Exhibit 2.2
AGREEMENT AND PLAN OF SHARE EXCHANGE
by and among
XXXXXXXX TAILINGS COMPANY, INCORPORATED
a Nevada corporation
and
IRON HOLDINGS CORP.
a New York corporation
effective as of March 31, 1997
AGREEMENT AND PLAN OF SHARE EXCHANGE
THIS AGREEMENT AND PLAN OF SHARE EXCHANGE, made and entered
into this 31 day of March 1997, by and between XXXXXXXX TAILINGS
COMPANY, INCORPORATED, a Nevada corporation with its principal
place of business located at 0000 Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000
("Xxxxxxxx"), IRON HOLDINGS CORP., a New York corporation with its
principal place of business located at 00-00 000xx Xxxxxx, Xxxxx
Xxxx, XX 00000 ("IHC") and the individuals listed on Exhibit "A"
attached hereto and specifically incorporated herein by this
reference (the "IHC Shareholders"), (IHC and the IHC Shareholders
hereinafter jointly referred to as the "IHC Parties").
Premises
A. This Agreement provides for the reorganization of IHC
with and into Xxxxxxxx and in connection therewith, the conversion
of the outstanding common stock of IHC into shares of common voting
stock of Xxxxxxxx, all for the purpose of effecting a tax-free
reorganization pursuant to sections 354 and 368(a) of the Internal
Revenue Code of 1986, as amended.
B. The boards of directors of IHC and Xxxxxxxx have
determined, subject to the terms and conditions set forth in this
Agreement, that the exchange contemplated hereby is desirable and
in the best interests of their stockholders. This Agreement is
being entered into for the purpose of setting forth the terms and
conditions of the proposed exchange.
Agreement
NOW, THEREFORE, on the stated premises and for and in
consideration of the mutual covenants and agreements hereinafter
set forth and the mutual benefits to the parties to be derived
herefrom, it is hereby agreed as follows:
ARTICLE I
REPRESENTATIONS, COVENANTS AND WARRANTIES OF
IHC
As an inducement to and to obtain the reliance of Xxxxxxxx, IHC
represents and warrants as follows:
Section 1.1 Organization. IHC is a corporation duly
organized, validly existing, and in good standing under the laws of
New York and has the 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 in all
material respects as it is now being conducted, including
qualification to do business as a foreign corporation in the
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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 IHC Schedules (as hereinafter
defined) are complete and correct copies of the articles of
incorporation, bylaws and amendments thereto of IHC as in effect on
the date hereof. The execution and delivery of this Agreement does
not and the consummation of the transactions contemplated by this
Agreement in accordance with the terms hereof will not violate any
provision of IHC's articles of incorporation or bylaws. IHC has
full power, authority and legal right and has taken all action
required by law, its articles of incorporation, its bylaws or
otherwise to authorize the execution and delivery of this
Agreement.
Section 1.2 Capitalization. The authorized capitalization of
IHC consists of 50,000,000 Common Shares, $0.01 par value per
share, and 5,000,000 Preferred Shares, $0.01 par value per share.
As of the Closing date hereof, IHC will have no more than 4,500,000
common shares issued and outstanding. As of the Closing Date
hereof, no shares of Preferred Stock will be issued or outstanding.
All issued and outstanding shares are legally issued, fully paid
and nonassessable and are not issued in violation of the preemptive
or other rights of any person. IHC has no other securities,
warrants or options authorized or issued.
Section 1.3 Subsidiaries and Predecessor Corporations. Except
as otherwise set forth in the IHC Schedules or as previously
provided to Xxxxxxxx, IHC does not have any other subsidiaries and
does not own, beneficially or of record, any shares of any other
corporation.
Section 1.4 Financial Statements. Included in the IHC
Schedules is an audited financial statement, including a balance
sheet, statement of operations, shareholder equity and cash flows
and notes thereto, dated as of June 30, 1996 and IHC's unaudited
balance sheet, statement of operations, shareholder equity and cash
flows and notes thereto dated December 31, 1996. Relevant thereto:
(a) the IHC balance sheet presents fairly as of its
date the financial condition of IHC. IHC does not have,
as of the date of such balance sheet, except as noted and
to the extent reflected or reserved against therein, any
liabilities or obligations (absolute or contingent) which
should be reflected in a balance sheet or the notes
thereto and all assets reflected therein are properly
reported and present fairly the value of the assets of
IHC, in accordance with generally accepted accounting
principles;
(b) IHC has no liabilities with respect to the
payment of any federal, state, county, local or other
taxes (including any deficiencies, interest or
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penalties), except for taxes accrued but not yet due and
payable;
(c) IHC has filed all state, federal and local
income tax returns required to be filed by it from
inception to the date hereof, if any;
(d) The books and records, financial and others, of
IHC are in all material respects complete and correct and
have been maintained in accordance with good business
accounting practices; and
(e) except as and to the extent disclosed in the
most recent IHC balance sheet and the IHC Schedules, IHC
has no material contingent liabilities, direct or
indirect, matured or unmatured.
Section 1.5 Information. The information concerning IHC set
forth in this Agreement and in the IHC Schedules is complete and
accurate in all material respects and does not contain any untrue
statement of a material fact or omit to state a material fact
required to make the statements made, in light of the circumstances
under which they were made, not misleading.
Section 1.6 Options and Warrants. There are no existing
options, warrants, calls or commitments of any character to which
IHC is a party and by which it is bound.
Section 1.7 Absence of Certain Changes or Events. Except as
set forth in this Agreement, the IHC Schedules, or as otherwise
disclosed to Xxxxxxxx, since December 31, 1996:
(a) there has not been: (i) any material adverse
change in the business, operations, properties, assets or
condition of IHC; or (ii) any damage, destruction or loss
to IHC (whether or not covered by insurance) materially
and adversely affecting the business, operations,
properties, assets or condition of IHC;
(b) IHC has not: (i) amended its articles of
incorporation or bylaws; (ii) declared or made, or agreed
to declare or make, any payment of dividends or
distributions of any assets of any kind whatsoever to
stockholders or purchased or redeemed or agreed to
purchase or redeem any of its capital stock; (iii) waived
any rights of value which in the aggregate are
extraordinary or material considering the business of
IHC; (iv) made any material change in its method of
management, operation or accounting; (v) entered into any
other material transaction; (vi) made any accrual or
arrangement for or payment of bonuses or special
compensation of any kind or any severance or termination
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pay to any present or former officer or employee; (vii) increased
the rate of compensation payable or to become payable by it to any
of its officers or directors or any of its employees whose monthly
compensation exceeds $5,000; or (viii) made any increase in any
profit sharing, bonus, deferred compensation, insurance, pension,
retirement or other employee benefit plan, payment or arrangement
made to, for, or with its officers, directors or employees.
(c) IHC has not: (i) granted or agreed to grant any
options, warrants or other rights for its stocks, bonds
or other corporate securities calling for the issuance
thereof; (ii) borrowed or agreed to borrow any funds or
incurred or become subject to, any material obligation or
liability (absolute or contingent) except liabilities
incurred in the ordinary course of business; (iii) paid
any material obligation or liability (absolute or
contingent) other than current liabilities reflected in
or shown on the most recent IHC balance sheet and current
liabilities incurred since that date in the ordinary
course of business; (iv) sold or transferred, or agreed
to sell or transfer, any of its assets, properties or
rights (except assets, properties or rights not used or
useful in its business which, in the aggregate have a
value of less than $10,000); (v) made or permitted any
amendment or termination of any contract, agreement or
license to which it is a party if such amendment or
termination is material, considering the business of IHC;
or (vi) issued, delivered or agreed to issue or deliver
any stock, bonds or other corporate securities, including
debentures (whether authorized and unissued or held as
treasury stock); and
(d) to the best knowledge of IHC, it has not become
subject to any law or regulation which materially and
adversely affects, or in the future may adversely affect,
the business, operations, properties, assets or condition
of IHC.
Section 1.8 Title and Related Matters. IHC has good and
marketable title to and is the sole and exclusive owner of all of
its properties, inventory, interests in properties and assets, real
and personal (collectively, the "Assets") which are reflected in
the most recent IHC unaudited balance sheet and the IHC Schedules
or acquired after that date (except properties, interests in
properties and assets sold or otherwise disposed of since such date
in the ordinary course of business), free and clear of all liens,
pledges, charges or encumbrances except: (a) statutory liens or
claims not yet delinquent; (b) such imperfections of title and
easements as do not and will not, materially detract from or
interfere with the present or proposed use of the properties
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subject thereto or affected thereby or otherwise materially impair
present business operations on such properties; and (c) as
described in the IHC Schedules. Except as set forth in the IHC
Schedules, IHC owns free and clear of any liens, claims,
encumbrances, royalty interests or other restrictions or
limitations of any nature whatsoever and all procedures,
techniques, marketing plans, business plans, methods of management
or other information utilized in connection with IHC's business.
Except as set forth in the IHC Schedules, no third party has any
right to, and IHC has not received any notice of infringement of or
conflict with asserted rights of others with respect to any
product, technology, data, trade secrets, know-how, proprietary
techniques, trademarks, service marks, trade names or copyrights
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a materially adverse affect
on the business, operations, financial conditions or income of IHC
or any material portion of its properties, assets or rights.
Section 1.9 Litigation and Proceedings. To the best of IHC's
knowledge and belief, there are no actions, suits, proceedings or
investigations pending or threatened by or against IHC or affecting
IHC or its properties, at law or in equity, before any court or
other governmental agency or instrumentality, domestic or foreign
or before any arbitrator of any kind that would have a material
adverse affect on the business, operations, financial condition or
income of IHC. IHC does not have any knowledge of any default on
its part with respect to any judgment, order, writ, injunction,
decree, award, rule or regulation of any court, arbitrator or
governmental agency or instrumentality or of any circumstances
which, after reasonable investigation, would result in the
discovery of such a default.
Section 1.10 Contracts.
(a) Except as included or described in the IHC
Schedules, there are no material contracts, agreements,
franchises, license agreements or other commitments to
which IHC is a party or by which it or any of its assets,
products, technology or properties are bound;
(b) Except as included or described in the IHC
Schedules or reflected in the most recent IHC balance
sheet, IHC is not a party to any oral or written: (i)
contract for the employment of any officer or employee
which is not terminable on thirty (30) days or less
notice; (ii) profit sharing, bonus, deferred
compensation, stock option, severance pay, pension
benefit or retirement plan, agreement or arrangement
covered by Title IV of the Employee Retirement Income
Security Act, as amended; (iii) agreement, contract or
indenture relating to the borrowing of money; (iv)
guaranty of any obligation, other than one on which IHC
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is a primary obligor, for collection and other guaranties
of obligations, which, in the aggregate do not exceed
more than one year or providing for payments in excess of
$10,000 in the aggregate; (v) consulting or other similar
contracts with an unexpired term of more than one year or
providing for payments in excess of $10,000 in the
aggregate; (vi) collective bargaining agreements; (vii)
agreement with any present or former officer or director
of IHC; or (viii) contract, agreement or other commitment
involving payments by it of more than $10,000 in the
aggregate; and
(c) To IHC's knowledge, all contracts, agreements,
franchises, license agreements and other commitments to
which IHC is a party or by which its properties are bound
and which are material to the operations of IHC taken as
a whole, are valid and enforceable by IHC in all
respects, except as limited by bankruptcy and insolvency
laws and by other laws affecting the rights of creditors
generally.
Section 1.11 Material Contract Defaults. Except as set forth
in the IHC Schedules, to the best of IHC's knowledge and belief,
IHC is not in default in any material respect under the terms of
any outstanding contract, agreement, lease or other commitment
which is material to the business, operations, properties, assets
or condition of IHC, and there is no event of default in any
material respect under any such contract, agreement, lease or other
commitment in respect of which IHC has not taken adequate steps to
prevent such a default from occurring.
Section 1.12 No Conflict With Other Instruments. The
execution of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in the
breach of any term or provision of, or constitute an event of
default under, any material indenture, mortgage, deed of trust or
other material contract, agreement or instrument to which IHC is a
party or to which any of its properties or operations are subject.
Section 1.13 Governmental Authorizations. To the best of
IHC's knowledge, IHC has all licenses, franchises, permits or other
governmental authorizations legally required to enable IHC to
conduct its business in all material respects as conducted on the
date hereof. Except for compliance with federal and state
securities and corporation laws, as hereinafter provided, 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 IHC of
this Agreement and the consummation by IHC of the transactions
contemplated hereby.
Section 1.14 Compliance With Laws and Regulations. To the
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best of IHC's knowledge, except as disclosed in the IHC Schedules,
IHC has complied with all applicable statutes and regulations of
any federal, state or other governmental entity or agency thereof,
except to the extent that noncompliance would not materially and
adversely affect the business, operations, properties, assets or
condition of IHC or would not result in IHC's incurring any
material liability.
Section 1.15 Insurance. All of the insurable properties of
IHC are insured for IHC's benefit in accordance with the insurance
policies disclosed in the IHC Schedules under valid and enforceable
policies issued by insurers of recognized responsibility. Such
policy or policies containing substantially equivalent coverage
will be outstanding and in full force at the Closing Date.
Section 1.16 Approval of Agreement. The board of directors
of IHC has authorized the execution and delivery of this Agreement
by IHC, has approved the transactions contemplated hereby and
approved the submission of this Agreement and the transactions
contemplated hereby to the stockholders of IHC for their unanimous
approval with the recommendation that the reorganization be
accepted.
Section 1.17 Material Transactions or Affiliations. Except
as disclosed herein and in the IHC Schedules, there exists no
material contract, agreement or arrangement between IHC and any
predecessor and any person who was at the time of such contract,
agreement or arrangement an officer, director or person owning of
record, or known by IHC to own beneficially, ten percent (10%) or
more of the issued and outstanding IHC Common Shares and which is
to be performed in whole or in part after the date hereof. In all
of such transactions, the amount paid or received, whether in cash,
in services or in kind, has been during the full term thereof, and
is required to be during the unexpired portion of the term thereof,
no less favorable to IHC than terms available from otherwise
unrelated parties in arms length transactions. There are no
commitments by IHC, whether written or oral, to lend any funds to,
borrow any money from or enter into any other material transactions
with, any such affiliated person.
Section 1.18 Labor Relations. IHC has never had a work
stoppage resulting from labor problems. To the best knowledge of
IHC, no union or other collective bargaining organization is
organizing or attempting to organize any employee of IHC.
Section 1.19 Previous Sales of Securities. Since inception,
IHC has sold IHC Common Shares to investors in reliance upon
applicable exemptions from the registration requirements under the
laws of the jurisdiction of New York and all such sales (the
"Sales") were made in accordance with the laws of said
jurisdiction.
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Section 1.20 IHC Schedules. Upon execution hereof, IHC will
deliver to Xxxxxxxx the following schedules, which are collectively
referred to as the "IHC Schedules" and which consist of separate
schedules dated as of the date of this Agreement and instruments
and data as of such date, all certified by the chief executive
officer of IHC as complete, true and correct in all material
respects:
(a) copies of the articles of incorporation, bylaws
and all minutes of shareholders' and directors' meetings
of IHC;
(b) the financial statements of IHC referenced
hereinabove in Section 1.4;
(c) a list indicating the name and address of the
stockholders of IHC, together with the number of shares
owned by them;
(d) copies of all licenses, permits and other
governmental authorizations, requests or applications
therefor, pursuant to which IHC carries on or proposes to
carry on its business (except those which in the
aggregate, are immaterial to the present or proposed
business of IHC);
(e) a list of every debt, mortgage, security
interest, pledge, lien, encumbrance or claim of any
nature whatsoever in excess of $10,000 as may affect IHC,
its properties or assets;
(f) a list of all executive employees of IHC,
including current compensation, with notation as to job
description and whether or not such employee is subject
to a written contract;
(g) a description of all real and personal property
owned by IHC, together with a description of every
mortgage, deed of trust, pledge, lien, agreement,
encumbrance, claim or equity interest of any nature
whatsoever in such real and personal property;
(h) copies of all material contracts, leases,
agreements or other instruments to which IHC is a party
or by which it or its properties are bound;
(i) the name and location of each bank or other
institution with which IHC has an account or safety
deposit box and the names of all persons authorized to
draw thereon or having access thereto;
(j) a list of all patent applications, copyrights,
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trademarks, service marks and trade names that are
pertinent in any manner whatsoever to the development,
testing, registration, assembly, manufacture, use or sale
of any products or services used in the business of IHC
and in which either IHC or IHC's stockholders has or
previously had any direct or indirect, equitable or legal
right or interest;
(k) a copy of all material documentation relating
to the sale of IHC Common Shares by IHC to its present
stockholders;
(l) a list of insurance policies referred to in
Section 1.15;
(m) a description of any material adverse change in
the business operations, property, inventory, assets or
condition of IHC since the most recent IHC balance sheet
required to be provided pursuant to Section 1.7;
(n) any other information, together with any
required copies of documents required to be disclosed in
the IHC Schedules by Sections 1.1 through 1.19.
IHC shall cause the IHC Schedules and the instruments and data
delivered to Xxxxxxxx hereunder to be updated after the date hereof
up to and including the Closing Date, as hereinafter defined.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF XXXXXXXX
As an inducement to, and to obtain the reliance of IHC,
Xxxxxxxx represents and warrants as follows:
Section 2.1 Organization. Xxxxxxxx is a corporation duly
organized, validly existing and in good standing under the laws of
the state of Nevada and has the 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
in all material respects as it are now being conducted, including
qualification to do business as a foreign corporation in the states
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 Xxxxxxxx Schedules (as hereinafter defined) are
complete and correct copies of the articles of incorporation,
amended articles of incorporation (collectively, hereinafter
referred to as the "articles of incorporation") and bylaws of
Xxxxxxxx as in effect on the date hereof. The execution and
delivery of this Agreement does not and the consummation of the
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transactions contemplated by this Agreement in accordance with the
terms hereof will not, violate any provision of Xxxxxxxx'x articles
of incorporation or bylaws. Xxxxxxxx has taken all action required
by law, its articles of incorporation, its bylaws or otherwise to
authorize the execution and delivery of this Agreement. Xxxxxxxx
has full power, authority and legal right and has taken all action
required by law, its articles of incorporation, bylaws or otherwise
to consummate the transactions herein contemplate.
Section 2.2 Capitalization. The authorized capitalization of
Xxxxxxxx consists of 500,000,000 shares of Common Stock, par value
$0.001 per share. No Preferred Shares are authorized. As of the
date hereof there are 500,000 common shares of Xxxxxxxx issued and
outstanding. As of the Closing Date, as defined herein, there will
be no more than 500,000 common shares issued and outstanding and
reserved for issuance (the "Xxxxxxxx Common Shares") held by the
then existing securities holders of Xxxxxxxx. All issued and
outstanding Xxxxxxxx Common Shares have been legally issued, fully
paid and are nonassessable.
Section 2.3 Subsidiaries. Xxxxxxxx has no subsidiary
companies.
Section 2.4 Financial Statements.
(a) Included in the Xxxxxxxx Schedules are the
audited consolidated balance sheet of Xxxxxxxx for the
years ended December 31, 1996 and 1995 and the related
statements of operations, stockholders' equity and cash
flows for the year then ended, which are included in the
schedules identified in Section 2.18(c).
(b) All such financial statements have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods
involved. The Xxxxxxxx balance sheets presents fairly as
of their respective dates the financial condition of
Xxxxxxxx. Xxxxxxxx did not have as of the date of any
of such Xxxxxxxx balance sheets, any liabilities or
obligations (absolute or contingent) which should be
reflected in a balance sheet or the notes thereto
prepared in accordance with generally accepted accounting
principles, and all assets reflected therein are properly
reported and present fairly the value of the assets of
Xxxxxxxx, in accordance with generally accepted
accounting principles. The statements of operations,
stockholders' equity and changes in financial position
reflect fairly the information required to be set forth
therein by generally accepted accounting principles;
(c) The books and records, financial and others, of
Xxxxxxxx are in all material respects complete and
correct and have been maintained in accordance with good
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business accounting practices;
(d) Xxxxxxxx has no liabilities with respect to the
payment of any federal, state, county, local or other
taxes (including any deficiencies, interest or
penalties);
(e) As of the Closing Date, as defined herein the
Xxxxxxxx balance sheet and the notes thereto, shall
reflect that Xxxxxxxx has: (i) no receivables; (ii) no
accounts payable; and (iii) no contingent liabilities,
direct or indirect, matured or unmatured.
Section 2.5 Information. The information concerning Xxxxxxxx
as set forth in this Agreement and in the Xxxxxxxx Schedules is
complete and accurate in all material respects and does not contain
any untrue statement of a material fact or omit to state a material
fact required to make the statements made, in light of the
circumstances under which they were made, not misleading.
Section 2.6 Absence of Certain Changes or Events. Except as
described herein or in the Xxxxxxxx Schedules, since December 31,
1996:
(a) Xxxxxxxx has not: (i) amended its articles of
incorporation or bylaws; (ii) waived any rights of value
which in the aggregate are extraordinary or material
considering the business of Xxxxxxxx; (iii) made any
material change in its method of management, operation or
accounting; or (iv) made any accrual or arrangement for
or payment of bonuses or special compensation of any kind
or any severance or termination pay to any present or
former officer or employee;
(b) Xxxxxxxx has not: (i) granted or agreed to
grant any options, warrants or other rights for its
stocks, bonds or other corporate securities calling for
the issuance thereof, which option, warrant or other
right has not been cancelled as of the Closing Date; (ii)
borrowed or agreed to borrow any funds or incurred or
become subject to, any material obligation or liability
(absolute or contingent) except liabilities incurred in
the ordinary course of business; and
(c) to the best knowledge of Xxxxxxxx, it has not
become subject to any law or regulation which materially
and adversely affects, or in the future may adversely
affect, the business, operations, properties, assets or
condition of Xxxxxxxx.
Section 2.7 Title and Related Matters. As of the Closing
Date, Xxxxxxxx will own no real, personal or intangible property.
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Section 2.8 Litigation and Proceedings. There are no actions,
suits or proceedings pending or, to the best of Xxxxxxxx'x
knowledge and belief, threatened by or against or affecting
Xxxxxxxx, at law or in equity, before any court or other
governmental agency or instrumentality, domestic or foreign, or
before any arbitrator of any kind that would have a material
adverse effect on the business, operations, financial condition,
income or business prospects of Xxxxxxxx. Xxxxxxxx does not have
any knowledge of any default on its part with respect to any
judgment, order, writ, injunction, decree, award, rule or
regulation of any court, arbitrator or governmental agency or
instrumentality.
Section 2.9 Contracts. On the Closing Date:
(a) There are no material contracts, agreements,
franchises, license agreements, or other commitments to
which Xxxxxxxx is a party or by which it or any of its
properties are bound;
(b) Xxxxxxxx is not a party to any contract,
agreement, commitment or instrument or subject to any
charter or other corporate restriction or any judgment,
order, writ, injunction, decree or award which materially
and adversely affects, or in the future may (as far as
Xxxxxxxx can now foresee) materially and adversely
affect, the business, operations, properties, assets or
conditions of Xxxxxxxx; and
(c) Xxxxxxxx is not a party to any material oral or
written: (i) contract for the employment of any officer
or employee; (ii) profit sharing, bonus, deferred
compensation, stock option, severance pay, pension,
benefit or retirement plan, agreement or arrangement
covered by Title IV of the Employee Retirement Income
Security Act, as amended; (iii) agreement, contract or
indenture relating to the borrowing of money; (iv)
guaranty of any obligation for the borrowing of money or
otherwise, excluding endorsements made for collection and
other guaranties of obligations, which, in the aggregate
exceeds $1,000; (v) consulting or other similar contract
with an unexpired term of more than one year or providing
for payments in excess of $10,000 in the aggregate; (vi)
collective bargaining agreement; (vii) agreement with any
present or former officer or director of Xxxxxxxx; or
(viii) contract, agreement, or other commitment involving
payments by it of more than $10,000 in the aggregate.
Section 2.10 No Conflict With Other Instruments. The
execution of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in the
breach of any term or provision of, or constitute an event of
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default under, any material indenture, mortgage, deed of trust or
other material contract, agreement or instrument to which Xxxxxxxx
is a party or to which any of its properties or operations are
subject.
Section 2.11 Material Contract Defaults. To the best of
Xxxxxxxx'x knowledge and belief, Xxxxxxxx is not in default in any
material respect under the terms of any outstanding contract,
agreement, lease or other commitment which is material to the
business, operations, properties, assets or condition of Xxxxxxxx,
and there is no event of default in any material respect under any
such contract, agreement, lease or other commitment in respect of
which Xxxxxxxx has not taken adequate steps to prevent such a
default from occurring.
Section 2.12 Governmental Authorizations. To the best of
Xxxxxxxx'x knowledge, Xxxxxxxx has all licenses, franchises,
permits and other governmental authorizations that are legally
required to enable it to conduct its business operations in all
material respects as conducted on the date hereof. Except for
compliance with federal and state securities or corporation 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
Xxxxxxxx of the transactions contemplated hereby.
Section 2.13 Compliance With Laws and Regulations. To the
best of Xxxxxxxx'x knowledge and belief, Xxxxxxxx has complied with
all applicable statutes and regulations of any federal, state or
other governmental entity or agency thereof, except to the extent
that noncompliance would not materially and adversely affect the
business, operations, properties, assets or condition of Xxxxxxxx
or would not result in Xxxxxxxx'x incurring any material liability.
Section 2.14 Insurance. Xxxxxxxx has no insurable properties
and no insurance policies will be in effect at the Closing Date, as
hereinafter defined.
Section 2.15 Approval of Agreement. The board of directors
of Xxxxxxxx and the holders of a majority of the issued and
outstanding common shares of Xxxxxxxx have authorized the execution
and delivery of this Agreement by Xxxxxxxx and has approved the
transactions contemplated hereby.
Section 2.16 Material Transactions or Affiliations. As of the
Closing Date there will exist no material contract, agreement or
arrangement between Xxxxxxxx and any person who was at the time of
such contract, agreement or arrangement an officer, director or
person owning of record, or known by Xxxxxxxx to own beneficially,
ten percent (10%) or more of the issued and outstanding common
stock of Xxxxxxxx and which is to be performed in whole or in part
after the date hereof. Xxxxxxxx has no commitment, whether written
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or oral, to lend any funds to, borrow any money from or enter into
any other material transactions with, any such affiliated person.
Section 2.17 Labor Relations. Xxxxxxxx has never had a work
stoppage resulting from labor problems. Xxxxxxxx has no employees
other than its officers and directors.
Section 2.18 Xxxxxxxx Schedules. Upon execution hereof,
Xxxxxxxx shall deliver to IHC the following schedules, which are
collectively referred to as the "Xxxxxxxx Schedules" which are
dated the date of this Agreement, all certified by an officer of
Xxxxxxxx to be complete, true and accurate:
(a) complete and correct copies of the articles of
incorporation and bylaws of Xxxxxxxx as in effect as of
the date of this Agreement;
(b) copies of all financial statements of Xxxxxxxx
identified in Section 2.4(a);
(c) the description of any material adverse change
in the business, operations, property, assets, or
condition of Xxxxxxxx since June 30, 1996 required to be
provided pursuant to Section 2.6; and
(d) any other information, together with any
required copies of documents, required to be disclosed in
the Xxxxxxxx Schedules by Sections 2.1 through 2.17.
Xxxxxxxx shall cause the Xxxxxxxx Schedules and the
instruments to be delivered to IHC hereunder to be updated after
the date hereof up to and including the Closing Date.
ARTICLE III
EXCHANGE PROCEDURE
Section 3.1 Share Exchange/Delivery of IHC Securities. On the
Closing Date, the holders of the IHC Common Shares shall deliver to
Xxxxxxxx (i) certificates or other documents evidencing all of the
issued and outstanding IHC Common Shares, duly endorsed in blank or
with executed stock power attached thereto in transferrable form
and (ii) investment letters, the form of which is attached hereto
as Exhibit "B". On the Closing Date, all previously issued and
outstanding shares of common stock of IHC shall be canceled and all
rights in respect thereof shall cease and IHC, the New York
corporation, shall cease to exist.
Section 3.2 Issuance of Xxxxxxxx Common Shares. (a) In
exchange for all of the IHC Common Share tendered pursuant to
Section 3.1, Xxxxxxxx shall issue an aggregate of 4,500,000
"restricted" Xxxxxxxx Common Shares to the IHC shareholders on a
14
one for one basis.
(b) No fractional Xxxxxxxx Common Shares shall be issued
pursuant to this Section 3.2. In lieu of such fractional shares,
all shares to be issued shall be rounded up or down to the nearest
whole share.
Section 3.3 Events Prior to Closing. Upon execution hereof
or as soon thereafter as practical, management of Xxxxxxxx and IHC
shall execute, acknowledge and deliver (or shall cause to be
executed, acknowledged and delivered) any and all certificates,
opinions, financial statements, schedules, agreements, resolutions,
rulings or other instruments required by this Agreement to be so
delivered, 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 transactions contemplated
hereby, subject only to the conditions to Closing referenced
hereinbelow.
Section 3.4 Closing. The closing ("Closing") of the
transactions contemplated by this Agreement shall be as of the date
in which all of the shareholders of Xxxxxxxx and IHC have approved
the terms of this Agreement ("Closing Date"), all conditions to
Closing referenced hereinabove, as well as in Section 6.6 below,
have been satisfied or waived by IHC and all documentation
referenced herein is delivered to the respective party herein,
unless a different date is mutually agreed to in writing by the
parties hereto.
Section 3.5 Termination.
(a) This Agreement may be terminated by the board of
directors of either Xxxxxxxx or IHC at any time prior to the
Closing Date if:
(i) there shall be any action or proceeding before
any court or any governmental body which shall seek to
restrain, prohibit or invalidate the transactions
contemplated by this Agreement and which, in the judgment
of such board of directors, made in good faith and based
on the advice of its legal counsel, makes it inadvisable
to proceed with the exchange contemplated by this
Agreement; or
(ii) any of the transactions contemplated hereby are
disapproved by any regulatory authority whose approval is
required to consummate such transactions; or
(iii) the conditions described in Section 6.6 below
have not been satisfied in full.
In the event of termination pursuant to this paragraph (a) of
15
this Section 3.5, no obligation, right, or liability shall
arise hereunder and each party shall bear all of the expenses
incurred by it in connection with the negotiation, drafting and
execution of this Agreement and the transactions herein
contemplated;
(b) This Agreement may be terminated at any time prior
to the Closing Date by action of the board of directors of
Xxxxxxxx if IHC shall fail to comply in any material respect
with any of its covenants or agreements contained in this
Agreement or if any of the representations or warranties of IHC
contained herein shall be inaccurate in any material respect,
which noncompliance or inaccuracy is not cured after 20 days'
written notice thereof is given to IHC. If this Agreement is
terminated pursuant to this paragraph (b) of this Section 3.5,
this Agreement shall be of no further force or effect and no
obligation, right or liability shall arise hereunder; and
(c) This Agreement may be terminated at any time prior
to the Closing Date by action of the board of directors of IHC
if Xxxxxxxx shall fail to comply in any material respect with
any of its covenants or agreements contained in this Agreement
or if any of the representations or warranties of Xxxxxxxx
contained herein shall be inaccurate in any material respect,
which noncompliance or inaccuracy is not cured after 20 days
written notice thereof is given to Xxxxxxxx. If this Agreement
is terminated pursuant to this paragraph (c) of Section 3.5,
this Agreement shall be of no further force or effect and no
obligation, right or liability shall arise hereunder.
Section 3.6 Directors of Xxxxxxxx. Upon the Closing, the
present members of Xxxxxxxx'x Board of Directors shall tender their
resignations seriatim so that the following persons are appointed
directors of Xxxxxxxx in accordance with procedures set forth in
the Xxxxxxxx bylaws: Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxxxx, Xxxxxxx
Xxxxxxxxx and Xxxxxx Xxxxxx, Xx.. Each director shall hold office
until his successor shall have been duly elected and shall have
qualified or until his or her earlier death, resignation or
removal.
Section 3.7 Officers of Xxxxxxxx. Upon the Closing, the
present officers of Xxxxxxxx shall tender their resignations and
simultaneous therewith, the following persons shall be elected as
officers of Xxxxxxxx in accordance with procedures set forth in the
Xxxxxxxx bylaws:
NAME OFFICE
Xxxxxxx X. Xxxxxx Chief Executive Officer,
President and Corporate
Xxxxxxxxx
00
Xxxxxx Xxxxxx Vice President and Treasurer
Xxxxxx Xxxxxxx Assistant Secretary
ARTICLE IV
SPECIAL COVENANTS
Section 4.1 Access to Properties and Records. Xxxxxxxx and
IHC will each afford to the officers and authorized representatives
of the other full access to the properties, books and records of
Xxxxxxxx and IHC, as the case may be, in order that each may have
full opportunity to make such reasonable investigation as it shall
desire to make of the affairs of the other and each will furnish
the other with such additional financial and operating data and
other information as to the business and properties of Xxxxxxxx and
IHC, as the case may be, as the other shall from time to time
reasonably request.
Section 4.2 Availability of Rule 144. Each of the parties
acknowledge that the stock of Xxxxxxxx to be issued pursuant to
this Agreement will be "restricted securities," as that term is
defined in Rule 144 promulgated pursuant to the Securities Act.
Xxxxxxxx is under no obligation to register such shares under the
Securities Act, or otherwise. Notwithstanding the foregoing,
however, following the Closing Date, Xxxxxxxx will use its best
efforts to: (a) make publicly available on a regular basis not less
than semi-annually, business and financial information regarding
Xxxxxxxx so as to make available to the shareholders of Xxxxxxxx
the provisions of Rule 144 pursuant to subparagraph (c)(2) thereof;
and (b) within ten (10) days of any written request of any
stockholder of Xxxxxxxx, Xxxxxxxx will provide to such stockholder
written confirmation of compliance with such of the foregoing
subparagraph as may then be applicable. The stockholders of
Xxxxxxxx holding restricted securities of Xxxxxxxx as of the date
of this Agreement and their respective heirs, administrators,
personal representatives, successors and assigns, are intended
third party beneficiaries of the provisions set forth herein. The
covenants set forth in this Section 4.2 shall survive the Closing
and the consummation of the transactions herein contemplated.
Section 4.3 Information for Xxxxxxxx Public Reports. IHC will
furnish Comstock with all information concerning IHC and the IHC
Stockholders, including all financial statements, required for
inclusion in any registration statement or public report intended
to be filed by Xxxxxxxx pursuant to the Securities Act, the
Exchange Act, or any other applicable federal or state law. IHC
covenants that all information so furnished for either such
registration statement or other public release by Xxxxxxxx,
including the financial statements described in Section 1.4, shall
be true and correct in all material respects without omission of
any material fact required to make the information stated not
17
misleading.
Section 4.4 Special Covenants and Representations Regarding
the Xxxxxxxx Common Shares to be Issued in the Exchange. The
consummation of this Agreement, including the issuance of the
Xxxxxxxx Common Shares to the stockholders of IHC as contemplated
hereby, constitutes the offer and sale of securities under the
Securities Act, and applicable state statutes. Such transaction
shall be consummated in reliance on exemptions from the
registration and prospectus delivery requirements of such statutes
which depend, inter alia, upon the circumstances under which the
IHC stockholders acquire such securities. In connection with
reliance upon exemptions from the registration and prospectus
delivery requirements for such transactions, at the Closing, IHC
shall cause to be delivered, and the IHC stockholders shall deliver
to Xxxxxxxx, the investment letter referenced in Section 3.1.
Section 4.5 Third Party Consents. Xxxxxxxx and IHC agree to
cooperate with each other in order to obtain any required third
party consents to this Agreement and the transactions herein
contemplated.
Section 4.6 Actions Prior to Closing.
(a) From and after the date of this Agreement until
the Closing Date and except as set forth in the Xxxxxxxx
or IHC Schedules or as permitted or contemplated by this
Agreement, IHC will each use its best efforts to:
(i) carry on its business in substantially the
same manner as it has heretofore;
(ii) maintain and keep its properties in
states of good repair and condition as at present,
except for depreciation due to ordinary wear and
tear and damage due to casualty;
(iii) maintain in full force and effect
insurance comparable in amount and in scope of
coverage to that now maintained by it;
(iv) perform in all material respects all of
its obligations under material contracts, leases
and instruments relating to or affecting its
assets, properties and business;
(v) maintain and preserve its business
organization intact, to retain its key employees
and to maintain its relationship with its material
suppliers and customers; and
(vi) fully comply with and perform in all
18
material respects all obligations and duties imposed on
it by all federal and state laws and all rules,
regulations and orders imposed by federal or state
governmental authorities.
(b) From and after the date of this Agreement until
the Closing Date, neither Xxxxxxxx nor IHC will, without
the prior consent of the other party:
(i) except as otherwise specifically set forth
herein, make any change in their respective
certificates or articles of incorporation or
bylaws;
(ii) declare or pay any dividend on its
outstanding shares of capital stock, except as may
otherwise be required by law, or effect any stock
split or otherwise change its capitalization,
except as provided herein;
(iii) enter into or amend any employment,
severance or similar agreements or arrangements
with any directors or officers;
(iv) grant, confer or award any options,
warrants, conversion rights or other rights not
existing on the date hereof to acquire any shares
of its capital stock; or
(v) purchase or redeem any shares of its
capital stock, except as disclosed herein.
Section 4.9 Indemnification.
(a) IHC hereby agrees to indemnify Xxxxxxxx and
each of the officers, agents and directors of Xxxxxxxx as
of the date of execution of this Agreement against any
loss, liability, claim, damage or expense (including, but
not limited to, any and all expense whatsoever reasonably
incurred in investigating, preparing or defending against
any litigation, commenced or threatened or any claim
whatsoever), to which it or they may become subject
arising out of or based on any inaccuracy appearing in or
misrepresentation made in this Agreement. The
indemnification provided for in this paragraph shall
survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement for
a period of 18 months; and
(b) Xxxxxxxx and its officers and directors hereby
agrees to indemnify IHC and each of the officers, agents,
directors and current shareholders of IHC as of the
19
Closing Date against any loss, liability, claim, damage
or expense (including, but not limited to, any and all
expense whatsoever reasonably incurred in investigating,
preparing or defending against any litigation, commenced
or threatened or any claim whatsoever), to which it or
they may become subject arising out of or based on any
inaccuracy appearing in or misrepresentation made in this
Agreement and particularly the representation regarding
no liabilities referred to in Section 2.4(b). The
indemnification provided for in this Section shall
survive the Closing and consummation of the transactions
contemplated hereby and termination of this Agreement for
a period of 18 months.
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS
OF XXXXXXXX
The obligations of Xxxxxxxx under this Agreement are subject
to the satisfaction, at or before the Closing Date, of the
following conditions:
Section 5.1 Accuracy of Representations. The representations
and warranties made by IHC in this Agreement were true when made
and shall be true at the Closing Date with the same force and
effect as if such representations and warranties were made at the
Closing Date (except for changes therein permitted by this
Agreement), and IHC shall have performed or complied with all
covenants and conditions required by this Agreement to be performed
or complied with by IHC prior to or at the Closing. Xxxxxxxx shall
be furnished with a certificate, signed by a duly authorized
officer of IHC and dated the Closing Date, to the foregoing effect.
Section 5.2 Stockholder Approval. The stockholders of IHC
shall have unanimously approved this Agreement and the transactions
contemplated thereby as described in Section 4.1.
Section 5.3 Officer's Certificate. Xxxxxxxx shall have been
furnished with a certificate dated the Closing Date and signed by
a duly authorized officer of IHC to the effect that: (a) the
representations and warranties of IHC set forth in the Agreement
and in all Exhibits, Schedules and other documents furnished in
connection herewith are in all material respects true and correct
as if made on the Effective Date; (b) IHC has performed all
covenants, satisfied all conditions, and complied with all other
terms and provisions of this Agreement to be performed, satisfied
or complied with by it as of the Effective Date; (c) since the
date of IHC's unaudited Balance Sheet of December 31, 1996, there
has not been any materially adverse change in the business,
prospects, properties or financial condition of IHC; (d) since such
date and other than as previously disclosed to Xxxxxxxx, IHC has
20
not entered into any material transaction other than transactions
which are usual and in the ordinary course of its business; and (e)
no litigation, proceeding, investigation or inquiry is pending or,
to the best knowledge of IHC, threatened, which might result in an
action to enjoin or prevent the consummation of the transactions
contemplated by this Agreement or, to the extent not disclosed in
the IHC Schedules, by or against IHC which might result in any
material adverse change in any of the assets, properties, business
or operations of IHC.
Section 5.4 No Material Adverse Change. Prior to the Closing
Date, there shall not have occurred any material adverse change in
the financial condition, business or operations of nor shall any
event have occurred which, with the lapse of time or the giving of
notice, may cause or create any material adverse change in the
financial condition, business or operations of IHC.
Section 5.5 Opinion of Counsel to IHC. Xxxxxxxx shall receive
an opinion dated the Closing Date of the Law Offices of Xxxxxxx X.
Xxxxxx, counsel to IHC, in substantially the following form:
(a) IHC is a corporation duly organized, validly
existing, and in good standing under the laws of New York
and has the corporate power and is duly authorized,
qualified, franchised and licensed under all material
applicable laws, regulations, ordinances and orders of
public authorities to own all of its properties and
assets and to conduct its business as now conducted,
including qualification to do business as a foreign
corporation in the states in which the character and
location of the assets owned by it or the nature of the
business transacted by it requires qualification;
(b) To the best knowledge of such legal counsel,
the execution and delivery by IHC of this Agreement and
the consummation of the transactions contemplated by this
Agreement in accordance with the terms hereof will not
conflict with or result in the breach of any term or
provision of IHC's articles of incorporation or bylaws or
violate any court order, writ, injunction or decree
applicable to IHC, or its properties or assets;
(c) The authorized capitalization of IHC consists
of 50,000,000 Common Shares, $0.01 par value per share,
and 5,000,000 Preferred Shares, $0.01 par value per
share. As of the Closing Date, all of the authorized
common shares will be issued and outstanding. All issued
and outstanding shares are legally issued, fully paid and
nonassessable and not issued in violation of the preemp-
tive rights of any person. Except as set forth in the
IHC Schedules, to the best knowledge of such legal
21
counsel, there are no outstanding subscriptions, options,
rights, warrants, convertible securities or other
agreements or commitments obligating IHC to issue any
additional shares of any class of its capital stock.
(d) This Agreement has been duly and validly
authorized, executed and delivered by IHC;
(e) To the best knowledge of such legal counsel,
except as set forth in the IHC Schedules, there are no
actions, suits or proceedings pending or threatened by or
against or affecting IHC or its properties, at law or in
equity, before any court or other governmental agency or
instrumentality, domestic or foreign or before any
arbitrator of any kind;
(f) IHC has taken all actions required by the
applicable laws of New York to permit the transfer of the
IHC Common Shares to Xxxxxxxx.
Section 5.6 Other Items. Xxxxxxxx shall have received such
further documents, certificates or instruments relating to the
transactions contemplated hereby as Xxxxxxxx may reasonably
request.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF IHC
The obligations of IHC under this Agreement are subject
to the satisfaction, at or before the Closing Date (unless
otherwise indicated herein), of the following conditions:
Section 6.1 Accuracy of Representations. The representations
and warranties made by Xxxxxxxx in this Agreement were true when
made and shall be true as of the Closing Date (except for changes
therein permitted by this Agreement) with the same force and effect
as if such representations and warranties were made at and as of
the Closing Date, and Xxxxxxxx shall have performed and complied
with all covenants and conditions required by this Agreement to be
performed or complied with by Xxxxxxxx prior to or at the Closing.
IHC shall have been furnished with a certificate, signed by a duly
authorized executive officer of Xxxxxxxx and dated the Closing
Date, to the foregoing effect.
Section 6.2 Officer's Certificate. IHC shall be furnished
with a certificate dated the Closing Date and signed by a duly
authorized officer of Xxxxxxxx to the effect that: (a) the
representations and warranties of Xxxxxxxx set forth in the
Agreement and in all Exhibits, Schedules and other documents
furnished in connection herewith are in all material respects true
and correct as if made on the Effective Date; (b) Xxxxxxxx has
22
performed all covenants, satisfied all conditions, and complied
with all other terms and provisions of the Agreement to be
performed, satisfied or complied with by it as of the Effective
Date; (c) since the date of Xxxxxxxx'x audited Balance Sheet of
December 31, 1996, there has not been any materially adverse change
in the business, prospects, properties or financial condition of
Xxxxxxxx; (d) since such date, Xxxxxxxx has not entered into any
material transaction other than transactions which are usual and in
the ordinary course of its business; and (e) no litigation,
proceeding, investigation or inquiry is pending or, to the best
knowledge of Xxxxxxxx, threatened, which might result in an action
to enjoin or prevent the consummation of the transactions
contemplated by this Agreement or, to the extent not disclosed in
the Xxxxxxxx Schedules, by or against Xxxxxxxx which might result
in any material adverse change in any of the assets, properties,
business or operations of Xxxxxxxx.
Section 6.3 No Material Adverse Change. Prior to the Closing
Date, there shall not have occurred any material adverse change in
the financial condition, business or operations of nor shall any
event have occurred which, with the lapse of time or the giving of
notice, may cause or create any material adverse change in the
financial condition, business or operations of Xxxxxxxx.
Section 6.5 Opinion of Counsel to Xxxxxxxx. IHC shall receive
an opinion dated the Closing Date of Xxxxxx X. Xxxxxx, P.C.,
counsel to Xxxxxxxx, in substantially the following form:
(a) Xxxxxxxx is a corporation duly organized,
validly existing, and in good standing under the laws of
the state of Nevada and has the 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 in all material
respects as it is now being conducted, including qualifi-
cation to do business as a foreign corporation in the
states in which the character and location of the assets
owned by it or the nature of the business transacted by
it requires qualification;
(b) To the best knowledge of such legal counsel,
the execution and delivery by Xxxxxxxx of this Agreement
and the consummation of the transactions contemplated by
this Agreement in accordance with the terms hereof will
not conflict with or result in the breach of any term or
provision of Xxxxxxxx'x articles of incorporation or
bylaws or constitute a default or give rise to a right of
termination, cancellation or acceleration under any
material mortgage, indenture, deed of trust, license
agreement or other obligation or violate any court order,
writ, injunction or decree applicable to Xxxxxxxx or its
23
properties or assets;
(c) The authorized capitalization of Xxxxxxxx
consists of 500,000,000 shares of Common Stock, par value
$0.001 per share. As of the Closing Date, there will be
no more than 500,000 common shares issued and outstanding
and reserved for issuance held by the then existing
securities holders of Xxxxxxxx. All issued and
outstanding shares are legally issued, fully paid and
nonassessable and not issued in violation of the preemp-
tive rights of any person.
(d) The Xxxxxxxx Common Shares to be issued to the
IHC stockholders pursuant to the terms of this Agreement
will be, when issued in accordance with the terms hereof,
legally issued, fully paid and non-assessable;
(e) This Agreement has been duly and validly
authorized, executed, and delivered and constitutes the
legal and binding obligation of Xxxxxxxx, except as
limited by bankruptcy and insolvency laws and by other
laws affecting the rights of creditors generally;
(f) To the best knowledge of such counsel, except
as set forth in the Xxxxxxxx Schedules, there are no
actions, suits or proceedings pending or threatened by or
against Xxxxxxxx or affecting Xxxxxxxx'x properties, at
law or in equity, before any court or other governmental
agency or instrumentality, domestic or foreign or before
any arbitrator of any kind; and
(g) Xxxxxxxx has taken all actions required by the
applicable laws of the state of Nevada to permit the
issuance of the Xxxxxxxx Common Shares to the IHC stock-
holders.
Section 6.6 Additional Conditions to Closing. In addition to
the obligations contained herein, a majority of Xxxxxxxx'x
shareholders shall adopt and approve amendments to the Xxxxxxxx
Articles of Incorporation, changing the name of Xxxxxxxx to "Iron
Holdings, Inc." (or such other name as may be available and
acceptable to management of IHC) and further authorizing 10,000,000
shares of Preferred Stock, par value $0.10 per share, for issuance
in the future.
Section 6.7 Compliance with Reporting Requirements. As of the
Closing Date, Xxxxxxxx shall be current in and in compliance with
all requirements of all filings required to be tendered to the
Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended.
Section 6.8 Other Items. IHC shall have received such
24
further documents, certificates, or instruments relating to the
transactions contemplated hereby as IHC may reasonably request.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Brokers and Finders. Each party hereto hereby
represents and warrants that it is under no obligation, express or
implied, to pay certain finders in connection with the bringing of
the parties together in the negotiation, execution, or consummation
of this Agreement. The parties each agree to indemnify the other
against any claim by any third person not listed in Schedule 7.1
for any commission, brokerage or finder's fee or other payment with
respect to this Agreement or the transactions contemplated hereby
based on any alleged agreement or understanding between the
indemnifying party and such third person, whether express or
implied from the actions of the indemnifying party.
Section 7.2 Law. Forum and Jurisdiction. This Agreement shall
be construed and interpreted in accordance with the laws of the
State of Nevada, except as the corporate law of New York applies to
IHC and as US federal law may be applicable.
Section 7.3 Notices. Any notices or other communications
required or permitted hereunder shall be sufficiently given if
personally delivered to it or sent by registered mail or certified
mail, postage prepaid, or by prepaid telegram addressed as follows:
If to Xxxxxxxx: Xxxxxx X. Xxxxxx, Esq.
0000 X. Xxxxxx Xx., Xx. 000
Xxxxxx, XX 00000
If to IHC: Board of Directors
Iron Holdings Corp.
00-00 000xx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx,
President
or 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, or telegraphed.
Section 7.4 Attorneys' Fees. In the event that any party
institutes any action or suit to enforce this Agreement or to
secure relief from any default hereunder or breach hereof, the
breaching party or parties shall reimburse the non-breaching party
or parties for all costs, including reasonable attorneys' fees,
incurred in connection therewith and in enforcing or collecting any
judgment rendered therein.
25
Section 7.5 Confidentiality. Each party hereto agrees with
the other parties that, unless and until the reorganization contem-
plated by this Agreement has been consummated, they and their
representatives will hold in strict confidence all data and
information obtained with respect to another party or any
subsidiary thereof from any representative, officer, director or
employee, or from any books or records or from personal inspection,
of such other party, and shall not use such data or information or
disclose the same to others, except: (i) to the extent such data is
a matter of public knowledge or is required by law to be published;
and (ii) to the extent that such data or information must be used
or disclosed in order to consummate the transactions contemplated
by this Agreement.
Section 7.6 Schedules; Knowledge. Each party is presumed to
have full knowledge of all information set forth in the other
party's schedules delivered pursuant to this Agreement.
Section 7.7 Third Party Beneficiaries. This contract is
solely among Xxxxxxxx and the IHC Parties and, except as specifi-
cally provided, no director, officer, stockholder, employee, agent,
independent contractor or any other person or entity shall be
deemed to be a third party beneficiary of this Agreement.
Section 7.8 Entire Agreement. This Agreement represents the
entire agreement between the parties relating to the subject matter
hereof. This Agreement alone fully and completely expresses the
agreement of the parties relating to the subject matter hereof.
There are no other courses of dealing, understandings, agreements,
representations or warranties, written or oral, except as set forth
herein. This Agreement may not be amended or modified, except by
a written agreement signed by all parties hereto.
Section 7.9 Survival; Termination. The representations,
warranties and covenants of the respective parties shall survive
the Closing Date and the consummation of the transactions herein
contemplated for 18 months.
Section 7.10 Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original
and all of which taken together shall be but a single instrument.
Section 7.11 Amendment or 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 herewith, 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, theretofore, or
thereafter occurring or existing. At any time prior to the Closing
Date, this Agreement 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 Agreement may be waived or the
26
time for performance hereof may be extended by a writing signed by
the party or parties for whose benefit the provision is intended.
Section 7.12 Incorporation of Recitals. All of the recitals
hereof are incorporated by this reference and are made a part
hereof as though set forth at length herein.
Section 7.13 Expenses. Each party herein shall bear all of
their respective costs and expenses incurred in connection with the
negotiation of this Agreement and in the consummation of the
transactions provided for herein and the preparation therefor.
Section 7.14 Headings; Context. The headings of the sections
and paragraphs contained in this Agreement are for convenience of
reference only and do not form a part hereof and in no way modify,
interpret or construe the meaning of this Agreement.
Section 7.15 Benefit. This Agreement shall be binding upon
and shall insure only to the benefit of the parties hereto, and
their permitted assigns hereunder. This Agreement shall not be
assigned by any party without the prior written consent of the
other party.
Section 7.16 Public Announcements. Except as may be required
by law, neither party shall make any public announcement or filing
with respect to the transactions provided for herein without the
prior consent of the other party hereto.
Section 7.17 Severability. In the event that any particular
provision or provisions of this Agreement or the other agreements
contained herein shall for any reason hereafter be determined to be
unenforceable, or in violation of any law, governmental order or
regulation, such unenforceability or violation shall not affect the
remaining provisions of such agreements, which shall continue in
full force and effect and be binding upon the respective parties
hereto.
Section 7.18 Failure of Conditions; Termination. In the event
any of the conditions specified in this Agreement shall not be
fulfilled on or before the Closing Date, either of the parties have
the right either to proceed or, upon prompt written notice to the
other, to terminate and rescind this Agreement without liability to
any other party. The election to proceed shall not affect the
right of such electing party reasonably to require the other party
to continue to use its efforts to fulfill the unmet conditions.
Section 7.19 No Strict Construction. The language of this
Agreement shall be construed as a whole, according to its fair
meaning and intendment, and not strictly for or against either
party hereto, regardless of who drafted or was principally
responsible for drafting the Agreement or terms or conditions
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hereof.
Section 7.20 Execution Knowing and Voluntary. In executing
this Agreement, the parties severally acknowledge and represent
that each: (a) has fully and carefully read and considered this
Agreement; (b) has been or has had the opportunity to be fully
apprised of its attorneys of the legal effect and meaning of this
document and all terms and conditions hereof; and (c) is executing
this Agreement voluntarily, free from any influence, coercion or
duress of any kind.
IN WITNESS WHEREOF, the corporate parties hereto have caused
this Agreement to be executed by their respective officers,
hereunto duly authorized, and entered into as of the date first
above written.
XXXXXXXX TAILINGS COMPANY,
INCORPORATED
ATTEST:
s/Xxxxxxx Xxxxx By: s/Xxxx Xxxxxxxx
Secretary Xxxx Xxxxxxxx, President
ATTEST: IRON HOLDINGS CORP.
s/Xxxxxx Xxxxxxx By: s/Xxxxxxx X. Xxxxxx
Secretary or Xxxxxxx X. Xxxxxx, President
Assistant Secretary
IHC SHAREHOLDERS
s/Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
s/Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
s/Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
s/Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
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