EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
February 14, 2003
xxxxXxxx.xxx, Inc.
ACQUISITION OF
MAXXPLAY ENTERPRISES, INC.
Page
Recitals ....................................................................1
Agreement ..................................................................1
1. Plan of Reorganization .........................................1
2. Exchange of Shares .............................................1
3. Delivery of Shares and Assets ...................................1
4. Representations of Stockholders and Acquirees ..................2
5. Representations of Acquiring Corporation .......................4
6. Closing Date ...................................................5
7. Conditions Precedent to the Obligations of Acquirees ...........5
8. Conditions Precedent to the Obligations of Acquiror ............6
9. Indemnification ................................................6
10. Nature and Survival of Representations .........................7
11. Documents at Closing ...........................................7
12. Miscellaneous ..................................................8
Signature Page .................................................9
AGREEMENT AND PLAN OF REORGANIZATION
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THIS Agreement and Plan of Reorganization is entered into this 14th day of
February, 2003, by and between xxxxXxxx.xxx, Inc., a Nevada corporation,
(hereinafter "Acquiror"); and Maxxplay Enterprises Inc.., a Nevada corporation;
(hereinafter referred to as "Acquiree"); and the undersigned Stockholders of
Acquiree, (hereinafter referred to as "Stockholders").
RECITALS
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Stockholders of Acquiree own or control all of the issued and outstanding
common stock of Acquiree. Acquiror desires to acquire all of the issued and
outstanding stock of Acquiree, making Acquiree a Division of Acquiror, and
Stockholders desire to make a tax-free exchange solely of their shares in
Acquiree for shares of Acquiror's common stock to be exchanged as set out herein
with said Stockholders.
NOW, THEREFORE, for the mutual consideration set out herein, the parties
agree as follows:
AGREEMENT
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1. Plan of Reorganization. Stockholders of Acquiree are the
owners of all the issued and outstanding common stock of said
Acquiree. It is the intention of the parties hereto that all
of the issued and outstanding common stock of Acquiree shall
be acquired by Acquiror in exchange solely for newly issued
Acquiror voting stock. It is the intention, but not a
requirement, of the parties hereto that this transaction
qualify as a tax-free reorganization under Section 368 of the
Internal Revenue Code of 1986, as amended.
2. Exchange of Shares. Acquiror and Stockholders agree that
all of the issued and outstanding shares of Common Stock of
Acquiree shall be exchanged with Acquiror for a total of
13,845,000 shares, in the aggregate, of restricted common
stock of Acquiror. The Acquiror shares will, on the date of
delivery to the Stockholders, (which is defined as the date in
Paragraph 6 herein), be delivered to the Stockholders in
exchange for their shares in Acquiree. Stockholders represent
and warrant that they will hold such shares of common stock of
Acquiror for investment purposes and not for further public
distribution and agree that the shares shall be appropriately
restricted.
3. Delivery of Shares and Assets. On the Delivery Date
(which is defined as the date in Paragraph 6 herein),
Stockholders will deliver certificates or other evidence of
ownership of Acquiree duly endorsed so as to make Acquiror
the sole holder thereof free and clear of all claims and
encumbrances. On the Delivery Date, delivery of the
Acquiror shares, which will be appropriately restricted as
to transfer, will be made to the Stockholders as set forth
herein. A list of the shares of Acquiree, the owners
thereof, and shares of Acquiror to be received by said
Stockholders is attached hereto as Exhibit "A" and by this
reference is incorporated herein. The Acquiree agrees that
the Acquiror shall be given any additional time as may be
required, but not to exceed sixty (60) days post Delivery
Date, to effect exchange of shares.
4. Representations of Stockholders and Acquiree. The
Stockholders and Acquiree, hereby represent and warrant that,
with respect to their own shares and as to the Acquiree,
effective this date, the Closing Date (which is defined as the
date in Paragraph 6 herein), and the Delivery Date, the
representations listed below are true and correct to the best
of their knowledge, information, and belief. Said
representations are meant and intended by all parties to apply
to the Acquiree:
(a) The listed Stockholders on Exhibit "A" are the sole owners of
all of the issued and outstanding shares of common stock of
Acquiree; such shares are free from claims, liens, or other
encumbrances; and Stockholders have the unqualified right to
transfer and dispose of such shares and assets.
(b) The issued shares of Acquiree constitute validly issued shares
of Acquiree, fully-paid and nonassessable.
(c) The year-end financial statements of Acquiree covering the
last two fiscal years (which includes the balance sheet as of
the 2001 fiscal year end and the operational statements as of
the 2001 and 2002 fiscal year ends), which will be delivered
to Acquiror within 60 days from he Closing Date, will be
complete, accurate and fairly present the financial condition
of Acquiree as of the dates thereof and the results of its
operations for the periods covered, and the principal assets
of the Acquiree will include all the patent, design, trademark
and copy rights pertaining to, but not limited to, the
products and games outlined in Exhibit "B" and Exhibit "C".
There will be no liabilities, either fixed or contingent, not
reflected in such financial statements other than contracts or
obligations in the ordinary and usual course of business; and
no such contracts or obligations in the usual course of
business constitute liens or other liabilities which, if
disclosed, would alter substantially the financial condition
of such Acquiree as reflected in such financial statements.
These financial statements will be prepared in accordance with
US Generally Accepted Accounting Principles consistently
applied.
(d) Prior to and as of the Closing Date and the Delivery Date,
there will not be any negative material changes in the
financial position of Acquiree, except changes arising in the
ordinary course of business, which changes will in no event
adversely affect the financial position of said Acquiree.
(e) Except as previously disclosed in audited financial
statements, to the best of Acquiree's knowledge, information
and belief, it is not involved in, and has not received
judicial notice of any pending litigation or governmental
investigation or proceeding not reflected in such financial
statement, or otherwise disclosed in writing to Acquiror and,
to the best knowledge of Acquiree and Stockholders, no
material litigation, claims, or assessments, or governmental
investigation or proceeding is threatened against Acquiree,
its principal stockholders or properties.
(f) As of the Closing Date and the Delivery Date, Acquiree will be
in good standing in its jurisdiction of incorporation, and
will be in good standing and in the process of becoming duly
qualified to do business in each jurisdiction where required
to be so qualified.
(g) Acquiree has complied with all applicable laws in connection
with its formation, issuance of securities, organization,
capitalization and operations, and to the best of Acquiree's
knowledge, information and belief, 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 US state
or federal securities laws.
(h) Acquiree has filed or shall file all governmental, tax or
related returns and reports due or required to be filed and
has or shall paid all taxes or assessments which have or which
shall become due as of the Closing Date and the Delivery Date.
(i) Except as disclosed in this Agreement or on any Exhibit,
Acquiree has not breached any material agreement to which it
individually or collectively may be a party.
(j) Acquiree has no subsidiary corporation.
(k) The corporate financial records, minute books, and other
documents and records of Acquiree are to be available to
present management of Acquiror prior to the Closing Date and
turned over to new management of Acquiror in their entirety on
the Delivery Date.
(l) The execution of this Agreement will not violate or breach any
agreement, contract, or commitment to which Acquiree or
Stockholders are a party and has been duly authorized by all
appropriate and necessary action.
(m) The authorized capitalization of Acquiree are as set forth in
the most recent audited balance sheet of Acquiree. Acquiree
has one class of stock, which is denominated as Common Shares,
of which 25,000,000 shares are authorized and a total of
13,845,000 shares are and will be issued and outstanding as of
the Closing and Delivery Date. All outstanding shares have
been duly authorized, validly issued and are fully paid and
nonassessable with no personal liability attaching to the
ownership thereof. There are no outstanding convertible
securities, warrants, options or commitments of any nature
which may cause authorized but unissued shares to be issued to
any person.
(n) To the best knowledge of Stockholders and Acquiree, Acquiree
is not subject to any material labor disputes or
disagreements, either actual or contingent.
(o) To the best knowledge of Stockholders and Acquiree, Acquiree's
products, materials and brochures do not infringe the patent
or copyright rights of any other person or entity.
(p) At the date of this Agreement, Stockholders have, and at the
Closing Date and the Delivery Date, they will have to the best
of their knowledge, disclosed all events, conditions and facts
materially affecting the business and prospects of Acquiree
and its assets. Stockholders have not now and will not have,
at the Closing Date or the Delivery Date, withheld knowledge
of any such events, conditions, and facts which they know, or
have reasonable grounds to know, may materially affect the
business and prospects of Acquiree or its assets.
5. Representations of Acquiring Corporation. Acquiror
hereby represents and warrants as follows, effective this
date, the Closing Date, and the Delivery Date, the
representations listed below are true and correct to the best
of its knowledge, information, and belief.
(a) As of the Delivery Date, the Acquiror shares to be delivered
to the Stockholders on Exhibit "A", will constitute valid and
legally issued shares of Acquiror, fully-paid and
nonassessable, and will be legally equivalent in all respects
to the common stock of Acquiror issued and outstanding as of
the date thereof.
(b) The officers of Acquiror are duly authorized to execute this
Agreement and have taken all actions required by law and
agreements, charters, and bylaws, to properly and legally
execute this Agreement.
(c) Acquiror has made available to Acquiree audited financial
statements for the past two fiscal years, which shall be true,
complete and accurate; there are and shall be no substantial
liabilities, either fixed or contingent, not reflected in such
financial statements and records or to which the Acquiree has
not been made aware. Said financial statements fairly and
accurately reflect the financial condition of the Acquiror as
of the date thereof and the results of operations for the
period reflected therein. Such statements shall have been
prepared in accordance with US Generally Accepted Accounting
Principles, consistently applied.
(d) Prior to and as of the Closing Date and the Delivery Date,
there will not be any material changes in the financial
position of Acquiror, except changes arising in the ordinary
course of business, which changes will in no event adversely
affect the financial condition of the Acquiror; provided,
however, that Acquiror will have sold or transferred all of
its operations as of the Delivery Date.
(e) Except as previously disclosed, Acquiror is not involved in
any pending litigation, claims, or governmental investigation
or proceeding not reflected in such financial statements or
otherwise disclosed in writing to the Stockholders, and there
are otherwise no lawsuits, claims, assessments,
investigations, or similar matters, to the best knowledge of
management, threatened or contemplated against Acquiror, its
management or properties.
(f) As of the Closing Date and the Delivery Date, Acquiror is duly
organized, validly existing and in good standing under the
laws of the State of Nevada; it has the corporate power to own
its property and to carry on its business as now being
conducted and is duly qualified to do business in any
jurisdiction where so required.
(g) Except as previously disclosed, Acquiror has not breached, nor
is there any pending or threatened claims or any legal basis
for a claim that Acquiror 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 Acquiror is subject.
(h) The present capitalization of Acquiror is as outlined in its
most recent financial statement. All outstanding shares have
been duly authorized, validly issued, and fully paid. There
are not outstanding or presently authorized securities,
warrants, options or related commitments of any nature.
(i) The shares of restricted common stock of Acquiror to be issued
to Stockholders as of the Delivery Date, will be validly
issued, nonassessable and fully-paid under Nevada corporation
law and will be issued in a non-public offering and exempted
transaction under federal and state securities laws.
(j) At the date of this Agreement, Acquiror has, and at the
Closing Date, and as of the Delivery Date it will have,
disclosed all events, conditions and facts materially
affecting the business and prospects of Acquiror. Acquiror has
not now and will not have, at the Closing Date, or at the
Delivery Date, withheld disclosure of any such events,
conditions, and facts which it, through management has
knowledge of, or has reasonable grounds to know, may
materially affect the business and prospects of Acquiror.
(k) Acquiror is a public company and represents that, except as
previously disclosed, it has no existing or threatened
liabilities, claims, lawsuits, or basis for the same with
respect to its shareholders, the public, brokers, the U.S.
Securities and Exchange Commission, state agencies or other
persons. This includes matters relating to state or federal
securities laws as well as general common law or state
corporation law principles.
6. Closing and Delivery Date. The Closing Date herein
referred to shall be upon such date as the parties hereto may
mutually agree for the execution of this Agreement. This
Agreement is executed by the parties as of the Closing Date
and effective as of the Deliver Date hereof. The date of
delivery of all of the documentation shall be known as the
Delivery Date. Certain exhibits, etc. may be delivered
subsequent to the Delivery Date upon the mutual agreement of
the parties hereto. The Stockholders will be deemed to have
accepted, as of the Delivery Date, delivery of the
certificates of stock to be issued in their respective names,
and in connection therewith will make delivery of their stock
in Acquiree to Acquiror.
7. Conditions Precedent to the Obligations of Acquiree. All
obligations of Acquiree and Stockholders under this Agreement
are subject to the fulfillment, prior to, as of the Closing
Date, or at the Delivery Date, of each of the following
conditions:
(a) The representations and warranties by or on behalf of Acquiror
contained in this Agreement or in any certificate or document
delivered to Acquiree pursuant to the provisions hereof shall
be true in all material respects at and as of the Closing Date
and the Delivery Date as though such representations and
warranties were made at and as of such time.
(b) Acquiror shall have performed and complied with all covenants,
agreements, and conditions required by this Agreement to be
performed or complied with by it prior to or at the Closing
Date, subject only to the conditions required on the Delivery
Date.
(c) The Directors and shareholders of Acquiror shall have approved
this transaction and such other reasonable matters as
requested by Acquiree as pertaining to this transaction.
8. Conditions Precedent to the Obligations of Acquiror. All
obligations of the Acquiror under this Agreement are subject
to the fulfillment, prior to, as of the Closing Date, or at
the Delivery Date, of each of the following conditions:
(a) The representations and warranties by Acquiree and
Stockholders contained in this Agreement or in any certificate
or document delivered to Acquiror pursuant to the provisions
hereof shall be true at and as of the Closing Date and the
Delivery Date as though such representations and warranties
were made at and as of such time.
(b) Acquiree and Stockholders shall have performed and complied
with all covenants, agreements, and conditions required by
this Agreement to be performed or complied with by it prior to
or at the Closing Date, subject only to the conditions on the
Delivery Date.
(c) Stockholders shall deliver to Acquiror a letter commonly known
as an "investment letter" agreeing that the shares of stock in
Acquiror are being acquired for investment purposes, and not
with a view to resale.
(d) Stockholders shall state, and reaffirm as of the Delivery
Date, that the materials, including, current financial
statements, prepared and delivered by Acquiror to
Stockholders, have been read and understood by Stockholders,
that they are familiar with the business of Acquiror, that
they are acquiring the Acquiror shares under Section 4(2),
commonly known as the private offering exemption of the
Securities Act of 1933, under Regulation S of said Act, and
that the shares are restricted and may not be resold, except
in reliance on an exemption under the Act.
9. Indemnification. Within the period provided in paragraph
10 herein and in accordance with the terms of that paragraph,
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 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 misrepresentations, breach of covenant or warranty or
non-fulfillment of any agreement on the part of such party
under this Agreement or from any misrepresentation in or
omission from any 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 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.
10. 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 three
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 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.
11. Documents at Closing. Between the date hereof and the
Delivery Date, the following transactions shall occur, all of
such transactions being deemed to occur simultaneously:
(a) Stockholders will deliver, or cause to be delivered, to
Acquiror the following:
(1) stock certificates for the stock of Acquiree being
tendered hereunder, duly endorsed in blank,
(2) all corporate records of Acquiree, including without
limitation corporate minute books (which shall contain copies
of the Articles of Incorporation and Bylaws, as amended to the
Delivery Date), stock books, stock transfer books, corporate
seals, and such other corporate books and records as may
reasonably requested for review by Acquiror;
(3) a certificate of the President of Acquiree to the effect
that all representations and warranties of Acquiree made under
this Agreement are reaffirmed on the Closing Date and the
Delivery Date, the same as though originally given on said
date;
(4) such other instruments, documents and certificates, if
any, as are required to be delivered pursuant to the
provisions of this Agreement or which may be reasonably
requested in furtherance of the provisions of this Agreement;
(b) Acquiror will deliver or cause to be delivered to Stockholders
and Acquiree:
(1) stock certificates for Common Stock to be issued as a part
of the exchange as listed on Exhibit "A" after the date of
approval of this transaction by the Acquiror shareholders;
(2) a certificate of the President of Acquiror to the effect
that all representations and warranties of Acquiror made under
this Agreement are reaffirmed on the Closing Date and the
Delivery Date, the same as though originally given on said
date;
(3) certified copies of resolutions by Acquiror's Board of
Directors and shareholders authorizing this transaction;
(4) such other instruments and documents as are required to be
delivered pursuant to the provisions of this Agreement.
12. Miscellaneous.
(a) Further Assurances. At any time, and from time to time, after
the effective date, each party will execute such additional
instruments and take such action as may be reasonably
requested by the other party to confirm or perfect title to
any property transferred hereunder or otherwise to carry out
the intent and purposes of this Agreement.
(b) 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.
(c) Brokers. Neither party has employed any brokers or finders
with regard to this Agreement unless otherwise described in
writing to all parties hereto.
(d) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given if
delivered in person or sent by prepaid first class registered
or certified mail, return receipt requested.
(e) Headings. The section and subsection headings in this
Agreement are inserted for convenience only and shall not
affect in any way the meaning or interpretation of this
Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and
the same instrument.
(g) Governing Law. This Agreement was negotiated and is being
contracted for in the State of Nevada, and shall be governed
by the laws of the State of Nevada, and the securities being
issued herein are being issued and delivered outside the
jurisdiction of the United States in accordance with the
isolated transaction and non-public offering exemption and
with Regulation S of the Act..
(h) Binding Effect. This Agreement shall be binding upon the
parties hereto and inure to the benefit of the parties, their
respective heirs, administrators, executors, successors and
assigns.
(I) Entire Agreement. This Agreement is the entire agreement of
the parties covering everything agreed upon or understood in
the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of
any kind of condition or inducements to the execution hereof.
(j) Time. Time is of the essence.
(k) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in
full force and effect.
(l) Default Costs. In the event any party hereto has to resort to
legal action to enforce any of the terms hereof, such party
shall be entitled to collect attorneys fees and other costs
from the party in default.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
xxxxXxxx.xxx, Inc..
a Nevada Corporation
By:
President
Maxxplay Enterprises Inc.
a Nevada Corporation
By:
President
