EXHIBIT 6.1
MINT ENERGY CORPORATION
000 XXXX XXXXXX, XXXXXXXXXX, NEW JERSEY, U.S.A
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Entered into this 17th day of November, 1997.
By and between: KIT FARMS, INC., duly incorporated according to the laws of
Indiana, having its principal offices at Xxxxx 000, 0000
Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx, 00000, herein represented
by Xxxxxxx Xxxxxxxxx, General Counsel and Vice President and
X.X. Xxxxxxxx, President, herein referred to as:
"KIT"
and: MINT ENERGY CORPORATION, duly incorporated in the State of
Delaware, with principal offices at 000 Xxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, herein represented by Xxxxx X.
Xxxxxxxx, Xx. and herein after referred to as:
"MINT"
This agreement sets forth the principal business terms on which the parties
agree to this merger called the "Acquisition Transaction".
PART 1
1.01 Kit will acquire all of the issued and outstanding shares in the capital
of Mint for a purchase price to consist of 80% of the issued and outstanding
shares in the capital of Kit Farms, Inc. at the time of the acquisition.
1.02 The Acquisition Transaction shall be subject to the following conditions
to be performed for the benefit of the Investor at or prior to the closing:
a) Kit shall have no more than 7.2 million common share issued and
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outstanding and no options, warrants or other securities outstanding or
other than as described in its financial statements dated in November of
1997 and/or pursuant to stock options granted under its stock option plan,
and except for anything remaining outstanding stock options there shall be
no agreements, commitments or arrangements to issue shares or other
securities of Kit Farms, Inc.
b) all corporate, legal and regulatory proceedings, approvals and consents
which are reasonably considered necessary shall be taken or obtained
in connection with the
1.03 The Acquisition Transaction shall be subject to the following conditions
to be performed for the benefit of both parties at or prior to the Acquisition
Transaction;
a) all corporate, legal and regulatory proceedings, approvals and consents
which are reasonably considered necessary by the General Counsel for Kit
Farms shall have been taken or obtained in connection with the Acquisition
Transaction including, if required, the obtaining of the consent of the
shareholders of Kit Farms;
b) shall have completed all due diligence examinations and procedures, as it
deems fit and shall be satisfied with the results thereof, acting
reasonably;
PART II
2.01 Forwith upon mutual execution of this Agreement;
a) both parties shall make full disclosure (and its authorized
representatives) of its financial positions and conditions, businesses,
operations, assets, liabilities and such other matters or information
relevant or material to the Acquisition Transaction (all of the foregoing,
collectively "Information") that may reasonably require, and;
b) both parties shall be entitled to make such examinations and investigations
(including by their authorized representatives) of the Information
possessed by or in the control, as it may reasonably require, and for this
purpose, on reasonable notice, shall be entitled to consult with the
respective advisors and to have access to the premises, for the inspection
and production of have relevant books, records, financial statements and
other data it deems appropriate;
c) Mint Energy shall make available to Kit, or at its direction, an amount not
to exceed $10,000.00 of which Kit Farms acknowledges receipt of, on account
of anticipated expenses to be incurred by Kit Farms in connection with the
preparation of the documentation and carrying out of due diligence. Such
sum will not be subject to repayment by Kit Farms, Inc.
d) Mint shall provide to Kit, within ten (10) days after the execution of this
Agreement and prior to the closing of this Acquisition Transaction, audited
financial statements prepared in accordance with GAAP for Mint setting
forth a net asset value in an amount not less than $33,000,000 US Dollars
(Thirty three million) in talc reserves or other provable mineral reserves,
or mineral processing contracts. In the event that Mint is unable to
provide said financial statement within said ten (10) days, this Agreement
shall be null and void and of no further force and effect and without
recourse to Kit and its officers and directors.
Kit shall provide to Mint after the execution of this Agreement and prior
to the closing of the Acquisition Transaction, an audited financial
statement for Kit prepared in accordance with GAAP, disclosing all of the
known liabilities of Kit, whether absolute or contingent. Mint and or the
Surviving Company shall not be liable for any debts or liabilities not
disclosed on said audit.
e) all shares necessary to complete the Acquisition Transaction shall be
issued from Treasury.
f) each party of this agreement shall take all reasonable necessary steps to
maintain the confidentiality of the other's Information.
PART III
2.02 Upon completion of the audits required in Article 2.01 (d) above, the
parties shall forwith complete the closing of the Acquisition Transaction.
a) the new name of the Surviving Company shall be Western Minerals, Mining and
Manufacturing, Inc. ("WMMM"), and shall be domiciled in the State of
Delaware.
The Transfer Agent for WMMM shall be:
Mellon Bank, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX.
b) all validly issued and outstanding shares of Kit shall be converted on
a one for one basis in WMMM.
c) the officers and directors of Kit at closing shall provide their written
resignations and full mutual releases of Kit and each other from any and
all claims, charges, compensation, debts or liabilities (whether absolute
or contingent) in connection with the business of Kit prior to the
execution of the Agreement.
2.03 Kit and Mint each shall co-operate in good faith with the other with a
view to:
a) obtaining on a timely basis any regulatory or other consent, approval or
exemption reasonably required in connection with the Acquisition
Transaction; and
b) completing any necessary filing with any regulatory authority.
c) it is the express intention or the parties for this Acquisition
Transaction to qualify as a tax free reorganization pursuant to the
Internal Revenue Code of 1986, as amended and rules and regulations
pursuant thereto [Rule 368 (a)(1)(c)].
d) both parties acknowledge and agree that any transfer of securities pursuant
to this Agreement and Acquisition Transaction shall constitute an exempt
isolated transaction and the securities received in such transfer and
exchange do not have to be registered under federal or state securities
laws and regulations.
Such co-operation shall include, without limitation, the provision of
Information necessary therefore.
e) Mint acknowledges the significant problem of share dilution to former Kit
shareholders subsequent to the closing of the Acquisition Transaction, and
Mint hereby agrees to issue no new shares of WMMM unless for full and fair
consideration.
2.04 Each agrees that they shall:
a) not take any steps, directly or indirectly, which may in any way adversely
affect the Acquisition Transaction;
b) immediately disclose to the other parties any material change in relation
to its affairs (by executing this agreement each signatory hereby confirms
that it has no knowledge of any such material change which has occurred
prior to the date hereof has not been generally disclosed), and;
c) not solicit, initiate or encourage submissions of proposals or offers from
any other person, entity or group relating to, or facilitate or encourage
any effort or attempt involving; an amalgamation, recapitalization,
liquidation or winding-up of, or other business combination or similar
transaction involving it and any other party (each an "Extraordinary
Business Combination"); and further agrees it will not participate in any
negotiations regarding, or (except as require by law) furnish to any other
person, entity or group, any information with respect to, or otherwise
co-operate in any way with, or assist or participate in any Extraordinary
Business Combination.
2.05 This Acquisition Transaction shall be completed on or before the later of
December 1, 1997. The effective date for this Acquisition Transaction
shall be November 17, 1997.
2.06 The standard Terms and Conditions attached hereto as Exhibit A are made a
part of this Agreement as though fully set forth herein.
MINT ENERGY CORPORATION
by: /s/ Xxxxx Xxxxxxxx
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on behalf of the shareholders
Dated this 17/th/ day of November, 1997
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KIT FARMS, INC.
by: /s/ Xxxxxx X. Xxxxxxxx
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X.X. Xxxxxxxx
President
by: /s/ Xxxxxxx Gionnetto
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Xxxxxxx Gionnetto
Vice President
Attest:
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx
Secretary
EXHIBIT A
STANDARD TERMS AND CONDITIONS
1. HEADINGS. The subject headings of the paragraphs of this Agreement
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included for the purpose of convenience only, and shall not affect the
construction and interpretation of any of its provisions.
2. MODIFICATION and WAIVER. This Agreement constitutes the entire
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Agreement between the parties pertaining to the subject matter contained in it
and supersedes all prior and contemporaneous agreements, representations, and
understandings of the parties. No supplement, modification, or amendment of
this Agreement shall be binding unless executed in writing by all of the
parties. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute, a waiver of any other provision, whether or not similar,
nor shall any waiver constitute a continuing waiver.
No waiver shall be binding unless executed in writing by the party making
the waiver.
3. COUNTER-PARTS. This Agreement may be executed simultaneously in one or
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more counter-parts, or by facsimile, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
4. RIGHTS OF PARTIES. Nothing in this Agreement, whether express or
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implied, is intended to confer any rights or remedies under of by reason of this
Agreement on any persons other than the parties to it and their respective legal
representatives, successors or assigns, nor is anything in this Agreement
intended to relieve or discharge the obligation or liability of any third
persons to any party to this Agreement, nor shall any provision give any third
persons any right of subrogation or action over against any party to this
Agreement.
5. ASSIGNMENT. This Agreement shall be binding on, and shall inure to
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the benefit of, the parties to it and their respective legal representatives,
successors and assigns.
6. ARBITRATION and GOVERNING LAW. Any controversy or claim arising out
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of or relating to this Agreement, or the making, performance, or interpretation
thereof, including the issues of fraud, misrepresentation, recision, or audits,
shall be settled by arbitration in Chicago, Illinois, in accordance with the
Commercial Rules of the Amercian Arbitration Association then existing, and
judgment on the arbitration award may be entered in any Court having
jurisdiction over the subject matter of the controversy, the arbitrators shall
apply the corporate and commercial law of Delaware.
7. SPECIFIC PERFORMANCE. Each parties' obligations under this Agreement
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are unique. If any party should default in its obligations under this Agreement,
the parties each acknowledge that it would be extremely impracticable to measure
the resulting damages; accordingly, the non-defaulting party, in addition to any
other available rights or remedies, may suit in equity for specific performance,
and the parties expressly waive the defense that a remedy in damages will be
adequate. Notwithstanding any breach or default by any of the parties of any of
their respective representations, warranties, covenants, or agreements under
this Agreement, if the shares of Kit and converted to WMMM, after the closing,
each of the parties waive any right that it may have to rescind this Agreement
or the transaction contemplated by it, provided, however, this waiver shall not
affect any other rights or remedies available to the parties under this
Agreement or under law.
8. COSTS I legal action or any arbitration or other proceeding is
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bought for the enforcement of this Agreement, or because of any legal dispute,
breach, default, or misrepresentation, in connection with any of the provisions
of this Agreement, the successful or prevailing party or parties shall be
entitled to recover reasonable attorney's fees and other relief to which it or
they may be entitled.
9. SEVERABILITY To the extent any provision of this Agreement shall be
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determined to be invalid or unforceable, such provision shall be deleted from
this Agreement, and the validity and enforceability of the remainder of such
provision and of this Agreement shall be unaffected.
10. NOTICES All notices under this Agreement shall be in writing and
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shall be properly addressed to the party entitled to receive said notice, at the
last known address and or fax of said part, and mailed in the United States
mail, postage prepaid, by first class registered or certified.
NOTICES TO MINT AND WMMM AT:
Attn.: Xxxxx X. Xxxxxxxx, Xx., Esq.
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Facsimile (000) 000-0000
TO KIT AT:
Attn.: Xxxxxxx Gionnetto, Esq.
Suite 188
0000 Xxxxxxx Xxx. Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile (000) 000-0000
11. TERMINATION This Agreement shall remain in force and effect from the
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date hereof unless terminated in writing with the mutual consent of both
parties.
12. AUTHORITY Both parties acknowledge that by execution of this
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Agreement they have the right, power, legal capacity, and authority to enter
into, and perform their respective obligations under this Agreement. The
execution and delivery of this Agreement by the corporations have been duly
authorized by their respective Board of Directors.
13. GOVERNING LAW This Agreement shall be construed in accordance with
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and governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first written.
MINT ENERGY, INC
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, Xx. Esq.
Its President
KIT FARMS, INC
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
X.X. Xxxxxxxx
Its President
By: /s/ Xxxxxxx Xxxxxxxxx
--------------------------------
Xxxxxxx Xxxxxxxxx
Its Vice President
ATTEST AS TO KIT FARMS:
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Secretary
FIRST AMENDMENT TO
MINT ENERGY AGREEMENT
THIS AMENDMENT, made and entered into this 15th day of January, 1998 by and
among Mint Energy Corporation, ("MINT') and KIT Farms Inc., ("KIT").
WHEREAS, pursuant to the terms of that certain Merger Agreement between the
parties dated November 17, 1997 ("Merger Agreement"), for the merger and
acquisition of certain talc reserve assets of MINT by KIT, and
WHEREAS, subsequent to the execution of that Merger Agreement, the parties
had certain discussions concerning the delay in acquiring said talc reserve
assets and the parties are desirous of merging and acquiring certain other
assets on a timely basis, for which MINT has provided due diligence valuations
to KIT.
NOW THEREFORE, for the covenants and representations contained in this
Amendment, and other good and valuable consideration, the parties agree to
amend said Merger Agreement as follows:
PART II Paragraph 2.01 (d) is hereby stricken in its entirety and rewritten
to read as follows:
2.01 (d) MINT has provided to KIT independent business valuations for
certain computer software assets and entertainment assets with
a total value of Fifteen Million USD ($15,000,000.00).
PART III Paragraph 2.02 (a) is hereby stricken in its entirety and
rewritten to read as follows:
2.02 (a) the new name of the Surviving Company shall be Total
Entertainment Inc. ("TNTC"), and shall be domiciled in the
State of Delaware. The Transfer Agent for TNTC shall be Colonial
Stock Transfer, 000 Xxxx 000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000.
PART III Paragraph 2.05 is hereby stricken in its entirety and rewritten to
read as follows:
2.05 This Acquisition Transaction shall be completed
on or before February 1, 1998. The effective
date of this Acquisition Transaction shall be
November 17, 1997.
It is hereby further understood and agreed by the parties hereto, that
by execution of this Amendment, they have not changed any of the remaining terms
and conditions of the above identified Merger Agreement in any manner whatsoever
or any exhibits attached thereto and the terms of the Merger Agreement shall
remain in full force and effect. This Amendment shall be made a part of and
attached to the Merger Agreement.
IN WITNESS WHEREOF, the parties have executed his Amendment on the day and
year first above written.
MINT ENERGY CORPORATION
/s/ Xxxxx X. Xxxxxxxx, Xx.
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By: Xxxxx X. Xxxxxxxx, Xx.
Its President
KIT FRAMS INC.
/s/ Xxxxxx X. Xxxxxxxx
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By: Xxxxxx X. Xxxxxxxx
Its President
/s/ Xxxxxxx Xxxxxxxxx
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By: Xxxxxxx Xxxxxxxxx
Its Vice President
[SEAL OF THE STATE OF INDIANA APPEARS HERE]
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ARTICLES OF XXXXXX XXX XXXX XXXXXX
Xxxxx Xxxx 00000 (R4/6-95) SECRETARY OF STATE
State Board of Accounts Approved 1995 CORPORATIONS DIVISION
000 X. Xxxxxxxxxx Xxxxxx
Xx. X000
Xxxxxxxxxxxx, XX 00000
Telephone: (000)000-0000
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INSTRUCTIONS: Use 8 1/2" x 11" white paper
for inserts. Indiana Code 23-1-40-1
Present original and two (2) et. seq.
copies to address in upper right
corner of this form. FILING FEE: $90.00
Please TYPE or PRINT.
Upon completion of filing the
Secretary of State will issue
a receipt.
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ARTICLES OF MERGER/SHARE EXCHANGE
OF
MINT ENERGY CORPORATION
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(hereinafter "the nonsurviving corporation(s)")
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INTO
KIT FARMS INC. # 1993040891
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(hereinafter "the surviving corporation")
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ARTICLE I-SURVIVING CORPORATION
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SECTION 1
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The name of the corporation surviving the merger is KIT FARMS INC.
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such name [_] has [X] has not (designate which) been changed as a result of
the merger.
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SECTION 2
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a. The surviving corporation is a domestic corporation existing pursuant to
the provisions of the Indiana Business Corporation Law incorporated on
APRIL 22, 1993.
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b. The surviving corporation is a foreign corporation incorporated under the
laws of the state of __________________ and [_] qualified [_] not qualified
(designate which) to do business in Indiana.
If the surviving corporation is qualified to do business in Indiana, state the
date of qualification:________________________.
(If Application for Certificate of Authority is filed concurrently herewith
state "Upon approval of Application for Certificate of Authority".)
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ARTICLE II-NONSURVIVING CORPORATION(S)
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The name, state of incorporation, and date of incorporation or qualification (if
applicable) respectively, of each Indiana domestic corporation and Indiana
qualified foreign corporation, other than the survivor, which is party to the
merger are as follows:
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Name of Corporation
MINT ENERGY CORPORATION
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State of Domicile Date of incorporation or qualification in Indiana
(if applicable)
DELAWARE N/A
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Name of Corporation
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State of Domicile Date of incorporation or qualification in Indiana
(if applicable)
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Name of Corporation
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State of Domicile Date of incorporation or qualification in Indiana
(if applicable)
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ARTICLE III-PLAN OF MERGER OR SHARE EXCHANGE
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The Plan of Merger or Share Exchange, containing such information as
required by Indiana Code 23-1-40-1(b), is set forth in "Exhibit A"
attached hereto and made a part hereof ATTACHED
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PLAN OF MERGER/EXCHANGE
FOR
KIT FARMS INC.
On this 23rd day of January, 1998, in accordance with the Indiana Business
Law Code Secs. 23-1-40-1 and 2, the following Plan of Merger/Exchange is adopted
by the Board of Directors of Mint Energy Corporation ("Mint"), a Delaware
corporation and KIT Farms Inc. ("KIT"), an Indiana corporation.
1. Names of corporations.
The name of the corporation planning to merger into KIT Farms Inc. is Mint
Energy Corporation and the name of the surviving corporation is KIT Farms Inc.
2. Terms and conditions of Merger.
The terms and conditions of the merger are set forth in that Merger
Agreement dated November 17, 1997 and Amendment thereto date January 15, 1998
attached hereto and made a part hereof as Exhibits A & B.
3. Manner of conversion of shares.
The manner of conversion of securities is set forth in Exhibit A, so after
the merger/exchange the shareholders on the date of the merger of Mint shall own
80% of KIT Farms Inc. There is no other cash or property, in whole or part,
that is part of this transaction. The surviving shareholders of KIT shall
receive shares in TNTC on a one for one basis for all validly issued and
outstanding shares held in KIT at the time of the merger.
4. Amendments to Articles of Incorporation
The parties mutually agree that after the merger/exchange Article I of KIT
Farms Inc Articles of Incorporation shall be amended to change the name of the
surviving corporation to Total Entertainment Inc. ("TNTC").
IN WITNESS WHEREOF, the respective Board of Directors of Mint and KIT
parties have executed this Plan of Merger on the day and year first above
written.
MINT ENERGY CORPORATION KIT FARMS INC.
/s/ Xxxxx X. Xxxxxxxx, Xx. /s/ Xxxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, Xx. Xxxxxx X. Xxxxxxxx
Director
/s/ Xxxxxxxx Xxxxx /s/ Xxxxxx X. Xxxxxxxx
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Xxxxxxxx Xxxxx Xxxxxx X. Xxxxxxxx
Director Director
/s/ Xxxxxx Xxxxxxxx /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxxx
Director Director
