AGREEMENT AND PLAN OF MERGER
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THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") dated as of July 14,
1997 (the "Closing Date") between International Fast Food Corporation (the
"Purchaser"), with its principal place of business, and mailing address, located
at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, IFFC Acquisition,
Inc. having an office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ("Acquisition Sub") and a wholly-owned subsidiary of Purchaser, Litigation
Funding, Inc. ("Funding"), with its principal place of business, and mailing
address, located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇ (collectively the "Sellers"), individuals residing at
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H :
WHEREAS, Funding is a corporation organized under the laws of the State of
Florida; and
WHEREAS, the Purchaser is indebted to Funding in the amount of Two Million
One Hundred Ninety-Eight Thousand Four Hundred Ninety-Four Dollars ($2,198,494)
plus accrued interest, pursuant to a promissory note and is responsible for
certain additional obligations pursuant to prior agreements with Funding,
including, but not limited to, obligations with respect to certain "contract
modification proceeds" (including but not limited to the value of Purchaser's
new Development Agreement with Burger King Corporation) as defined in that
certain Agreement to Assign Litigation Proceeds, as amended (the "Funding
Agreement); and
WHEREAS, the Board of Directors of the Purchaser believes that in order to
continue the development of its business plan it is in the best interest of the
Purchaser, to enter into this Agreement; and
WHEREAS, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ serves as the Chairman of the Board, Chief
Executive Officer and President of Funding and also serves as the Chairman of
the Board, Chief Executive Officer and President of the Purchaser; and
WHEREAS, the Sellers own one hundred percent (100%) of the capital stock
of Funding; and
WHEREAS, Purchaser, Acquisition Sub, Funding and the Sellers wish to set
forth the terms and conditions upon which a merger of Funding with and into
Acquisition Sub will occur and provide for the representations, warranties,
agreements and conditions applicable to the transactions contemplated by this
Agreement; and
WHEREAS, the Board of Directors of each of Purchaser, Acquisition Sub and
Funding deems the merger advisable and in the best interest of Purchaser,
Acquisition Sub and Funding and of their respective shareholders. The Board of
Directors of each of Purchaser, Acquisition Sub and Funding has adopted
resolutions approving this Agreement and the transactions contemplated hereby,
and each of the Board of Directors of Acquisition Sub and Funding have directed
that this Agreement be submitted for consideration by the shareholders of
Acquisition Sub and Funding; and
WHEREAS, the parties hereto intend this transaction to be treated as a
tax-free reorganization, as that term is defined in the Internal Revenue Code of
1986 as amended, under Code Section 368(a)(1)(A) and (a)(2)(D).
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the Purchaser and the Sellers hereby agree as
follows:
1. INCORPORATION BY REFERENCE. The above recitals are herein
incorporated by reference.
2. THE MERGER.
2.1 THE MERGER. Upon the terms and subject to the conditions of
this Agreement, at the Effective Time as set forth in the Articles of Merger,
Funding shall be merged with and into Acquisition Sub (the "Merger"). The
separate existence and corporate organization of Funding shall thereupon cease
and Funding and Acquisition Sub shall thereupon be a single corporation.
Acquisition Sub shall be the surviving corporation in the Merger (the "Surviving
Corporation") and shall continue its existence under the provisions of the
Florida Business Corporation Act (the "Florida Act").
2.2 EFFECTIVE DATE OF THE MERGER. On the Closing Date, a
certificate of merger (the "Articles of Merger") shall be executed by Funding
and Acquisition Sub and shall be filed with the Secretary of State of the State
of Florida. The Merger shall become effective at such time as the Certificate of
Merger is filed with the Secretary of State of the State of Florida, such time
being hereinafter called the "Effective Time."
2.3 ARTICLES OF INCORPORATION. The Articles of Incorporation of
Acquisition Sub as in effect immediately prior to the Effective Time shall be
and remain the Articles of Incorporation of the Surviving Corporation from and
after the Effective Time until amended as provided by law.
2.4 BY-LAWS. The By-Laws of Acquisition Sub as in effect
immediately prior to the Effective Time shall be and remain the By-Laws of the
Surviving Corporation from and after the Effective Time until amended as
provided by law.
2.5 DIRECTORS AND OFFICERS. Acquisition Sub and Purchaser shall,
at Closing, cause ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to be appointed as
directors of the Surviving Corporation. The officers of Acquisition Sub who
shall serve as the officers of the Surviving Corporation until their successors
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have been elected or appointed and shall have qualified in accordance with the
Florida Act and the articles of incorporation and by-laws of the Surviving
Corporation shall be ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as
Secretary/Vice President/Treasurer.
2.6 CLOSING. The closing of such Merger (the "Closing") shall be
effective July 14, 1997, subject to the Purchaser obtaining the approval of
Burger King Corporation, or at such later date as the parties hereto shall agree
in writing (the "Closing Date"), and shall be held at the offices of the counsel
for Purchaser.
2.7 CONVERSION OF FUNDING COMMON STOCK. At the Effective Time, by
virtue of the Merger and without any action on the part of any holder of capital
stock of Purchaser, Acquisition Sub, Funding or Seller; (i) the shares of Common
Stock of Acquisition Sub issued and outstanding immediately prior to the
Effective Time shall remain issued and outstanding, and, as a result of the
Merger and without any action on the part of the holder thereof, shall remain
and thereafter shall be all of the issued and outstanding shares of capital
stock of the Surviving Corporation; (ii) all of the shares of Funding shall be
converted into and shall become, without further action on the part of the
Sellers, the right to receive 23,238,569 shares of common stock of the Purchaser
(subject to adjustment no later than August 14, 1997, such adjustment to reflect
that number of shares equal to $3,021,014 (the value assigned to Funding)
divided by the book value per share of Purchaser's Common Stock as at June 30,
1997 as reported in the Purchaser's 10-QSB for the second quarter of 1997) (the
"Company Shares").
3. OBLIGATIONS OF SELLERS AND FUNDING.
At the Closing the Sellers and Funding shall deliver to the
Purchaser the following:
(a) Stock Certificate No. 2 dated January 23, 1996 registered in
the name of the Sellers, and representing 100% of the capital stock of Funding
(100 shares), duly endorsed to the Purchaser.
(b) Promissory Note in the principal amount of Two Million One
Hundred Ninety-Eight Thousand Four Hundred Ninety-Four Dollars ($2,198,494).
(c) Resolutions of the shareholders and Board of Directors of
Funding authorizing the execution, delivery and performance of this Agreement.
(d) A Good Standing Certificate of Funding and certified copies of
Funding's Articles of Incorporation and By-Laws.
4. OBLIGATIONS OF THE PURCHASER AND ACQUISITION SUB. At the Closing,
the Purchaser and Acquisition Sub shall deliver to the Sellers and Funding:
(a) the Company Shares.
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(b) Resolutions of the Board of Directors of Purchaser and
Acquisition Sub and the shareholders of Acquisition Sub authorizing execution,
delivery and performance of this Agreement.
(c) Satisfactory evidence of consent of Burger King Corporation.
5. CLOSING AND CONDITION TO CLOSING.
5.1 CONDITION TO CLOSING. The Closing shall be subject to
satisfaction of the following conditions: (i) the representations and warranties
of (a) the Sellers and/or Funding contained in Section 6 hereof, and (b) the
Purchaser and Acquisition Sub contained in Section 7 hereof, are true and
correct and shall be true and correct as of the Closing Date; (ii) the Sellers
shall have delivered to the Purchaser and Acquisition Sub the items required by
Section 3 hereof; (iii) the Purchaser and Acquisition Sub shall have delivered
to the Sellers and Funding the item required by Section 4 hereof; and (iv) the
Purchaser, Acquisition Sub, Funding and the Sellers shall have performed and
complied with all agreements and conditions required by this Agreement to be
performed and complied with by such party prior to or as of the Closing Date.
6. REPRESENTATIONS AND WARRANTIES OF FUNDING AND SELLERS.
6.1 ORGANIZATION AND STANDING OF FUNDING. Funding is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida, and is entitled to own or lease its property and to carry on
its business as and in the places where such properties are now owned, leased or
operated. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
all necessary corporate action on the part of Funding, and will not result in a
breach or default under, or result in the creation of any lien, security
interest, charge or encumbrance upon the Funding Shares, or any of the
properties or assets of Funding as a result of the terms, conditions or
provisions of any contract, note, mortgage or any other agreement, instrument or
obligation to which Funding is a party or by which Funding or any of its
properties or assets may be bound.
6.2 CAPITALIZATION. The authorized capital stock of Funding
consists of One Hundred (100) shares of Common Stock, par value $.01 per share
of which One Hundred (100) shares of Common Stock are duly and validly issued,
outstanding, fully-paid and non-assessable and are owned by Sellers. There are
currently no outstanding warrants, options, subscription rights or other
commitments of any character granted by Funding relating to the issued or
unissued shares of capital stock of Funding.
6.3 AUTHORITY OF FUNDING AND SELLERS; CONSENTS; EXECUTION OF
AGREEMENTS. Funding and Sellers have all requisite power, authority, and
capacity to enter into this Agreement and to perform the transactions and
obligations to be performed by them hereunder. No consent, authorization,
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approval, license, permit or order of, or filing with, any person or
governmental authority is required in connection with the execution or the
transactions and obligations to be performed by it hereunder. The execution and
delivery of this Agreement, and the performance of the transactions and
obligations contemplated hereby by Funding and the Sellers, have been duly
authorized by all requisite corporate action of Funding. This Agreement has been
duly executed and delivered by Funding and the Sellers and constitutes a valid
and legally binding obligation of Funding and the Sellers, enforceable in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws.
6.4 COMPLIANCE WITH LAWS AND CONTRACTS. The execution, delivery
and performance by Funding and the Sellers of this Agreement and the other
documents and instruments contemplated by this Agreement to be executed,
delivered and performed by Funding and the Sellers in compliance with their
respective terms and provisions does not and will not (i) violate, conflict with
or result in a default under Funding's Articles of Incorporation or Bylaws; (ii)
violate any statute, ordinance, rule, regulation, order or decree of any court
or of any public, governmental or regulatory body, agency or authority
applicable to Funding; (iii) require any filing with, or permit, consent or
approval of, or the giving of any notice to, any public, governmental, or
regulatory body, agency or authority by Funding; (iv) conflict with, or result
in a breach of, any of the terms, conditions or provisions of any mortgage, lien
or other security arrangement or any agreement, instrument, order, judgment,
decree or any other restriction of similar kind or character to which Funding is
a party or is otherwise bound; or (v) will not result in the declaration or
imposition of any lien, charge or other encumbrance of any nature whatsoever
upon any of the shares or funding purchased by the Purchaser hereunder.
6.5 THE FUNDING SHARES. Funding and Sellers warrant and represent
that the shares of Funding's common stock are duly authorized, validly issued
and free and clear of any liens, pledges, hypothecations, options, contracts or
encumbrances.
6.6 LITIGATION. There are no legal proceedings pending or
threatened against Funding, and there is no outstanding judgment, order, writ,
injunction or decree of any court against or affecting Funding.
6.7 INVESTMENT. Sellers warrant and acknowledge that:
6.7.1 the Company Shares have not been registered under the
Securities Act of 1933, as amended ("Act"), or under applicable state blue sky
laws;
6.7.2 the Sellers are acquiring the Company Shares for their
own account and not with a view to, or for sale in connection with, any
distribution thereof; and
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6.7.3 the Sellers are aware that the Company Shares may not be
sold unless such securities are registered pursuant to the Act or qualify for an
exemption from such registration.
6.8 TRUE AS OF CLOSING DATE. Funding and the Sellers warrant and
represent that the representations and warranties contained in this Agreement
are true and correct in all respects as of the Closing Date.
7. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND ACQUISITION SUB.
7.1 ORGANIZATION AND STANDING OF THE PURCHASER AND ACQUISITION
SUB. The Purchaser and Acquisition Sub are corporations duly organized, validly
existing and in good standing under the laws of the State of Florida, and each s
entitled to own or lease its property and to carry on its business as and in the
places where such properties are now owned, leased or operated. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of the Purchaser and Acquisition Sub, and will not
result in a breach or default under, or result in the creation of any lien,
security interest, charge or encumbrance upon the Company Shares, or any of the
properties or assets of the Purchaser or Acquisition Sub as a result of the
terms, conditions or provisions of any contract, note, mortgage or any other
agreement, instrument or obligation to which the Purchaser or Acquisition Sub is
a party or by which they or any of their properties or assets may be bound.
7.2 CAPITALIZATION. The authorized capital stock of the Purchaser
consists of One Hundred Million (100,000,000) shares of Common Stock, par value
$.01 per share of which Seventeen Million Five Hundred Fifty-Five Thousand Five
Hundred Seventeen (17,555,517) shares of Common Stock are presently issued and
outstanding. The authorized capital stock of Acquisition Sub consist of One
Thousand (1,000) shares of common stock par value $.01 per share of which One
Hundred (100) shares of common stock are presently issued and outstanding.
7.3 AUTHORITY OF THE PURCHASER AND ACQUISITION SUB; CONSENTS;
EXECUTION OF AGREEMENTS. The Purchaser and Acquisition Sub have all requisite
power, authority, and capacity to enter into this Agreement and to perform the
transactions and obligations to be performed by them hereunder. No consent,
authorization, approval, license, permit or order of, or filing with, any person
or governmental authority is required in connection with the execution or the
transactions and obligations to be performed by it hereunder (except that the
Acquisition Sub is required to obtain the consent of its shareholder to
effectuate this Agreement). The execution and delivery of this Agreement, and
the performance of the transactions and obligations contemplated hereby by the
Purchaser and Acquisition Sub, have been duly authorized by all requisite
corporate action of the Purchaser and Acquisition Sub. This Agreement has been
duly executed and delivered by the Purchaser and Acquisition Sub and constitutes
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a valid and legally binding obligation of the Purchaser and Acquisition Sub,
enforceable in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws.
7.4 TRUE AS OF CLOSING DATE. The Purchaser and Acquisition Sub
warrants and represents that the representations and warranties contained in
this Agreement are true and correct in all respects as of the Closing Date.
7.5 THE COMPANY SHARES. Purchaser warrants and represents that the
Purchaser is authorized to issue the Company Shares, and that the Company
Shares, when issued, are free and clear of all liens, pledges, hypothecations,
options, contracts and other encumbrances.
8. NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed to have been duly given if
physically delivered; delivered by overnight delivery, confirmed telecopy,
telegram or courier; or three days after having been deposited in the United
States Mail, as certified mail with return receipt requested and with postage
prepaid, addressed to the recipient at the address listed at the top of the
first page of this Agreement. Any of the foregoing addresses may be changed by
giving notice of such change in the foregoing manner, except that notices for
changes of address will be effective only upon receipt.
9. TERMINATION. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by mutual consent of the parties hereto;
(b) upon a material breach by either party of any representation,
warranty or covenant contained in this Agreement, and such breach shall not have
been cured within ten (10) days after receipt by the party in breach of a notice
from the non- breaching party setting forth in detail the nature of such breach.
10. MISCELLANEOUS.
(a) ASSIGNMENT. This Agreement and the rights granted hereunder
may not be assigned in whole or in part by any of the parties without the prior
written consent of the other parties.
(b) FURTHER ASSURANCES. All parties hereto shall execute and
deliver such other instruments and do such other acts as may be necessary to
carry out the intent and purposes of this Agreement.
(c) GENDER. Whenever the context may require, any pronouns used
herein shall include the corresponding masculine, feminine or neuter forms and
the singular form of nouns and pronouns shall include the plural and VICE VERSA.
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(d) CAPTIONS. The captions contained in this Agreement are
inserted only as a matter of convenience and in no way define, limit, extend or
prescribe the scope of this Agreement or the intent of any of the provisions
hereof.
(e) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof.
It supersedes all prior negotiations, letters and understandings relating to the
subject matter hereof.
(f) AMENDMENT. This Agreement may not be amended, supplemented or
modified in whole or in part except by an instrument in writing signed by the
party or parties against whom enforcement of any such amendment, supplement or
modification is sought.
(g) CHOICE OF LAW. This Agreement will be interpreted, construed
and enforced in accordance with the laws of the State of Florida.
(h) EFFECT OF WAIVER. The failure of any party at any time or
times to require performance of any provision of this Agreement will in no
manner affect the right to enforce the same. The waiver by any party of any
breach of any provision of this Agreement will not be construed to be a waiver
by any such party of any succeeding breach of that provision or a waiver by such
party of any breach of any other provision.
(i) SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(j) ENFORCEMENT. Should it become necessary for any party to
institute legal action to enforce the terms and conditions of this Agreement,
the successful party will be awarded reasonable attorneys' fees, expenses and
costs at all trial and appellate levels. Venue for any such action, in addition
to any other venue permitted by statute, will be Broward County, Florida.
(k) BINDING NATURE. This Agreement will be binding upon and will
inure to the benefit of any successor or successors of the parties to this
Agreement.
(l) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
(m) CONSTRUCTION. This Agreement shall be construed within the
fair meaning of each of its terms and not against the party drafting the
document.
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The parties, as evidenced by their signatures below, acknowledge that this
Agreement has been presented to their attorneys and that their attorneys have
had the opportunity to review and explain to them the terms and provisions of
the Agreement, and that they fully understand those terms and provisions.
IN WITNESS WHEREOF, the parties have respectively caused this Agreement to
be executed on the date first above written.
Witnesses: Purchaser:
___________________________ International Fast Food Corporation
___________________________
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
Witnesses: Acquisition Sub:
___________________________ IFFC Acquisition, Inc.
___________________________
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
Witnesses: Sellers:
___________________________
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________ --------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________ --------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
Witnesses:
Litigation Funding, Inc.
___________________________
___________________________ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
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