EXHIBIT 99.1
AGREEMENT AND PLAN OF EXCHANGE
AGREEMENT AND PLAN OF EXCHANGE (hereinafter called this "Agreement")
dated this 18th day of September 2000, between Xxxxxxxxx.Xxx, Inc. (the
"Company"), a Florida Corporation, and High CountryVentures, Inc. (the
"Purchaser") a Minnesota Corporation,
WHEREAS, the Purchaser desires to acquire all of the outstanding shares
of the Company in exchange for shares of the Company, all upon the terms and
subject to the conditions of this Agreement and the Plan of Exchange attached as
Exhibit A (the "Plan of Exchange"); and
WHEREAS, the Company and the Purchaser desire to make certain
representations, warranties, covenants and agreements in connection with the
Exchange of the Company;
NOW THEREFOR, in consideration of the premises and the mutual
representations, warranties, covenants, agreements and conditions herein
contained, the parties agree as follow:
ARTICLE 1
THE EXCHANGE; CLOSING; EFFECTIVE TIME
1.1 THE EXCHANGE. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in section 1.4)
all of the shares of the Company shall be exchanged for shares
of the Purchaser (the "Exchange"). The Purchaser shall
continue to be governed by the laws of the State of Minnesota,
and the separate corporate existence of the Purchaser and the
Company with all their rights, privileges, immunities and
franchises shall continue unaffected by the Exchange.
1.2 TERMS OF EXCHANGE. The shareholders of the Company shall
transfer all of their stock in the Company to the Purchaser.
The Purchaser agrees to issue 29,438,000 shares of its
outstanding 36,863,920 shares of common stock to the
shareholders of the Company, all of which are restricted
shares.
1.3 CLOSING. The closing of the Exchange (the "Closing") shall
take place on the first business day on which the last to be
fulfilled or waived of the conditions set forth in Article VII
shall be fulfilled or waived in accordance with this
Agreement, at such time and place as the Company and Purchaser
may agree,
1.4 EFFECTIVE TIME. As soon as practicable following fulfillment
or waiver of the conditions specified in Article VII, and
provided that this Agreement has not been terminated or
abandoned to Article VIII, the Company and the Purchaser will
cause the Articles of Exchange (the Article of Exchange") to
be executed and filed with the Secretary of State of Minnesota
(the "State Commission"). The Exchange shall become effective
on the date on which the Secretary of State issued a
Certificate of Exchange, and such time is referred to as the
"Effective Time".
ARTICLE II
ARTICLES OF INCORPORATION AND BY-LAWS OF THE PURCHASER
2.1 THE ARTICLES OF INCOPORATION. The Articles of Incorporation of
the Purchaser (the "Articles") in effect at the Effective Time
shall remain in effect in accordance with the Minnesota
Statutes.
2.2 THE BY-LAWS. The By-Laws of the Purchaser in effect at the
Effective Time shall remain in effect unless duly amended in
accordance with its terms and the Minnesota Statutes.
ARTICLE III
OFFICERS AND DIRECTORS OF THE PURCHASING CORPORATION
3.1 OFFICERS AND DIRECTORS. The directors and officers of the
Purchaser at the Effective Time shall, from and after the
Effective Time, shall be directors and officers until their
successors have been duly elected or appointed and qualified
or until their earlier death, resignation or removal in
accordance with the Purchasing Corporation's Articles and
By-Laws.
ARTICLE IV
CONVERSION OF CANCELLATION OF SHARES IN THE EXCHANGE
4.1 At the Effective Time, all shares of common stock of the
Company issued and outstanding immediately prior to the
Effective Time shall be exchanged for validly issued, fully
paid and non assessable shares of the Purchaser.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 CORPORATE ORGANIZATION AND QUALIFICATION. The Company is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Florida. The Company
has the corporate power and authority to carry on its
respective businesses as they are now being conducted. The
Company has made available to Purchaser a complete and correct
copy of the Company's Articles, and the Company's By-Laws. The
Company `s Articles and By-Laws so delivered are in full force
and effect.
5.2 CORPORATE AUTHORITY. Subject only to approval of this
Agreement and the Plan of Exchange by the holders of a
majority of the outstanding shares, the Company has the
requisite corporate power and authority and has taken all
corporate action necessary in order to execute and deliver
this Agreement and to consummate the transactions
contemplated. This Agreement is valid and binding agreement of
the Company.
5.3 COMPLIANCE. The execution and delivery of this Agreement by
the Company does not, and the consummation of the transactions
contemplated by the Company will not, constitute or result in
(i) a breach or violation of, a default under, the
acceleration of, or the creation of a lien, pledge, security
interest or other encumbrance on assets pursuant to (with or
without the giving of notice of lapse of time), any provision
of any agreement, lease, contract, note, mortgage, indenture,
arrangement or other obligation ("Contracts") of the Company,
or any law, rule, ordinance or regulation or judgment, decree,
order, award or governmental or non-governmental permit or
license to which the Company is subject, except, in the case
of clause (ii) above, for such breaches, violations, defaults,
or accelerations which, alone or in the aggregate, will not
have a material adverse effect on the financial condition,
properties, business or results of operations of the Company.
5.4 BROKERS AND FINDERS. Neither the Company nor any of its
officer, directors or employees has employed any broker or
finder or incurred any liability for any brokerage fees,
commissions or finders' fees in connection with the
transactions contemplated, except as disclosed.
5.5 FINANCIAL STATEMENTS. The financial statements as of June 30,
2000, which have been delivered to Purchaser ("Company
Financial Statements") are complete, accurate, and fairly
present the financial condition of the Company as of the date
and the results of its operation for the periods covered. To
the best knowledge of the Company, there are no liabilities,
either fixed of contingent, not reflected in the financial
statements other that contracts or obligations in the ordinary
and usual course of business, constituting liens or other
liabilities which, if disclosed, would alter substantially the
financial condition of the Company as reflected in the
financial statements. These Financial Statements have been
prepared in accordance with generally accepted accounting
principles consistently applied.
5.6 LITIGATION AND PROCEEDINGS. To the best knowledge of the
Company, it is not involved in any pending litigation or
governmental investigation disclosed in the Schedules and, to
the best knowledge of the Company, no litigation, claims,
assessments, or governmental investigation or proceeding is
threatened against the Company.
5.7 TAX RETURNS. The Company has filed all tax returns, forms, or
reports, which are due or required to be filed by it prior to
this date and has paid or made adequate provisions for the
payment of all taxes, penalty fees, reassessments which have
or may become due pursuant to such returns or pursuant to any
assessments received.
5.8 TITLE AND RELATED MATTERS. The Company has good and marketable
title to all of its licenses, copyrights, trademark, patents,
patents pending, properties, inventory, interests in
properties, and other assets, real and personal, free and
clear of all mortgages, liens, pledges, charges, or
encumbrances except (i) statutory liens or claims not yet
delinquent; (ii) such imperfections of titles and easements as
do not and will not materially detract from or interfere with
the present or proposed use of the assets or properties
subject thereto or affected thereby or otherwise materially
impair present business operations on such properties or in
connection with such assets; and (iii) as described in the
financial statements or in Company Schedules. The Company
owns, free and clear of any liens, claims, encumbrances,
royalty interests, or other restrictions or limitations of any
nature whatsoever, any and all procedures, techniques,
business plans, methods of management, or other information
utilized in the conduct of the Company's business or
operations, whether or not the value thereof is reflected in
the most recent balance sheet included in the Company
Schedules. The plants, structures, and equipment of the
Company that are necessary or used in the operations of the
business of the Company are in good operating conditions and
repair, normal wear and tear excepted.
5.9 CORPORATE ORGANIZATION AND QUALIFICATION. The Purchaser is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Minnesota. The
Purchaser has the corporate power and authority to carry on
its respective businesses as they are now being conducted. The
Purchaser has made available to Company a complete and correct
copy of the Purchaser's Articles, and the Purchaser's By-Laws.
The Purchaser's Articles and By-Laws so delivered are in full
force and effect.
5.10 CORPORATE AUTHORITY. Subject only to approval of this
Agreement and Plan of Exchange by the holders of a majority of
the outstanding shares and has taken all corporate action
necessary in order to execute and deliver this Agreement and
to consummate the transaction contemplated. This Agreement is
a valid and binding agreement of the Purchaser.
5.11 COMPLIANCE. The execution and delivery of this Agreement by
the Purchaser does not, and the consummation of the
transactions contemplated by the Purchaser will not,
constitute or result in (i) a breach or violation of, or a
default under, the Articles or By-Laws of the Purchaser or
(ii) a breach or violation of, a default under, the
acceleration of, or the creation of a lien, pledge, security
interest or other encumbrance on assets pursuant to (with or
without the giving of notice or the lapse of time), any
provision of any agreement, lease, contract, note, mortgage,
law, rule, ordinance or regulation or judgment, decree, order,
award or governmental or non-governmental permit or license to
which the Purchaser is subject, except, in the case of clause
(ii) above, for such breaches, violation, defaults, or
acceleration which, alone or in the aggregate, will not have a
material adverse effect on the financial condition,
properties, business or results of operations of the
Purchaser.
5.12 BROKERS AND FINDERS. Neither the Purchaser nor any of its
officers, directors or employees has employed any broker or
finder or incurred any liability for any brokerage fees,
commissions or finders fees in connection with the
transactions contemplated, except as disclosed.
5.13 FINANCIAL STATEMENTS. The financial statements as of April 30,
2000, 1999, and 1998, which have been delivered to Company
("Purchaser Financial Statements") are complete, accurate, and
fairly present the financial condition of the Purchaser as of
the date and the results of its operation for the periods
covered. To the best knowledge of the Purchaser, there are no
liabilities, either fixed of contingent, not reflected in the
financial statements other that contracts or obligations in
the ordinary and usual course of business, constituting liens
or other liabilities which, if disclosed, would alter
substantially the financial condition of the Purchaser as
reflected in the financial statements. These
Financial Statements have been prepared in accordance with
generally accepted accounting principles consistently applied.
5.14 LITIGATION AND PROCEEDINGS. To the best knowledge of the
Purchaser, it is not involved in any pending litigation or
governmental investigation disclosed in the Schedules and, to
the best knowledge of the Purchaser, no litigation, claims,
assessments, or governmental investigation or proceeding is
threatened against the Purchaser.
5.15 TAX RETURNS. The Purchaser has filed all tax returns, forms,
or reports, which are due or required to be filed by it prior
to this date and has paid or made adequate provisions for the
payment of all taxes, penalty fees, reassessments which have
or may become due pursuant to such returns or pursuant to any
assessments received.
5.16 TITLE AND RELATED MATTERS. The Purchaser has good and
marketable title to all of its licenses, copyrights,
trademark, patents, patents pending, properties, inventory,
interests in properties, and other assets, real and personal,
free and clear of all mortgages, liens, pledges, charges, or
encumbrances except (i) statutory liens or claims not yet
delinquent; (ii) such imperfections of titles and easements as
do not and will not materially detract from or interfere with
the present or proposed use of the assets or properties
subject thereto or affected thereby or otherwise materially
impair present business operations on such properties or in
connection with such assets; and (iii) as described in the
financial statements or in Purchaser Schedules. The Purchaser
owns, free and clear of any liens, claims, encumbrances,
royalty interests, or other restrictions or limitations of any
nature whatsoever, any and all procedures, techniques,
business plans, methods of management, or other information
utilized in the conduct of the Purchaser's business or
operations, whether or not the value thereof is reflected in
the most recent balance sheet included in the Purchaser
Schedules. The plants, structures, and equipment of the
Purchaser that are necessary or used in the operations of the
business of the Purchaser are in good operating conditions and
repair, normal wear and tear accepted.
ARTICLE VI
COVENANTS
6.1 ACQUISITION PROPOSALS. The Company will, and shall direct (and
shall use its best efforts to cause) all of its officers and
directors and employees and any investment banker, attorney,
accountant or other agent retained by the Company not to,
initiate
or solicit any inquiries or the making of any proposal with
respect to or, except to the extent required by fiduciary
obligations under applicable laws, as confidential information
or data or to have any discussions with, any person relating,
to any acquisition, business combination or purchase of all or
any significant portion of the assets of, or any equity
interest in, the Company. The Company will immediately cease
and cause to be terminated any existing activities,
discussions or negotiations with any parties conducted with
respect to any of the foregoing. The Company will notify
Purchaser immediately if any such inquiries or proposals are
received by, any such information is requested from, or any
such negotiations or discussions are sought to be initiated or
continued with the Company.
6.2 INTERIM OPERATIONS OF THE COMPANY. The Company covenants and
agrees that after this date and prior to the Effective Time
(unless Purchaser shall otherwise agree in writing and except
as otherwise contemplated by this Agreement):
(a) the business of the Company shall be conducted only
in the ordinary and usual course and, to the extent
consistent therewith, the Company shall use its
reasonable best efforts to preserve its business
organization intact and maintain its existing
relations with customers, suppliers, employees and
business associates;
(b) the Company shall not materially modify or amend or
terminate any of its material contracts or waive,
release or assign any material rights or claims,
except in the ordinary and usual course of business;
6.3 MEETINGS OF THE SHAREHOLDERS. As soon as practicable after
this date, Purchaser and the Company shall prepare a joint
proxy/registration statement (the "Registration Statement"),
which shall comply as to form with all applicable law and its
governing instruments to convene a meeting of its shareholders
as promptly as practicable to consider and vote upon the
approval of the Agreement and the Plan of Exchange and the
Exchange. Subject to fiduciary requirements of applicable law,
the respective boards of directors of each of Purchaser and
the Company shall recommend such approval and take all lawful
action to solicit such approval; provided, however, and
notwithstanding any other provision in the Agreement to the
contrary, if either Purchaser or the Company should experience
any development or combination of developments having a
material adverse effect on the financial condition,
properties, business or results of operations of
Purchaser, taken as a whole, or the Company, taken as a whole,
as the case may be, other that as a result of factors
affecting the industry or the economy generally, then the
board or directors of the other Company may withdraw its
recommendation of the Exchange and may postpone the meeting of
its shareholders to allow adequate time to disseminate
relevant disclosure material. The Company agrees, as to
information with respect to the Company, its officers,
directors, and shareholders contained when the Registration
Statement becomes effective and at the date of the meeting of
the respective shareholders of Purchaser and the Company, will
not include and untrue statement of a material fact or unit or
omit to state a material fact required to be stated or
necessary to make the statement not misleading.
ARTICLE VII
CONDITIONS
7.1 CONDITIONS TO OBLIGATIONS OF PURCHASER AND COMPANY. The
respective obligations of Purchaser and the Company to
consummate the Exchange are subject to the fulfillment of each
of the following conditions any or all of which may be waived
in whole or part by Purchaser or the Company as the case may
be, to the extent permitted by applicable law:
(a) Shareholder Approval. This Agreement shall have been
duly approved by the holders of (i) at least a
majority of the voting power of the outstanding
shares of the Purchaser common stock, voting together
as a single class, in accordance with applicable law
and the Certificate of Incorporation and By-Laws of
the Company.
(b) Continuing Warranties, Certificate. The
representations and warranties of the Company
contained in this Agreement shall be correct on and
as of the Effective Time in all material respects
with the same effect as though made and as of such
date, except for the changes contemplated by this
Agreement, and the Company shall have performed in
all material respects all of its obligations to be
performed, and Purchaser shall have received at the
Effective Time a certificate to that effect, dated
the Effective Time, and executed on behalf of the
Company by an executive officer of the Company.
Notwithstanding anything in the foregoing to the
contrary, this Section 7.1(b) shall be deemed to
have been fulfilled regardless of whether the
representations contained in Section 5.1 shall not be
so correct or the covenants in Sections 6.1 and 6.2
to the extent it is applied to these sections.
7.2 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligations of
the Company to consummate the Exchange are subject to the
fulfillment of each of the following conditions, any or all of
which may be waived in whole or in part by the Company to the
extent permitted by applicable law:
(a) Shareholder Approval. This Agreement shall have been
duly approved by the holders of (i) at least a
majority of the voting power of the outstanding
shares of the Purchaser common stock, voting together
as a single class, in accordance with applicable law
and the Certificate of Incorporation and By-Laws of
Purchaser and (ii) a majority of the outstanding
shares, in accordance with applicable law and the
Articles and By-Laws of the Purchaser.
(b) Continuing Warranties, Certificate. The
representations and warranties of the Purchaser
continued in this Agreement shall be correct on and
as of the Effective Time in all material respects
with the same effect as though made and as of such
date, except for the changes contemplated by this
Agreements, and the Purchaser shall have performed in
all material respects all of its obligations to be
performed, and Company shall received at the
Effective Time a certificate to that effect, dated
the Effective Time, and executed on behalf of the
Purchaser by an executive officer of the Purchaser.
ARTICLE VIII
TERMINATION
8.1 TERMINATION BY MUTUAL CONSENT. This Agreement may be
terminated and the Exchange may be abandoned at any time prior
to the Effective Time, before or after the approval by
shareholders of the parties by the mutual consent of Purchaser
and the Company by action of their respective boards of
directors.
8.2 EFFECT OF TERMINATION AND ABANDONMENT. In the event of
termination of this Agreement and abandonment of the Exchange
pursuant to this Article VIII, no party (or any of its
directors or officers) shall have any liability or further
obligation to any other party to this Agreement, except as
provided in Section 9.2 and except that nothing will relieve
any party from liability for any breach of this Agreement.
ARTICLE IX
MISCELLANEOUS AND GENERAL
9.1 PAYMENT OF EXPENSES. Whether or not the Exchange shall be
consummated, each party hereto shall pay its own expenses
incident to preparing for entering into and carrying out this
Agreement and the consummation of the Exchange.
9.2 SURVIVAL. The agreements shall survive the consummation of the
Exchange.
9.3 MODIFICATION OF AMENDMENT. Subject to the Minnesota Statutes,
at any time prior to the Effective Time, the parties may, by
written agreement, make any modification or amendment of this
Agreement approved by their respective boards of directors.
This Agreement shall not be modified or amended except
pursuant to an instrument in writing executed and delivered on
behalf of each of the parties. After the Effective Time, none
of the agreements may be amended.
9.4 WAIVER OF CONDITIONS. The conditions to each of the parties'
obligations to consummate the Exchange are for the sole
benefit of such party and may be waived by such party in whole
or in part to the extent permitted by applicable law.
9.5 COUNTERPARTS. For the convenience of the parties this
Agreement may be executed in any number of counterparts, each
such counterpart being deemed to be an original instrument,
and all counterparts shall together constitute the same
agreement.
9.6 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Minnesota regardless of the laws that might otherwise govern
under applicable principles of conflicts of law.
NOTICES. Any notice, request, instruction, or other document to be given by any
party to the other, shall be in writing and delivered personally or sent by a
registered or
certified mail, postage prepaid to the Company to Xxxxxxxxx.Xxx, Inc., 00000
Xxxxxxxx Xxxxx Xxxxx, Xxxx Xxxxx, XX 00000, and to the Purchaser High Country
Ventures, Inc., High Country Ventures, Inc., or to such other persons or
addresses as may be designated in writing by the party to receive such notice.
9.7 ENTIRE AGREEMENT, ETC. This Agreement (a) constitutes the
entire agreement, and supersedes all other prior agreements
and understandings, both written and oral, among the parties,
with respect to the subject matter and (b) shall not be
assignable by operation of law or obligation to, or rights in
respect of, any persons other than the parties, it being
expressly agreed that all of the persons (and their successors
and assigns) who are beneficiaries of such sections or
schedule (whether as individuals or as members of a class or
group) shall be entitled to enforce such sections and schedule
against Purchaser or the surviving corporation or of the
Purchaser.
IN WITNESS WHEREOF; this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto as of the date
first written above.
Xxxxxxxxx.Xxx, Inc.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: President
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High Country Ventures, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: President
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PLAN OF EXCHANGE
SECTION 1. CORPORATION PLANNING TO EXCHANGE.
Xxxxxxxxx.Xxx, Inc. (Spiderboy), a Florida corporation shall be
exchanged with High Country Ventures, Inc., a Minnesota, corporation. At the
Effective Time Spiderboy shall be wholly owned by High Country. High Country
shall continue to be governed by the laws of the State of Minnesota.
SECTION 2. TERMS AND CONDITIONS.
2.1 The exchange shall be effective upon the issuance of a
Certificate of Exchange by the Secretary of State of the State
of Minnesota.
2.2 The Articles of Incorporation shall remain.
2.3 The By-Laws shall remain.
SECTION 3. MANNER AND BASIS OF CONVERTING THE SHARES.
At the Effective Time, each share of the common stock of Spiderboy
issued and outstanding immediately before the Effective Time shall be conveyed
to High Country. 29,438,000 shares of High Country common stock, by virtue of
the exchange shall be conveyed to Spiderboy, and shall represent validly issued,
fully paid shares of High Country.
IN WITNESS WHEREOF, the parties have executed this Plan of Exchange
this day of September 2000.
Xxxxxxxxx.Xxx, Inc. High Country Ventures, Inc.
By /s/ Xxxx Xxxxx By /s/ Xxxxxxx X. Xxxxxxx
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President President
