EX-3.1(iii)
PLAN AND AGREEMENT OF MERGER
PLAN AND AGREEMENT OF MERGER
This Plan and Agreement of Merger entered into this 3rd day of December
1997 by and among Beacon Light Mining Company, an Idaho Corporation,
incorporated on April 16, 1953 (hereinafter "Beacon Light Idaho") and Beacon
Light Mining Company, a Nevada Corporation, incorporated on November 18, 1997,
and as of February 17, 1998 is officially known as Beacon Light Holding
Corporation (hereinafter "Beacon Light Nevada"), are sometimes referred to
herein as the constituent corporations.
BACKGROUND OF AGREEMENT
WHEREAS, Beacon Light Idaho on 18th day of November 1997 incorporated a
subsidiary corporation, Beacon Light Mining Company in the State of Nevada,
whose name on this date has been changed to Beacon Light Holding Corporation
("Beacon Light Nevada"); and
WHEREAS, Beacon Light Idaho is no longer in the exploration and development of
potential silver mining properties in the northern part of Idaho and does not do
any business in the State of Idaho; and
WHEREAS, Beacon Light Idaho has authorized capital stock consisting of
10,000,000 shares of Common Stock, of which 2,751,422 shares are issued and
outstanding; and
WHEREAS, Beacon Light Nevada has authorized capital stock consisting of
50,000,000 shares of Common Stock, of which 1 shares is issued and outstanding
and is owned by Beacon Light Idaho; and
WHEREAS, the Board of Directors of Beacon Light Idaho, have determined that
it was in the best interest of Beacon Light Idaho to be incorporated in the
State of Nevada to avail itself of the corporate and securities laws available
in the State of Nevada; and
WHEREAS, the Board of Directors of Beacon Light Idaho and Beacon Light
Nevada have determined that a merger of Beacon Light Idaho with and into Beacon
Light Nevada is in the best interest of Beacon Light Idaho and Beacon Light
Nevada and such companies desire to set forth in their agreement their entire
understanding respecting such merger (hereinafter "the merger"); and
WHEREAS, at a special meeting of the stockholders of Beacon Light Idaho
held at the law offices of Verdiramo & Verdiramo, P.A. on this February 16, 1998
approved the change of domicile for Beacon Light Idaho from Idaho to Nevada (a
copy of said minutes is attached as Exhibit A and incorporated herein); and
WHEREAS, the officers and directors of Beacon Light Idaho at all times
herein were and are the same as Beacon Light Nevada; and
WHEREAS, the parties intend that the merger qualify as a tax-free
reorganization within the meaning of the provisions of Section 368 of the
Internal Revenue Code of 1986 as amended (the "Code"); and
93
WHEREAS, on February 16, 1998 Beacon Light Idaho merged into Beacon Light
Nevada, and the parties are desirous of reducing their merger to a written
agreement for the purpose of filing with the respective Secretary of State for
the State of Idaho in accordance with Sec. 30-1-1101 of the Idaho Code and the
Secretary of State for the State of Nevada in accordance with Chapter 92A of the
Nevada Revised Statutes;
Now, therefore, in consideration of the mutual covenants and agreements
herein contained, the parties herein, intending to be legally bound hereby agree
as follows:
ARTICLE I
MERGER OF BEACON LIGHT IDAHO INTO BEACON LIGHT NEVADA
-----------------------------------------------------
SECTION 1.1 CLOSING
-------
The closing of the transaction contemplated by this Agreement shall be
deemed to have occurred and be effective on February 16, 1998.
SECTION 1.2 MERGER
------
As of the closing date as defined in Section 1.1 above, Beacon Light Idaho
merged into Beacon Light Nevada, which became the surviving corporation (the
"Surviving Corporation") with the clear understanding of the Constituent
Corporations that as of that date, the separate existence of Beacon Light Idaho
shall cease, and Beacon Light Nevada shall thereafter posses all of the rights,
privileges, immunities, powers, licenses, permits and franchises, both of public
and private nature, and all the property, real, personal and mixed, all debts
due on any account and all chooses in action belonging to or inuring to either
of the Constituent Corporations, and shall be subject to all the restrictions,
disabilities and duties of each of the Constituent Corporations. Any claim
existing or action or proceeding pending by or against either of the Constituent
Corporations may be prosecuted as if the Merger had not taken place or the
Surviving Corporation may be substituted in its place. The Merger shall impair
neither the rights of creditors nor any liens upon the property of either of the
Constituent Corporations.
ARTICLE II
ARTICLES, BYLAWS, DIRECTORS AND OFFICERS
----------------------------------------
SECTION 2.1 BEACON LIGHT ARTICLES AND BY-LAWS.
--------------------------------------
The Articles of Incorporation and By-Laws of Beacon Light Nevada shall be
the Articles of Incorporation and By-Laws of the Surviving Corporation until
amended in accordance with applicable Nevada laws.
SECTION 2.2 BEACON LIGHT'S DIRECTORS AND OFFICERS.
------------------------------------------
Upon the closing and consummation of the Merger, the directors and officers
of Beacon Light Idaho who are the same as the directors and officers of Beacon
Light Nevada, shall become the directors and officers of the Surviving
Corporation.
94
SECTION 2.3 CHAIRMAN OF THE BOARD AND PRESIDENT.
-----------------------------------------
Xxxxx Xxxxxxxxx shall be appointed as Chairman of the Board of Directors
and Xxxxx Xxxxxxxxx shall be appointed as President of the Surviving Corporation
as soon as reasonably practicable following consummation of the Merger.
ARTICLE III
CONVERSION AND CANCELLATION OF SHARES
-------------------------------------
After the closing date as defined in Section 1.1 above, there shall be
no further registrations of transfer on the stock transfer books of the
Surviving Corporation of the shares of Beacon Light Idaho Common Stock, which
were outstanding immediately prior to the closing date. If after the closing
date, shares of Beacon Light Idaho Common Stock are presented to the Surviving
Corporation, they shall be cancelled and exchanged for shares of Surviving
Corporation Common Stock.
ARTICLE IV
CONSIDERATION
-------------
For and in consideration of the merger of Beacon Light Idaho into Beacon
Light Nevada, Beacon Light Nevada shall cause to be issued to the present
stockholders of Beacon Light Idaho 2,751,422 shares of Beacon Light Nevada
Common Stock. Said 2,751,422 shares of Beacon Light Nevada Common Stock shall
represent all of the outstanding shares of Beacon Light Nevada as of the date of
the merger. The one share of Beacon Light Nevada owned by Beacon Light Idaho
immediately prior to the closing shall by virtue of this merger, be cancelled
and returned to the status of authorized and un-issued shares.
ARTICLE V
MERGER PROCEDURE
----------------
Upon execution of this Plan and Agreement of Merger, it shall be filed by
Beacon Light Idaho with the Secretary of State of the State of Idaho in
accordance with Sec. 30-1-1101 of the Idaho Code and by Beacon Light Nevada with
the Secretary of State of the State of Nevada in accordance with Chapter 92A of
the Nevada Revised Statutes and recorded in accordance with laws, which may
apply to mergers within their respective states.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BEACON LIGHT IDAHO
----------------------------------------------------
In order to induce Beacon Light Nevada to enter into this Agreement and to
consummate the transactions contemplated hereby, Beacon Light Idaho makes the
following representations and warranties to Beacon Light Nevada:
SECTION 6.1 ORGANIZATION AND GOOD STANDING.
----------------------------------
a. On the date of closing, Beacon Light Idaho was a corporation duly
organized, validly existing and in good standing under the laws of the State of
Idaho.
b. Beacon Light Idaho has the power to carry on its business as and
where conducted and is entitled to own, lease or operate its business assets.
95
c. Beacon Light Idaho has delivered to Beacon Light Nevada complete and
correct copies of its Articles of Incorporation, as amended, and By-Laws, as in
effect on the date of closing.
d. As of the date of closing, the authorized capital stock of Beacon
Light Idaho consists of 10,000,000 shares of Common Stock, of which 2,751,422
shares were issued and outstanding.
SECTION 6.2 AUTHORIZATION OF AGREEMENT.
-----------------------------
This Agreement has been duly authorized by the requisite corporate and
shareholder action on the part of Beacon Light Idaho. A Copy of the minutes of
the Special Meeting of the shareholders of Beacon Light Idaho held this 16th day
of February is attached as Exhibit A and incorporated herein. This Agreement
has been duly executed and delivered by Beacon Light Idaho and constitutes the
legal, valid and binding obligation of Beacon Light Idaho enforceable against
Beacon Light Idaho in accordance with its terms.
SECTION 6.3 BEACON LIGHT IDAHO SHARES.
-----------------------------
Each issued share of Beacon Light Idaho Common Stock is validly issued,
fully paid and non-assessable, and each outstanding share of Beacon Light Idaho
Common Stock is entitled to one vote. No such shares were issued in violation
of any pre-emptive rights.
SECTION 6.4 NO CONFLICT
------------
(a) The consummation of the transactions contemplated by this Agreement will
not result in the breach of any term or provision of or constitute a
default under any indenture, mortgage, deed of trust, or other material
agreement or instrument to which Beacon Light Idaho is a party.
(b) The execution, delivery and performance by Beacon Light Idaho of this
Agreement and the consummation of the transactions contemplated hereby by Beacon
Light Idaho requires no consent, approval, order or authorization of,
action by or in respect of, registration or filing with, any governmental body,
court, agency, official or authority other than (i) the filing of the applicable
Articles of Merger; and (ii) such other filings or registrations with, or
authorizations, consents or approval of, any Governmental Body, the failure of
which to make or obtain would not materially adversely affect the ability of
Beacon Light Nevada or Beacon Light Idaho to consummate the transactions
contemplated hereby.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF BEACON LIGHT NEVADA
-----------------------------------------------------
In order to induce Beacon Light Idaho to enter into this Agreement and to
consummate the transactions contemplated hereby, Beacon Light Nevada makes the
following representations and warranties to Beacon Light Idaho:
SECTION 6.1 ORGANIZATION AND GOOD STANDING.
----------------------------------
a. On the date of closing, Beacon Light Nevada was a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada.
96
b. Beacon Light Nevada has the power to carry on its business as and
where conducted and is entitled to own, lease or operate its business assets.
c. Beacon Light Nevada has delivered to Beacon Light Idaho complete and
correct copies of its Articles of Incorporation, as amended, and By-Laws, as in
effect on the date of closing.
d. As of the date of closing, the authorized capital stock of Beacon
Light Nevada consists of 50,000,000 shares of Common Stock, of which one share
was issued and outstanding.
SECTION 6.2 AUTHORIZATION OF AGREEMENT.
-----------------------------
This Agreement has been duly authorized by the requisite corporate and
shareholder action on the part of Beacon Light Nevada. This Agreement has been
duly executed and delivered by Beacon Light Nevada and constitutes the legal,
valid and binding obligation of Beacon Light Nevada enforceable against Beacon
Light Nevada in accordance with its terms.
SECTION 6.3 BEACON LIGHT NEVADA SHARES.
------------------------------
The one issued share of Beacon Light Nevada Common Stock is validly issued,
fully paid and non-assessable, and the one outstanding share of Beacon Light
Nevada Common Stock is entitled to one vote. No such share was issued in
violation of any pre-emptive rights.
SECTION 6.4 NO CONFLICT
------------
(c) The consummation of the transactions contemplated by this Agreement will
not result in the breach of any term or provision of or constitute a
default under any indenture, mortgage, deed of trust, or other material
agreement or instrument to which Beacon Light Nevada is a party.
(d) The execution, delivery and performance by Beacon Light Nevada of this
Agreement and the consummation of the transactions contemplated hereby by Beacon
Light Nevada requires no consent, approval, order or authorization of,
action by or in respect of, registration or filing with, any governmental body,
court, agency, official or authority other than (i) the filing of the applicable
Articles of Merger; and (ii) such other filings or registrations with, or
authorizations, consents or approval of, any Governmental Body, the failure of
which to make or obtain would not materially adversely affect the ability of
Beacon Light Nevada or Beacon Light Idaho to consummate the transactions
contemplated hereby.
ARTICLE VII
MISCELLANEOUS PROVISIONS
------------------------
SECTION 7.1 APPLICATION.
------------
This Agreement shall be construed and enforced in accordance with the laws
of the State of Nevada, except as to any technical Idaho requirement of
corporate merger pertaining to Beacon Light Idaho.
97
SECTION 7.2 NOTICES.
--- --------
All notices, requests, demands and other communications called for or
contemplated hereunder shall be in writing and shall be deemed to have been
dully given when (i) hand delivered; (ii) sent by telegram, fax, telex or wire
followed by a confirming letter; or (iii) sent by United States certified or
registered mail, postage prepaid, addressed to the parties, their successors in
interest, or their assignees at the following address (or at such other
addresses as the parties may designate by like written notice):
Beacon Light Holding Corporation
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Phone Number (000) 000-0000
Fax Number (000) 000-0000
SECTION 7.3 PAYMENT OF EXPENSES.
----------------------
Beacon Light Nevada shall pay all fees and expenses incurred by it in
connection with the preparation, negotiation, execution, delivery and completion
of this Agreement and the transactions contemplated hereunder.
SECTION 7.4 ASSIGNMENT.
-----------
This Agreement shall not be assigned by any party without the written
consent of the other party hereof.
SECTION 7.5 COUNTERPARTS.
-------------
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
SECTION 7.6 CAPTIONS.
---------
Captions used herein are for convenience of reference only; such captions
are not a part hereof and shall not be used in construing this Agreement.
SECTION 7.7 ENTIRE AGREEMENTS.
-------------------
This Agreement contains the entire agreement of the parties regarding the
subject matter hereof. It supersedes any and all other agreements, either oral
or in writing, between the parties hereto with respect to the subject matter of
this Agreement. Each party to this Agreement acknowledges that no
representations, inducements, promises or agreements, oral or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
embodied herein, and that no other agreement, statement or promise with respect
to the subject matter hereof not contained in this Agreement shall be valid or
binding.
IN WITNESS WHEREOF, the parties have executed or caused this Agreement to
be signed by their respective duly authorized officers on this the 18th Day of
February, 2000.
98
BEACON LIGHT MINING COMPANY
[BEACON LIGHT IDAHO]
By:_/s/ Xxxxx Xxxxxxxxx
----------------------------------
Xxxxx Xxxxxxxxx, President
BEACON LIGHT HOLDING CORPORATION
Formerly known as:
BEACON LIGHT MINING COMPANY
[BEACON LIGHT NEVADA]
By:_/s/ Xxxxx Xxxxxxxxx
----------------------------------
Xxxxx Xxxxxxxxx, President
STATE OF CONNECTICUT:
: cc: Hartford
COUNTY OF HARTFORD :
On the 18th day of February, 2000, personally appeared before me a Notary
Public, Xxxxx Xxxxxxxxx who acknowledged that he executed the above instrument.
/s/ Xxxxx Xxxxxxx-Xxxxxxxx
----------------------------
Notary Public
BEACON LIGHT MINIMG COMPANY
MEETING OF SHAREHOLDERS
At a special meeting of the stockholders of Beacon Light Mining Company
which was held at the law offices of Verdiramo & Verdiramo, P.A., 0000 Xxxxxxx
Xxxxxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx on February 16, 1998 at 9:00 a.m. eastern
standard time the following items were discussed and adopted:
1. Stockholder proxies representing 2,335,420 shares were represented at the
hearing thereby constituting a majority. The stockholders all approved the
three (3) items on the agenda which are as follows:
a. Approval of the change of domicile from Idaho to Nevada.
b. Approval of a new class of stock of preferred, convertible to $1.00 per
share of common stock, carrying a coupon of 8 percent.
c. Approval of the name change to Beacon Light Holding Corporation.
There being no further business before the special meeting, the meeting was
adjourned.
/s/Xxxxx Xxxxxxxxx
-------------------
XXXXX XXXXXXXXX. Director and Secretary
Exhibit A
99
