EXHIBIT 10.5
Agreement and Plan of Merger dated March 9, 2000 between NMMI and ▇▇▇▇▇▇
Corporation wherein NMMI acquired all of the above shares of stock of ▇▇▇▇▇▇.
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER between ▇▇▇▇▇▇ CORPORATION, a Delaware
corporation ("▇▇▇▇▇▇"), and NEW MILLENNIUM MEDIA INTERNATIONAL, INC., a Colorado
corporation ("New Millennium"), ▇▇▇▇▇▇ and New Millennium being sometimes
referred to herein as the "Constituent Corporations."
WHEREAS, the board of directors of each Constituent Corporation deems it
advisable that the Constituent Corporations merge into a single corporation in a
transaction intended to qualify as a reorganization within the meaning of
Section 368 (a)(1)(A) of the Internal Revenue Code of 1986, as amended ("the
Merger");
NOW, THEREFORE, in consideration of the premises and the respective mutual
covenants, representations and warranties herein contained, the parties agree as
follows:
1. SURVIVING CORPORATION. ▇▇▇▇▇▇ shall be merged with and into New
Millennium, which shall be the surviving corporation in accordance with the
applicable laws of its state of incorporation.
2. MERGER DATE. The Merger shall become effective (the" Merger Date") upon
the completion of:
2.1. Adoption of this agreement by ▇▇▇▇▇▇ pursuant to the General
Corporation Law of Delaware and by New Millennium pursuant to Colorado Revised
Statutes and the Colorado General Corporation Law.
2.2. Execution and filing by New Millennium of Articles of Merger with the
Department of State of the State of Colorado in accordance with the Colorado
Revised Statutes.
2.3. Execution and filing by ▇▇▇▇▇▇ of a Certificate of Merger with the
Secretary of State of the State of Delaware in accordance with the General
Corporation Law of Delaware.
3. TIME OF FILINGS. The Articles of Merger shall be filed with the
Department of State of the State of Colorado and the Certificate of Merger shall
be filed with the Secretary of State of Delaware upon the approval, as required
by law, of this agreement by the Constituent Corporations and the fulfillment or
waiver of the terms and conditions herein. These filings will be completed
within two weeks from the execution of this Agreement.
4. GOVERNING LAW. The surviving corporation shall be governed by the laws
of the State of incorporation of New Millennium.
5. CERTIFICATE OF INCORPORATION. The Articles of Incorporation of New
Millennium shall be the Articles of Incorporation of the surviving corporation
from and after the Merger Date, subject to the right of New Millennium to amend
its Articles of Incorporation in accordance with the laws of the State of its
incorporation.
6. BYLAWS. The Bylaws of the surviving corporation shall be the Bylaws of
New Millennium as in effect on the date of this agreement.
7. BOARD OF DIRECTORS AND OFFICERS. The officers and directors of New
Millennium, or such other persons as shall be selected by it, shall be the
officers and directors of the surviving corporation following the Merger Date.
8. NAME OF SURVIVING CORPORATION. The name of the surviving corporation
will continue as "New Millennium Media International, Inc." unless changed by
New Millennium.
9. CONVERSION. The mode of carrying the Merger into effect and the manner
and basis of converting the shares of ▇▇▇▇▇▇ into shares of New Millennium are
as follows:
9.1. The aggregate number of shares of ▇▇▇▇▇▇ Common Stock issued and
outstanding on the Merger Date shall, by virtue of the Merger and without any
action on the part of the holders thereof, be converted
into an aggregate of 500,000 shares of New Millennium Common Stock adjusted by
any increase for fractional shares and reduced by any Dissenting Shares (defined
below).
The New Millennium Common Stock to be issued hereunder ("the New Millennium
Shares") will be issued pursuant to Rule 506 of the General Rules and
Regulations of the Securities and Exchange Commission, will be restricted as to
transferability pursuant to Rule 144 thereof, and will bear substantially the
following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "ACT")
AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN RULE 144
UNDER THE ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE
SATISFACTION OF THE COMPANY.
9.2. Upon completion of the Merger, there shall be 24,500,000 shares of New
Millennium Common Stock issued and outstanding, subject to such adjustments,
held as follows: 500,000 common shares held by ▇▇▇▇▇▇ ▇▇▇▇▇ and 24,000,000
common shares held by the other shareholders of New Millennium. The management
of New Millennium will not consolidate, reverse split or rollback the common
shares of New Millennium during the one-year period in which ▇▇▇▇▇▇ ▇▇▇▇▇ is
restricted from selling the 500,000 shares of New Millennium stock. Such
dilution would have an adverse effect on the amount and value of shares issued
to ▇▇▇▇▇▇ ▇▇▇▇▇ by New Millennium.
9.3. All outstanding Common or Preferred Stock of ▇▇▇▇▇▇ and all warrants,
options or other rights to its Common or Preferred Stock shall be retired and
canceled as of the Merger Date.
9.4. Each share of ▇▇▇▇▇▇ Common Stock that is owned by ▇▇▇▇▇▇ as treasury
stock shall, by virtue of the Merger and without any action on the part of
▇▇▇▇▇▇, be retired and canceled as of the Merger Date.
9.5. Each certificate evidencing ownership of shares of New Millennium
Common Stock issued and outstanding on the Merger Date or held by New Millennium
in its treasury shall continue to evidence ownership of the same number of
shares of New Millennium Common Stock.
9.6. New Millennium Common Stock shall be issued to the holders of ▇▇▇▇▇▇
Common Stock in exchange for their shares on a prorata bases in accordance with
each holder's relative ownership of the ▇▇▇▇▇▇ Common Stock that is being
exchanged.
9.7. The shares of New Millennium Common Stock to be issued in exchange for
▇▇▇▇▇▇ Common Stock hereunder shall be proportionately reduced by any shares
owned by ▇▇▇▇▇▇ shareholders who shall have timely objected to the Merger (the"
Dissenting Shares") in accordance with the provisions of the General Corporation
Law of Delaware, as provided therein.
10. EXCHANGE OF CERTIFICATES. As promptly as practicable after the Merger
Date, each holder of an outstanding certificate or certificates theretofore
representing shares of ▇▇▇▇▇▇ Common Stock (other than certificates representing
Dissenting Shares) shall surrender such certificate(s) for cancellation to the
party designated herein to handle such exchange (the "Exchange Agent"), and
shall receive in exchange a certificate or certificates representing the number
of full shares of New Millennium Common Stock into which the shares of ▇▇▇▇▇▇
Common Stock represented by the certificate or certificates so surrendered shall
have been converted. Any exchange of fractional shares will be rounded up to the
next highest number of full shares. New Millennium may, in its discretion,
require a bond in customary form before issuing any share certificate where a
corresponding share certificate has not been delivered by a shareholder of
▇▇▇▇▇▇ because of loss or other reason.
2
11. UNEXCHANGED CERTIFICATES. Until surrendered, each outstanding
certificate that prior to the Merger Date represented ▇▇▇▇▇▇ Common Stock (other
than certificates representing Dissenting Shares) shall be deemed for all
purposes, other than the payment of dividends or other distributions, to
evidence ownership of the number of shares of New Millennium Common Stock into
which it was converted. No dividend or other distribution payable to holders of
New Millennium Common Stock as of any date subsequent to the Merger Date shall
be paid to the holders of outstanding certificates of ▇▇▇▇▇▇ Common Stock;
provided, however, that upon surrender and exchange of such outstanding
certificates (other than certificates representing Dissenting Shares), there
shall be paid to the record holders of the certificates issued in exchange
therefore the amount, without interest thereon, of dividends and other
distributions that would have been payable subsequent to the Merger Date with
respect to the shares of New Millennium Common Stock represented thereby.
12. EFFECT OF THE MERGER: On the Merger Date, the separate existence of
▇▇▇▇▇▇ shall cease (except insofar as continued by statute), and it shall be
merged with and into New Millennium. All the property, real, personal and mixed,
of each of the Constituent Corporations, and all debts due to either of them,
shall be transferred to and vested in New Millennium, without further act or
deed. New Millennium shall thenceforth be responsible and liable for all the
liabilities and obligations, including liabilities to holders of Dissenting
Shares, of each of the Constituent Corporations, and any claim or judgment
against either of the Constituent Corporations maybe enforced against New
Millennium.
13. REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇. ▇▇▇▇▇▇ represents and
warrants that:
13.1. CORPORATE ORGANIZATION AND GOOD STANDING. ▇▇▇▇▇▇ is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware, and is qualified to do business as a foreign corporation in
each jurisdiction, if any, in which its property or business requires such
qualification.
13.2. REPORTING COMPANY STATUS. ▇▇▇▇▇▇ has filed with the Securities and
Exchange Commission a registration statement in form 10-SB, which became
effective pursuant to the Securities Exchange Act of 1934 on February 9, 2000
and is a reporting company pursuant to Section (g) thereunder.
13.3. REPORTING COMPANY FILINGS. ▇▇▇▇▇▇ has timely filed and is current on
all reports required to be filed by it pursuant to Section 13 of the Securities
Exchange Act of 1934.
13.4. CAPITALIZATION. ▇▇▇▇▇▇'▇ authorized capital stock consists of
100,000,000 shares of Common Stock, $.0001 par value, of which 5,000,000 shares
are issued and outstanding.
13.5. ISSUED STOCK. All the outstanding shares of its Common Stock are duly
authorized and validly issued, fully paid and non-assessable.
13.6. STOCK RIGHTS. Except as set out by attached schedule, there are no
stock grants, options, rights, warrants or other rights to purchase or obtain
▇▇▇▇▇▇ Common or Preferred Stock issued or committed to be issued.
13.7. CORPORATE AUTHORITY. ▇▇▇▇▇▇ has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its business as
it is now being conducted and to execute, deliver, perform and conclude the
transactions contemplated by this agreement and all other agreements and
instruments related to this agreement.
13.8 COMPLIANCE WITH RULE 12g-3. As a result of the merger and in
accordance with Rule 12g-3, NEW MILLENNIUM will be the successor company and the
common stock will be deemed qualified for listing on the Bulletin Board.
13.9. FINANCIAL STATEMENTS. ▇▇▇▇▇▇'▇ financial statements dated January 21,
2000, copies of which will have been delivered by ▇▇▇▇▇▇ to New Millennium prior
to the Merger Date (the "▇▇▇▇▇▇ Financial Statements"), fairly present the
financial condition of ▇▇▇▇▇▇ as of the date therein and the results of its
operations for the periods then ended in conformity with generally accepted
accounting principles consistently applied.
3
13.10 ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent reflected or
reserved against in the ▇▇▇▇▇▇ Financial Statements, ▇▇▇▇▇▇ did not have at that
date any liabilities or obligations (secured, unsecured, contingent, or
otherwise) of a nature customarily reflected in a corporate balance sheet
prepared in accordance with generally accepted accounting principles.
13.11. NO MATERIAL CHANGES. There has been no material adverse change in
the business, properties or financial condition of ▇▇▇▇▇▇ since the date of the
▇▇▇▇▇▇ Financial Statements.
13.12. LITIGATION. There is not, to the knowledge of ▇▇▇▇▇▇, any pending,
threatened, or existing litigation, bankruptcy, criminal, civil, or regulatory
proceeding or investigation, threatened or contemplated against ▇▇▇▇▇▇ or
against any of its officers.
13.13. CONTRACTS. ▇▇▇▇▇▇ is not a party to any material contract not in the
ordinary course of business that is to be performed in whole or in part at or
after the date of this agreement.
13.14. TITLE. ▇▇▇▇▇▇ has good and marketable title tall the real property
and good and valid title to all other property included in the ▇▇▇▇▇▇ Financial
Statements. The properties of ▇▇▇▇▇▇ are not subject to any mortgage,
encumbrance or lien of any kind except minor encumbrances that do not materially
interfere with the use of the property in the conduct of the business of ▇▇▇▇▇▇.
13.15. TAX RETURNS. All required tax returns for federal, state, county,
municipal, local, foreign and other taxes and assessments have been properly
prepared and filed by ▇▇▇▇▇▇ for all years for which such returns are due unless
an extension for filing any such return has been filed. Any and all federal,
state, county, municipal, local, foreign and other taxes and assessments,
including any and all interest, penalties and additions imposed with respect to
such amounts have been paid or provided for. The provisions for federal and
state taxes reflected in the ▇▇▇▇▇▇ Financial Statements are adequate to cover
any such taxes that may be assessed against ▇▇▇▇▇▇ in respect of its business
and its operations during the periods covered by the ▇▇▇▇▇▇ Financial Statements
and all prior periods.
13.16. NO VIOLATION. Consummation of the Merger will not constitute or
result in a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree, law,
or regulation to which any property of ▇▇▇▇▇▇ is subject or by which ▇▇▇▇▇▇ is
bound.
14. REPRESENTATIONS AND WARRANTIES OF NEW MILLENNIUM. New Millennium
represents and warrants that:
14.1. CORPORATE ORGANIZATION AND GOOD STANDING. New Millennium is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Colorado and is qualified to do business as a foreign
corporation in each jurisdiction, if any, in which its property or business
requires such qualification.
14.2. CAPITALIZATION. New Millennium's authorized capital stock consists of
35,000,000 shares of Common Stock, $.001 par value, of which 24,000,000 shares
are issued and outstanding, and 10,000,000 shares of preferred stock, of which
none are issued and outstanding.
14.3. ISSUED STOCK. All the outstanding shares of its Common Stock are duly
authorized and validly issued fully paid and nonassessable.
14.4. STOCK RIGHTS. There are no stock grants, options, rights, warrants or
other rights to purchase or obtain New Millennium Common or Preferred Stock
issued or committed to be issued.
14.5 CORPORATE AUTHORITY. New Millennium has all Requisite corporate power
and authority to own, operate and lease its properties, to carry on its business
as it is now being conducted and to execute, deliver, perform and conclude the
transactions contemplated by this Agreement and all other agreements and
instruments related to this agreement.
4
14.6. SUBSIDIARIES. Except as set out in Disclosure Schedule 14.6, New
Millennium has no subsidiaries.
14.7. FINANCIAL STATEMENTS. New Millennium's Financial Statements fairly
present the financial condition of New Millennium as of the date therein and the
results of its operations for the periods then ended in conformity with
generally accepted accounting principles consistently applied.
14.8. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent reflected or
reserved against in the New Millennium Financial Statements, New Millennium did
not have at that date any liabilities or obligations (secured, unsecured,
contingent, or otherwise) of nature customarily reflected in a corporate balance
sheet prepared in accordance with generally accepted accounting principles.
14.9. NO MATERIAL CHANGES. There has been no material adverse change in the
business, properties or financial condition of New Millennium since the date of
the New Millennium Financial Statements.
14.10. LITIGATION. Except as set out in Disclosure Schedule 14.10, there is
not, to the knowledge of New Millennium, any pending, threatened, or existing
litigation, bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against New Millennium or against any
of its officers.
14.11. CONTRACTS. New Millennium is not a party to any material contract
not in the ordinary course of business or in the course of its proposed
acquisitions that is to be performed in whole or in part at or after the date of
this Agreement.
14.12. TITLE. New Millennium has good and marketable title to all the real
property and good and valid title to all other property included in the New
Millennium Financial Statements. The properties of New Millennium are not
subject to any mortgage, encumbrance or lien of any kind except minor
encumbrances that do not materially interfere with the use of the property in
the conduct of the business of New Millennium.
14.13. TAX RETURNS. All required tax returns for federal, state, county,
municipal, local, foreign and other taxes and assessments have been properly
prepared and filed by New Millennium for all years for which such returns are
due unless an extension for filing any such return has been filed. Any and all
federal, state, county, municipal, local, foreign and other taxes and
assessments, including any and all interest, penalties and additions imposed
with respect to such amounts have been paid or provided for. The provisions for
federal and state taxes reflected in the New Millennium Financial Statements are
adequate to cover any such taxes that maybe assessed against New Millennium in
respect of its business and its operations during the periods covered by the New
Millennium Financial Statements and all prior periods.
14.14. NO VIOLATION. Consummation of the Merger will not constitute or
result in a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree, law,
or regulation to which any property of New Millennium is subject or by which New
Millennium is bound.
15. CONDUCT OF ▇▇▇▇▇▇ PENDING THE MERGER DATE. ▇▇▇▇▇▇ covenants that
between the date of this Agreement and the Merger Date:
15.1. No change will be made in ▇▇▇▇▇▇'▇ Articles of Incorporation or
bylaws.
15.2. ▇▇▇▇▇▇ will not make any change in its authorized or issued capital
stock, declare or pay any dividend or other distribution or issue, encumber,
purchase, or otherwise acquire any of its capital stock other than as provided
herein.
15.3. ▇▇▇▇▇▇ will use its best efforts to maintain and preserve its
business organization, employee relationships and goodwill intact, and will not
enter into any material commitment except in the ordinary course of business.
5
16. CONDUCT OF NEW MILLENNIUM PENDING THE MERGER DATE. New Millennium
covenants that between the date of this Agreement and the Merger Date:
16.1. No change will be made in New Millennium's Articles of incorporation
or bylaws.
16.2. New Millennium will not make any change in its authorized or issued
capital stock, declare or pay any dividend or other distribution or issue,
encumber, purchase, or otherwise acquire any of its capital stock otherwise than
as provided herein.
16.3. New Millennium will use its best efforts to maintain and preserve its
business organization, employee relationships and goodwill intact, and will not
enter into any material commitment except in the ordinary course of business.
17. CONDITIONS PRECEDENT TO OBLIGATION OF NEW MILLENNIUM. New Millennium's
obligation to consummate the Merger shall be subject to fulfillment on or before
the Merger Date of each of the following conditions, unless waived in writing by
▇▇▇▇▇▇:
17.1. NEW MILLENNIUM'S REPRESENTATIONS AND WARRANTIES. The representations
and warranties of New Millennium set forth herein shall be true and correct at
the Merger Date as though made at and as of that date, except as affected by
transactions contemplated hereby.
17.2. NEW MILLENNIUM'S COVENANTS. New Millennium shall have performed all
covenants required by this agreement to be performed by it on or before the
Merger Date.
17.3. APPROVAL. New Millennium shall have approved this agreement in such
manger as is required by law including all appropriate action by directors and,
if required, by shareholders.
17.4. SUPPORTING DOCUMENTS OF NEW MILLENNIUM. New Millennium shall have
delivered to ▇▇▇▇▇▇ supporting documents in form and substance satisfactory to
▇▇▇▇▇▇ to the effect that:
(i) New Millennium is a corporation duly organized, validly existing, and
in good standing.
(ii) New Millennium's authorized and issued capital stock is asset forth
herein.
(iii) The execution and adoption of this agreement have been duly
authorized by New Millennium in such manner as is required bylaw including all
appropriate action by directors and, if required, by shareholders.
18. CONDITIONS PRECEDENT TO OBLIGATION OF NEW MILLENNIUM. New Millennium's
obligation to consummate the Merger shall be subject to fulfillment by ▇▇▇▇▇▇ on
or before the Merger Date of each of the following conditions, unless waived in
writing by New Millennium:
18.1. ▇▇▇▇▇▇'▇ REPRESENTATIONS AND WARRANTIES. The representations and
warranties of ▇▇▇▇▇▇ set forth herein shall be true and correct at the Merger
Date as though made at and as of that date, except as affected by transactions
contemplated hereby
18.2. ▇▇▇▇▇▇'▇ COVENANTS. ▇▇▇▇▇▇ shall have performed all covenants
required by this agreement to be performed by it on or before the Merger Date.
18.3. APPROVAL. ▇▇▇▇▇▇ shall have approved this Agreement in such manner as
is required by law including all appropriate action by directors and, if
required, by shareholders.
18.4. SUPPORTING DOCUMENTS OF ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall have delivered to New
Millennium supporting documents in form and substance satisfactory to New
Millennium to the effect that:
(i) ▇▇▇▇▇▇ is a corporation duly organized, validly existing, and in good
standing.
6
(ii) ▇▇▇▇▇▇'▇ authorized and issued capital stock is as set forth herein.
(iii) The execution and adoption of this Agreement have been duly
authorized by ▇▇▇▇▇▇ in such manner as is required bylaw including all
appropriate action by directors and, if required, by shareholders.
19. ACCESS. From the date hereof to the Merger Date, New Millennium and
▇▇▇▇▇▇ shall provide each other with such information and permit each other's
officers and representatives such access to its properties and books and records
as the other may from time to time reasonably request. If the Merger is not
consummated with the intended results as defined hereafter, all documents and
consideration received in connection with this agreement shall be returned to
the party furnishing such documents and consideration, and all information so
received shall be treated as confidential. The results intended from this merger
are that NEW MILLENNIUM will emerge with fully reporting status.
20. CLOSING.
20.1. The transfers and deliveries to be made pursuant to this agreement
(the "Closing") shall be made by and take place at the offices of the Exchange
Agent or other location designated by the Constituent Corporations without
requiring the meeting of the parties hereof. All proceedings to be taken and all
documents to be executed at the Closing shall be deemed to have been taken,
delivered and executed simultaneously, and no proceeding shall be deemed taken
nor documents deemed executed or delivered until all have been taken, delivered
and executed.
20.2. Any copy, facsimile telecommunication or other reliable reproduction
of the writing or transmission required by this agreement or any signature
required thereon may be used in lieu of an original writing or transmission or
signature for any and all purposes for which the original could be used,
provided that such copy, facsimile telecommunication or other reproduction shall
be complete reproduction of the entire original writing or transmission or
original signature.
20.3. At the Closing, ▇▇▇▇▇▇ shall deliver to the Exchange Agent in
satisfactory form, if not already delivered to New Millennium:
(i) A list of the holders of record of the shares of ▇▇▇▇▇▇ Common Stock
being exchanged, with an itemization of the number of shares held by each, the
address of each holder, and the aggregate number of shares of New Millennium
Common Stock to be issued to each holder;
(ii) Evidence of the execution and adoption of this Agreement in such
manner as is required by law including all appropriate action by directors and,
if required, by shareholders;
(iii) Certificate of the Secretary of State of Delaware as of a recent date
as to the good standing of ▇▇▇▇▇▇;
(iv) Certified copies of the resolutions of the board of directors of
▇▇▇▇▇▇ authorizing the execution of this agreement and the consummation of the
Merger;
(v) The ▇▇▇▇▇▇ Financial Statements;
(vi) Secretary's certificate of incumbency of the officers and directors of
▇▇▇▇▇▇;
(vii) Any document as may be specified herein or required to satisfy the
conditions, representations and warranties enumerated elsewhere herein; and
(viii) The share certificates for the outstanding Common Stock of ▇▇▇▇▇▇ to
be exchanged hereunder or, where any such certificate is not delivered, an
affidavit of lost certificate or other reason for non-delivery.
20.4. At the Closing, New Millennium shall deliver to the Exchange Agent in
satisfactory form, if not already delivered to ▇▇▇▇▇▇:
(i) A list of its shareholders of record;
7
(ii) Evidence of the execution and adoption of this Agreement in such
manner as is required by law including all appropriate action by directors and,
if required, by shareholders;
(iii) Certificate of the Secretary of State of its state of incorporation
as of a recent date as to the good standing of New Millennium;
(iv) Certified copies of the resolutions of the board of directors of New
Millennium authorizing the execution of this agreement and the consummation of
the Merger;
(v) The New Millennium Financial Statements;
(vi) Secretary's certificate of incumbency of the officers and directors of
New Millennium;
(vii) Any document as may be specified herein or required to satisfy the
conditions, representations and warranties enumerated elsewhere herein; and
(viii) The share certificates of New Millennium to be delivered to the
shareholders of ▇▇▇▇▇▇ hereunder, in proper names and amounts, and bearing
legends, if any, required and appropriate under applicable securities laws.
21. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Constituent Corporations set out herein shall survive the
Merger Date.
22. ARBITRATION.
22.1. SCOPE. The parties hereby agree that any and all claims (except only
for requests for injunctive or other equitable relief) whether existing now, in
the past or in the future as to which the parties or any affiliates may be
adverse parties, and whether arising out of this agreement or from any other
cause, will be resolved by arbitration before the American Arbitration
Association within the state of Florida.
22.2. CONSENT TO JURISDICTION, SITUS AND JUDGMENT. The parties hereby
irrevocably consent to the jurisdiction of the American Arbitration Association
and the situs of the arbitration (and any requests for injunctive or other
equitable relief) within the state of Florida. Any award in arbitration may be
entered in any domestic or foreign court having jurisdiction over the
enforcement of such awards.
22.3. APPLICABLE LAW. The law applicable to the arbitration and this
agreement shall be that of the State of Colorado, determined without regard to
its provisions, which would otherwise apply to question of conflict of laws.
22.4. DISCLOSURE AND DISCOVERY. The arbitrator may, in its discretion,
allow the parties to make reasonable disclosure and discovery in regard to any
matters which are the subject of the Arbitration and to compel compliance with
such disclosure and discovery order. The arbitrator may order the parties to
comply with all or any of the disclosure and discovery provisions of the Federal
Rules of Civil Procedure, as they then exist, as may be modified by the
arbitrator consistent with the desire to simplify the conduct and minimize the
expense of the arbitration.
22.5. RULES OF LAW. Regardless of any practices of arbitration to the
contrary, the arbitrator will apply the rules of contract and other law of the
jurisdiction whose law applies to the arbitration so that the decision of the
arbitrator will be, as much as possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
22.6. FINALITY AND FEES. Any award or decision by the American Arbitration
Association shall be final, binding and non-appealable except as to errors of
law or the failure of the arbitrator to adhere to the arbitration provisions
contained in this agreement. Each party to the arbitration shall pay its own
costs and counsel fees except as specifically provided otherwise in this
agreement.
8
22.7. MEASURE OF DAMAGES. In any adverse action, the parties shall restrict
themselves to claims for compensatory damages and\or securities issued or to be
issued and no claims shall be made by any party or affiliate for lost profits,
punitive or multiple damages.
22.8. COVENANT NOT TO ▇▇▇. The parties covenant that under no conditions
will any party or any affiliate file any action against the other (except only
requests for injunctive or other equitable relief) in any forum other than
before the American Arbitration Association, and the parties agree that any such
action, if filed, shall be dismissed upon application and shall be referred for
arbitration hereunder with costs and attorney's fees to the prevailing party.
22.9. INTENTION. It is the intention of the parties and their affiliates
that all disputes of any nature between them, whenever arising, whether in
regard to this Agreement or any other matter, from whatever cause, based on
whatever law, rule or regulation, whether statutory or common law, and however
characterized, be decided by arbitration as provided herein and that no party or
affiliate be required to litigate in any other forum any disputes or other
matters except for requests for injunctive or equitable relief. This Agreement
shall be interpreted in conformance with this stated intent of the parties and
their affiliates.
22.10. SURVIVAL. The provisions for arbitration contained herein shall
survive the termination of this agreement for any reason.
23. FAILURE TO MAINTAIN BULLETIN BOARD LISTING. If as a result of the
merger described herein New Millennium shall fail to be deemed a successor
issuer and its securities shall not continue to be listed on the Bulletin Board,
the merger transaction shall be unwound and all shares issued to each party
shall be cancelled.
24. GENERAL PROVISIONS.
23.1. FURTHER ASSURANCES. From time to time, each party will execute such
additional instruments and take such actions as may be reasonably required to
carry out the intent and purposes of this agreement.
23.2. WAIVER. Any failure on the part of either party hereto to comply with
any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
23.3. BROKERS. Each party agrees to indemnify and hold harmless the other
party against any fee, loss or expense arising out of claims by brokers or
finders employed or alleged to have been employed by the indemnifying party.
23.4. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid first-class certified mail, return receipt requested, or recognized
commercial courier service, as follows:
If to ▇▇▇▇▇▇, to:
▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇ ▇▇▇-▇▇▇
If to New Millennium, to:
New Millennium Media International, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
9
24. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Colorado.
25. ASSIGNMENT. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this agreement
without the written consent of the other party shall be void.
26. COUNTERPARTS. This agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures sent by
facsimile transmission shall be deemed to be evidence of the original execution
thereof.
27. EXCHANGE AGENT AND CLOSING DATE. The Exchange Agent shall be ▇▇▇▇▇▇▇
▇▇▇▇▇▇, Safety Harbor, Florida. The Closing shall take place upon the
fulfillment by each party of all the conditions of Closing required herein, but
not later than 15 days following execution of this Agreement unless extended by
mutual consent of the parties.
28. REVIEW OF AGREEMENT. Each party acknowledges that it has had time to
review this Agreement and, as desired, consult with counsel. In the
interpretation of this agreement, no adverse presumption shall be made against
any party on the basis that it has prepared, or participated in the preparation
of, this Agreement.
29. SCHEDULES. All schedules attached hereto, if any, shall be acknowledged
by each party by signature or initials thereon.
30. EFFECTIVE DATE. The effective date of this agreement shall be March 9,
2000.
IN WITNESS WHEREOF, the parties have executed this Agreement.
▇▇▇▇▇▇ CORPORATION
____________________________ This 9th day of March 2000
By: ▇▇▇▇▇▇ ▇▇▇▇▇
President
NEW MILLENNIUM MEDIA INTERNATIONAL, INC.
____________________________ This 9th day of March 2000
By: ▇▇▇▇ ▇▇▇▇▇▇,
President & CEO.
EXCHANGE AGENT
____________________________ This 8th day of March 2000
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
10