all of its
properties in customary repair and condition and to maintain insurance
policies in respect of its business and properties consistent with current
practice.
ARTICLE V
CONDUCT OF PARTIES PENDING CLOSING
1. Cineports.com, Inc. and Cineports, Inc. each agrees to give to the
other and the authorized representatives of the other full access to all the
premises and books and records of it and to furnish the other with such
financial and operating data and other information with respect to the
business and properties of it as the other shall from time to time request;
provided, however, that any such investigation shall not affect any of the
representations and warranties hereunder; and provided further, that any such
investigation shall be conducted in such manner as not to interfere
unreasonably with the operation of the business of the other. In the event of
termination of this agreement, Cineports.com, Inc. and Cineports, Inc. will
each return to the other all documents, work papers and other material
obtained from the other in connection with the transactions contemplated
hereby and will use all reasonable efforts to keep confidential any
information obtained pursuant to this agreement unless such information is
readily ascertainable from public or published information or trade sources.
2. The Boards of Directors of Cineports.com, Inc. and Cineports,
Inc., respectively, will adopt and approve this Plan and Agreement of Merger.
ARTICLE VI
MISCELLANEOUS
1. NOTICES. All notices to a party shall be deemed given when mailed
by registered or certified mail to the address at the head of this Agreement
or such other address as may be substituted therefor.
2. INTEGRATION. This Agreement is the entire Agreement among the
parties and supersedes any prior agreement(s) among the parties with respect
thereto except as herein specified. No alteration, modification, or waiver of
term or condition hereof shall be binding unless in writing and signed by all
parties.
3. AMENDMENTS. This Agreement may be amended only with the written
approval of the party to be charged therewith; provided, however, that no such
amendment may be made that would cause a breach of any warranty or
representation herein.
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4. NO ASSIGNMENT. This Agreement may not be assigned by either
party or by operation of law or otherwise.
5. CONSTRUCTION. Whenever required by the context hereof: the
masculine gender shall be deemed to include the feminine and neuter; and the
singular member shall be deemed to include the plural. Time is expressly
declared to be of the essence of this Agreement.
6. INTERPRETATION. It is the intent of the parties that this Agreement
shall be construed and interpreted, and that all questions arising hereunder
shall be determined in accordance with the provisions of the laws of the State
of Delaware.
7. ARBITRATION. Any controversy, claim or dispute arising out of or
resulting from this Agreement, or the breach thereof, that cannot be resolved
by negotiation, shall be resolved by arbitration, to be held in New York City,
in accordance with the rules and regulations of the American Arbitration
Association, except that the provisions for discovery shall be as set forth in
the Rules of Civil Procedure then in effect in New York. Failure of a party
to participate or cooperate shall constitute grounds for default judgment.
The arbitrator shall award legal fees and costs to the prevailing party. The
decision of the arbitrator shall in each case, including awards and the
allocation of costs, be final and binding upon the parties. Judgment upon the
award rendered by the arbitrator may be entered in any Court having
jurisdiction thereof.
8. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, any one of which shall be deemed to be an original.
9. BROKERS' OR FINDERS' FEES. This merger is being done to merge the
subsidiary merging corporation into the parent surviving corporation. No
agent, broker, person, or firm acting on behalf of either party or any of
their subsidiaries or under the authority of any of them is or will be
entitled to any commission or broker's or finder's fee or financial advisory
fee in connection with any of the transactions contemplated herein.
IN WITNESS WHEREOF, and intending to be legally bound, the parties have
hereunto set their hands and seals the day and year first above written.
CINEPORTS.COM, INC.
ATTEST:
By: _________________________________
_______________________________
Secretary
CINEPORTS, INC.
ATTEST:
By: _________________________________
_______________________________
Secretary
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