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Title: |
Agreement and Plan of Merger |
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Date: |
2004 |
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Preview shows 12KB of 91KB total |
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$49 |
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ID: |
#1536501 |
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AGREEMENT AND PLAN OF MERGER
dated February 24, 2004,
among
SYNERGY 2000, INC.,
AND
MER RESORTS, INC.,
AND
MYRIAD GOLF RESORT, INC.
____________________________________________________
4
<PAGE>
AGREEMENT AND PLAN OF MERGER
This Merger Agreement (this "Agreement"), entered into on February 24,
2004, by and among Synergy 2000, Inc., a Delaware corporation ("Parent"); MER
Resorts, Inc., a Delaware corporation and a subsidiary of Parent ("Sub"); and
Myriad Golf Resort, Inc., an Alberta, Canada corporation ("Company"). Parent,
Sub and Company are referred to, collectively, as the "Parties."
RECITALS
A. Parent, Sub and the Company intend to effect a Merger of the Company
into Sub in accordance with this Agreement, the Delaware General Corporation Law
and the Business Corporations Act of the Province of Alberta, Canada. Upon
consummation of the Merger, the Company will cease to exist and Sub will
continue as a wholly-owned subsidiary of Parent.
B. This Agreement has been approved by the respective boards of
directors of Parent, Sub and the Company.
C. The parties intend that the Merger will be treated as a tax free
reorganization as described in Section 368 of the Internal Revenue Code of 1986,
as amended (the "Code").
AGREEMENT
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows:
1. DEFINITIONS
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"CERTIFICATE OF MERGER" has the meaning set forth in Section 2(c)
below.
"CL" means the Business Corporations Act of the Province of Alberta,
Canada.
"CLOSING" has the meaning set forth in Section 2(b) below.
"CLOSING DATE" has the meaning set forth in Section 2(b) below.
"COMPANY" has the meaning set forth in the preface above.
"COMPANY SHARE" means any share of the common stock, [no] par value per
share, of Company.
"COMPANY STOCKHOLDER" means any Person who or which holds any Company
Shares.
"CONFIDENTIAL INFORMATION" means any information concerning the
businesses and affairs of Company and its Subsidiaries that is not already
generally available to the public.
"CONVERSION RATIO" has the meaning set forth in Section 2(d)(iv) below.
"DEFINITIVE COMPANY PROXY MATERIALS" means the definitive proxy
materials or equivalent thereof relating to the Special Company Meeting or the
execution and delivery of written consents in lieu thereof.
"DEFINITIVE PARENT PROXY MATERIALS" means the Information Statement
pursuant to Section 14(f) of the Securities Exchange Act and Rule 14f-1
thereunder relating to the Special Parent Meeting or the execution and delivery
of written consents in lieu thereof.
"DELAWARE GENERAL CORPORATION LAW" means the General Corporation Law of
the State of Delaware, as amended.
"DISCLOSURE SCHEDULE" has the meaning set forth in Section 3 below.
"DISSENTING SHARE" means any Company Share held of record by any
stockholder who or which has exercised his, her, or its appraisal rights, if
any, under the CL.
5
<PAGE>
"EFFECTIVE TIME" has the meaning set forth in Section 2(d)(i) below.
"EXCHANGE AGENT" has the meaning set forth in Section 2(e) below.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time, consistently applied.
"IRS" means the Internal Revenue Service.
"JOINT DISCLOSURE DOCUMENT" means the disclosure document combining
the Definitive Parent Proxy Materials and the Definitive Company Proxy
Materials.
"KNOWLEDGE" means actual knowledge after reasonable investigation.
"LIEN" means any mortgage, pledge, lien, encumbrance, charge, or other
security interest OTHER THAN (a) liens for Taxes not yet due and payable or for
taxes that the taxpayer is contesting in good faith through appropriate
proceedings, (b) purchase money liens and liens securing rental payments under
capital lease arrangements, and (c) other liens arising in the Ordinary Course
of Business and not incurred in connection with the borrowing of money.
"MATERIAL ADVERSE EFFECT" or "MATERIAL ADVERSE CHANGE" means any effect
or change that would be materially adverse to the business, assets, condition
(financial or otherwise), operating results, operations, or business prospects
of Company and its Subsidiaries, taken as a whole, or on the ability of Company
to consummate timely the transactions contemplated hereby.
"MERGER" has the meaning set forth in Section 2(a) below.
"MOST RECENT FISCAL QUARTER END" has the meaning set forth in Section
3(f) below.
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"PARENT" has the meaning set forth in the preface above.
"PARENT SHARE" means any share of the common stock, $.001 par value per
share, of Company.
"PARTY" has the meaning set forth in the preface above.
"PERSON" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, any other business entity, or a
governmental entity (or any department, agency, or political subdivision
thereof).
"PUBLIC REPORT" has the meaning set forth in Section 3(e) below.
"REQUISITE COMPANY STOCKHOLDER APPROVAL" means the affirmative vote of
the holders of a majority of the Company Shares in favor of this Agreement and
the Merger.
"REQUISITE PARENT STOCKHOLDER APPROVAL" means the affirmative vote of
the holders of a majority of the Parent Shares in favor of this Agreement and
the Merger.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"SPECIAL COMPANY MEETING" has the meaning set forth in Section 5(c)(ii)
below.
"SPECIAL PARENT MEETING" has the meaning set forth in Section 5(c)(ii)
below.
"SUB" has the meaning set forth in the preface above.
"SUBSIDIARY" means, with respect to any Person, any corporation,
limited liability company, partnership, association, or business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers, or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof or (ii) if a limited
liability company, partnership, association, or other business entity (other
than a corporation), a majority of partnership or other similar ownership
6
<PAGE>
interest thereof is at the time owned or controlled, directly or indirectly, by
that Person or one or more Subsidiaries of that Person or a combination thereof
and for this purpose, a Person or Persons owns a majority ownership interest in
such a business entity (other than a corporation) if such Person or Persons
shall be allocated a majority of such business entity's gains or losses or shall
be or control any managing director or general partner of such business entity
(other than a corporation). The term "SUBSIDIARY" shall include all Subsidiaries
of such Subsidiary.
"SURVIVING CORPORATION" has the meaning set forth in Section 2(a)
below.
2. REORGANIZATION TRANSACTION
(a) THE MERGER. Upon the terms and subject to the conditions set forth
in this Agreement, and in accordance with the Delaware General Corporation Law
and the CL, the Company shall be merged with and into Sub at the Effective Time
(as defined below). At the Effective Time, the separate existence of the Company
shall cease, and Sub shall continue as the surviving corporation (the "Surviving
Corporation") under the name MER Resorts, Inc.
(b) THE CLOSING. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Company at Suite
1000, 10050-112 Street, 10th Floor, Edmonton, Alberta, Canada, T5K 2J1, on the
second business day following the satisfaction or waiver of all conditions to
the obligations of the Parties to consummate the transactions contemplated
hereby (other than conditions with respect to actions the respective Parties
will take at the Closing itself) or such other date as the parties may mutually
determine (the "Closing Date"); PROVIDED, HOWEVER, that the Closing Date shall
be no earlier than March 4, 2004.
(c) ACTIONS AT THE CLOSING. At the Closing, (i) Company will deliver to
Parent and Sub the various certificates, instruments, and documents referred to
in Section 6(a) below, (ii) Parent and Sub will deliver to Company the various
certificates, instruments, and documents referred to in Section 6(b) below,
(iii) Parent, Sub and Company will file with the Secretary of State of the State
of Delaware a Certificate of Merger in the form attached hereto as Exhibit A
(the "CERTIFICATE OF MERGER"), and (iv) Company will deliver to the Exchange
Agent in the manner provided below in this Section 2 the certificate(s)
evidencing the Parent Shares to be issued in the Merger.
(d) EFFECT OF MERGER.
(i) GENERAL. The Merger shall become effective at the time
(the "EFFECTIVE TIME") Sub and Company file the Certificate of Merger
with the Secretary of State of the State of Delaware. The Merger shall
have the effect set forth in the Delaware General Corporation Law. The
Surviving Corporation may, at any time after the Effective Time, take
any action (including executing and delivering any document) in the
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