AGREEMENT AND PLAN OF MERGER OF HMH ENTERTAINMENT, INC. , a Nevada corporation AND SAVAGE MOUNTAIN SPORTS CORPORATION, a Delaware corporation
AGREEMENT
AND PLAN OF MERGER OF
HMH
ENTERTAINMENT, INC. ,
a
Nevada corporation
AND
SAVAGE
MOUNTAIN SPORTS CORPORATION,
a
Delaware corporation
THIS
AGREEMENT AND PLAN OF MERGER dated as of January 6, 2000. (the “Agreement”) is
between Savage Mountain Sports Corporation, a Delaware corporation (“Savage Mountain”) and
HHH Entertainment, Inc., a Nevada corporation ("HHH”). Savage
Mountain and HHH are sometimes referred to herein as the "Constituent
Corporations."
RECITALS
▇. ▇▇▇▇▇▇
Mountain is a corporation duly organized and existing under the laws of the
State of Delaware and has an authorized capital of 100,000,000 shares, all of
which are designated "Common Stock," $.001 par value. As of the date of this
Agreement of Merger, 1,000 shares of Common Stock were issued and outstanding,
all of which were held by HHH.
B. HHH is a
corporation duly organized and existing under the laws of the State of Nevada
and has an authorized capital of 100,000,000 shares, all of which are designated
"Common Stock”, $.001 par value per share. As of the date of this Agreement of
Merger, 23,237,045 shares of Common Stock were issued and
outstanding.
C. The Board of
Directors of HHH has determined that, for the purpose of effecting the
reincorporation of HHH in the State of Delaware, it is advisable and in the best
interests of HHH that HHH merge with and into Savage Mountain upon the terms and
conditions herein provided.
D. The
respective Boards of Directors of Savage Mountain and HHH have approved this
Agreement and have directed that this Agreement be submitted to a vote of their
respective stockholders and executed by the undersigned officers.
NOW,
THEREFORE, in consideration of the mutual agreements and covenants set forth
herein, Savage Mountain and HHH hereby agree, subject to the terms and
conditions hereinafter set forth, as follows:
I.
MERGER
1.1 Merger. In accordance
with the provisions of this Agreement, the Delaware General Corporation Law and
the Nevada Revised Statutes, HHH shall be merged with and into Savage Mountain
(the "Merger”), the separate existence of HHH shall cease and Savage Mountain
shall be, and is
herein sometimes referred as, the "Surviving Corporation", and the name of the
Surviving Corporation shall be Savage Mountain Sports Corporation.
Page 1 of
6
1.2 Filing and Effectiveness. The Merger shall
become effective when the following actions shall have been completed:
(a) This
Agreement and Merger shall have been adapted and approved by
the stockholders of each Constituent Corporation in accordance with the
requirements of the Delaware General Corporation Law and the Nevada Revised
Statutes;
(b) All of
the conditions precedent to the consummation of the Merger specified in
this Agreement shall have been satisfied or duly waived by the party entitled to
satisfaction thereof;
(c) An
executed Agreement and Plan of Merger meeting the requirements of the Delaware
General Corporation Law shall have been filed with the Secretary of State of the
State of Delaware; and The date and time when the Merger shall become effective,
as aforesaid, is herein called the “Effective Date of the
Merger”
1.3 Effect of the Merger. Upon
the Effective Date of the Merger, the separate existence of HHH shall cease and
Savage Mountain, as the Surviving Corporation, (i) shall continue to possess
all of its assets, rights, powers and property as constituted
immediately prior the Effective Date of the Merger, (ii) shall be subject to all
actions previously taken by its and HHH’s Board of Directors, (iii) shall
succeed, without other transfer, to all of the assets, rights, powers and
property of HHH in the manner more fully set forth in Section 259 of the
Delaware General Corporation Law, (iv) shall continue to be subject to all of
the debts, liabilities and obligations of Savage Mountain as constituted
immediately prior to the Effective Date of the Merger, and (v) shall succeed,
without other transfer, to all of the debts, liabilities and obligations of
HHH in the same manner as if Savage Mountain had itself incurred them, all
as more fully provided under the applicable provisions of the Delaware General
Corporation Law and the Nevada Revised Statutes.
II.
CHARTER DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate of Incorporation. The Certificate of
Incorporation of Savage Mountain as in effect immediately prior to the Effective
Date of the Merger shall continue in full force and effect as the Certificate of
Incorporation of the Surviving Corporation until duly amended in accordance with
the provisions thereof and applicable law.
2.2 Bylaws. The Bylaws of
Savage Mountain as in effect immediately prior to the Effective Date of the
Merger shall continue in full force and effect as the Bylaws of the Surviving
Corporation until duly amended in accordance with the provisions thereof and
applicable law.
2.3 Directors and
Officers. The directors and officers of HHH immediately prior to the
Effective
Date of the Merger shall be the directors and officers of the Surviving
Corporation until their
successors shall have been duly elected and qualified or until as otherwise
provided by law, the Certificate of Incorporation of the
Surviving Corporation or the Bylaws of the Surviving Corporation.
Page 2 of
6
III.
MANNER OF CONVERSION OF STOCK
3.1. HHH Common Shares.
Upon the Effective Date of the Merger, each share of HHH Common Stock, $.001 par
value, issued and outstanding immediately prior thereto, shall by virtue of the
Merger and without any action by the Constituent Corporations, the holder of
such shares or any other person, be converted into and exchanged for one fully
paid and nonassessable share of Common Stock, $.001 par value per share, of the
Surviving Corporation. No fractional share interests of Surviving Corporation
Common Stock shall be issued. In lieu
thereof, any fractional share interests to which a holder would otherwise be
entitled shall be aggregated.
3.2 HHH Options, Stock Purchase
Rights and Convertible Securities.
(a) Upon the
Effective Date of the Merger, the Surviving Corporation shall assume the
obligations of HHH under, and continue, any and all option plans. Each
outstanding and unexercised option, other right to purchase, or security
convertible into HHH Common Stock (a "Right”) shall become,
subject to the provisions in paragraph (c) hereof, an option, right to purchase
or a security convertible into the Surviving Corporation's Common Stock on the
basis of one share of the Surviving Corporation's Common Stock for each one
share of HHH Common Stock issueable pursuant to any such Right, on the same
terms and conditions and at an exercise price equal to the exercise price
applicable to any such HHH Right at the Effective Date of the
Merger. This paragraph 3.2(a) shall not apply to HHH Common Stock
which is subject to paragraph 3.1.
(b) A number
of shares of the Surviving Corporation's Common Stock shall be reserved for
issuance upon the exercise of options, stock purchase rights and convertible
securities, equal to the number of shares of HHH Common Stock so reserved
immediately prior to the Effective Date of the Merger.
(c) The
assumed Rights shall not entitle any holder thereof to a fractional share upon
exercise or conversion. In addition, no "additional benefits" (within the
meaning of Section 424(a)(2) of the Internal Revenue Code of 1986, as amended)
shall be accorded to the optionees pursuant to the assumption of their
options.
3.3 Savage Mountain Common
Stock. Upon the Effective Date of the Merger, each share of Common Stock,
$.001 par value, of Savage Mountain issued and outstanding immediately prior
thereto shall, by virtue of the Merger and without any action by Savage
Mountain, the holder of such shares or any other person, be canceled and
returned to the status of authorized but unissued shares.
3.4 Exchange of
Certificates. After the Effective Date of the merger, each holder of an
outstanding certificate representing shares of HHH Common Stock may be asked to
surrender the same for cancellation to American Registrar & Transfer Co.
(the "Exchange Agent”), and each such holder
shall be entitled to receive in exchange therefor a certificate or certificates
representing the number of shares of the Surviving Corporation's Common Stock as
the case may be, into which the surrendered shares were converted as herein
provided. Until so surrendered, each outstanding certificate theretofore
representing shares of HHH Common Stock shall be deemed for all purposes to
represent the number of shares of the Surviving Corporation's Common Stock,
respectively, into which such shares of HHH Common Stock, as the case may be,
were converted in the Merger.
Page 3 of
6
The
registered owner on the books and records of the Surviving Corporation or the
Exchange Agent of any such outstanding certificate shall, until such certificate
shall have been surrendered for transfer or conversion or otherwise accounted
for to the Surviving Corporation or the Exchange Agent, have and be
entitled to exercise any voting and other rights with respect to and to receive
dividends and other distributions upon the shares of Common Stock of the
Surviving Corporation represented by such outstanding certificate as provided
above.
Each
certificate representing Common Stock of the Surviving Corporation so issued in
the Merger shall bear the same legends, if any, with respect to the restrictions
on transferability as the certificates of .HHH so converted and given in
exchange therefore, unless otherwise determined by the Board of Directors of the
Surviving Corporation in compliance with applicable laws.
If any
certificate for shares of the Surviving Corporation's stock is to be issued in a
name other than that in which the certificate surrendered in exchange therefor
is registered, it shall be a condition of issuance thereof that the certificate
so surrendered shall be properly endorsed and otherwise in proper form for
transfer, that such transfer otherwise be proper and comply with applicable
securities laws and that the person requesting such transfer pay to the Exchange
Agent any transfer or other taxes payable by reason of issuance of such new
certificate in a name other than that of the registered holder of the
certificate surrendered or establish to the satisfaction of the Surviving
Corporation that such tax has been paid or is not payable.
IV.
GENERAL
4.1 Covenants of Savage Mountain.
Savage Mountain covenants and agrees that it will, on or before the Effective
Date of the Merger:
(a) Qualify
to do business as a foreign corporation in the State of Nevada and in connection
therewith irrevocably appoint an agent for service of
process.
(b) File any
and all documents necessary for the assumption by Savage Mountain of all of the
tax liabilities of HHH.
(c) Take such
other actions as may be required by the Nevada Revised
Statutes.
4.2 Further Assurances.
From time to time, as and when required by Savage Mountain or by its
successors or assigns, there shall be executed and delivered on behalf of HHH
such deeds and other
instruments, and there shall be taken or caused to be taken by it such further
and other actions
as shall be appropriate or necessary in order to vest or perfect in or
conform of record or otherwise by Savage Mountain the title to and possession of
all the property, interests, assets, rights, privileges, immunities, powers,
franchises and authority of HHH and otherwise to carry out the purposes of this
Agreement, and the officers and directors of Savage Mountain are fully
authorized in the name and on behalf of HHH or otherwise to take any and all
such action and to execute and deliver any and all such deeds and other
instruments.
Page 4 of
6
4.3 Abandonment. At any
time before the Effective Date of the Merger, this Agreement may be
terminated and the Merger may be abandoned for any reason whatsoever by the
Board of Directors of either HHH or Savage Mountain, or of both, notwithstanding
the approval of this Agreement by the stockholders of HHH or by the sole
stockholder of Savage Mountain, or by both.
4.4 Amendment. The Boards
of Directors of the Constituent Corporations may amend this Agreement at any
time prior to the filing of this Agreement (or certificate in lieu thereof)
with the Secretary of State of the States of Nevada and Delaware, provided that
an amendment made subsequent to the adoption of this Agreement by the
stockholders of either Constituent Corporation shall not: (1) alter or change
the amount or kind of shares, securities, cash, property and/or rights to be
received in exchange for or on conversion of all or any of the shares of any
class or series thereof of such Constituent Corporation, (2) alter or change any
term of the Certificate of Incorporation of the Surviving Corporation to be
effected by the Merger, or (3) alter or change any of the terms and conditions
of this Agreement if such alternation or change would adversely affect the
holders of any class or series of capital stock of any Constituent
Corporation.
4.5 Registered Office. The
registered office of the Surviving Corporation in the State of Delaware is ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and The Corporation
Trust Company is the registered agent of the Surviving Corporation at such
address.
4.6 Agreement. Executed
copies of this Agreement will be on file at the principal place of business of
the Surviving Corporation at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and copies thereof will be furnished to any
stockholder of either Constituent Corporation, upon request and without
cost.
4.7 Governing Law. This
Agreement shall in all respects be construed, interpreted and enforced in
accordance with the governed by the laws of the State of Delaware and,
so far as applicable, the merger provisions of the Nevada Revised
Statutes.
4.8 Counterparts. In
order to facilitate the filing and recording of this Agreement, the same may be
executed in any number of counterparts, each of which shall be deemed to be an
original and all of which together shall constitute one and the same
instrument.
Page 5 of
6
IN
WITNESS WHEREOF, this Agreement having first been approved by the resolutions of
the Board of Directors of Savage Mountain and HHH is hereby executed on
behalf of each of such two corporations and attested by their respective
officers there unto duly authorized.
| Savage Mountain Sports Corporation, a Delaware corporation | ||||
|
|
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President | ||||
| ATTEST: | ||||
| /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇ ▇▇▇▇▇▇▇, Secretary | ||||
| HHH Entertainment, Inc., a Nevada corporation | ||||
|
|
By:
|
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President | ||||
| ATTEST: | ||||
| /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| ▇▇▇▇ ▇▇▇▇▇▇▇, Secretary | ||||
Page 6 of 6