EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Merger Agreement") is made as of
this 22nd day of November, 2002, by and between US Patriot, Inc., a South
Carolina corporation (the "Parent") and TriMedia Entertainment Group, Inc., a
Delaware corporation (the "Subsidiary").
RECITALS:
WHEREAS, the Parent is a corporation organized and existing under the laws
of the State of South Carolina;
WHEREAS, the Subsidiary is a corporation organized and existing under the
laws of the State of Delaware and is a wholly-owned subsidiary of the Parent;
WHEREAS, the parties hereto desire that the Parent merge with and into the
Subsidiary and that the Subsidiary shall continue as the surviving corporation
in such merger, which is intended to qualify as a tax-free reorganization under
Section 368(a)(1)(F) or 368(a)(1)(A) of the Internal Revenue Code of 1986, as
amended, upon the terms and subject to the conditions herein set forth and in
accordance with the laws of the State of South Carolina and the laws of the
State of Delaware (the "Merger").
NOW THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
PRINCIPAL TERMS OF THE MERGER
Section 1.1 Merger of Parent into Subsidiary. At the Effective Time of
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the Merger (as defined in Section 1.2 hereof), the Parent shall merge with and
into the Subsidiary in accordance with the South Carolina Business Corporation
Act (the "SCBCA") and the Delaware General Corporation Law (the "DGCL"). The
separate existence of the Parent shall thereupon cease and the Subsidiary shall
be the surviving corporation (hereinafter sometimes referred to as the
"Surviving Corporation") and shall continue its corporate existence under the
laws of the State of Delaware.
Section 1.2 Effective Time of the Merger. The Merger shall become
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effective as of the date and time (the "Effective Time of the Merger") the
following actions are completed: (a) appropriate articles of merger are filed
with the Secretary of State of the State of South Carolina, and a certificate of
merger is issued by the Secretary of State of the State of South Carolina in
accordance with the SCBCA and (b) an appropriate certificate of merger is filed
with the Secretary of the State of Delaware in accordance with the DGCL.
Exhibit 2.1 - Page 1
Section 1.3 Effects of the Merger. At the Effective Time of the Merger,
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the Merger shall have the effects specified in the SCBCA, the DGCL and this
Merger Agreement.
Section 1.4 Certificate of Incorporation and Bylaws. At the Effective
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Time of the Merger, the Certificate of Incorporation and bylaws of the
Subsidiary, as in effect immediately prior to the Effective Time of the Merger,
shall become the Certificate of Incorporation and bylaws of the Surviving
Corporation until duly amended in accordance with their terms and as provided by
the DGCL.
Section 1.5 Directors and Officers. At the Effective Time of the Merger,
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the directors and officers of the Subsidiary in office at the Effective Time of
the Merger shall become the directors and officers, respectively, of the
Surviving Corporation, each of such directors and officers to hold office,
subject to the applicable provisions of the Certificate of Incorporation and
bylaws of the Surviving Corporation and the DGCL, until his or her successor is
duly elected or appointed and qualified.
Section 1.6 Shareholders' Dissenters Rights. The Shareholders of the
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Parent are entitled to dissenters' rights under Chapter 13 of the SCBCA. In the
event that shareholders collectively owning more than one percent (1%) of the
shares of the Parent exercise his, her or its dissenters' rights, the Parent's
board of directors may abandon the Merger in its sole discretion.
ARTICLE II
CONVERSION AND EXCHANGE OF STOCK
Section 2.1 Conversion. At the Effective Time of the Merger, each of the
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following transactions shall be deemed to occur simultaneously:
(a) Each share of the Parent's common stock, no par value (the "Parent's
Common Stock") issued and outstanding, immediately prior to the Effective Time
of the Merger shall, by virtue of the Merger and without any action on the part
of the holder thereof, be converted into and become one validly issued, fully
paid and nonassessable share of the Surviving Corporation's common stock, par
value $0.0001 per share (the "Surviving Corporation's Common Stock").
(b) Each share of the Parent's Series A Preferred Stock, no par value (the
"Parent's Series A Preferred Stock") issued and outstanding, immediately prior
to the Effective Time of the Merger shall, by virtue of the Merger and without
any action on the part of the holder thereof, be converted into and become one
validly issued, fully paid and nonassessable share of the Surviving
Corporation's Series A Preferred Stock, par value $0.0001 per share (the
"Surviving Corporation's Series A Preferred Stock").
(c) Each option to purchase shares of the Parent's Common Stock outstanding
immediately prior to the Effective Time of the Merger shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and become an option to purchase, upon the same terms and conditions, the
Exhibit 2.1 - Page 2
number of shares of the Surviving Corporation's Common Stock, which is equal to
the number of shares of the Parent's Common Stock that the optionee would have
received had the optionee exercised such option in full immediately prior to the
Effective Time of the Merger (whether or not such option was then exercisable)
and the exercise price per share under each of said options shall be equal to
the exercise price per share thereunder immediately prior to the Effective Time
of the Merger, unless otherwise provided in the instrument granting such option.
(d) Each warrant to purchase shares of the Parent's Common Stock
outstanding immediately prior to the Effective Time of the Merger shall, by
virtue of the Merger and without any action on the part of the holder thereof,
be converted into and become a warrant to purchase, upon the same terms and
conditions, the number of shares of the Surviving Corporation's Common Stock
which is equal to the number of shares of the Parent's Common Stock that the
warrant holder would have received had the warrant holder exercised such warrant
in full immediately prior to the Effective Time of the Merger (whether or not
such warrant was then exercisable) and the exercise price per share under each
of said warrants shall be equal to the exercise price per share thereunder
immediately prior to the Effective Time of the Merger, unless otherwise provided
in the instrument granting such warrant.
(e) Each share of the Subsidiary's Common Stock issued and outstanding
immediately prior to the Effective Time of the Merger and held by the Parent
shall be canceled without any consideration being issued or paid therefor.
Section 2.2 Exchange.
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(a) After the Effective Time of the Merger, each certificate theretofore
representing issued and outstanding shares of the Parent's Common Stock shall
represent one share of the Surviving Corporation's Common Stock.
(b) At any time on or after the Effective Time of the Merger, each holder
of an outstanding certificate theretofore representing the Parent's Common Stock
will be requested to surrender such certificate to StockTrans, Inc. as the
exchange agent (the "Exchange Agent"). As soon as practicable after the
surrender to the Exchange Agent of any certificate which prior to the Merger
represented shares of the Parent's Common Stock, together with a duly executed
transmittal letter and any other documents the Exchange Agent may specify, the
Exchange Agent shall deliver to the person in whose name such certificate has
been issued certificates registered in the name of such person representing the
number of full shares of the Surviving Corporation's Stock into which the shares
of the Parent's Common Stock previously represented by the surrendered
certificate shall have been reclassified.
ARTICLE III
EMPLOYEE BENEFIT AND INCENTIVE COMPENSATION PLANS
At the Effective Time of the Merger, each employee benefit plan, incentive
compensation plan and other similar plans to which the Parent is then a party
Exhibit 2.1 - Page 3
shall be assumed by, and continue to be the plan of, the Surviving Corporation.
To the extent any employee benefit plan, incentive compensation plan or other
similar plan of the Parent provides for the issuance or purchase of, or
otherwise relates to, the Parent's Common Stock, after the Effective Time of the
Merger such plan shall be deemed to provide for the issuance or purchase of, or
otherwise relate to, the Surviving Corporation's Common Stock.
ARTICLE IV
CONDITIONS
Consummation of the Merger is subject to the satisfaction at or prior to
the Effective Time of the Merger of the following conditions:
Section 4.1 Shareholder Approval. This Merger Agreement and the Merger
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shall have been adopted and approved by the affirmative vote of (i) a two-thirds
majority of the votes entitled to be cast by all shareholders of the Parent and
(ii) a two-thirds majority of each class of capital stock entitled to vote on
the Record Date fixed for determining the shareholders of the Parent entitled to
vote thereon. This Agreement and the Merger shall also have been adopted and
approved by the Parent as the holder of all the outstanding shares of the
Subsidiary's Common Stock prior to the Effective Time of the Merger.
Section 4.2 Third Party Consents. The Parent shall have received all
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required consents to and approvals of the Merger.
ARTICLE V
MISCELLANEOUS
Section 5.1 Amendment. This Merger Agreement may be amended, modified or
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supplemented in whole or in part, at any time prior to the Effective Time of the
Merger with the mutual consent of the boards of directors of the parties hereto;
provided, however, that the Merger Agreement may not be amended after it has
been adopted by the shareholders of the Parent in any manner which, in the
judgment of the board of directors of the Parent, would have a material adverse
effect on the rights of such shareholders or in any manner not permitted under
applicable law.
Section 5.2 Termination. This Merger Agreement may be terminated or
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abandoned by the parties hereto at any time prior to the filing of the
certificate of merger notwithstanding approval of this Merger Agreement by the
shareholders of either or both of the Parent or the Subsidiary.
Section 5.3 Necessary Actions, etc. If at any date after the Effective
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Time of the Merger, the Surviving Corporation shall consider that any
assignments, transfers, deeds or other assurances in law are necessary or
desirable to vest, perfect or confirm, of record or otherwise, in the Surviving
Corporation, title to any property or rights of the Parent, the Parent and its
Exhibit 2.1 - Page 4
officers and directors at the Effective Time of the Merger shall execute and
deliver such documents and do all things necessary and proper to vest, perfect
or confirm title to such property or rights in the Surviving Corporation, and
the officers and directors of the Surviving Corporation are fully authorized in
the name of the Parent or otherwise to take any and all such action.
Section 5.4 Counterparts. This Merger Agreement may be executed in any
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number of counterparts, each of which shall be considered to be an original
instrument.
Section 5.5 Descriptive Headings. The descriptive headings are for
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convenience of reference only and shall not control or affect the meaning or
construction of any provision of this Merger Agreement.
Section 5.6 Governing Law. This Merger Agreement shall be construed in
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accordance with the laws of the State of Delaware, except to the extent the laws
of the State of South Carolina shall mandatorily apply to the Merger.
IN WITNESS WHEREOF, the undersigned officers of each of the parties to this
Merger Agreement, pursuant to authority duly given by their respective boards of
directors, have caused this Merger Agreement to be duly executed on the date set
forth above.
US PATRIOT, INC.
By:
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Christopher Schwartz
Chief Executive Officer, President and Secretary
TRIMEDIA ENTERTAINMENT GROUP, INC.
By:
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Christopher Schwartz
Chief Executive Officer, President and Secretary
Exhibit 2.1 - Page 5
CERTIFICATES
The undersigned, Secretary of TriMedia Entertainment Group, Inc. a Delaware
corporation, hereby certifies, pursuant to Section 252(c) of the General
Corporation Law of the State of Delaware, that the foregoing Agreement and Plan
of Merger to which this Certificate is attached, after having been first duly
signed on behalf of TriMedia Entertainment Group, Inc. by its Chief Executive
Officer and attested to by its Secretary, was duly submitted to the stockholders
of TriMedia Entertainment Group, Inc. for the purpose of considering and acting
upon said Agreement and Plan of Merger, on the ____ day of ___________, 2002,
and at said meeting said Agreement and Plan of Merger was adopted by the sole
stockholder of TriMedia Entertainment Group, Inc., in accordance with the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on the
_____ day of _______________, 2002.
______________________________
Christopher Schwartz, Secretary
The undersigned, Secretary of US Patriot, Inc., a South Carolina
corporation, hereby certifies, pursuant to Section 33-11-103 of the South
Carolina Statutes, that the foregoing Agreement and Plan of Merger to which this
Certificate is attached, after having been first duly signed on behalf of US
Patriot, Inc. by its President and attested to by its Secretary, was duly
submitted to the shareholders of US Patriot, Inc. at a meeting thereof called
for the purpose of considering and acting upon said Agreement and Plan of
Merger, held after due notice on the _____ day of __________, 2002, and that at
said meeting said Agreement and Plan of Merger was adopted by the shareholders
of US Patriot, Inc. in accordance with the South Carolina Business Corporation
Act of 1988.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on the
____ day of ____________, 2002.
__________________________________
Christopher Schwartz, Secretary
Exhibit 2.1 - Page 6