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EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
ROOSEVELT CAPITAL CORPORATION
ACQUISITIONS OF
SULPHUR CORPORATION OF CANADA LTD.
AND
SULPORT SERVICES INTERNATIONAL INC.
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TABLE OF CONTENTS
RECITALS
AGREEMENT
1. Plan of Reorganization
1.1 Acquisition
1.2 Exchange of Shares
1.3 Amendments to Roosevelt's Articles of Incorporation
1.4 Change in Management of Roosevelt
1.5 Taxes
2. Closing
2.1 Delivery of Shares
2.2 Closing Requirements
3. Representations of Yamada and Sulphur
3.1 Organization
3.2 Capitalization
3.3 Authority
3.4 Sulphur Stockholder(s)
3.5 Due Diligence
3.6 Approvals and Consent
3.7 Financial Statements
3.8 Undisclosed Liabilities
3.9 Assets
3.10 Litigation
3.11 Applicable Laws
3.12 Taxes
3.13 Breach of Contracts
3.14 Acquiree Disclosure
4. Representations of Yamada and Sulport
4.1 Organization
4.2 Capitalization
4.3 Authority
4.4 Sulport Stockholder(s)
4.5 Due Diligence
4.6 Approvals and Consent
4.7 Financial Statements
4.8 Undisclosed Liabilities
4.9 Assets
4.10 Litigation
4.11 Applicable Laws
4.12 Taxes
4.13 Breach of Contracts
4.14 Acquiree Disclosure
Exhibit 2.1 - Plan of Reorganization ii
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5. Representations of Roosevelt
5.1 Organization
5.2 Capitalization
5.3 Authority
5.4 Due Diligence
5.5 Approvals and Consent
5.6 Litigation
5.7 Financial Statements
5.8 Employment/Consulting Contracts
5.9 Applicable Laws
5.10 Breach of Contracts
5.11 Taxes
5.12 Roosevelt Disclosure
5.13 Undisclosed Liabilities
5.14 Delivery of Records
6. Indemnification
7. Mutual Covenants of the Parties
8. Restrictions on Transfer of Shares
9. Nature and Survival of Representations
10. Miscellaneous
10.1 Undertakings and Further Assurances
10.2 Waiver
10.3 Notices
10.4 Headings
10.5 Governing Law and Arbitration Provision
10.6 Binding Effect
10.7 Entire Agreement
10.8 Time
10.9 Expenses
10.10 Severability
10.11 Counterparts and Facsimile Signatures
SIGNATURE PAGE
Exhibit 2.1 - Plan of Reorganization iii
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AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (this "Agreement") is
entered into as of the 24th day of March, 1998, by and between ROOSEVELT CAPITAL
CORPORATION, a Colorado corporation ("Roosevelt"); and Xx. Xxxxx X. Xxxxxx
(Xxxxxx"), individually and on behalf of Sulphur Corporation of Canada Ltd.
("Sulphur") and Sulport Services International Inc. ("Sulport").
RECITALS
WHEREAS, Yamada owns 100% of the issued and outstanding common stock of
Sulphur (an aggregate of 10,000,000 shares); and
WHEREAS, Yamada owns 100% of the issued and outstanding common stock of
Sulport (an aggregate of 10,000,000 shares); and
WHEREAS, Roosevelt desires to acquire all of the issued and outstanding
common stock of both Sulphur and Sulport owned by Yamada, and Yamada desires to
exchange all of his shares of common stock in both Sulphur and Sulport for
shares of common stock of Roosevelt;
NOW, THEREFORE, for and in consideration of the mutual covenants and
representations and warranties of each other contained herein and other good and
valuable consideration, the receipt of which is hereby acknowledged, Roosevelt
and Yamada agree as follows:
1. Plan of Reorganization. The Plan of Reorganization is as follows:
1.1 Acquisition. At the Closing, Roosevelt shall acquire from Yamada, and Yamada
shall sell, transfer, assign and convey to Roosevelt (i) 10,000,000 shares of
common stock of Sulphur, which represents 100% of all the issued and outstanding
shares of common stock of Sulphur (the "Sulphur Shares"; and 10,000,000 shares
of common stock of Sulport, which represents 100% of all the issued and
outstanding shares of common stock of Sulport (the "Sulport Shares"); in
exchange for an aggregate of 500,000 shares of Roosevelt's common stock (the
"Roosevelt Shares"). The Roosevelt Shares issued shall have the rights,
restrictions and privileges set forth in Roosevelt's Articles of Incorporation
and in the stock certificates therefor. Upon the Closing, Sulphur and Sulport
shall each become wholly-owned subsidiaries of Roosevelt.
1.2 Exchange of Shares. To consummate the acquisition, Roosevelt Shares shall be
delivered by Roosevelt to Yamada in exchange for 100% of the Sulphur Shares and
100% of the Sulport Shares owned by Yamada.
1.3 Amendments to Roosevelt Articles of Incorporation. By executing this
Agreement, Roosevelt's President, Xxxxxx Xxxxxxxx, acting as proxy holder with
the power to vote 100% of the outstanding common shares of Roosevelt, hereby
votes said shares to amend the Articles of Incorporation to 1) change the name
of Roosevelt Capital Corporation to International Hydro Carbon Group, Inc., and
2) reduce the number of shares of common stock authorized to be issued from
eight hundred million (800,000,000) to one hundred million (100,000,000).
1.4 Change in Management of Roosevelt. By executing this Agreement, the current
directors of Roosevelt hereby (i) appoint Yamada as a director and as President
of Roosevelt, and (ii) resign as officers and directors of Roosevelt.
1.5 Taxes. Each party shall be responsible for and shall pay any and all taxes
charges or fees attributable to such party, including individual state and
federal income taxes, arising out of, or by reason of, the exchange of Roosevelt
Shares for the Sulphur Shares and Sulport Shares, or otherwise in
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connection with the transactions contemplated hereby. Each party hereto
represents and warrants that he has relied solely on the opinions or advice of
his own professional advisors with respect to the tax consequences of this
transaction, if any, and has not relied on the opinions or advice of the other
parties or his professional advisors in any way with respect to the tax
consequences of this transaction.
2. Closing. The closing of the reorganization and the transactions contemplated
in this Agreement (the "Closing") shall be deemed to take place upon execution
of this Agreement by all of the parties hereto, whereupon Yamada shall be deemed
to have accepted delivery of the certificates of Roosevelt Shares to be issued
in his name, and in connection therewith, shall make delivery of his Sulphur
Shares and Sulport Shares to Roosevelt.
2.1 Delivery of Shares. Upon execution of this Agreement, Yamada shall deliver
his respective certificates representing the Sulphur Shares and Sulport Shares
duly endorsed in blank, free and clear of all claims and encumbrances, to
counsel to Roosevelt, and Roosevelt shall issue and deliver Roosevelt Shares to
counsel to Yamada. The Roosevelt Shares shall be duly issued in the name of
Yamada, and shall be duly recorded on the books and records of Roosevelt.
2.2 Closing Requirements. Subsequent to Closing, each of the parties shall
execute and deliver such instruments and documents and take such other actions
as may, in the reasonable opinion of counsel for each, be required to complete
the transactions under this Agreement. It is contemplated that within ten (10)
business days after the date of this Agreement, the following documents shall
have been delivered and the following activities shall have taken place, all of
which shall be deemed to have occurred contemporaneously at the Closing:
a) the securities to be delivered pursuant to Subparagraph 2.1 have
been delivered to the respective parties duly endorsed or issued
as the case may be, pursuant to Subparagraphs 1.3 and 2.1.
b) delivery of all corporate records of Roosevelt, Sulphur and
Sulport to the new management, as set forth in Paragraph 1.4,
including without limitation, corporate minute books (which shall
contain copies of the Articles of Incorporation and Bylaws, as
amended to the Closing), stock books, stock transfer books,
corporate seals, contracts, licenses and sub-licenses,
non-disclosure and confidentiality agreements, and such other
corporate books and records as may be reasonably requested.
c) copies of resolutions by Sulphur's Board of Directors authorizing
this Agreement;
d) copies of resolutions by Sulport's Board of Directors authorizing
this Agreement;
e) copies of resolutions by Roosevelt's Board of Directors
authorizing this Agreement; and
f) the parties hereto have signed and delivered such other
instruments and documents, if any, relating to and effecting the
transactions contemplated herein.
3. Representations of Yamada and Sulphur. Yamada and Sulphur hereby represent
and warrant that effective this date, the representations and warranties listed
below are true and correct:
3.1 Organization. Sulphur is a corporation duly incorporated, validly existing
and in good standing under the laws of the Province of Alberta, Canada with full
power and authority to own and use its properties and conduct its business as
presently conducted by it. Sulphur has furnished Roosevelt with copies of the
Articles of Incorporation and the Bylaws of Sulphur, including all amendments
thereto. Such copies are true, correct and complete and contain all amendments
through the date hereof, which, together with this Agreement, are sufficient to
effect the transactions hereunder and evidence the intent of the parties hereto.
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3.2 Capitalization. The authorized stock of Sulphur consists of (a) unlimited
shares of common stock, and (b) no shares of preferred stock. Ten million
(10,000,000) shares of common stock have been issued All shares issued and
outstanding are duly and validly authorized and issued and are fully paid and
nonassessable. Sulphur does not have outstanding any security convertible into,
or any warrant, option or other right to subscribe for or acquire any equity
interest in Sulphur.
3.3 Authority. Sulphur has the requisite corporate authority to enter into and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. The execution and
delivery of this Agreement by Sulphur and the consummation of the transactions
contemplated hereby will not violate or conflict with any provisions of the
Articles of Incorporation, as amended, or Bylaws of Sulphur or contravene any
law, rule, regulation, court or administrative order binding on it, or result in
the breach of or constitute a default in the performance of any material
obligation, agreement, covenant or condition contained in any material contract,
lease, judgment, decree, order, award, note, loan or credit agreement or any
other material agreement or instrument to which Sulphur is a party or by which
it is bound, the default or breach of which would have a material adverse effect
on the property and assets of Sulphur, considered as a whole. Sulphur has taken
all requisite corporate action to authorize and approve the execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby. Upon due execution and delivery of this Agreement, this
Agreement will constitute a valid, legal and binding obligation of Sulphur and
Yamada enforceable against them in accordance with its terms.
3.4 Sulphur Shareholder(s). Yamada is the owner of 100% of the issued and
outstanding common stock of Sulphur; such Sulphur Shares are free and clear from
any security interests, claims, liens, or other encumbrances; and Yamada have
the unqualified right to transfer and dispose of his Sulphur Shares. Yamada will
deliver, upon reasonable demand of Roosevelt, any approvals, consents or other
authorizations to Roosevelt and said approvals, consents and other
authorizations will have been duly executed, valid and binding.
3.5 Due Diligence. Sulphur has furnished to Roosevelt copies of all documents
requested by Roosevelt. No "due diligence" investigations undertaken by
Roosevelt shall in any event relieve Sulphur or Yamada of their responsibilities
for the accuracy and completeness of any representation or warranty of Sulphur
or of Yamada contained herein or the performance of any covenant or agreement of
Sulphur or of Yamada contained herein.
3.6 Approvals and Consent. No approval, authorization or other action by, or
filing with, any third-party, including a governmental authority is required in
connection with the execution, delivery and performance by Sulphur and Yamada of
their obligations under this Agreement and their respective performance of the
transactions contemplated hereby.
3.7 Financial Statements. Sulphur has provided unaudited financial statements of
Sulphur for the years ended June 30, 1995, 1996 and 1997.
3.8 Undisclosed Liabilities. Sulphur has no liabilities or obligations
whatsoever that exceed ten percent (10%) of the total assets of Sulphur, either
accrued, absolute, contingent or otherwise, except as disclosed on the unaudited
financial statements heretofore provided and those incurred in or as a result of
the ordinary course of business of Sulphur subsequent to the date of the
financial statements.
3.9 Assets. The assets of Sulphur as set forth in the unaudited financial
statements heretofore provided have been acquired in bona fide transactions,
fully supported by appropriate instruments of assignment, sale, or transfer,
where appropriate, and are offset by no liabilities or contingencies,
contractual or otherwise, except as indicated in the financial statements.
3.10 Litigation. Sulphur is not involved in any pending litigation or
governmental investigation or proceeding and, to the best knowledge of Sulphur
and Yamada, no litigation, claims, assessments, or governmental investigation or
proceeding is threatened against Sulphur, its Yamada or properties.
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3.11 Applicable Laws. Sulphur has complied with all applicable laws in
connection with its formation, issuance of securities, organization,
capitalization and operations, and no contingent liabilities have been
threatened or claims made, and no basis for the same exists with respect to said
operations, formation or capitalization, including claims for violation of any
state or federal securities laws.
3.12 Taxes. Sulphur has filed all governmental, tax or related returns and
reports due or required to be filed and has paid all taxes or assessments which
have become due as of the date of this Agreement, including any employment
related taxes and withholdings, and Sulphur, to the best of its knowledge, is
not subject to a tax audit by any federal, state or local tax authority and its
properties are not subject to any tax liens.
3.13 Breach of Contracts. Sulphur has not breached, nor is there any pending or
threatened claims or any legal basis for a claim that Sulphur has breached, any
of the terms or conditions of any agreements, contracts or commitments to which
it is a party or is bound and the execution and performance hereof will not
violate any provisions of applicable law of any agreement to which Sulphur is
subject.
3.14 Sulphur Disclosure. At the date of this Agreement, Sulphur has disclosed
all events, conditions and facts materially affecting the business and prospects
of Sulphur. Sulphur has not withheld disclosure of any such events, conditions,
and facts which it, through management, has knowledge of, or has reasonable
grounds to know, which may materially affect the business and prospects of
Sulphur.
4. Representations of Yamada and Sulport. Yamada and Sulport hereby represent
and warrant that effective this date, the representations and warranties listed
below are true and correct:
4.1 Organization. Sulport is a corporation duly incorporated, validly existing
and in good standing under the laws of the Province of British Columbia, Canada
with full power and authority to own and use its properties and conduct its
business as presently conducted by it. Sulport has furnished Roosevelt with
copies of the Articles of Incorporation and the Bylaws of Sulport, including all
amendments thereto. Such copies are true, correct and complete and contain all
amendments through the date hereof, which, together with this Agreement, are
sufficient to effect the transactions hereunder and evidence the intent of the
parties hereto.
4.2 Capitalization. The authorized stock of Sulport consists of (a) fifty
million (50,000,000) shares of common stock, and (b) no shares of preferred
stock. Ten million (10,000,000) shares of common stock have been issued All
shares issued and outstanding are duly and validly authorized and issued and are
fully paid and nonassessable. Sulport does not have outstanding any security
convertible into, or any warrant, option or other right to subscribe for or
acquire any equity interest in Sulport.
4.3 Authority. Sulport has the requisite corporate authority to enter into and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. The execution and
delivery of this Agreement by Sulport and the consummation of the transactions
contemplated hereby will not violate or conflict with any provisions of the
Articles of Incorporation, as amended, or Bylaws of Sulport or contravene any
law, rule, regulation, court or administrative order binding on it, or result in
the breach of or constitute a default in the performance of any material
obligation, agreement, covenant or condition contained in any material contract,
lease, judgment, decree, order, award, note, loan or credit agreement or any
other material agreement or instrument to which Sulport is a party or by which
it is bound, the default or breach of which would have a material adverse effect
on the property and assets of Sulport, considered as a whole. Sulport has taken
all requisite corporate action to authorize and approve the execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby. Upon due execution and delivery of this Agreement, this
Agreement will constitute a valid, legal and binding obligation of Sulport and
Yamada enforceable against them in accordance with its terms.
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4.4 Sulport Shareholder(s). Yamada is the owner of 100% of the issued and
outstanding common stock of Sulport; such Sulport Shares are free and clear from
any security interests, claims, liens, or other encumbrances; and Yamada have
the unqualified right to transfer and dispose of his Sulport Shares. Yamada will
deliver, upon reasonable demand of Roosevelt, any approvals, consents or other
authorizations to Roosevelt and said approvals, consents and other
authorizations will have been duly executed, valid and binding.
4.5 Due Diligence. Sulport has furnished to Roosevelt copies of all documents
requested by Roosevelt. No "due diligence" investigations undertaken by
Roosevelt shall in any event relieve Sulport or Yamada of their responsibilities
for the accuracy and completeness of any representation or warranty of Sulport
or of Yamada contained herein or the performance of any covenant or agreement of
Sulport or of Yamada contained herein.
4.6 Approvals and Consent. No approval, authorization or other action by, or
filing with, any third-party, including a governmental authority is required in
connection with the execution, delivery and performance by Sulport and Yamada of
their obligations under this Agreement and their respective performance of the
transactions contemplated hereby.
4.7 Financial Statements. Sulport was incorporated on November 26, 1997, and
consequently has not prepared financial statements.
4.8 Undisclosed Liabilities. Sulport has no liabilities or obligations
whatsoever that exceed ten percent (10%) of the total assets of Sulport, either
accrued, absolute, contingent or otherwise, except those incurred in or as a
result of the ordinary course of business of Sulport subsequent to the date of
incorporation.
4.9 Assets. The assets of Sulport have been acquired in bona fide transactions,
fully supported by appropriate instruments of assignment, sale, or transfer,
where appropriate, and are offset by no liabilities or contingencies,
contractual or otherwise, except those incurred in or as a result of the
ordinary course of business of Sulport.
4.10 Litigation. Sulport is not involved in any pending litigation or
governmental investigation or proceeding and, to the best knowledge of Sulport
and Yamada, no litigation, claims, assessments, or governmental investigation or
proceeding is threatened against Sulport, its Yamada or properties.
4.11 Applicable Laws. Sulport has complied with all applicable laws in
connection with its formation, issuance of securities, organization,
capitalization and operations, and no contingent liabilities have been
threatened or claims made, and no basis for the same exists with respect to said
operations, formation or capitalization, including claims for violation of any
state or federal securities laws.
4.12 Taxes. Sulport has filed all governmental, tax or related returns and
reports due or required to be filed and has paid all taxes or assessments which
have become due as of the date of this Agreement, including any employment
related taxes and withholdings, and Sulport, to the best of its knowledge, is
not subject to a tax audit by any federal, state or local tax authority and its
properties are not subject to any tax liens.
4.13 Breach of Contracts. Sulport has not breached, nor is there any pending or
threatened claims or any legal basis for a claim that Sulport has breached, any
of the terms or conditions of any agreements, contracts or commitments to which
it is a party or is bound and the execution and performance hereof will not
violate any provisions of applicable law of any agreement to which Sulport is
subject.
4.14 Sulport Disclosure. At the date of this Agreement, Sulport has disclosed
all events, conditions and facts materially affecting the business and prospects
of Sulport. Sulport has not withheld disclosure of any such events, conditions,
and facts which it, through management, has knowledge of, or has reasonable
grounds to know, which may materially affect the business and prospects of
Sulport.
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5. Representations of Roosevelt. Roosevelt hereby represents and warrants that
effective this date, the representations and warranties listed below are true
and correct:
5.1 Organization. Roosevelt is a corporation duly organized, validly existing
and in good standing under the laws of the State of Colorado with full power and
authority to own and use its properties and conduct its business as presently
conducted by it. Roosevelt is duly qualified and in good standing to do business
as a foreign corporation in any other jurisdiction where failure to so qualify
would have a material adverse effect on its business or assets. Roosevelt has
made available to Yamada copies of the Articles of Incorporation and the Bylaws
of Roosevelt, including all amendments thereto. Such copies are true, correct
and complete and contain all amendments through the date hereof, together with
this Agreement, which are sufficient to effect the transactions hereunder and
evidence the intent of the parties hereto.
5.2 Capitalization. The authorized stock of Roosevelt consists of (a) eight
hundred million (800,000,000) shares of common stock, and (b) ten million
(10,000,000) shares of preferred stock. Immediately prior to the Closing, there
will be exactly 9,000,000 shares of Roosevelt common stock issued and
outstanding and no shares of preferred stock issued and outstanding, prior to
the issuance of the 500,000 Roosevelt Shares to be delivered at Closing pursuant
to this Agreement. At the time of their issuance and delivery pursuant to this
Agreement, all Roosevelt Shares to be issued pursuant to the terms hereof shall
be duly and validly authorized and issued, fully paid and nonassessable.
Roosevelt does not have outstanding any security convertible into, or any
warrant, option or other right to subscribe for or acquire any shares of stock
of Roosevelt; nor is Roosevelt under any obligation, whether written or oral, to
issue any of its securities.
5.3 Authority. Roosevelt has the requisite corporate authority to enter into and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby in accordance with the terms hereof. The execution and
delivery of this Agreement by Roosevelt and the consummation of the transactions
contemplated hereby will not violate or conflict with any provisions of the
Articles of Incorporation, as amended, or Bylaws of Roosevelt or contravene any
law, rule, regulation, court or administrative order binding on it, or result in
the breach of or constitute a default in the performance of any material
obligation, agreement, covenant or condition contained in any material contract,
lease, judgment, decree, order, award, note, loan or credit agreement or any
other material agreement or instrument to which Roosevelt is a party or by which
it is bound, the default or breach of which would have a material adverse effect
on the property and assets of Roosevelt, considered as a whole. Roosevelt has
taken all requisite corporate action to authorize and approve the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby. Upon due execution and delivery of this
Agreement, this Agreement will constitute a valid, legal and binding obligation
of Roosevelt enforceable against it in accordance with its terms.
5.4 Due Diligence. Roosevelt has furnished to Yamada copies of all documents
requested by Yamada. No "due diligence" investigations undertaken by Yamada
shall in any event relieve Roosevelt or its current officers and directors of
their responsibilities for the accuracy and completeness of any representation
or warranty of Roosevelt contained herein or the performance of any covenant or
agreement of Roosevelt contained herein.
5.5 Approvals and Consent. No approval, authorization or other action by, or
filing with, any third-party, including a governmental authority is required in
connection with the execution, delivery and performance by Roosevelt of its
obligations under this Agreement and its performance of the transactions
contemplated hereby.
5.6 Litigation. Roosevelt is not involved in any pending litigation or
governmental investigation or proceeding and, to the best knowledge of
Roosevelt, no litigation, claims, assessments, or governmental investigation or
proceeding is threatened against Roosevelt, its Yamada or properties.
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5.7 Financial Statements. Roosevelt has provided to Yamada audited financial
statements of Roosevelt prepared in accordance with the requirements of
Regulation S-B of the Securities Act of 1933, as amended (the "Act"), for the
years ended December 31, 1995 and 1996.
5.8 Employment/Consulting Contracts. Roosevelt has no written or oral contracts
providing for any form of compensation whatsoever for employment, consulting or
other services.
5.9 Applicable Laws. Roosevelt has complied with all state, federal and local
laws in connection with its formation, issuance of securities, organization,
capitalization and operations, and no contingent liabilities have been
threatened or claims made, and no basis for the same exists with respect to said
operations, formation or capitalization, including claims for violation of any
state or federal securities laws.
5.10 Breach of Contracts. Roosevelt has not breached, nor is there any pending
or threatened claims or any legal basis for a claim that Roosevelt has breached,
any of the terms or conditions of any agreements, contracts or commitments to
which it is a party or is bound and the execution and performance hereof will
not violate any provisions of applicable law of any agreement to which Roosevelt
is subject.
5.11 Taxes. Roosevelt has filed all governmental, tax or related returns and
reports due or required to be filed and has paid all taxes or assessments which
have become due as of the date of this Agreement, including any employment
related taxes and withholdings, and Roosevelt, to the best of its knowledge, is
not subject to a tax audit by any federal, state or local tax authority and its
properties are not subject to any tax liens. Roosevelt will cause to be filed or
prepared, as applicable, by the date of this Agreement, all federal, state,
county and local income, excise, property and other tax returns, forms, or
reports, which are due or required to be filed by it prior to the date of this
Agreement.
5.12 Roosevelt Disclosure. At the date of this Agreement, Roosevelt has
disclosed all events, conditions and facts materially affecting the business and
prospects of Roosevelt. Roosevelt has not withheld disclosure of any such
events, conditions, and facts which it, through management, has knowledge of, or
has reasonable grounds to know, which may materially affect the business and
prospects of Roosevelt.
5.13 Undisclosed Liabilities. Roosevelt has no material liabilities or
obligations whatsoever, either accrued, absolute, contingent or otherwise,
except as disclosed on the audited financial statements heretofore provided. Any
and all undisclosed liabilities or obligations shall be deemed to be material to
the extent that they exceed $1,000 in the aggregate.
5.14 Delivery of Records. Roosevelt shall deliver the corporate financial
records, minute books, and other documents and records in their entirety to the
new management as contemplated by Subparagraph 1.4.
6. Indemnification. The parties hereby agree that for a period of two years
commencing the date hereof, and in accordance with the terms of Paragraph 9,
each party to this Agreement shall indemnify and hold harmless each other party
at all times after the date of this Agreement against and in respect of any
third-party liability, damage or deficiency, all actions, suits, proceedings,
demands, assessments, judgments, costs and expenses, including attorney's fees,
incident to any of the foregoing, resulting from any misrepresentation, breach
of covenant or warranty or nonfulfillment of any agreement on the part of such
party under this Agreement or from any misrepresentation in or intentional
omission from any document or certificate furnished or to be furnished to a
party hereunder. Subject to the terms of this Agreement, the defaulting party
shall reimburse the other party or parties with respect to such third-party's
actions on demand, for any reasonable payment made by said parties at any time
after the Closing, in respect of any liability or claim to which the foregoing
indemnity relates, if such payment is made after reasonable notice to the other
party to defend or satisfy the same and such party failed to defend or satisfy
the same. In the event a third-party action is threatened or commenced but not
resolved within
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said two-year period, the parties hereby agree to extend this indemnification
through resolution of the third-party action.
In addition, each party agrees to indemnify each other party for any
loss incurred as a result of the subsequent discovery of any liability that is
not disclosed in the financial statements or schedules provided under this
Agreement that was known to such knowledgeable party or parties at the time of
the Closing.
7. Mutual Covenants of the Parties. Roosevelt, Sulphur, Sulport and Yamada each
covenant and agree to execute any further documents or agreements and to take
any further acts that may be reasonably necessary to effect the transactions
contemplated hereunder, including, but not limited to, obtaining any consents or
approvals of any third-party required to be obtained to consummate the
transactions contemplated by this Agreement.
8. Restrictions on Transfer of Shares. The parties hereto acknowledge that
transferred and/or issued in connection with the transactions contemplated
hereby are restricted as to transfer and the certificates therefore shall bear
legends to such effect and no transfer of any shares may be effected, except
pursuant to an effective registration statement prepared and filed pursuant to
the Act or pursuant to an exemption from registration thereunder, as evidenced
by an opinion of counsel or as otherwise allowed under the laws of descent and
distribution.
9. Nature and Survival of Representations. All representations, warranties and
covenants made by any party in this Agreement shall survive the Closing
hereunder and the consummation of the transactions contemplated hereby for two
(2) years from the date hereof. All of the parties hereto are executing and
carrying out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement or at the Closing of the transactions herein provided for and not upon
any investigation upon which it might have made or any representations,
warranty, agreement, promise or information, written or oral, made by the other
party or any other person other than as specifically set forth herein.
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Exhibit 2.1 - Plan of Reorganization Page 8 of 10
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10. Miscellaneous.
10.1 Undertakings and Further Assurances. At any time, and from time to time,
hereafter, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to carry out the intent
and purposes of this Agreement.
10.2 Waiver. Any failure on the part of any 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.
10.3 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 registered or certified mail, return receipt requested, or by
Federal Express or other means of overnight delivery to the addresses below:
Roosevelt: Roosevelt Capital Corporation
c/o Xxxxxx Xxxxxxxx
0000 Xx. Xxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx, XXX 00000
Yamada,
Sulphur,
Sulport: Xxxxx X. Xxxxxx
00000 - 000X Xxxxxx, Xxxx #0
Xxxxxxx, X.X., Xxxxxx X0X 0X0
10.4 Headings. The paragraph and subparagraph headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.5 Governing Law and Arbitration Provision. This Agreement shall be governed
by the laws of the State of Colorado. Any dispute arising directly or indirectly
from this Agreement shall be settled by arbitration within the State of Colorado
(as designated by Roosevelt), if arbitration is demanded by Sulphur, Sulport or
Yamada; or within the State of Washington (as designated by Yamada), if
arbitration is demanded by Roosevelt. Any arbitration will be conducted by the
American Arbitration Association in accordance with its Rules of Commercial
Arbitration, and judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. The parties hereto agree that
service by certified mail to their business addresses shall constitute
sufficient service of process of any proposed arbitration.
10.6 Binding Effect. This Agreement shall be binding upon the parties hereto and
inure to the benefit of the parties, his respective heirs, administrators,
executors, successors and assigns. This Agreement shall not be assigned by any
party hereto, except upon the consent, in writing, of the other parties hereto.
10.7 Entire Agreement. This Agreement, including the Exhibits hereto and other
documents delivered pursuant to the terms hereof, is the entire agreement of the
parties covering everything agreed upon or understood with respect to the
transactions contemplated hereby and supersedes all prior agreements, covenants,
representations or warranties, whether written or oral, by any party hereto.
There are no oral promises, conditions, representations, understandings,
interpretations or terms of any kind as conditions or inducements to the
execution hereof.
10.8 Time. Time is of the essence. The parties each agree to proceed promptly
and in good faith to consummate the transactions contemplated herein.
10.9 Expenses. Each of the parties hereto shall pay its own expenses incurred in
connection with the authorization, preparation, execution and performance of
this Agreement and obtaining any necessary regulatory approvals, including,
without limitation, all fees and expenses of his respective counsel.
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Exhibit 2.1 - Plan of Reorganization Page 9 of 10
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10.10 Severability. If any part of this Agreement is deemed to be unenforceable
the balance of the Agreement shall remain in full force and effect.
10.11 Counterparts and Facsimile Signatures. This Agreement and any Exhibits,
attachments, or documents ancillary hereto, may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument. Execution and
delivery of this Agreement by exchange of facsimile copies bearing the facsimile
signature of a party hereto shall constitute a valid and binding execution and
delivery of this Agreement by such party. Such facsimile copies shall constitute
enforceable original documents.
IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
ROOSEVELT CAPITAL CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, President and Director
By: /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, Secretary and Director
SULPHUR
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Chairman
SULPORT
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, President
YAMADA:
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, individually
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Exhibit 2.1 - Plan of Reorganization Page 10 of 10
