EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER ("this Agreement") made and entered into this 3rd
day of March, 2000, by and between ENTERPRISE CONSOLIDATION CORPORATION., herein
sometimes referred to as "Enterprise" or the "Surviving Corporation", a Delaware
corporation, and STUART COMMUNICATIONS CORPORATION which holds 100% ownership of
THE BILLIARD CHANNEL. COM, herein sometimes referred to as The Billiard Channel
or The Billiard ▇▇▇▇▇▇▇.▇▇▇ or the "Disappearing Corporation", a Nevada
corporation.
WHEREAS:
A. Enterprise and Stuart Communications Corp./The Billiard ▇▇▇▇▇▇▇.▇▇▇
sometimes referred to as the "Constituent Corporations"), desire to
merger pursuant to the applicable statutes of the State of Delaware in
accordance with the terms and conditions hereinafter set forth. The
Constituent Corporations also desire that this be a reorganization
free of tax and be governed by Section 368 (a) (1) (A) of the Internal
Revenue Code.
B. Enterprise is duly organized and existing under the General
Corporation Law of the State of Delaware, having been incorporated on
September 12, 1998.
▇. ▇▇▇▇▇▇ Communications Corporation is duly organized and existing under
the laws of the State of Nevada, having been incorporated on July 6,
1999.
D. Enterprise has an authorized capital stock consisting of 8,000,000
shares of preferred stock of the par value of $0.001 per share (the
"Enterprise Preferred"), of which none of the shares have been issued,
and 100,000,000 shares of common stock of the par value of $0.001 per
share (the "Enterprise Stock"), of which 7,000,000 shares are now
issued and outstanding. (prior to the merger, Enterprise's shares are
only 7 million. After the merger, the total amount issued and
outstanding will be 13 million).
▇. ▇▇▇▇▇▇ Communications Corporation has an authorized capital stock
consisting of 75,000,000 shares of common stock of the par value of $
0.001 per share ("Stuart Communications corp./The Billiard Channel
stock"), of which 6,000,000are now issued and outstanding
NOW, THEREFORE, the Constituent Corporations do hereby agree each with the other
that Stuart Communications Corporation/The Billiard Channel be merged into
Enterprise as the Surviving Corporation, pursuant to the applicable statutes of
the State of Delaware, subject to the following terms and conditions: A name
change will then be effective as "The Billiard Channel Inc.". There will be
13,000,000 shares of common stock, par value $0.001, issued and outstanding
following the merger's execution.
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1. CERTIFICATE OF INCORPORATION OF THE SURVIVING CORPORATION. On the Merger
Date, as that term is defined in Paragraph 18 below, the Certificate of
Incorporation of Enterprise, and its corresponding amended and restated
certificates of incorporation shall be the Articles of Incorporation of the
Surviving Corporation.
2. NAME OF THE SURVIVING CORPORATION. On the Merger Date, the name of the
Surviving Corporation shall be Stuart Communications Corporation. A name change
will then be effective as The Billiard Channel Inc.
3. BYLAWS OF THE SURVIVING CORPORATION: The Bylaws of Enterprise in force
on the Merger Date shall be the Bylaws of the Surviving Corporation until
altered, amended or repealed.
4. DIRECTORS OF THE SURVIVING CORPORATION: Until changed, the number of
persons who shall constitute the Board of Directors of the Surviving Corporation
shall be five.
5. The names and address of the persons who shall be directors of the
Surviving Corporation on and after the Merger Date are:
Name Address
---- -------
▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ #▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇ - ▇▇▇▇▇ - ▇▇▇ ▇▇▇.,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
Each of the aforesaid shall hold such office until the Enterprise annual
meeting of the shareholders of the Surviving Corporation and until their
respective successors shall have been duly elected and qualified.
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6. OFFICERS OF THE SURVIVING CORPORATION. On the Merger Date, the following
persons shall be the officers of the Surviving Corporation , whose names and
address are set forth below:
Name Office Address
-------------- ------ -------
▇▇▇▇ ▇▇▇▇▇▇ President #▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Vice President ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Vice President #▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ Secretary/ #▇▇▇ - ▇▇▇▇▇ - ▇▇▇ ▇▇▇.,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Each of the aforesaid shall hold the office set forth after his or her
respective name until a successor shall be elected or appointed in the manner
provided by the Surviving Corporation's Bylaws.
7. CONVERSION OF SHARES OF THE CONSTITUENT CORPORATIONS. The manner of
converting shares of the Constituent Corporations into shares of the Surviving
Corporation shall be as follows: (A) Each share of the Enterprise Stock issued
and outstanding on the Merger Date shall continue to be one share of Enterprise
Stock. (B) Each share of the Stuart Communications Corporation/The Billiard
Channel Stock issued and outstanding on the Merger Date shall, without any
action by the holders there, be changed and converted into 1 Enterprise Share;
provided, however, that no fractional shares of the Surviving Corporation shall
be issued. In lieu thereof, the Surviving Corporation shall round-up fractional
shares to the next highest number. (C) All outstanding warrants, option and all
other outstanding rights to purchase shares of Stuart Communications Corp./The
Billiard Channel Stock shall be adjusted, pursuant to the terms contained in
such option, warrant or other rights documents, for conversion to warrants,
options or rights to purchase stock of the Surviving Corporation on the same
ratio as provided herein for holders of Stuart Communications Corp./The Billiard
Channel Stock. (D) The number of Enterprise Shares to be issued in exchange for
shares of the Stuart Communications Corp./The Billiard Channel Stock hereunder
shall be proportionately reduced by any shares owned by Stuart Communications
Corp./The Billiard Channel shareholders who shall have timely objected to the
merger (the "Dissenting Shares") in accordance with the provisions of the laws
of Nevada, which objections will be dealt with as provided in those sections.
(E) On the Merger Date, the capital of the Surviving Corporation shall be an
amount equal to the aggregate par value of all of the issued shares of capital
stock of the Surviving Corporation, after giving effect to the terms and
provisions of this Agreement. Each certificate evidencing ownership of shares of
Enterprise Stock issued and outstanding on the Merger Date, or held by the
Surviving Corporation in its treasury shall continue to evidence ownership of
the same number of shares of Enterprise Stock.
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8. EXCHANGE OF CERTIFICATES. As promptly as practicable after the Merger
Date, each holder of an outstanding certificate or certificates theretofore
representing Stuart Communications Corp./ The Billiard Channel Stock (other than
certificates representing Dissenting Shares) shall surrender such certificate(s)
for cancellation to the party designated by the Surviving Corporation to handle
such exchange (the "Exchange Agent"), and shall receive in exchange a
certificate or certificates representing the number of full shares of the
Enterprise Stock into which the shares of Stuart Communications Corp./The
Billiard Channel Stock represented by the certificate or certificates so
surrendered shall have been converted.
8. UNEXCHANGED CERTIFICATES. Until surrendered, each outstanding
certificate that prior to the Merger Date represented Stuart Communications
Corp./The Billiard Channel 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 Stuart Communications Corp./The Billiard Channel Stock into which it was
converted. No dividend or other distribution payable to holders of the Surviving
Corporation common stock as of any date subsequent to the Merger Date shall be
paid to the holders of outstanding certificates of Stuart Communications
Corp./The Billiard Channel 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 therefor 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 Enterprise Stock represented
thereby.
9. EFFECT OF THE MERGER. On the Merger Date, the separate existence of the
Disappearing Corporation shall cease (except insofar as continued by statute),
and it shall be merged with and into the Surviving Corporation. 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 the
Surviving Corporation, without further act or deed. The Surviving Corporation
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 may be enforced against the Surviving Corporation.
10. APPROVAL OF SHAREHOLDERS. This Agreement shall be adopted by the
shareholders of the Constituent Corporations at meetings of such shareholders
called for that purpose or by written consent pursuant to the laws applicable
thereto. There shall be required for the adoption of this Agreement the
affirmative vote of the holders of at least a majority of the holders of all the
shares of the common stock issued and outstanding and entitled to vote for each
of the Constituent Corporations.
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11. REPRESENTATIONS AND WARRANTIES OF ENTERPRISE. Enterprise represents and
warrants to Stuart Communications Corp./The Billiard Channel that:
(A) Corporate Organization and Good Standing. Enterprise 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. Enterprise does not have any
subsidiaries nor any direct or indirect interest in any corporation, firm
or unincorporated association.
(B) Capitalization. Enterprise's authorized capital stock consists of
8,000,000 shares of preferred stock, $0.001 par value, of which none of the
shares have been issued, and 100,000,000 shares of common stock, $.001 par
value, of which 7,000,000shares are issued and outstanding.
(C) Issued Stock. All the outstanding shares of the Enterprise Stock
are duly authorized and validly issued, fully paid and non assessable.
(D) Corporate Authority. Enterprise 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.
(E) Authorization. Execution of this Agreement has been duly
authorized and approved by Enterprise's board of directors.
(F) Financial Statements. Enterprise's balance sheet and the related
statements of income and retained earnings for and as at the periods ended
August 31, 1999, and December 31, 1999 (the "Enterprise Financial
Statements"), audited by ▇▇▇▇▇▇▇▇ & Co., PA (Enterprise's accountant),
fairly present the financial condition of Enterprise as of the dates
thereof and the results of operations for the periods then ended all
conformity with generally accepted accounting principles consistently
applied.
(G) Title. Enterprise has good and marketable title to all the real
property and good and valid title to all other property included in the
Enterprise Financial Statements. Except as set out in the balance sheets
thereof, the properties of Enterprise 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 Enterprise.
(H) Absence of Undisclosed Liabilities. Except to the extent reflected
or reserved in the Enterprise Financial Statements, Enterprise did not have
at that date any liabilities or obligations (secured, unsecured,
contingent, or otherwise) or any liability or obligation for taxes,
federal, state or foreign.
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(I) No Material Changes. There has been no material adverse change in
the business, properties, or condition, financial or otherwise, of
Enterprise since the date of the Enterprise Financial Statements.
(J) Litigation. There is not, to the knowledge of Enterprise, any
pending, threatened, or existing litigation, bankruptcy, criminal, civil,
or regulatory proceeding or investigation, threatened or contemplated
against Enterprise or against any of its officers.
(K) Contracts. Enterprise is not a party to any contract that is to be
performed in whole or in part at or after the date of this Agreement.
(L) Tax Returns. 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 properly
prepared and filed by Enterprise for all years to and including the taxable
year ending December 31, 1998. The provisions for federal and state taxes
reflected in the Enterprise Financial Statements are adequate to cover any
such taxes that may be assessed against Enterprise in respect of its
business and its operations during the periods covered by the Enterprise
Financial Statements and all prior periods.
(M) 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 Enterprise is subject or by
which Enterprise is bound.
(N) Reporting Company. Enterprise has filed with the Securities and
Exchange Commission ("SEC") a registration statement on Form 10 which
became effective pursuant to the Securities Exchange Act of 1934 and is a
reporting company pursuant to ss.12 thereunder.
(O) Reporting Company Status. Enterprise has timely filed and is
current on all reports required to be filed by it pursuant to ss.12(g) of
the Securities Exchange Act of 1934, and until the Merger Date, shall
continue to file all such reports when each shall become due.
12. REPRESENTATIONS AND WARRANTIES OF STUART COMMUNICATIONS CORPORATION/THE
BILLIARD CHANNEL. Stuart Communications Corp./The Billiard Channel represents
and warrants to Enterprise that:
(A) Corporate Organization and Good Standing. Stuart Communications
Corporation/The Billiard Channel is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Nevada and is
qualified to do business as a foreign corporation in each jurisdiction, if
any, in which its property or business requires such qualification. Stuart
Communications Corp./The Billiard Channel has no subsidiaries, nor any
direct or indirect interest in any other corporation, firm or other
unincorporated entity.
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(B) Capitalization. Stuart Communications Corporation/The Billiard
Channel's authorized capital stock consists of 75,000,000 shares of common
stock, $ 0.001 par value, of which 6,000,000shares are issued and
outstanding.
(C) Stock Rights. There are no stock grants, options, rights, warrants
or other rights to purchase or obtain shares of Stuart Communications
Corp./The Billiard Channel Stock issued or committed to be issued.
(D) Issued Stock. All the outstanding shares of Stuart Communications
Corp./The Billiard Channel Stock were duly authorized and are validly
issued, fully paid and non-assessable.
(E) Corporate Authority. Stuart Communications Corp./The Billiard
Channel 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.
(F) Authorization. Execution of this Agreement has been duly
authorized and approved by Stuart Communications Corp./The Billiard
Channel's board of directors.
(G) Financial Statement. Within thirty (30) days of the Merger Date,
Stuart Communications Corp./The Billiard Channel will have prepared audited
financial statements as at and for the period December 31, 1999 (the
"Stuart Communications Corp./The Billiard Channel Financial Statement").
The Stuart Communications Corp./The Billiard Channel Financial Statement
will fairly present the financial condition of Stuart Communications
Corp./The Billiard Channel as of December 31, 1999 and the results of its
operations for the periods then ended all in conformity with generally
accepted accounting principles consistently applied.
(H) Absence of Undisclosed Liabilities. Except to the extent reflected
or reserved against in Stuart Communications Corp./The Billiard Channel
Financial Statement, Stuart Communications Corp./The Billiard Channel 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.
(I) No Material Changes. There has been no material adverse change in
the business, properties, or financial condition of Stuart Communications
Corp./The Billiard Channel since the date of Stuart Communications
Corp./The Billiard Channel Financial Statement.
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(J) Litigation. There is not, to the knowledge of Stuart
Communications Corp./Billiard Channel, any pending, threatened, or existing
litigation, bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against Stuart Communications
Corp./The Billiard Channel or against any of its officers.
(K) Contracts. Stuart Communications Corp./The Billiard Channel 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.
(L) Title. Stuart Communications Corp./Billiard Channel has good and
marketable title to all the real property and good and valid title to all
other property included in the Stuart Communications Corp./The Billiard
Channel Financial Statement. Except as set out in the balance sheet
thereof, the properties of Stuart Communications Corp./The Billiard Channel
are not subject to any mortgage, encumbrance, or lien of any kind except as
disclosed in the Stuart Communications Corp./The Billiard Channel Financial
Statement.
(M) Tax Returns. 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 properly
prepared and filed by Stuart Communications Corp./The Billiard Channel for
all years to and including the taxable year ending December 31, 1999. The
provisions for federal and state taxes reflected in the Stuart
Communications Corp./The Billiard Channel Financial Statements are adequate
to cover any such taxes that may be assessed against Stuart Communications
Corp./The Billiard Channel in respect of its business and its operations
during the periods covered by the Stuart Communications Corp./The Billiard
Channel Financial Statements and all prior periods.
(N) 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 Stuart Communications Corp./The
Billiard Channel is subject or by which Stuart Communications Corp./The
Billiard Channel is bound.
13. CONDUCT OF ENTERPRISE PENDING THE MERGER DATE. Enterprise covenants and
agrees with Stuart Communications Corp./The Billiard Channel that between the
date of this Agreement and the Merger Date:
(A) No change will be made in Enterprise's articles of incorporation
or bylaws.
(B) Enterprise 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.
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(C) Enterprise will submit this Agreement for its shareholders'
approval with a favorable recommendation by its board of directors and will
use its best efforts to obtain the requisite shareholder approval.
(D) Enterprise 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 its business which commitment can be canceled without penalty on not
more than 30 days' notice.
14. CONDUCT OF STUART COMMUNICATIONS CORP./THE BILLIARD CHANNEL PENDING THE
MERGER DATE. Stuart Communications Corp./The Billiard Channel covenants to and
agrees with Enterprise that between the date of this Agreement and the Merger
Date:
(A) No change will be made in Stuart Communications Corp./The Billiard
Channel's certificate of incorporation or bylaws.
(B) Stuart Communications Corp./The Billiard Channel 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.
(C) Stuart Communications Corp./ The Billiard Channel will submit this
Agreement for its shareholders' approval with a favorable recommendation by
its board of directors and will use its best efforts to obtain the
requisite shareholder approval.
(D) Stuart Communications Corp./The Billiard Channel 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.
15. CONDITIONS PRECEDENT TO OBLIGATION OF ENTERPRISE. Enterprise's
obligation to consummate this merger shall be subject to fulfillment on or
before the Merger Date of each of the following conditions, unless waived in
writing by Enterprise:
(A) Stuart Communications Corp./The Billiard Channel's Representations
and Warranties. The representations and warranties of Stuart Communications
Corp./The Billiard Channel 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.
(B) Stuart Communications Corp./Billiard Channel's Covenants. Stuart
Communications Corp./The Billiard Channel shall have performed all
covenants required by this Agreement to be performed by it on or before the
Merger Date.
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(C) Shareholder Approval. This Agreement shall have been approved by
the required number of shareholders of Enterprise.
(D) Stuart Communications Corp./The Billiard Channel Financial
Statements. Stuart communications Corp./The Billiard Channel shall have
delivered the Billiard Channel Financial Statements.
(E) Supporting Documents of Stuart Communications Corp./The Billiard
Channel. Com. Stuart communications Corp./The Billiard Channel shall have
delivered to Enterprise supporting documents in form and substance
satisfactory to Enterprise, to the effect that:
(i) Stuart Communications Corp./The Billiard Channel is a
corporation duly organized, validly existing, and in good standing;
(ii) Stuart Communications Corp./The Billiard Channel's
authorized and issued capital stock is as set forth herein; and,
(iii) The execution and consummation of this Agreement have been
duly authorized and approved by Stuart Communications Corp./The
Billiard Channel's board of directors.
16. CONDITIONS PRECEDENT TO OBLIGATION OF STUART COMMUNICATIONS CORP./THE
BILLIARD CHANNEL. Stuart Communications Corp./The Billiard Channel's obligation
to consummate this merger shall be subject to fulfillment on or before the
Merger Date of each of the following conditions, unless waived in writing by
Stuart Communications Corp./The Billiard Channel:
(A) Enterprise's Representations and Warranties. The representations
and warranties of Enterprise 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 and shall be applicable to the
Enterprise's financial statements referred to in subparagraph (C) hereof.
(B) Enterprise's Covenants. Enterprise shall have performed all
covenants and agreements required by this Agreement to be performed by it
on or before the Merger Date.
(C) Shareholder Approval. This Agreement shall have been approved by
the required number of shareholders of Stuart Communications Corp./The
Billiard Channel. com
(D) Financial Statements; SEC Reports. Enterprises shall have
delivered to Stuart Communications Corp./The Billiard Channel:
(i) the financial statements of Enterprise as at and for the
period ended December 31, 1999, certified by Enterprise's accountants;
and
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(ii) a true copy of each report filed or required to be filed by
Enterprise with the SEC.
(E) Supporting Documents of Enterprise. Enterprise shall have
delivered to Stuart Communications Corp./The Billiard Channel supporting
documents in form and substance satisfactory to Stuart Communications
Corp./The Billiard Channel to the effect that:
(i) Enterprise is a corporation duly organized, validly existing,
and in good standing;
(ii) Enterprise's authorized and issued capital stock is as set
forth herein; and,
(iii) The execution and consummation of this Agreement have been
duly authorized and approved by Enterprise's board of directors.
17. ACCESS. From the date hereof to the Merger Date, Stuart Communications
Corp./The Billiard Channel and Enterprise 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, all documents received in
connection with this Agreement shall be returned to the party furnishing such
documents, and all information so received shall be treated as confidential.
18. MERGER DATE. The Merger shall become effective (the "Merger Date") on
March 14th, 2000.
19. TIME OF FILINGS. The Certificate of Merger shall be filed with the
Secretary of State of Delaware upon the approval of this Agreement by the
shareholders of the Constituent Corporations and the fulfillment or waiver of
the terms and conditions herein.
20. CLOSING. 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 such place agreed upon by Enterprise and Stuart Communications
Corp./The Billiard Channel 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.
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 a complete
reproduction of the entire original writing or transmission or original
signature.
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21. STUART COMMUNICATIONS CORP./THE BILLIARD CHANNEL'S CLOSING DOCUMENTS.
At the Closing, Stuart Communications Corp./The Billiard Channel shall deliver
to the Exchange Agent in satisfactory form, if not already delivered to
Surviving Corporation:
(A) A list of the holders of the shares of Stuart Communications
Corp./The Billiard Channel 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 Enterprise Stock to be issued to each such
holder.
(B) Evidence of the consent of shareholders of Stuart Communications
Corp./The Billiard Channel to this Agreement.
(C) Certificate of the Secretary of State of Nevada as of a recent
date as to Stuart Communications Corp./The Billiard Channel's good
standing.
(D) Certified copies of the resolutions of Stuart Communications
Corp./The Billiard Channel's board of directors authorizing the execution
of this Agreement and the consummation of the Merger. (E) Secretary's
certificate of incumbency of Stuart Communications Corp./The Billiard
Channel's officers and directors.
(F) Letter from authorized agent of Stuart Communications Corp./The
Billiard Channel to the transfer agent stating that pursuant to the merger
agreement, any stock certificate held by an original shareholder of
Enterprise which has a restrictive legend should have that legend removed
because that shareholder no longer has a controlling interest in the
Surviving Corporation, and as such, its shares are free trading. Any
document as may be specified herein or required to satisfy the conditions,
representations and warranties enumerated elsewhere herein.
22. ENTERPRISE'S CLOSING DOCUMENTS. At the Closing, Enterprise shall
deliver to the Exchange Agent in satisfactory form, if not already delivered to
Stuart Communications Corp./The Billiard Channel:
(A) A list of Enterprise's shareholders of record, including, wherever
available, addresses and telephone numbers.
(B) Evidence of the consent of Enterprise's shareholders to this
Agreement.
(C) Certificate of the Secretary of State of Delaware as of a recent
date as to the good standing of Enterprise.
(D) Certified copies of the resolutions of Enterprise's board of
directors authorizing the execution of this Agreement and the consummation
of the merger.
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(E) Secretary's certificate of incumbency of Enterprise's officers and
directors.
(G) Any document as may be specified herein or required to satisfy the
conditions, representations and warranties enumerated elsewhere herein.
23. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Constituent Corporations set out herein shall survive the
Merger Date.
24. TERMINATION. Unless the Merger Date shall have occurred prior to April
4, 2000, and unless such date has been extended by a writing signed by each
party, this Agreement and the obligations of the parties hereto shall be void,
and each of the parties shall pay for all of the costs and expenses incurred by
such party in the negotiation and consummation of this Agreement and the
transactions herein contemplated.
25. ARBITRATION
(A) Scope and Status. 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 in the State of California. Any award
in arbitration may be entered in any domestic or foreign court having
jurisdiction over the enforcement of such awards.
(B) Applicable Law. The law applicable to the arbitration and this
agreement shall be that of the State of Delaware, determined without regard
to its provisions which would otherwise apply to a question of conflict of
laws. The arbitrator shall decide any dispute as to the applicable law.
(C) 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. (D) Application of
Governing 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. (E) 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. Each party
to the arbitration shall pay its own costs and counsel fees. (F) Measure of
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Damages. In any adverse action, the parties shall restrict themselves to
claims for compensatory damages and no claims shall be made by any party or
affiliate for lost profits, punitive or multiple damages. (G) No Suit. It
is the intention of the parties and their affiliates that all disputes of
any nature between them, whenever arising, 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.
26. GENERAL PROVISIONS
(A) 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.
(B) 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.
(C) 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; provided, however, that any claim made to a party shall
be promptly conveyed by notice to the other and the party against whom the
claim is made shall have the right to defend the claim and any action
arising therefrom, at its own expense and by counsel selected by it. (D)
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 Enterprise:
Enterprise, Inc.
▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇, Suite E-1
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Stuart Communications Corp./The Billiard Channel, to:
▇▇▇▇ ▇▇▇▇▇▇
#▇▇▇ - ▇▇▇▇▇ - ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(E) Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware for
agreements entered into and intended to be carried out entirely in
Delaware.
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27. 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.
28. COUNTERPARTS. This Agreement may be executed 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
ENTERPRISE, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
STUART COMMUNICATIONS CORP./
THE BILLIARD CHANNEL. COM
/s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇
Chairman
