AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Plan") is made this 29th day of
January, 1999, among Silver Strike Mining Company, Inc., a Nevada corporation
("Silver Strike"); Xxxxxxxxxxx Partners, Inc., a Georgia corporation, any and
all of its subsidiaries (hereinafter collectively referred to as
"Xxxxxxxxxxx") and its shareholders (hereinafter "Shareholders").
Silver Strike wishes to acquire all the issued and outstanding stock of
Xxxxxxxxxxx for and in exchange for stock of Silver Strike, in a stock for
stock transaction intending to qualify as a tax-free exchange pursuant to
Section368(a)(1)(B) of the Internal Revenue Code of 1986, as amended. The
partiesintend for this Plan to represent the terms and conditions of such tax-
free reorganization, which Plan the parties hereby adopt.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, IT IS AGREED:
Section 1
Terms of Exchange
1.1 Number of Shares. Upon the execution hereof, the Shareholders of
Xxxxxxxxxxx agree to assign, transfer, and deliver to Silver Strike, free and
clear of all liens, pledges, encumbrances, charges, restrictions or known
claims of any kind, nature or description, two shares of common stock of
Xxxxxxxxxxx in exchange for one share of Silver Strike's stock, par value
$.001, in the aggregate of 5,414,000 shares, as subject to the provisions of
this Plan. Subsequent to the date hereof, the Shareholders shall, upon the
surrender of the Xxxxxxxxxxx certificates representing their respective
beneficial and record ownership of all of the issued and outstanding shares of
Xxxxxxxxxxx to Silver Strike, as soon as practicable hereafter, and further
provided an exemption from the registration provisions of Section 5 of the
Securities Act of 1933 is available for the issuance thereof, the Shareholders
shall be entitled to receive a certificate(s) evidencing shares of the
exchanged Silver Strike stock as provided for herein. Upon the consummation
of the transaction contemplated herein, Xxxxxxxxxxx shall be a wholly owned
subsidiary of Silver Strike.
1.2 Anti-Dilution. For all relevant purposes of this Plan, the number of
Silver Strike shares to be issued and delivered pursuant to this Plan, shall
be appropriate adjusted to take into account any stock split, stock dividend,
reverse stock split, recapitalization, or similar change in Silver Strike
common stock, which may occur between the date of the execution of this Plan
and the date of the delivery of such shares.
1.3 Delivery of Certificates. The Shareholders shall transfer to Silver
Strike at the closing provided for in Section 2 (the "Closing") the shares of
common stock of Xxxxxxxxxxx listed opposite their respective names on Exhibit
A hereto (the "Xxxxxxxxxxx shares") in exchange for shares of the common stock
of Silver Strike as outlined above in Section 1.1 hereof (the "Silver Strike
Stock"). All of such shares of Silver Strike common stock shall be issued at
the closing to the Shareholders, in the numbers shown opposite their
respective names in Exhibit A. The transfer of Xxxxxxxxxxx shares by the
Shareholders shall be effected by the delivery to Silver Strike at the Closing
of certificates representing the transferred shares endorsed in blank or
accompanied by stock powers executed in blank, with all signatures guaranteed
by a national bank and with all necessary transfer taxes and other revenue
stamps affixed and acquired at the Shareholders' expense.
1.4 Further Assurances. Subsequent to the execution hereof, and from time to
time thereafter, the Shareholders shall execute such additional instruments
and take such other action as Silver Strike may request in order to more
effectively sell, transfer and assign clear title and ownership in the
Xxxxxxxxxxx shares to Silver Strike.
Section 2
Closing
2.1 Closing. The Closing contemplated by Section 1.3 shall be held at the
law offices of Xxxxxx X. Xxxxxxx on February 15, 1999 or at such other time or
place as may be mutually agreed upon in writing by the parties. The Closing
may also be accomplished by wire, express mail or other courier service,
conference telephone communications or as otherwise agreed by the respective
parties or their duly authorized representatives. In any event, the closing
of the transactions contemplated by this Plan shall be effected as soon as
practicable after all of the conditions contained herein have been satisfied.
2.2 Closing Events. At the Closing, each of the respective parties hereto
shall execute, acknowledge and deliver (or shall cause to be executed,
acknowledged, and delivered) any agreements, resolutions, rulings, or other
instruments required by this Plan to be so delivered at or prior to Closing,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence
the transaction contemplated hereby.
Section 3
Representations, Warranties and Covenants of Silver Strike
Silver Strike represents and warrants to, and covenants with, the Shareholders
and Xxxxxxxxxxx as follows:
3.1 Corporate Status. Silver Strike is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada. Silver
Strike has full corporate power and is duly authorized, qualified, franchised,
and licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on its
business on all material respects as it is now being conducted, and there is
no jurisdiction in which the character and location of the assets owned by it,
or the nature of the business transacted by it, requires qualification.
Included in the Silver Strike schedules (defined below) are complete and
correct copies of its Articles of Incorporation and Bylaws as in effect on the
date hereof. The execution and delivery of this Plan does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of Silver Strike's Articles of Incorporation or Bylaws. Silver
Strike has taken all action required by law, its Articles of Incorporation,
its Bylaws, or otherwise, to authorize the execution and delivery of this
Plan.
3.2 Capitalization. The authorized capital stock of Silver Strike as of the
date hereof consists of 20,000,000 common shares, par value $.001 and
10,000,000 preferred shares, par value $.001. As of the date hereof there are
1,022,500 common shares of Silver Strike issued and outstanding and no
preferred shares issued and outstanding. The foregoing shares constitute
fully paid, non-assessable shares. There are no outstanding options,
warrants, or calls or any understanding, agreements, commitments, contracts or
promises with respect to the issuance of Silver Strike's common stock or with
regard to any options, warrants or other contractual rights to acquire any of
Silver Strike's authorized but unissued common shares.
3.3 Financial Statements.
(a) Silver Strike hereby warrants and covenants to Xxxxxxxxxxx that the
audited financial statements the period ended March 31, 1998 and for the years
ended December 31, 1997 and 1996, fairly and accurately represent the
financial condition of Silver Strike and that the same will be prepared along
with the period ended as of the date of Closing, for consolidation by an
independent public accountant, which shall be prepared in accordance with
generally accepted accounting principles consistently applied, on or before
the expiration of forty-five days from the date of Closing.
(b) Silver Strike hereby warrants and represents that the audited financial
statements for the periods set forth in subparagraph (a), supra, fairly and
accurately represent the financial condition of Silver Strike as submitted
heretofore to Xxxxxxxxxxx for examination and review.
3.4 Conduct of Business. Silver Strike will use its best efforts to maintain
and preserve its business organization, employee relationships and goodwill
intact, and will not, without the prior written consent of Xxxxxxxxxxx, enter
into any material commitments except in the ordinary course of business.
Silver Strike will conduct itself in the following manner pending the Closing:
(a) Certificate of Incorporation and Bylaws. No change will be made in the
Articles of Incorporation or Bylaws of Silver Strike. Except as contemplated
in Sections 3.13, 3.14 and 3.15 of this Plan.
(b) Capitalization, etc. Silver Strike will not make any change in its
authorized or issued shares of any class, declare or pay any dividend or other
distribution, or issue, encumber, purchase or otherwise acquire any of its
shares of any class.
3.5 Options, Warrants and Rights. Silver Strike has no options, warrants or
stock appreciation rights related to the authorized but unissued Silver Strike
common stock. There are no existing options, warrants, calls, or commitments
of any character relating to the authorized and unissued Silver Strike common
stock, except options, warrants, calls, or commitments, if any, to which
Silver Strike is not a party and by which it is not bound.
3.6 Title to Property. Silver Strike has good and marketable title to all of
its properties and assets, real and personal, proprietary or otherwise, as
will be reflected in the balance sheets of Silver Strike, and the properties
and assets of Silver Strike are subject to no mortgage, pledge, lien or
encumbrance, unless as otherwise disclosed in its financial statements.
3.7 Litigation. There are no material actions, suits, or proceedings,
pending, or, to the best knowledge of Silver Strike, threatened by or against
or effecting Silver Strike at law or in equity, or before any governmental
agency or instrumentality, domestic or foreign, or before any arbitrator of
any kind; Silver Strike does not have any knowledge of any default on its part
with respect to any judgment, order, writ, injunction, decree, warrant, rule,
or regulation of any court, arbitrator, or governmental agency or
instrumentality.
3.8 Books and Records. From the date hereof, and for any reasonable period
subsequent thereto, Silver Strike and its present management will (i) give to
the Shareholders and Xxxxxxxxxxx, or their duly authorized representatives,
full access, during normal business hours, to all of its books, records,
contracts and other corporate documents and properties so that the
Shareholders and Xxxxxxxxxxx, or their duly authorized representatives, may
inspect them; and (ii) furnish such information concerning the properties and
affairs of Silver Strike as the Shareholders and Xxxxxxxxxxx, or their duly
authorized representatives, may reasonably request. Any such request to
inspect Silver Strike's books shall be directed to Silver Strike' counsel,
Xxxxxx X. Xxxxxxx, at the address set forth herein under Section 10.4 Notices.
3.9 Confidentiality. Until the Closing (and thereafter if there is no
Closing), Silver Strike and its representatives will keep confidential any
information which they obtain from the Shareholders or from Xxxxxxxxxxx
concerning its properties, assets and the proposed business operations of
Xxxxxxxxxxx. If the terms and conditions of this Plan imposed on the parties
hereto are not consummated on or before 5:00 p.m. MST on February 15, 1999 or
otherwise waived or extended in writing to a date mutually agreeable to the
parties hereto, Silver Strike will return to Xxxxxxxxxxx all written matter
with regard to Xxxxxxxxxxx obtained in connection with the negotiations or
consummation of this Plan.
3.10 Conflict with Other Instruments. The transactions contemplated by this
Plan will not result in the breach of any term or provision of, or constitute
a default under any indenture, mortgage, deed of trust, or there material
agreements or instrument to which Silver Strike was or is a party, or to which
any of its assets or operations are subject, and will not conflict with any
provision of the Articles of Incorporation or Bylaws of Silver Strike.
3.11 Corporate Authority. Silver Strike has full corporate power and
authority to enter into this Plan and to carry out its obligations hereunder
and will deliver to the Shareholders and Xxxxxxxxxxx, or their respective
representatives, at the Closing, a certified copy of resolutions of its Board
of Directors authorizing execution of this Plan by its officers and
performance thereunder.
3.12 Consent of Shareholders. Silver Strike hereby warrants and represents
that the Shareholders of Silver Strike, being the owners of a majority of the
issued and outstanding stock of the Corporation consented in writing to the
authorization to execute an Agreement and Plan of Reorganization as between
Silver Strike and Xxxxxxxxxxx pursuant to a stock-for-stock transaction in
which Silver Strike would acquire all of the issued and outstanding shares of
Xxxxxxxxxxx in exchange for the issuance of 5,414,111 common shares of Silver
Strike.
3.13 Resignation of Directors. Upon the Closing, the current directors of
Silver Strike shall submit their resignations.
3.14 Special Covenants and Representations Regarding the Exchanged Silver
Strike Stock. The consummation of this Plan and the transactions herein
contemplated include the issuance of the exchanged Silver Strike shares to the
Shareholders, which constitutes an offer and sale of securities under the
Securities Act of 1933, as amended, and applicable states' securities laws.
Such transaction shall be consummated in reliance on exemptions from the
registration and prospectus requirements of such statutes which depend
interlace on the circumstances under which the Shareholders acquire such
securities. In connection with the reliance upon exemptions from the
registration and prospectus delivery requirements for such transactions, at
the Closing, Shareholders shall cause to be delivered to Silver Strike a
Letter(s) of Investment Intent in the form attached hereto as Exhibit B and
incorporated herein by reference.
3.15 Name of the Corporation. At the Closing, the Board of Directors of
Silver Strike will adopt a resolution to change the name of Silver Strike to
Halifax International, Inc.
3.16 Resignation of Directors. Upon the Closing, the current directors of
Silver Strike shall submit their resignations.
3.17 Special Covenants and Representations Regarding the Exchanged Silver
Strike Stock. The consummation of this Plan and the transactions herein
contemplated include the issuance of the exchanged Silver Strike shares to the
Shareholders, which constitutes an offer and sale of securities under the
Securities Act of 1933, as amended, and applicable states' securities laws.
Such transaction shall be consummated in reliance on exemptions from the
registration and prospectus requirements of such statutes which depend
interlace on the circumstances under which the Shareholders acquire such
securities. In connection with the reliance upon exemptions from the
registration and prospectus delivery requirements for such transactions, at
the Closing, Shareholders shall cause to be delivered to Silver Strike a
Letter(s) of Investment Intent in the form attached hereto as Exhibit B and
incorporated herein by reference.
3.18 Undisclosed or Contingent Liabilities. Silver Strike hereby represents
and warrants that it has no undisclosed or contingent liabilities which have
not been disclosed to Xxxxxxxxxxx.
3.19 Information. The information concerning Silver Strike set forth in this
Plan, and the Silver Strike schedules attached hereto, are complete and
accurate in all material respects and do not contain, or will not contain,
when delivered, any untrue statement or a material fact or omit to state a
material fact the omission of which would be misleading to Xxxxxxxxxxx in
connection with this Plan.
3.20 Title and Related Matters. Silver Strike has good and marketable title
to all of its properties, interests in properties, and assets, real and
personal, which are reflected, or will be reflected, in the Silver Strike
balance sheets, free and clear of any and all liens and encumbrances.
3.21 Contracts or Agreements. Silver Strike is not bound by any material
contracts, agreements or obligations which it has not already disclosed to
Xxxxxxxxxxx.
3.22 Governmental Authorizations. Silver Strike has all licenses,
franchises, permits and other government authorizations that are legally
required to enable it to conduct its business in all material respects as
conducted on the date hereof. Except for compliance with federal and state
securities laws, no authorization, approval, consent or order of, or
registration, declaration, or filing with, any court or other governmental
body is required in connection with the execution and delivery by Silver
Strike of this Plan and the consummation by Xxxxxxxxxxx of the transactions
contemplated hereby.
3.23 Compliance with Laws and Regulations. Silver Strike has complied with
all applicable statutes and regulations of any federal, state, or other
applicable jurisdiction or agency thereof, except to the extent that
noncompliance would not materially and adversely effect the business,
operations, properties, assets, or condition of Silver Strike or except to the
extent that noncompliance would not result in the occurrence of any material
liability, not otherwise disclosed to Xxxxxxxxxxx.
3.24 Approval of Plan. The Board of Directors of Silver Strike has
authorized the execution and delivery of this Plan by Silver Strike and have
approved the Plan and the transactions contemplated hereby. Silver Strike has
full power, authority, and legal right to enter into this Plan and to
consummate the transactions contemplated hereby.
3.25 Investment Intent. Silver Strike is acquiring the Xxxxxxxxxxx shares to
be transferred to it under this Plan for investment and no with a view to the
sale or distribution thereof, and Silver Strike has no commitment or present
intention to liquidate Xxxxxxxxxxx or to sell or otherwise dispose of the
Xxxxxxxxxxx shares.
3.26 Unregistered Shares and Access to Information. Silver Strike
understands that the offer and sale of the Xxxxxxxxxxx shares have not been
registered with or reviewed by the Securities and Exchange Commission under
the Securities Act of 1933, as amended, or with or by any state securities law
administrator, and no federal, state securities law administrator has reviewed
or approved any disclosure or other material concerning Xxxxxxxxxxx or the
Xxxxxxxxxxx shares. Silver Strike has been provided with and reviewed all
information concerning Xxxxxxxxxxx, the Xxxxxxxxxxx shares as it has
considered necessary or appropriate as a prudent and knowledgeable investor to
enable it to make an informed investment decision concerning the Xxxxxxxxxxx
shares. Silver Strike has made an investigation as to the merits and risks of
its acquisition of the Xxxxxxxxxxx Shares and has had the opportunity to ask
questions of, and has received satisfactory answers from, the officers and
directors of Xxxxxxxxxxx concerning Xxxxxxxxxxx, the Xxxxxxxxxxx shares and
related matters, and has had an opportunity to obtain additional information
necessary to verify the accuracy of such information and to evaluate the
merits and risks of the proposed acquisition of the Xxxxxxxxxxx shares.
3.27 Obligations. Silver Strike is not aware of any outstanding obligations
to any of its employees or consultants as of the Closing.
3.28 Silver Strike Schedules. Silver Strike has delivered to Xxxxxxxxxxx the
following items listed below, hereafter referred to as the "Silver Strike
Schedules", which is hereby incorporated by reference and made a part hereof.
A certification executed by a duly authorized officer of Silver Strike on or
about the date within the Plan is executed to certify that the Silver Strike
Schedules are true and correct.
(a) Copy of Articles of Incorporation, as amended, and Bylaws
(b) Financial statements
(c) Shareholder list;
(d) Resolution of Directors approving Plan
(e) Consent of Shareholders approving Plan
(f) Officers' Certificate as required under Section 6.2 of the Plan
(g Opinion of counsel as required under Section 6.4 of the Plan
(h) Certificate of Good Standing
Section 4
Representations, Warranties and Covenants of Xxxxxxxxxxx
Xxxxxxxxxxx represents and warrants to, and covenants with, the Shareholders
and Silver Strike as follows:
4.1 Corporate Status. Xxxxxxxxxxx is a corporation duly organized, validly
existing and in good standing under the laws of the State of Georgia
incorporated on January 9, 1996. Xxxxxxxxxxx has full corporate power and is
duly authorized, qualified, franchised, and licensed under all applicable
laws, regulations, ordinances, and orders of public authorities to own all of
its properties and assets and to carry on its business on all material
respects as it is now being conducted, and there is no jurisdiction in which
the character and location of the assets owned by it, or the nature of the
business transacted by it, requires qualification. Included in the
Xxxxxxxxxxx schedules (defined below) are complete and correct copies of its
Articles of Incorporation and Bylaws as in effect on the date hereof. The
execution and delivery of this Plan does not, and the consummation of the
transactions contemplated hereby will not, violate any provision of
Christopher's Articles of Incorporation or Bylaws. Xxxxxxxxxxx has taken all
action required by law, its Articles of Incorporation, its Bylaws, or
otherwise, to authorize the execution and delivery of this Plan.
4.2 Capitalization. The authorized capital stock of Xxxxxxxxxxx as of the
date hereof consists of 50,000,000 common shares, par value $0.001. As of the
date hereof there are 11,233,222 common shares of Xxxxxxxxxxx issued and
outstanding. The foregoing shares constitute fully paid, non-assessable
shares. Over the last three years Xxxxxxxxxxx conducted a unit offering of
common shares. Each unit consisted of 1 common share with a warrant to
purchase 1/2 a share of Christopher's authorized but unissued common stock.
Xxxxxxxxxxx also gave certain individuals warrants to purchase common stock of
Xxxxxxxxxxx as consideration for services rendered to Xxxxxxxxxxx. As of the
date hereof Xxxxxxxxxxx has a total of 1,710,150 warrants issued and
outstanding.
4.3 Conduct of Business. Xxxxxxxxxxx will use its best efforts to maintain
and preserve its business organization, employee relationships and goodwill
intact, and will not, without the prior written consent of Silver Strike,
enter into any material commitments except in the ordinary course of business.
Xxxxxxxxxxx agrees that Xxxxxxxxxxx will conduct itself in the following
manner pending the Closing:
(a) Certificate of Incorporation and Bylaws. No change will be made in the
Certificate of Incorporation or Bylaws of Xxxxxxxxxxx.
(b) Capitalization, etc. Xxxxxxxxxxx will not make any change in its
authorized or issued shares of any class, declare or pay any dividend or other
distribution, or issue, encumber, purchase or otherwise acquire any of its
shares of any class.
4.4 Title to Property. Xxxxxxxxxxx has good and marketable title to all of
its properties and assets, real and personal, proprietary or otherwise, as
will be reflected in the balance sheets of Xxxxxxxxxxx, and the properties and
assets of Xxxxxxxxxxx are subject to no mortgage, pledge, lien or encumbrance,
unless as otherwise disclosed in its financial statements.
4.5 Litigation. There are no material actions, suits, or proceedings,
pending, or, to the best knowledge of Xxxxxxxxxxx, threatened by or against or
effecting Xxxxxxxxxxx at law or in equity, or before any governmental agency
or instrumentality, domestic or foreign, or before any arbitrator of any kind;
Xxxxxxxxxxx does not have any knowledge of any default on its part with
respect to any judgment, order, writ, injunction, decree, warrant, rule, or
regulation of any court, arbitrator, or governmental agency or
instrumentality.
4.6 Books and Records. From the date hereof, and for any reasonable period
subsequent thereto, Xxxxxxxxxxx and its present management will (i) give to
Silver Strike, or their duly authorized representatives, full access, during
normal business hours, to all of its books, records, contracts and other
corporate documents and properties so that Silver Strike, or their duly
authorized representatives, may inspect them; and (ii) furnish such
information concerning the properties and affairs of Xxxxxxxxxxx as the
Shareholders and Xxxxxxxxxxx, or their duly authorized representatives, may
reasonably request. Any such request to inspect Christopher's books shall be
directed to Christopher's representative, at the address set forth herein
under Section 10.4 Notices.
4.7 Confidentiality. Until the Closing (and thereafter if there is no
Closing), Xxxxxxxxxxx and its representatives will keep confidential any
information which they obtain from the Shareholders or from Xxxxxxxxxxx
concerning its properties, assets and the proposed business operations of
Xxxxxxxxxxx. If the terms and conditions of this Plan imposed on the parties
hereto are not consummated on or before 5:00 p.m. MST on February 15, 1999 or
otherwise waived or extended in writing to a date mutually agreeable to the
parties hereto, Xxxxxxxxxxx will return to Silver Strike all written matter
with regard to Silver Strike obtained in connection with the negotiations or
consummation of this Plan.
4.8 Investment Intent. The Shareholders represent and covenant that they are
acquiring the unregistered and restricted common shares of Silver Strike to be
delivered to them under this Plan for investment purposes and not with a view
to the subsequent sale or distribution thereof, and as agreed, supra, the
Shareholders, their successors and assigns agree to execute and deliver to
Silver Strike on the date of Closing or no later than the date on which the
restricted shares are issued and delivered to the Shareholders, their assigns,
or designees, an Investment Letter similar in form to that attached hereto as
Exhibit B.
4.9 Unregistered Shares and Access to Information. Xxxxxxxxxxx and the
Shareholders understand that the offer and sale of Silver Strike shares to be
exchanged for the Xxxxxxxxxxx shares have not been registered with or reviewed
by the securities and Exchange Commission under the Securities Act of 1933, as
amended, or with or by any state securities law administrator, and no federal
or state securities law administrator has reviewed or approved any disclosure
or other material facts concerning Silver Strike or Silver Strike stock.
Xxxxxxxxxxx and the Shareholders have been provided with and reviewed all
information concerning Silver Strike and Silver Strike shares, to be exchanged
for the Xxxxxxxxxxx shares as they have considered necessary or appropriate as
prudent and knowledgeable investors to enable them to make informed investment
decisions concerning the Silver Strike shares, to be exchanged for the
Xxxxxxxxxxx shares. Xxxxxxxxxxx and the Shareholders have made an
investigation as to the merits and risks of their acquisition of the Silver
Strike shares, to be exchanged for the Xxxxxxxxxxx shares and have had the
opportunity to ask questions of, and have received satisfactory answers from,
the officers and directors of Silver Strike concerning Silver Strike shares to
be exchanged for the Xxxxxxxxxxx shares and related matters, and have had an
opportunity to obtain additional information necessary to verify the accuracy
of such information and to evaluate the merits and risks of the proposed
acquisition of the Silver Strike shares to be exchanged for the Xxxxxxxxxxx
shares.
4.10 Title to Shares. The Shareholders are the beneficial and record owners,
free and clear of any liens and encumbrances, of whatever kind or nature, of
all of the shares of Xxxxxxxxxxx of whatever class or series, which the
Shareholders have contracted to exchange.
4.11 Contracts.
(a) Set forth in the Xxxxxxxxxxx Schedules are copies or descriptions of all
material contracts which written or oral, all agreements, franchises,
licenses, or other commitments to which Xxxxxxxxxxx is a party or by which
Xxxxxxxxxxx or its properties are bound.
(b) Except as may be set forth in the Xxxxxxxxxxx Schedules, Xxxxxxxxxxx is
not a party to any contract, agreement, corporate restriction, or subject to
any judgment, order, writ, injunction, decree, or award, which materially and
adversely effect the business, operations, properties, assets, or conditions
of Xxxxxxxxxxx.
(c) Except as set forth in the Xxxxxxxxxxx Schedules, Xxxxxxxxxxx is not a
party to any material oral or written (i) contract for employment of any
officer which is not terminable on 30 days (or less) notice; (ii) profit
sharing, bonus, deferred compensation, stock option, severance, or any other
retirement plan of arrangement covered by Title IV of the Employee Retirement
Income Security Act, as amended, or otherwise covered; (iii) agreement
providing for the sale, assignment or transfer of any of its rights, assets or
properties, whether tangible or intangible, except sales of its property in
the ordinary course of business with a value of less than $2,000; or (iv)
waiver of any right of any value which in the aggregate is extraordinary or
material concerning the assets or properties scheduled by Xxxxxxxxxxx, except
for adequate value and pursuant to contract. Xxxxxxxxxxx has not entered into
any material transaction which is not listed in the Xxxxxxxxxxx Schedules or
reflected in the Xxxxxxxxxxx financial statements.
4.12 Material Contract Defaults. Xxxxxxxxxxx is not in default in any
material respect under the terms of any contract, agreement, lease or other
commitment which is material to the business, operations, properties or
assets, or condition of Xxxxxxxxxxx, and there is no event of default or event
which, with notice of lapse of time or both, would constitute a default in any
material respect under any such contract, agreement, lease, or other
commitment in respect of which Xxxxxxxxxxx has not taken adequate steps to
prevent such default from occurring, or otherwise compromised, reached a
satisfaction of, or provided for extensions of time in which to perform under
any one or more contract obligations, among others.
4.13 Conflict with Other Instruments. The consummation of the within
transactions will not result in the breach of any term or provision of, or
constitute a default under any indenture, mortgage, deed of trust, or other
material agreement or instrument to which Xxxxxxxxxxx was or is a party, or to
which any of its assets or operations are subject, and will not conflict with
any provision of the Articles of Incorporation or Bylaws of Xxxxxxxxxxx.
4.14 Governmental Authorizations. Xxxxxxxxxxx is in good standing in the
State of Georgia. Except for compliance with federal and state securities
laws, no authorization, approval, consent or order of, or registration,
declaration, or filing with, any court or other governmental body is required
in connection with the execution and delivery by Xxxxxxxxxxx of this Plan and
the consummation by Xxxxxxxxxxx of the transactions contemplated hereby.
4.15 Compliance with Laws and Regulations. Xxxxxxxxxxx has complied with all
applicable statutes and regulations of any federal, state, or other applicable
jurisdiction or agency thereof, except to the extent that noncompliance would
not materially and adversely effect the business, operations, properties,
assets, or condition of Xxxxxxxxxxx or except to the extent that noncompliance
would not result in the occurrence of any material liability, not otherwise
disclosed to Silver Strike.
4.16 Approval of Plan. The Board of Directors of Xxxxxxxxxxx have authorized
the execution and delivery of this Plan by Xxxxxxxxxxx and have approved the
Plan and the transactions contemplated hereby. Xxxxxxxxxxx has full power,
authority, and legal right to enter into this Plan and to consummate the
transactions contemplated hereby.
4.17 Information. The information concerning Xxxxxxxxxxx set forth in this
Plan, and the Xxxxxxxxxxx Schedules attached hereto, are complete and accurate
in all material respects and do not contain, or will not contain, when
delivered, any untrue statement or a material fact or omit to state a material
fact the omission of which would be misleading to Silver Strike in connection
with this Plan.
4.18 Xxxxxxxxxxx Schedules. Xxxxxxxxxxx has delivered to Silver Strike the
following items listed below, hereafter referred to as the "Xxxxxxxxxxx
Schedules", which is hereby incorporated by reference and made a part hereof.
A certification executed by a duly authorized officer of Xxxxxxxxxxx on or
about the date within the Plan is executed to certify that the Xxxxxxxxxxx
Schedules are true and correct.
(a) Copy of Articles of Incorporation and Bylaws
(b) Financial Statements
(c) A schedule setting forth the shareholders, together with the number of
shares owned beneficially or of record by each (also attached as Exhibit A)
(d) A schedule setting forth the warrant holders, together with the number
of warrants owned beneficially or of record by each.
(e) Sample Warrant Certificate
(d) Resolutions of Board of Directors approving Plan
(e) Consent of Shareholders approving Plan
(f) A list of key employees, including current compensation, with notation as
to job description and whether or not such employee is subject to written
contract, and if subject to a contract or employment agreement, a copy of the
same
(g) A schedule showing the name and location of each bank or other
institution with which Xxxxxxxxxxx has an account and the names of the
authorized persons to draw thereon or having access thereto
(h) A schedule setting forth all material contracts
(i) Officers' Certificate as required by Section 7.2 of the Plan
(j) Schedule of all debts, mortgages, security interests, pledges, liens,
encumbrances, claims and the like
(k) Certificate of Good Standing
Section 5
Special Covenants
5.1 Xxxxxxxxxxx Information Incorporated in Silver Strike's Reports.
Xxxxxxxxxxx represents and warrants to Silver Strike that all the information
furnished under this Plan shall be true and correct in all material respects
and that there is no omission of any material fact required to make the
information stated not misleading. Xxxxxxxxxxx agrees to indemnify and hold
Silver Strike harmless, including each of its Directors and Officers, a and
each person, if any, who controls such party, under any applicable law from
and against any and all losses, claims, damages, expenses or liabilities to
which any of them may become subject under applicable law, or reimburse them
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such actions, whether or not resulting in
liability, insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based on any untrue statement, alleged untrue
statement, or omission of a material fact contained in such information
delivered hereunder.
5.2 Special Covenants and Representations Regarding the Exchanged Silver
Strike Stock. The consummation of this Plan and the transactions herein
contemplated, including the issuance of the Silver Strike shares in exchange
for all of the issued and outstanding shares of Xxxxxxxxxxx to the
Shareholders constitutes the offer and sale of securities under the Securities
Act and the applicable state statutes, which depend, inter alia, on the
circumstances under which the Shareholders acquire such securities. Silver
Strike intends to rely on the exemption of the registration provision of
Section 5 of the Securities Act as provided for under Section 4.2 of the
Securities Act of 1933, which states "transactions not involving a public
offering", among others. Each Shareholder upon submission of his Xxxxxxxxxxx
shares and the receipt of the Silver Strike post-split shares exchanged
therefor, shall execute and deliver to Silver Strike a letter of investment
invent to indicate, among other representations, that the Shareholder is
exchanging the Xxxxxxxxxxx shares for Silver Strike post-split shares for
investment purposes and not with a view to the subsequent distribution
thereof. A proposed Investment Letter is attached hereto as Exhibit B and
incorporated herein by reference for the general use by the Shareholders, as
they may determine.
5.3 Action Prior to Closing. Upon the execution hereof until the Closing
date, and the completion of the consolidated audited financials,
(a) Xxxxxxxxxxx and Silver Strike will (i) perform all of its obligations
under material contracts, leases, insurance policies and/or documents relating
to its assets and business; (ii) use its best efforts to maintain and preserve
its business organization intact, to retain its key employees, and to maintain
its relationship with existing potential customers and clients; and (iii)
fully comply with and perform in all material respects all duties and
obligations imposed on it by all federal and state laws and all rules,
regulations, and orders imposed by all federal or state governmental
authorities.
(b) Neither Xxxxxxxxxxx nor Silver Strike will (i) make any change in its
Articles of Incorporation or Bylaws except and unless as contemplated pursuant
to Section 3 of this Plan; (ii) enter into or amend any contract, agreement,
or other instrument of the types described in the parties' schedules, except
that a party may enter into or amend any contract or other instrument in the
ordinary course of business involving the sale of goods or services, provided
that such contract does not involve obligations in excess of $10,000.
Section 6
Conditions Precedent to Obligations of
Xxxxxxxxxxx and the Shareholders
All obligations of Xxxxxxxxxxx and the Shareholders under this Plan are
subject to the satisfaction, on or before the Closing date, except as
otherwise provided for herein, or waived or extended in writing by the parties
hereto, of the following conditions:
6.1 Accuracy of Representations. The representations and warranties made by
Silver Strike in this Plan were true when made and shall be true as of the
Closing date (except for changes therein permitted by this Plan) with the same
force and effect as if such representations and warranties were made at and as
of the Closing date; and, Silver Strike shall have performed and complied with
by Silver Strike prior to the Closing, unless waived or extended in writing by
the parties hereto. Xxxxxxxxxxx shall have been furnished with a certificate,
signed by a duly authorized executive officer of Silver Strike and dated the
Closing date, to the foregoing effect.
6.2 Officers' Certificate. Xxxxxxxxxxx and the Shareholders shall have been
furnished with a certificate dated the Closing date and signed by a duly
authorized executive officer of Silver Strike, to the effect that no
litigation, proceeding, investigation, or inquiry is pending, or to the best
knowledge of Silver Strike, threatened, which might result in an action to
enjoin or prevent the consummation of the transactions contemplated by this
Plan, or which might result in any material adverse change in the assets,
properties, business, or operations of Silver Strike.
6.3 No Material Adverse Change. Prior to the Closing date, there shall have
not occurred any material adverse change in the final condition, business or
operations of Silver Strike, nor shall any event have occurred which, with
lapse of time or the giving of notice or both, may cause or create any
material adverse change in the financial condition, business or operations of
Silver Strike, except as otherwise disclosed to Xxxxxxxxxxx.
6.4 Opinion of Counsel of Silver Strike. Silver Strike shall furnish to
Xxxxxxxxxxx and the Shareholders an opinion dated as of the Closing date and
in form and substance satisfactory to Xxxxxxxxxxx and the Shareholders to the
effect that:
(a) Silver Strike is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Nevada, and with all requisite
corporate power to perform its obligations under this Plan.
(b) The business of Silver Strike, as presently conducted, including, upon
the consummation hereof, the ownership of all of the issued and outstanding
shares of Xxxxxxxxxxx, does not require it to register it to do business as a
foreign corporation on any jurisdiction other than under the jurisdiction of
its Articles of Incorporation or Bylaws and Silver Strike has complied to the
best of its knowledge in all material respects with all the laws, regulations,
licensing requirements and orders applicable to its business activities and
has filed with the proper authorities, including the Department of Commerce,
Division of Corporations, and Secretary of State for the State of Nevada, all
statements and reports required to be filed.
(c) The authorized and outstanding capital stock of Silver Strike as set
forth in Section 3.2 above, and all issued and outstanding shares have been
duly and validly authorized and issued and are fully paid and non-assessable.
(d) There are no material claims, suits or other legal proceedings pending or
threatened against Silver Strike of any court or before or by any governmental
body which might materially effect the business of Silver Strike or the
financial condition of Silver Strike as a whole and no such claims, suits or
legal proceedings are contemplated by governmental authorities against Silver
Strike.
(e) To the best knowledge of such counsel, the consummation of the
transactions contemplated by this Plan will not violate or contravene the
provisions of the Certificate of Incorporation or Bylaws of Silver Strike, or
any contract, agreement, indenture, mortgage, or order by which Silver Strike
is bound.
(f) This Plan constitutes a legal, valid and binding obligation of Silver
Strike enforceable in accordance with its terms, subject to the effect of any
bankruptcy, insolvency, reorganization, moratorium, or similar law effecting
creditors' rights generally and general principles of equity (regardless of
whether such principles are considered in a proceeding in equity or law).
(g) The execution and delivery of this Plan and the consummation of the
transactions contemplated hereby have been ratified by a majority of the
Shareholders of Silver Strike and have been duly authorized by its Board of
Directors.
(h) Silver Strike has not, nor will it undertake any action, the result of
which would endanger the tax-free nature of the Plan.
6.5 Good Standing. Xxxxxxxxxxx shall have received a Certificate of Good
Standing from the State of Nevada, dated within sixty (60) days prior to
Closing, but in no event later than ten days subsequent to the execution
hereof certifying that Silver Strike is in good standing as a corporation in
the State of Nevada..
6.6 Other Items. Xxxxxxxxxxx and the Shareholders shall have received such
further documents, certifications or instruments relating to the transactions
contemplated hereby as Xxxxxxxxxxx and the Shareholders may reasonably
request.
Section 7
Conditions Precedent to Obligations of Silver Strike
All obligations of Silver Strike under this Plan are subject, at its option,
to the fulfillment, before the Closing, of each of the following conditions:
7.1 Accuracy of Representations. The representations and warranties made by
Xxxxxxxxxxx and the Shareholders under this Plan were true when made and shall
be true as of the Closing date (except for changes therein permitted by this
Plan) with the same force and effect as if such representations and warranties
were made at and as of the Closing date; and, Silver Strike shall have
performed and complied with by Xxxxxxxxxxx xxxxx to the Closing, unless waived
or extended in writing by the parties hereto. Silver Strike shall have been
furnished with a certificate, signed by a duly authorized executive officer of
Xxxxxxxxxxx and dated the Closing date, to the foregoing effect.
7.2 Officers' Certificate. Silver Strike shall have been furnished with a
certificate dated the Closing date and signed by a duly authorized executive
officer of Xxxxxxxxxxx, to the effect that no litigation, proceeding,
investigation, or inquiry is pending, or to the best knowledge of Xxxxxxxxxxx,
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Plan, or which might
result in any material adverse change in the assets, properties, business, or
operations of Xxxxxxxxxxx.
7.3 No Material Adverse Change. Prior to the Closing date, there shall have
not occurred any material adverse change in the final condition, business or
operations of Silver Strike, nor shall any event have occurred which, with
lapse of time or the giving of notice or both, may cause or create any
material adverse change in the financial condition, business or operations of
Xxxxxxxxxxx, except as otherwise disclosed to Silver Strike.
7.4 Good Standing. Silver Strike shall have received a Certificate of Good
Standing from the State of Georgia, dated within sixty (60) days prior to
Closing, but in no event later than ten days subsequent to the execution
hereof certifying that Xxxxxxxxxxx is in good standing as a corporation in the
State of Georgia.
7.5 Dissenters' Rights Waived. The Shareholders of Xxxxxxxxxxx, and each of
them, agree and hereby waive any dissenters' rights, if any, under the laws of
the State of Georgia in regards to any objection to this Plan as outlined
herein and otherwise consent to and agree and authorize the execution and
consummation of the within Plan in accordance to the terms and conditions of
this Plan by the management of Xxxxxxxxxxx.
7.6 Other Items. Silver Strike shall have received such further documents,
certifications or instruments relating to the transactions contemplated hereby
as Silver Strike may reasonably request.
7.7 Execution of Investment Letter. The Shareholders shall have executed and
delivered copies of Exhibit B to Silver Strike.
Section 8
Termination
8.1 Termination by Xxxxxxxxxxx or the Shareholders. This Plan may be
terminated at any time prior to the Closing date by action of Xxxxxxxxxxx or
the Shareholders, if Silver Strike shall fail to comply in any material
respect with any of the covenants or agreements contained in this Plan, or if
any of its representations and warranties contained herein shall be inaccurate
in any material respect.
8.2 Termination by Silver Strike. This Plan may be terminated at any time
prior to the Closing date by action of Silver Strike if Xxxxxxxxxxx shall fail
to comply in any material respect with any of the covenants or agreements
contained in this Plan, or if any of its representations or warranties
contained herein shall be inaccurate in any material respect.
8.3 Termination by Mutual Consent
(a) This Plan may be terminated at any time prior to the Closing date by
mutual consent of Silver Strike, expressed by action of its Board of
Directors, Xxxxxxxxxxx or the Shareholders.
(b) If this Plan is terminated pursuant to Section 8, this Plan shall be of
no further force and effect and no obligation, right or liability shall arise
hereunder. Each party shall bare its own costs in connection herewith.
Section 9
Shareholders' Representative
The Shareholders hereby irrevocably designate and appoint Xxxxxx X.
Xxxxxxxxx as their agent and attorney in fact (the "Shareholders'
Representative") with full power and authority until the Closing to execute,
deliver and receive on their behalf all notices, requests and other
communications hereunder; to fix and alter on their behalf the date, time and
place of the Closing; to waive, amend or modify any provisions of this Plan
and to take such other action on their behalf in connection with this Plan,
the Closing and the transactions contemplated hereby as such agent deems
appropriate; provided, however, that no such waiver, amendment or modification
may be made if it would decrease the number of shares to be issued to the
Shareholders under Section 1 hereof or increase the extent of their obligation
to Silver Strike hereunder, unless agreed in writing by the Shareholders.
Section 10
General Provisions
10.1 Further Assurances. At any time, and from time to time, after the
Closing 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 the Plan.
10.2 Payments of Estimated Costs and Fees. Silver Strike and Xxxxxxxxxxx
mutually determine and agree that Silver Strike shall pay the estimated costs
and fees incurred in connection with the execution and consummation of the
Plan.
10.3 Press Release and Shareholders' Communications. On the date of Closing,
or as soon thereafter as practicable, Xxxxxxxxxxx and the Shareholders shall
cause to have promptly prepared and disseminated a news release concerning the
execution and consummation of the Plan, such press release and communication
to be released promptly and within the time required by the laws, rules and
regulations as promulgated by the United States Securities and Exchange
Commission, and concomitant therewith to cause to be prepared a full and
complete letter to Silver Strike's shareholders which shall contain
information required by Regulation 240.14f-1 as promulgated under Section
14(f) as mandated under the Securities and Exchange Act of 1934, as amended.
10.4 Notices. All notices and other communications required or permitted
hereunder shall be sufficiently given if personally delivered, sent by
registered mail, or certified mail, return receipt requested, postage prepaid,
or by facsimile transmission addressed to the following parties hereto or at
such other addresses as follows:
If to Silver Strike: Silver Strike Mining Company, Inc.
000 Xxxxx 000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
With a copy to: Xxxxxx X. Xxxxxxx, Esq.
000 Xxxxx 000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
If to Xxxxxxxxxxx: Xxxxxxxxxxx Partners, Inc.
0 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
or at such other addresses as shall be furnished in writing by any party in
the manner for giving notices hereunder, and any such notice or communication
shall be deemed to have been given as of the date so delivered, mailed, sent
by facsimile transmission, or telegraphed.
10.5 Entire Agreement. This Plan represents the entire agreement between the
parties relating to the subject matter hereof, including any previous letters
of intent, understandings, or agreements between Silver Strike, Xxxxxxxxxxx
and the Shareholders with respect to the subject matter hereof, all of which
are hereby merged into this Plan, which alone fully and completely expresses
the agreement of the parties relating to the subject matter hereof. Excepting
the foregoing agreement, there are no other courses of dealing,
understandings, agreements, representations, or warranties, written or oral,
except as set forth herein.
10.6 Governing Law. This Plan shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada, except to the
extent preempted by federal law, in which event (and to that extent only)
federal law shall govern.
10.7 Tax Treatment. The transaction contemplated by this Plan is intended to
qualify as a "tax-free" reorganization under the provisions of Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended. Xxxxxxxxxxx
and Silver Strike acknowledge, however, that each are being represented by
their own tax advisors in connection with this transaction, and neither has
made any representations or warranties to the other with respect to treatment
of such transaction or any part or effect thereof under applicable tax laws,
regulations or interpretations; and no attorney's opinion or tax revenue
ruling has been obtained with respect to the tax consequences of the
transactions contemplated by the within Plan.
10.8 Attorney Fees. In the event that any party prevails in any action or
suit to enforce this Plan, or secure relief from any default hereunder or
breach hereof, the nonprevailing party or parties shall reimburse the
prevailing party or parties for all costs, including reasonable attorney fees,
incurred in connection therewith.
10.9 Amendment of Waiver. Every right and remedy provided herein shall be
cumulative with every other right and remedy, whether conferred herein, at law
or in equity, and may be enforced concurrently or separately, and no waiver by
any party of the performance of any obligation by the other shall be construed
as a waiver of the same or any other default then, therefore, or thereafter
occurring or existing. Any time prior to the expiration of thirty (30) days
from the date hereof, this Plan may be amended by a writing signed by all
parties hereto, with respect to any of the terms contained herein, and any
term or condition of this Plan may be waived or the time for performance
thereof may be extended by a writing signed by the party or parties for whose
benefit the provision is intended.
10.10 Counterparts. This Plan may be executed in any number of counterparts,
each of which when executed and delivered shall be deemed to be an original,
and all of which together shall constitute one and the same instruments.
10.11 Headings. The section and subsection headings in this Plan are
inserted for convenience only and shall not effect in any way the meaning or
interpretation of the Plan.
10.12 Parties in Interest. Except as may be otherwise expressly provided
herein, all terms and provisions of this Plan shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs,
beneficiaries, personal and legal representatives, and assigns.
IN WITNESS WHEREOF, the parties have executed this Plan and Agreement of
Reorganization effective the day and year first set forth above.
SILVER STRIKE MINING COMPANY, INC.
Attest:
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxxxxx
_____________________ By___________________________________________________
Its President
XXXXXXXXXXX PARTNERS, INC.
Attest:
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxxx X. Xxxxxxxxx
_____________________ By___________________________________________________
Its President
SHAREHOLDERS:
Attest: ARISTA CAPITAL
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
_____________________ By___________________________________________________
Attest: COGNITIVE INVESTCO, INC.
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
_____________________ By___________________________________________________
Attest: GOVERNMENT CONSULTANTS, INC.
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxx
_____________________ By___________________________________________________
Attest: EPICONTINENTAL HOLDINGS LIMITED
/s/ Xxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxx
_____________________ By___________________________________________________
Attest:
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx Xxxx
_____________________ By___________________________________________________
XXXXXX XXXX
Attest:
/s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxx
_____________________ By___________________________________________________
XXXXXX X. XXXXXXXX
Attest:
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxxxxx
_____________________ By ________________________________________________
XXXXXXX X. XXXXXXXXX
