SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported) AUGUST 28, 1996
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MAGICWORKS ENTERTAINMENT INCORPORATED
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(Exact name of registrant as specified in its charter)
DELAWARE
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(State or other jurisdiction of incorporation)
2-96614-D 87-0425513
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(Commission File Number) (IRS Employer Identification No.)
930 WASHINGTON AVENUE, 5TH FLOOR
MIAMI BEACH, FLORIDA 33139
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (305) 532-1566
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(Former name or former address, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On August 28, 1996, Magicworks Entertainment Incorporated, a Delaware
corporation (the "Registrant"), acquired all of the outstanding capital stock of
Movietime Entertainment, Inc., a Florida corporation ("Movietime"), pursuant to
the merger (the "Merger") of MT Acquisition Sub Inc. ("MT Sub"), a newly-formed,
wholly-owned subsidiary of the Registrant, with and into Movietime. The Merger
was consummated pursuant to that certain Agreement and Plan of Merger dated
August 28, 1996 (the "Movietime Agreement") among the Registrant, MT Sub,
Movietime and all of the stockholders of Movietime (the "Movietime
Stockholders") a copy of which is being filed as Exhibit 2.1 hereto. Movietime
was the surviving corporation in the Merger. Pursuant to the Merger, each share
of Movietime common stock, par value $1.00 per share, was converted into the
right to receive 2,962.96 shares of common stock, $.001 par value ("Common
Stock"), of the Registrant rounded to the nearest whole number, resulting in the
issuance of 1,199,999 shares of Common Stock to the Movietime Stockholders. As a
result of the Merger, Movietime became a wholly-owned subsidiary of the
Registrant. The number of shares of Common Stock issued by the Registrant to the
Movietime Stockholders in the Merger was determined by negotiation among the
Company, the Company's financial advisor, Movietime and the Movietime
Stockholders. Brad Krassner, Lee Marshall and Joe Marsh, the Co-Chairman of the
Board and Chief Executive Officer, President and Chief Operating Officer and
Co-Chairman of the Board of the Registrant, respectively, and Glenn Bechdel, a
principal stockholder of the Registrant, owned an aggregate of approximately
44.4% of the common stock of Movietime outstanding immediately prior to the
Merger.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS
(a) Financial statements
It is currently impracticable to provide the financial statements
required pursuant to Rule 3.05(b) of Regulation S-X prior to the
due date of this Report. This Report will be amended within 60 days
of the date this Report is filed to include such financial
statements.
(b) Pro forma financial information
It is currently impracticable to provide the pro forma financial
information required pursuant to Article 11 of Regulation S-X prior
to the due date of this Report. This Report will be amended within
60 days of the date this Report is filed to include such pro forma
financial information.
(c) Exhibits.
2.1 Agreement and Plan of Merger, dated as of August 28, 1996, by and
among the Registrant, MT Sub, Movietime and the Movietime
Stockholders
2.2 Plan and Articles of Merger of MT Sub, a Florida corporation, with
and into Movietime, as filed with the Secretary of State of the
State of Florida
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this amendment to be signed on its behalf by the
undersigned thereunto duly authorized.
MAGICWORKS ENTERTAINMENT
INCORPORATED
Dated: September 12, 1996 By:/S/ BRAD KRASSNER
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Brad Krassner, Co-Chairman of the
Board of Directors and Chief
Executive Officer
EXHIBIT 2.1
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AGREEMENT AND PLAN OF MERGER
DATED AS OF AUGUST 28, 1996
BY AND AMONG
MAGICWORKS ENTERTAINMENT INCORPORATED,
MT ACQUISITION SUB, INC.,
MOVIETIME ENTERTAINMENT, INC.
AND
THE SHAREHOLDERS
OF
MOVIETIME ENTERTAINMENT, INC.
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TABLE OF CONTENTS
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ARTICLE I - THE MERGER..................................................................... 1
1.1 Merger and Surviving Corporation............................................ 1
1.2 Closing..................................................................... 2
1.3 Effective Time.............................................................. 2
1.4 Subsequent Actions.......................................................... 2
ARTICLE II - ARTICLES OF INCORPORATION AND BY-LAWS
OF THE SURVIVING CORPORATION................................ 2
2.1 Articles of Incorporation................................................... 2
2.2 The By-laws................................................................. 3
ARTICLE III - OFFICERS AND DIRECTORS OF THE SURVIVING
CORPORATION................................................ 3
3.1 Officers and Directors...................................................... 3
ARTICLE IV - CONVERSION OR CANCELLATION OF SHARES IN THE
MERGER..................................................... 3
4.1 Conversion or Cancellation of Shares........................................ 3
4.2 Shares of the Constituent and Surviving Corporations........................ 4
ARTICLE V - REPRESENTATIONS AND WARRANTIES................................................. 4
5.1 Representations and Warranties of the Company and the Original
Shareholders................................................................ 4
(a) Existence and Good Standing.......................................... 4
(b) Authority............................................................ 4
(c) Capital Stock........................................................ 5
(d) Compliance........................................................... 5
(e) Financial Information................................................ 5
(f) Absence of Events, Defaults and Agreements........................... 5
(g) Guaranties........................................................... 6
(h) Title to Assets, Encumbrances, Etc................................... 6
(i) Sales Contracts and Other Agreements................................. 6
5.2 Representations and Warranties of the Shareholders.......................... 7
(a) Ownership of Stock; Authorization.................................... 7
(b) Compliance........................................................... 7
(c) Investment........................................................... 7
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5.3 Representations and Warranties of Parent and Merger Sub..................... 8
(a) Existence and Good Standing of Merger Sub; Power and
Authority............................................................ 8
(b) Existence and Good Standing of Parent; Power and Authority;
Common Stock......................................................... 9
(c) Compliance........................................................... 9
(d) Memorandum........................................................... 9
ARTICLE VI - CONDITIONS.................................................................... 9
6.1 Conditions to Obligations of Parent and Merger Sub.......................... 9
(a) Good Standing and Other Certificates................................. 10
(b) Truth of Representations and Warranties.............................. 10
(c) Performance of Agreements............................................ 10
(d) No Litigation Threatened............................................. 10
(e) Assignment of Certain Agreements..................................... 10
(f) Termination of Shareholders Agreement................................ 10
(g) General Releases..................................................... 10
(h) Proceedings.......................................................... 10
(i) Articles of Merger................................................... 11
6.2 Conditions to Obligations of the Company and the Shareholders............... 11
(a) Good Standing Certificates........................................... 11
(b) Truth of Representations and Warranties.............................. 11
(c) Performance of Agreements............................................ 11
(d) Proceedings.......................................................... 11
(e) General Releases..................................................... 11
(f) Parent Guarantee..................................................... 11
(g) Payment of Advances.................................................. 12
(h) Payment of Certain Expenses.......................................... 12
(i) Articles of Merger................................................... 12
ARTICLE VII - CONDUCT OF BUSINESS; EXCLUSIVE DEALING;
NON-COMPETITION AND NON-INTERFERENCE...................... 12
7.1 Conduct of Business of the Company.......................................... 12
7.2 Exclusive Dealing........................................................... 12
ARTICLE VIII - SURVIVAL OF REPRESENTATIONS; INDEMNITY;
SET-OFF................................................... 13
8.1 Survival of Representations................................................. 13
8.2 Indemnification............................................................. 13
8.3 Method of Asserting Claims.................................................. 14
8.4 Payment..................................................................... 16
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ARTICLE IX - MISCELLANEOUS AND GENERAL .................................................... 16
9.1 Expenses.................................................................... 16
9.2 Governing Law............................................................... 16
9.3 Jurisdiction; Agents for Service of Process................................. 16
9.4 Captions.................................................................... 17
9.5 Publicity................................................................... 17
9.6 Notices..................................................................... 17
9.7 Parties in Interest......................................................... 17
9.8 Counterparts................................................................ 17
9.9 Entire Agreement............................................................ 17
9.10 Amendments.................................................................. 18
9.11 Severability................................................................ 18
9.12 Third Party Beneficiaries................................................... 18
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AGREEMENT AND PLAN OF MERGER
Agreement and Plan of Merger (hereinafter called the "Agreement"), dated
as of August 28, 1996, by and among MAGICWORKS ENTERTAINMENT INCORPORATED, a
Delaware corporation ("Parent"), MT ACQUISITION SUB, INC., a Florida corporation
and wholly-owned subsidiary of Parent ("Merger Sub"), MOVIETIME ENTERTAINMENT,
INC., a Florida corporation (the "Company") (the Company and Merger Sub are
hereinafter collectively referred to as the "Constituent Corporations"), Brad
Krassner ("Krassner"), Michael J. Brown ("Brown"), Mitchell Fullerton
("Fullerton"), Brad Leigh Benjamin ("Benjamin") and Steven Simon ("Simon" and
together with Krassner, Brown, Benjamin and Fullerton, the "Original
Shareholders") and the other shareholders of the Company who are signatories
hereto (together with the Original Shareholders, the "Shareholders").
RECITALS
WHEREAS, the respective Boards of Directors of Parent, Merger Sub and
the Company deem it desirable and in the best interests of their respective
corporations and shareholders that Merger Sub merge with and into the Company in
a statutory merger in accordance with the laws of the State of Florida; and
WHEREAS, the parties desire that the merger provided for herein shall
qualify as a tax-free reorganization within the meaning of Section the Internal
Revenue Code of 1986, as amended; and
WHEREAS, Parent, Merger Sub, the Company and the Shareholders desire to
make certain representations, warranties, covenants and agreements in connection
with the merger provided for herein;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants, agreements and conditions herein
contained, the parties hereto agree as follows:
ARTICLE I
THE MERGER
1.1 MERGER AND SURVIVING CORPORATION.
(a) Subject to the terms and conditions of this Agreement and
pursuant to the applicable laws of the State of Florida, at the Effective Time
(as defined in Section 1.3 herein), Merger Sub shall be merged with and into the
Company, and the separate corporate existence of Merger Sub shall thereupon
cease (the "Merger"). The Company shall be the surviving corporation in the
Merger (sometimes hereinafter referred to as the "Surviving Corporation") and
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shall continue to be governed by the laws of the State of Florida under the name
"MovieTime Entertainment, Inc." and the separate corporate existence of the
Company with all its rights, privileges, immunities and franchises shall
continue unaffected by the Merger.
1.2 CLOSING. Subject to the provisions of Article VI, the closing of
the Merger (the "Closing") shall take place at (i) the offices of Greenberg,
Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., 1221 Brickell Avenue, Miami,
Florida, at 10:00 A.M., on August 28, 1996, or (ii) at such other time and date
(not later than August 31, 1996) as the parties hereto shall by written
instrument designate. Such time and date are herein referred to as the "Closing
Date."
1.3 EFFECTIVE TIME. At or prior to the Closing Date, Merger Sub and
the Company will cause Articles of Merger in the form attached hereto as Exhibit
A (the "Articles of Merger") to be executed and filed with the Department of
State for the State of Florida (the "Department of State"). The Merger shall
become effective on the date specified in the Articles of Merger as the
effective date of the Merger, and such time, which shall not be earlier than
immediately following the Closing Date, is hereinafter referred to as the
"Effective Time."
1.4 SUBSEQUENT ACTIONS. If, at any time after the Effective Time,
the Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments or any other actions or things are necessary or desirable to
vest, perfect, confirm, record or otherwise in the Surviving Corporation its
rights, title or interest in, to or under any of the rights, properties or
assets of the Constituent Corporations acquired or to be acquired by the
Surviving Corporation as a result of, or in connection with, the Merger or
otherwise to carry out this Agreement, the officers and directors of the
Surviving Corporation shall be authorized to execute and deliver, in the name
and on behalf of each of the Constituent Corporations or otherwise, all such
other actions and things as may be necessary or desirable to vest, perfect or
confirm any and all right, title, and interest in, to and under such rights,
properties or assets in the Surviving Corporation or otherwise to carry out the
terms and provisions of this Agreement.
ARTICLE II
ARTICLES OF INCORPORATION AND BY-LAWS
OF THE SURVIVING CORPORATION
2.1 ARTICLES OF INCORPORATION. The Articles of Incorporation of the
Company shall be the Articles of Incorporation of the Surviving Corporation,
until duly amended in accordance with their terms and the Florida Business
Corporation Act ("FBCA").
2.2 The By-laws. The By-laws of the Company shall be the By-laws of
the Surviving Corporation, until duly amended in accordance with their terms and
the FBCA.
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ARTICLE III
OFFICERS AND DIRECTORS
OF THE SURVIVING CORPORATION
3.1 OFFICERS AND DIRECTORS. The persons listed on Exhibit B hereto
shall hold the directorships and offices of the Surviving Corporation set forth
beside their names on such exhibit, until their successors have been duly
elected or appointed and qualified or until their earlier death, resignation and
removal in accordance with the Surviving Corporation's Articles of Incorporation
and By-laws.
ARTICLE IV
CONVERSION OR CANCELLATION OF SHARES IN THE MERGER
4.1 CONVERSION OR CANCELLATION OF SHARES.
(a) At the Effective Time, each and every share of common stock,
par value $1.00 per share (the "Company Common Stock"), of the Company held by
the Shareholders which is issued and outstanding immediately prior to the
Effective Time shall, by virtue of the Merger and without any action on the part
of the holder thereof, be converted into the right to receive from Parent and
Merger Sub the Per Share Conversion Amount (as hereinafter defined). All of the
shares of the Company Common Stock, by virtue of the Merger and without any
action on the part of the holders thereof, shall no longer be outstanding and
shall be canceled and retired and shall cease to exist, and each holder of a
certificate representing any shares of the Company Common Stock shall thereafter
cease to have any rights with respect to such shares, except the right to
receive, after the surrender of such certificate, the Per Share Conversion
Amount for each such share in accordance with Section 4.2.
(b) At the Effective Time, each share of the Company Common Stock
issued and held in the Company's treasury, if any, at the Effective Time, shall,
by virtue of the Merger and without any action on the part of the holder
thereof, cease to be outstanding, shall be canceled and retired without payment
of any consideration therefor and shall cease to exist.
(c) At the Effective Time, each share of common stock, par value
$1.00 per share ("Merger Sub Common Stock"), of Merger Sub issued and
outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of Merger Sub or the holder of such
shares, be converted into and thereafter represent one validly issued, fully
paid and non-assessable share of the common stock, par value $1.00 per share
(collectively, the "Surviving Shares"), of the Surviving Corporation.
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4.2 SHARES OF THE CONSTITUENT AND SURVIVING CORPORATIONS. At the
Effective Time of the Merger, upon surrender of the certificate or certificates
representing shares of Company Common Stock to Merger Sub (or its designated
agent) for cancellation, each share of Company Common Stock will be converted
into the right to receive from the Parent (the "Per Share Conversion Amount") a
certificate or certificates representing 2,962.96 shares of common stock, par
value $.001 per share (the "Parent Common Stock"), of Parent rounded to the
nearest whole number. At the Effective Time of the Merger, upon surrender of the
certificate or certificates representing shares of Company Common Stock to
Merger Sub (or its designated agent) for cancellation, each Shareholder (or its
designee) shall be entitled to receive, in accordance with the immediately
preceding sentence, the number of shares of Parent Common Stock set forth
opposite such Shareholder's name on Exhibit C hereto under the heading "Number
of Shares of Parent Common Stock to be Received." No fractional shares of Parent
Common Stock will be issued. Merger Sub acknowledges that it (or its designee)
has received from each of the Shareholders a certificate or certificates
registered in such Shareholder's name representing the number of shares of
Company Common Stock set forth opposite such Shareholder's name on Exhibit C
hereto under the heading "Number of Shares of Company Common Stock Owned of
Record."
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE ORIGINAL
SHAREHOLDERS. The Company and each of the Original Shareholders hereby jointly
and severally represent and warrant to Parent and Merger Sub as follows:
(a) EXISTENCE AND GOOD STANDING. The Company is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida. The Company has the power to own its properties and to carry
on its business as it has been and is now being conducted.
(b) AUTHORITY. The Company has the requisite corporate power and
authority and has taken all corporate and shareholder action necessary in order
to execute and deliver this Agreement and to consummate the Merger and the other
transactions contemplated hereby. This Agreement is a valid and binding
agreement of the Company enforceable against the Company in accordance with its
terms.
(c) CAPITAL STOCK. The Company has an authorized capitalization
consisting of 500 shares of Company Common Stock, of which 405 shares are issued
and outstanding and no shares are held in the Company's treasury. All such
outstanding shares have been duly authorized and validly issued and are fully
paid and nonassessable. To the knowledge of the Original Shareholders, there are
no outstanding options, warrants, rights, calls, commitments, conversion rights,
rights of exchange, plans or other agreements of any character providing for the
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purchase, issuance or sale of any shares of the capital stock of the Company,
other than as contemplated by this Agreement.
(d) COMPLIANCE. The execution and delivery of this Agreement by
the Company, do not, and the consummation of the transactions contemplated
hereby does not and will not, constitute or result in (i) a breach or violation
of, or a default under, the Articles of Incorporation or By-laws of the Company,
or (ii) a breach or violation of, a default under, the acceleration of or the
creation of a lien, pledge, security interest or other encumbrance on assets
(with or without the giving of notice or the lapse of time) pursuant to any
provision of any agreement, lease, contract, note, mortgage, lien, arrangement
or other obligation of the Company, or any law, rule, ordinance or regulation or
judgment, decree, order, award, governmental or nongovernmental permit, or
license, or any other restriction of any kind or character to which the Company
is subject. The consummation by the Company of the transactions contemplated
hereby will not require the consent or approval of any person, except for the
required consents and approvals set forth in Schedule 5.1(d), all of which shall
be obtained prior to the Closing Date.
(e) FINANCIAL INFORMATION. The financial information with respect
to the Company set forth on page 23 of Parent's Confidential Private Placement
Memorandum dated June 6, 1996 (the "Memorandum") fairly sets forth the financial
condition of the Company for the periods indicated in all material respects.
(f) ABSENCE OF EVENTS, DEFAULTS AND AGREEMENTS. (a) Except as
set forth in Schedule 5.1 (f) hereto and for the transactions contemplated by
this Agreement, since March 31, 1996, there has not been:
(i) any damage, destruction, or loss to any asset or
property of the Company, whether or not covered by insurance,
that would be reasonably likely to have a material adverse effect
on the Company's business, financial condition or prospects;
(ii) any sale, lease, or other disposition of any
material asset of the Company;
(iii) any cancellation or waiver of any claims or rights
of the Company other than in the ordinary course;
(iv) any transaction or other business conducted by the
Company other than in the ordinary course;
(v) any agreement, arrangement or understanding made,
whether or not in writing, to do any of the foregoing by the
Company.
(vi) any capital expenditure in excess of $25,000
individually or $50,000 in the aggregate;
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(vii) any payment, discharge or other satisfaction of any
claim, liability or obligation, except in the ordinary course of
business and consistent with past practice; or
(viii) any dividend, payment or other distribution of
cash, assets or property declared or made with respect to any
class of shares of the Company's capital stock.
(g) GUARANTIES. The Company has not guaranteed the obligations
(whether individually, jointly, severally or otherwise) of any other person or
entity, except for negotiable instruments endorsed for collection or deposit in
the ordinary course of the Company's business.
(h) TITLE TO ASSETS, ENCUMBRANCES, ETC. (a) The Company does not
own any real property. All leases of real property to which the Company is a
party, and all amendments and modifications thereto, are in full force and
effect and constitute the binding obligations of the parties thereto. The
Company has good title to the tangible properties and assets owned by it, each
of which are free and clear of liens or encumbrances of any kind.
(i) SALES CONTRACTS AND OTHER AGREEMENTS. Schedule 5.1(i) hereto
contains (A) a complete and accurate list of each written contract or commitment
for the sale or furnishing of materials, products or services by the Company
that involve payments in excess of $5,000 and are not terminable immediately
upon notice without expense or further liability; (B) a complete and accurate
list of all written contracts or arrangements pursuant to which any person
(other than an employee of the Company) may promote, offer or sell any product
or service of the Company; and (C) a complete and accurate list of each
additional written contract or arrangement of the Company (i) pursuant to which
the Company's monetary obligations thereunder exceed $5,000, and (ii) that is
not subject to cancellation by the Company immediately upon notice without
penalty or increased cost. Except as set forth on Schedule 5.1(i), each of the
aforesaid contracts and agreements is in full force and effect and constitutes
the valid and binding obligation of the parties thereto. To the knowledge of the
Company and the Original Shareholders, there are no renegotiations of, or
attempts to renegotiate, or outstanding rights to renegotiate, any material
amounts paid or payable to the Company under current or completed contracts,
agreements, or commitments with any person or entity having the contractual or
statutory right to demand or require such renegotiation, and no such person has
made written demand for such renegotiation.
5.2 REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each of the
Shareholders hereby represents and warrants, severally and not jointly, to
Parent and Merger Sub as follows:
(a) OWNERSHIP OF STOCK; AUTHORIZATION. Such Shareholder is the
lawful owner of the number of shares of the Company Common Stock listed opposite
the name of such Shareholder in Exhibit C hereto, free and clear of all liens,
encumbrances, restrictions and claims of every kind. Such Shareholder has full
legal right, power and authority to enter into and perform this Agreement. This
Agreement is a valid and binding obligation of such Shareholder enforceable
against such Shareholder in accordance with its terms.
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(b) COMPLIANCE. The execution and delivery of this Agreement by
such Shareholder, does not, and the consummation of the transactions
contemplated hereby does not and will not, constitute or result in a breach or
violation of, a default under, the acceleration of or the creation of a lien,
pledge, security interest or other encumbrance on assets (with or without the
giving of notice or the lapse of time) pursuant to any provision of any
agreement, lease, contract, note, mortgage, lien, arrangement or other
obligation of such Shareholder, or any law, rule, ordinance or regulation or
judgment, decree, order, award, governmental or nongovernmental permit, or
license, or any other restriction of any kind or character to which such
Shareholder is subject. The consummation by such Shareholder of the transactions
contemplated hereby will not require the consent or approval of any person.
(c) INVESTMENT.
(i) Such Shareholder acknowledges that he or she has
received and reviewed the Memorandum.
(ii) Such Shareholder understands that the Parent Common
Stock to be issued and delivered in accordance with Section 4.2 hereof shall be
issued and delivered pursuant to an exemption from the registration requirements
of the Securities Act of 1933, as amended (the "Securities Act"); that for such
purpose Parent will rely upon the representations, warranties, covenants and
agreements contained herein; and that such exemption may not be available unless
such representations and warranties are correct and such covenants and
agreements performed.
(iii) Such Shareholder understands that Parent is under
no obligation to effect a registration under the Securities Act of the Parent
Common Stock to be issued in accordance with this Agreement.
(iv) Such Shareholder understands that, under existing
rules of the Securities and Exchange Commission (the "SEC"), there are
substantial restrictions on the transferability of the Parent Common Stock; such
securities will not be, and such Shareholder will have no rights to require that
such securities be, registered under the Securities Act; such securities may be
transferred only if registered under the Securities Act or if an exemption from
such registration is available; such Shareholder may not be able to avail
himself or herself, as the case may be, of the provisions of Rule 144
promulgated by the SEC under the Securities Act with respect to the transfer of
such securities; and, accordingly, such Shareholder may have to hold such
securities issued to it pursuant to this Agreement indefinitely.
(v) Such Shareholder is able to evaluate the risks
inherent in the acquisition of securities such as the Parent Common Stock and
such Shareholder's financial position is such that such Shareholder can afford
to retain such securities for an indefinite period of time without realizing any
direct or indirect cash return on such Shareholder's investment.
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(vi) Such Shareholder is acquiring or will acquire the
Parent Common Stock for his or her own account and not with a view to, or for
sale in connection with, the distribution thereof within the meaning of the
Securities Act.
(vii) Such Shareholder understands that the certificates
evidencing the Parent Common Stock will bear a restrictive legend substantially
as follows:
"The securities evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be offered, sold, pledged, hypothecated,
assigned, transferred or otherwise disposed of unless they have
been registered under the Act and any applicable securities laws
or the issuer receives an opinion of counsel reasonably
acceptable to it stating that the proposed disposition is exempt
from the registration requirements of the Act and any applicable
securities laws."
5.3 REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB. Parent
and Merger Sub jointly and severally represent and warrant to the Company and
the Shareholders as follows:
(a) EXISTENCE AND GOOD STANDING OF MERGER SUB; POWER AND
AUTHORITY. Merger Sub is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida. Merger Sub has the
corporate power and authority to make, execute, deliver and perform this
Agreement, and this Agreement has been duly authorized and approved by all
required corporate action on the part of Merger Sub. This Agreement is a valid
and binding obligation of Merger Sub enforceable against Merger Sub in
accordance with its terms.
(b) EXISTENCE AND GOOD STANDING OF PARENT; POWER AND AUTHORITY;
COMMON STOCK. Parent is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida. Parent has the corporate
power and authority to make, execute, deliver and perform this Agreement, and
this Agreement has been duly authorized and approved by all required corporate
action of Parent. This Agreement is a valid and binding obligation of Parent
enforceable against Parent in accordance with its terms. Parent has only one
class of common stock outstanding.
(c) COMPLIANCE. The execution and delivery of this Agreement by
Parent and Merger Sub do not, and the consummation by Parent and Merger Sub of
the transactions contemplated hereby does not and will not, constitute or result
in (i) a breach or violation of, or a default under, the Articles of
Incorporation or By-laws of Parent or Merger Sub, or (ii) a breach or violation
of, a default under, the acceleration of or the creation of a lien, pledge,
security interest or other encumbrance on assets (with or without the giving of
notice or the lapse of time) pursuant to any provision of any agreement, lease,
contract, note, mortgage, lien, arrangement or other obligation of Parent or
Merger Sub, or any law, rule, ordinance or regulation or judgment, decree,
order, award, governmental or nongovernmental permit, or license, or any other
restriction of any kind or character to which Parent or Merger Sub is subject.
The consummation by Parent
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and Merger Sub of the transactions contemplated hereby will not require the
consent or approval of any person, except for the required consents and
approvals set forth in Schedule 5.3(c), all of which shall be obtained prior to
the Closing Date.
(d) MEMORANDUM. As of the Closing Date, the Memorandum will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
ARTICLE VI
CONDITIONS
6.1 CONDITIONS TO OBLIGATIONS OF PARENT AND MERGER SUB. The respective
obligations of the Parent and Merger Sub are subject to the fulfillment of each
of the following conditions, any of which may be waived jointly in writing in
whole or in part by Parent and Merger Sub:
(a) GOOD STANDING AND OTHER CERTIFICATES. The Company shall have
delivered to Parent and Merger Sub (i) copies of the Company's charter,
including all amendments thereto, in each case certified by the Secretary of
State or other appropriate official of its jurisdiction of incorporation, and
(ii) a certificate from the Secretary of State or other appropriate official of
its jurisdiction of incorporation to the effect that the Company is in good
standing.
(b) TRUTH OF REPRESENTATIONS AND WARRANTIES. The respective
representations and warranties of the Company and the Shareholders contained in
this Agreement or in any Schedule attached hereto shall be true and correct on
and as of the Closing Date with the same effect as though such representations
and warranties had been made on and as of such date.
(c) PERFORMANCE OF AGREEMENTS. All of the agreements of the
Company and/or the Shareholders to be performed on or before the Closing Date
pursuant to the terms hereof shall have been duly performed.
(d) NO LITIGATION THREATENED. No action or proceedings shall have
been instituted or, to the best knowledge, information and belief of the Company
and the Shareholders, threatened before a court or other government body or by
any public authority to restrain or prohibit any of the transactions
contemplated hereby.
(e) ASSIGNMENT OF CERTAIN AGREEMENTS. The Shareholders shall have
caused all contracts, if any, between Phoenix Creative, Inc. and any third party
relating to the business, products or services of the Company, including without
limitation its MovieTime service, to be validly assigned to the Company, and
shall have received all necessary third party consents to such assignment.
-9-
<PAGE>
(f) TERMINATION OF SHAREHOLDERS AGREEMENT. The Shareholders
Agreement dated as of August, 1995 among the Company and the Shareholders shall
have been terminated and Parent and Merger Sub shall have received evidence in
writing of such termination.
(g) GENERAL RELEASES. Each of the Shareholders and David Brown
shall have executed and delivered to the Company a mutual general release in the
form attached hereto as Exhibit D (the "Release").
(h) PROCEEDINGS. All proceedings to be taken in connection with
the transactions contemplated by this Agreement and all documents incident
thereto shall be satisfactory in form and substance to the Parent and Merger Sub
and their counsel and the Parent and Merger Sub shall have received copies of
all such documents and other evidence as they or their counsel may reasonably
request in order to establish the consummation of such transactions and the
taking of all proceedings in connection therewith.
(i) ARTICLES OF MERGER. The Articles of Merger shall have been
executed and filed by the Company and Merger Sub with the Department of State.
6.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY AND THE SHAREHOLDERS. The
respective obligations of the Company and the Shareholders are subject to the
fulfillment of each of the following conditions, any of which may be waived
jointly in writing in whole or in part by the Company and the Shareholders:
(a) GOOD STANDING CERTIFICATES. The Parent and Merger Sub shall
have delivered to the Company and the Shareholders (i) a copy of the Articles of
Incorporation of the Parent, including all amendments thereto, certified by the
Secretary of State of the State of Delaware, (ii) a copy of the Articles of
Incorporation of Merger Sub, including all amendments thereto, certified by the
Secretary of State of the State of Florida, (iii) a certificate from the
Secretary of State of the State of Delaware, to the effect that the Parent is in
good standing in such State, and (iv) a certificate from the Secretary of State
of the State of Florida, to the effect that Merger Sub is in good standing in
such state.
(b) TRUTH OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of the Parent and Merger Sub contained in this Agreement shall be
true and correct on and as of the Closing Date with the same effect as though
such representations and warranties had been made on and as of such date.
(c) PERFORMANCE OF AGREEMENTS. All of the agreements of the
Parent and Merger Sub to be performed on or before the Closing Date pursuant to
the terms hereof shall have been duly performed.
(d) PROCEEDINGS. All proceedings to be taken in connection with
the transactions contemplated by this Agreement and all documents incident
thereto shall be reasonably satisfactory in form and substance to the Company
and the Shareholders and their
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<PAGE>
counsel and the Company and the Shareholders shall have received copies of all
such documents and other evidences as they or their counsel may reasonably
request in order to establish the consummation of such transactions and the
taking of all proceedings in connection therewith.
(e) GENERAL RELEASES. The Company shall have executed and
delivered to each of the Shareholders and David Brown the Release. Each
Shareholder shall have executed and delivered to each of the other Shareholders
and the Company the Release.
(f) PARENT GUARANTEE. Parent shall have executed and delivered a
guarantee of the obligations of the Company under the employment agreements
between the Company and each of Mitchell Fullerton and Brad Leigh Benjamin in
the form attached hereto as Exhibit E.
(g) PAYMENT OF ADVANCES. Parent shall have repaid the advance
by Steven Simon to the Company in the amount of $25,000.
(h) PAYMENT OF CERTAIN EXPENSES. Parent shall have reimbursed
certain expenses incurred by Michael Brown in the amount of $1,577.
(i) ARTICLES OF MERGER. The Articles of Merger shall have been
executed and filed by the Company and Merger Sub with the Department of State.
ARTICLE VII
CONDUCT OF BUSINESS; EXCLUSIVE DEALING;
NON-COMPETITION AND NON-INTERFERENCE
7.1 CONDUCT OF BUSINESS OF THE COMPANY. During the period from the date
of this Agreement to the Closing Date, the Original Shareholders shall cause the
Company to conduct its operations only according to its ordinary and usual
course of business and to use their best efforts to preserve intact the
Company's business organization, keep available the services of its officers and
employees and maintain satisfactory relationships with licensors, suppliers,
distributors, clients and others having business relationships with the Company.
Notwithstanding the immediately preceding sentence, prior to the Closing Date,
except as may be first approved by the Parent and Merger Sub or as is otherwise
permitted or required by this Agreement, the Original Shareholders will cause
(a) the Company's Articles of Incorporation and By-Laws to be maintained as they
exist on the date of this Agreement, (b) the Company to refrain from making any
bonus, pension, retirement or insurance payment or arrangement to or with any
such persons except those that may have been accrued on or prior to the date
hereof, and (c) the Company to refrain from entering into any contract or
commitment except contracts or commitments in the ordinary course of business.
The Shareholders agree not to take any action, or omit to take any action, which
would cause the representations and warranties contained in Article V hereof to
be untrue or incorrect.
-11-
<PAGE>
7.2 EXCLUSIVE DEALING. During the period from the date of this Agreement
to the Closing Date, the Shareholders shall not, and shall cause the Company to
refrain from taking any action to, directly or indirectly, encourage, initiate
or engage in discussions or negotiations with, or provide any information to,
any Person, other than Parent and/or Merger Sub, concerning any merger, purchase
of the Company Common Stock or any sale of substantial assets or similar
transactions involving the Company.
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS; INDEMNITY; SET-OFF
8.1 SURVIVAL OF REPRESENTATIONS. The respective representations and
warranties of the Company, the Shareholders, the Parent and Merger Sub contained
in this Agreement or in any Schedule attached hereto shall survive the Merger
contemplated hereby; provided, that the representations and warranties of the
Original Shareholders contained in Section 5.1 hereof shall survive the Merger
only until April 30, 1997.
8.2 INDEMNIFICATION.
(a) Subject to the provisions of Section 8.1 hereof, the
Shareholders, jointly and severally, shall indemnify and hold the Surviving
Corporation, Parent and Merger Sub and their respective officers, directors,
agents, successors and assigns harmless from damages, losses or expenses
(including, without limitation, reasonable counsel fees and expenses under the
circumstances) in the aggregate, suffered or paid, directly or indirectly,
through application of the Surviving Corporation's, the Parent's or the Merger
Sub's assets, as a result of or arising out of the failure of any representation
or warranty made by the Company and/or the Shareholders in this Agreement or in
any Schedule attached hereto to be true and correct in all material respects as
of the date of this Agreement and as of the Closing Date. Notwithstanding the
foregoing, the Company's and the Shareholders' indemnification obligations to
the Surviving Corporation, the Parent and/or the Merger Sub shall not exceed the
total aggregate consideration received or to be received by the Shareholders
with each Shareholder responsible for up to the total aggregate consideration to
be received by such Shareholder (the "Shareholders Indemnification Cap")
pursuant to Section 4.2 hereof; provided, however, if a court of competent
jurisdiction determines that the damages, losses or expenses suffered or paid,
directly or indirectly, by the Surviving Corporation, the Parent or Merger Sub,
were the result of, or arose out of, actual fraud on the part of the Company or
the Shareholders, the Shareholders Indemnification Cap shall be inapplicable and
shall in no way limit the Shareholders' indemnification obligations to the
Surviving Company, the Parent and/or Merger Sub; provided further, however, that
if a court of competent jurisdiction determines that the damages, losses or
expenses suffered or paid, directly or indirectly, by the Surviving Corporation,
the Parent or Merger Sub, were the result of, or arose out of, actual fraud on
the part of a Shareholder or Shareholders, the other Shareholders shall not be
liable as to those damages, losses and expenses. For the purposes of calculating
the Shareholders Indemnification Cap, shares of Parent Common Stock issued to
the Shareholders
-12-
<PAGE>
pursuant to this Agreement which have not been sold by the Shareholders, shall
be valued at their bid price at the time of calculation with the Shares or
rights to receive same, as the case may be, forfeited in appropriate amounts;
such shares of Parent Common Stock that have been sold shall be valued at the
price received by the Shareholders therefor.
(b) The Parent and Merger Sub shall indemnify and hold the
Shareholders harmless from damages, losses or expenses (including, without
limitation, reasonable counsel fees and expenses under the circumstances), in
the aggregate, suffered or paid, directly or indirectly, by the Shareholders as
a result of or arising out of the failure of any representation or warranty made
by the Parent and/or Merger Sub in this Agreement to be true and correct in all
material respects as of the date of this Agreement and as of the Closing Date.
Notwithstanding the foregoing, the Parent's and Merger Sub's indemnification
obligations to the Shareholders shall not exceed the total aggregate
consideration paid by Parent and Merger Sub pursuant to Section 4.2 hereof (the
"Parent Indemnification Cap"); provided, however, if a court of competent
jurisdiction determines that the damages, losses or expenses suffered or paid,
directly or indirectly, by the Company and the Shareholders were the result of,
or arose out of, actual fraud on the part of the Parent and Merger Sub, the
Parent Indemnification Cap shall not be applicable.
(c) Each indemnifying party or parties hereto will indemnify and
hold harmless the indemnified party or parties hereto from, against and in
respect of any and all actions, suits, proceedings, demands, assessments,
judgments, costs (including attorneys' fees) and legal and other expenses
incident to any of the foregoing or to the enforcement of this Article VIII.
(d) The obligations to indemnify and hold harmless pursuant to
this Section 8.2 shall survive the consummation of the transactions contemplated
by this Agreement.
(e) Notwithstanding anything else contained herein, in no event
shall any Original Shareholder be obligated to indemnify the Surviving
Corporation, the Parent or Merger Sub under this Section 8.2 for breach of any
representation or warranty contained in Section 5.1 hereof that is made to the
knowledge of the Shareholders, unless such Original Shareholder had actual
knowledge that such representation or warranty was untrue or inaccurate at the
time that it was made.
8.3 Method of Asserting Claims. All claims for indemnification under
this Article VIII shall be asserted and resolved as follows:
(a) The party entitled to be indemnified hereunder (the
"Indemnified Party") shall give the party obligated to provide the indemnity
(the "Indemnifying Party") prompt notice of any claim or demand asserted or
sought to be collected by a third party (the "Claim Notice"); provided, that the
failure to give such Claim Notice shall not affect the liability of the
Indemnifying Party under this Agreement unless the failure materially and
adversely affects the ability of the Indemnifying Party to defend such third
party claim or would result in substantial, otherwise unnecessary fees or costs
or would otherwise materially prejudice the Indemnifying Party. If the
Indemnifying Party promptly acknowledges in writing its obligation to indemnify
-13-
<PAGE>
in accordance with the terms and subject to the limitations of such party's
obligation to indemnify contained in this Agreement with respect to that claim,
the Indemnifying Party shall have a reasonable time to assume the defense of the
third party claim at its expense and with counsel of its choosing, which counsel
shall be reasonably satisfactory to the Indemnified Party. Any Claim Notice
shall identify, to the extent known to the Indemnified Party, the basis for such
claim, the facts giving rise to such claim, and the estimated amount of such
claim (which estimate shall not be conclusive of the final amount of such claim
or demand) and shall provide, to the extent reasonably available, a copy of any
pleading or process it has received in the matter. The Indemnified Party shall
make available to the Indemnifying Party copies of all relevant documents and
records in its possession.
(b) If the Indemnifying Party, within a reasonable time after
receipt of such Claim Notice, fails to assume the defense in accordance with
Section 8.3(a), the Indemnified Party shall (upon further notice to the
Indemnifying Party) have the right to undertake the defense, compromise or
settlement of such third party claim, at the expense and for the account and
risk of the Indemnifying Party.
(c) Anything in this Section 8.3 to the contrary notwithstanding,
(i) the Indemnifying Party shall not without the written consent of the
Indemnified Party, settle or compromise any third party claim or consent to the
entry of judgment which does not include as an unconditional term thereof the
giving by the claimant or the plaintiff to the Indemnified Party an
unconditional release from all liability in respect of such third party claim;
(ii) if any such third party claim or demand involves an issue or matter which
the Indemnified Party believes could have a materially adverse effect on the
Indemnified Party's business, operations, assets, properties or prospects of its
business, the Indemnified Party shall have the right to control the defense or
settlement of any such claim or demand, provided that the reasonable costs and
expenses thereof shall not be included as part of the indemnification
obligations of the Indemnifying Party hereunder, and (iii) the Indemnified Party
shall have the right to employ its own counsel to defend any claim at the
Indemnifying Party's expense if (x) the employment of such counsel by the
Indemnified Party has been authorized by the Indemnifying Party, or (y) counsel
selected by the Indemnifying Party shall have reasonably concluded that there
may be a conflict of interest between the Indemnifying Party and the Indemnified
Party in the conduct of the defense of such action or (z) the Indemnifying Party
shall not have employed counsel to assume the defense of such claim in
accordance with Section 8.3(a)
(d) In the event that the Indemnified Party should have a claim
against the Indemnifying Party hereunder which does not involve a claim or
demand being asserted against or sought to be collected from it by a third
party, the Indemnified Party shall promptly send a Claim Notice with respect to
such claim to the Indemnifying Party. If the Indemnifying Party does not notify
the Indemnified Party within a reasonable period that it disputes such claim,
the amount of such claim shall be conclusively deemed a liability of the
Indemnifying Party hereunder.
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<PAGE>
(e) Nothing herein shall be deemed to prevent any Indemnified
Party from making a claim hereunder for potential or contingent claims or
demands provided the Claim Notice sets forth the specific basis for any such
potential or contingent claim or demand and the estimated amount thereof to the
extent then feasible and the Indemnified Party has reasonable grounds to believe
that such a claim or demand will be made.
8.4 PAYMENT.
(a) In the event that any party is required to make any payment
under this Article VIII, such party shall promptly pay the Indemnified Party the
amount so determined. If there should be a dispute as to the amount or manner of
determination of any indemnity obligation owed under this Article VIII, the
party from which indemnification is due shall nevertheless pay when due such
portion, if any, of the obligation as shall not be subject to dispute. The
difference, if any, between the amount of the obligation ultimately determined
as properly payable under this Article VIII and the portion, if any, theretofore
paid shall bear interest as provided in Section 8.4(b). Upon the payment in full
of any claim, either by set-off or otherwise, the party or entity making payment
shall be subrogated to the rights of the Indemnified Party against any person,
firm, corporation or other entity with respect to the subject matter of such
claim.
(b) If all or part of any indemnification obligation under this
Agreement is not paid when due, then the Indemnifying Party shall pay the
Indemnified Party interest on the unpaid amount of the obligation for each day
from the date the amount became due until payment in full, payable on demand, at
the fluctuating rate per annum which at all times shall be the lowest rate of
interest generally charged from time to time by Citibank, N.A. and publicly
announced by such bank as its so-called "prime rate."
ARTICLE IX
MISCELLANEOUS AND GENERAL
9.1 EXPENSES. Each of the parties hereto shall be responsible and shall
pay for all of its own expenses relating to the transactions contemplated by
this Agreement, including, without limitation, the fees and expenses of its
counsel and financial advisors.
9.2 GOVERNING LAW. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the laws of the
State of Florida applicable to agreements executed and to be performed solely
within such state.
9.3 JURISDICTION; AGENTS FOR SERVICE OF PROCESS. Any judicial proceeding
brought against any of the parties to this Agreement with respect to any dispute
arising out of this Agreement or any matter related hereto may be brought only
in the courts of the State of Florida,
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<PAGE>
or in the United States District Court for the Southern District of Florida,
and, by execution and delivery of this Agreement, each of the parties to this
Agreement accepts the exclusive jurisdiction of such courts, waives any claim
that any such forum is inconvenient and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Agreement. The prevailing
party or parties in any such litigation shall be entitled to receive from the
losing party or parties all costs and expenses, including reasonable counsel
fees, incurred by the prevailing party or parties.
9.4 CAPTIONS. The Article and Section captions used herein are for
reference purposes only, and shall not in any way affect the meaning or
interpretation of this Agreement.
9.5 PUBLICITY. Except as otherwise required by law, none of the parties
hereto shall issue any press release or make any other public statement, in each
case relating to, connected with or arising out of this Agreement or the matters
comprising the subject matter hereof, without obtaining the prior approval of
Parent and the Company to the contents and the manner of presentation and
publication thereof.
9.6 NOTICES. Any notice or other communication required or permitted
hereunder shall be sufficiently given if delivered in person or sent by telex,
telecopy or by registered or certified mail, postage prepaid, addressed as
follows: if to the Parent and/or Merger Sub, addressed to Parent or Merger Sub,
as the case may be, c/o Magicworks Entertainment Incorporated, 930 Washington
Avenue, Miami Beach, Florida 33139, Attention: President, with a copy to its
counsel, Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., 1221
Brickell Avenue, Miami, Florida 33131, Attention: Gary Epstein, Esq.; if to the
Company and/or to any Shareholder, to such Shareholder at the address set forth
in Exhibit B, with a copy to the person listed under the heading "Notice Copy"
on Exhibit B hereto, or such other address or number as shall be furnished in
writing by any such party, and such notice or communication shall be deemed to
have been given as of the date so delivered, sent by telecopier or telex or
mailed.
9.7 PARTIES IN INTEREST. This Agreement may not be transferred,
assigned, pledged or hypothecated by any party hereto, other than by operation
of law. This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
9.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one instrument.
9.9 ENTIRE AGREEMENT. This Agreement, including the other documents
referred to herein which form a part hereof, contains the entire understanding
of the parties hereto with respect to the subject matter contained herein and
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
9.10 AMENDMENTS. This Agreement may not be changed orally, but only by
an agreement in writing signed by Parent, Merger Sub, the Company and the
Shareholders. Any
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<PAGE>
provision of this Agreement can be waived, amended, supplemented or modified by
agreement of Parent, Merger Sub, the Company and the Shareholders.
9.11 SEVERABILITY. In case any provision in this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof will not in any way be affected or impaired
thereby.
9.12 THIRD PARTY BENEFICIARIES. Each party hereto intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any Person other than the parties hereto.
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<PAGE>
IN WITNESS WHEREOF, each of the Parent, the Merger Sub and the Company
has caused its corporate name to be hereunto subscribed by its officer thereunto
duly authorized, and each of the Shareholders has executed this Agreement, all
as of the day and year first above written.
MAGICWORKS ENTERTAINMENT
INCORPORATED
By /s/ BRAD KRASSNER
------------------------------
Name: Brad Krassner
Title: Chairman
MT ACQUISITION SUB, INC.
By: /s/ BRAD KRASSNER
------------------------------
Name: Brad Krassner
Title: Chairman
MOVIETIME ENTERTAINMENT, INC.
By: /s/ BRAD KRASSNER
------------------------------
Name: Brad Krassner
Title: Chairman
THE SHAREHOLDERS:
/s/ BRAD KRASSNER
--------------------------------
Brad Krassner
/s/ MICHAEL J. BROWN
--------------------------------
Michael J. Brown
/s/ MITCHELL FULLERTON
--------------------------------
Mitchell Fullerton
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<PAGE>
/s/ BRAD LEIGH BENJAMIN
--------------------------------
Brad Leigh Benjamin
/s/ STEVEN SIMON
--------------------------------
Steven Simon
/s/ JOE MARSH
--------------------------------
Joe Marsh
/s/ GLENN BECHDEL
--------------------------------
Glenn Bechdel
/s/ LEE MARSHALL
--------------------------------
Lee Marshall
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<PAGE>
EXHIBIT B
OFFICERS AND DIRECTORS OF SURVIVING CORPORATION
-----------------------------------------------
DIRECTORS:
- ---------
Brad Leigh Benjamin
Mitchell Fullerton
Brad L. Krassner
Joe Marsh
Glen Bechdel
Lee Marshall
OFFICERS:
- --------
Brad L. Krassner - Chairman and Chief Executive Officer
Mitchell Fullerton - President
Brad Leigh Benjamin - Chief Operating Officer
Steven Chaby - Secretary and Treasurer
<PAGE>
EXHIBIT C
<TABLE>
<CAPTION>
SHAREHOLDERS
NUMBER OF SHARES NUMBER OF SHARES
OF COMPANY OF PARENT COMMON
COMMON STOCK STOCK TO BE
NAME AND ADDRESS OWNED OF RECORD RECEIVED NOTICE COPY
- -------------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C>
Brad L. Krassner 126.0000 373,333 Greenberg Traurig
2040 N. Bay Road
Miami Beach, FL 33140
Michael J. Brown 45.0000 133,333 David Brown
216 E. 95th Street
New York, NY 10128
Mitchell Fullerton 81.0000 240,000 David Brown
3410 B. 21st Court
Olympia, WA 98501
Brad Leigh Benjamin 81.0000 240,000 David Brown
3410 B. 21st Court
Olympia, WA 98501
Steven Simon 18.0000 53,333 David Brown
Autolend
930 Washington Ave.
Miami Beach, FL 33139
Joe Marsh 27.2792 80,827 Greenberg Traurig
2040 N. Bay Road
Miami Beach, FL 33140
Glenn Bechdel 10.7680 31,905 Greenberg Traurig
1117 Floridian Court
Cape Coral, FL 33904
Lee Marshall 15.9528 47,268 Greenberg Traurig
C/O Magic Promotions
199 E. Garfield Road
Aurora, OH 44202
----------------------
1,199,999
</TABLE>
<PAGE>
SCHEDULE 5.1(d)
CONSENTS AND APPROVALS
----------------------
None.
<PAGE>
SCHEDULE 5.1(f)
CHANGES SINCE MARCH 31, 1996
-----------------------------
Letter Agreement dated May 29, 1996 among Brad Krassner, for himself, and for
Diamond Bullet Corporation and for the corporate parent of the other
"Consolidated Entertainment companies referred to therein, David Brown, Michael
J. Brown, Mitchell Fullerton, Brad Leigh Benjamin, Steven Simon and Phoenix
Creative, Inc.
EXHIBIT 2.2
ARTICLES OF MERGER
OF
MT ACQUISITION SUB, INC.
INTO
MOVIETIME ENTERTAINMENT, INC.
Pursuant to the provisions of Sections 607.1101 and 607.1105 of the
Florida Business Corporation Act, MT ACQUISITION SUB, INC., a Florida
corporation ("MT SUB"), and MOVIETIME ENTERTAINMENT, INC., a Florida
corporation (the "Survivor"), adopt the following Articles of Merger for the
purpose of merging MT SUB with and into the Survivor (the "Merger").
FIRST: The Agreement and Plan of Merger (the "Plan of Merger") is
attached hereto as Exhibit A.
SECOND: The Merger shall become effective upon the filing of these
Articles of Merger with the Department of State of the State of Florida.
THIRD: The Plan of Merger was adopted by the Board of Directors and the
shareholders of each of MT SUB and the Survivor by unanimous written consent in
accordance with the provisions of Section 607.1103 of the Florida Business
Corporation Act as of August 26, 1996.
IN WITNESS WHEREOF, these Articles of Merger have been executed on
behalf of the parties hereto as of the ___ day of August, 1996.
MT ACQUISITION SUB, INC.
By:/s/ BRAD KRASSNER
--------------------------------
Brad Krassner, Chairman
MOVIETIME ENTERTAINMENT, INC.
By:/s/ BRAD KRASSNER
--------------------------------
Brad Krassner, Chairman
