AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT (the "Plan") is made this 30th day of November, 1993,
between G & L ENERGY, INC., a corporation incorporated under the laws of the
State of Utah ("G&L"), GRAPHITE MOUNTAIN, INC., an Ontario, Canada
corporation ("GRAPHITE"), and the shareholders of GRAPHITE whose beneficial
ownership is represented by Mr. A. Xxxxx Xxxxxxx as Attorney in Fact and are
collectively hereinafter referred to as the "Shareholders".
G&L wishes to acquire all the issued and outstanding stock of GRAPHITE in
exchange for stock of G&L in a stock for stock transaction.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, IT IS AGREED:
SECTION 1
Terms of Exchange
1.1 Number of Shares. Upon the execution hereof, the Shareholders
of GRAPHITE agrees to assign, transfer, and deliver to G&L, free and clear of
all liens, pledges, encumbrances, charges, restrictions or known claims of any
kind, nature or description all their shares of GRAPHITE stock which
constitutes all of the issued and outstanding shares of GRAPHITE aggregating
Five-Million-Four-Hundred-Thirty-Three-Thousand-Three-Hundred-Thirty-Three
(5,433,333) common shares, and G&L agrees to acquire such shares on the date
hereof, or as soon as practicable thereafter, by issuing and delivering in
exchange therefore solely common shares of G&L's stock, par value $0.001, in
the aggregate of Sixteen-Million-Eight-Hundred-Thousand (16,800,000) shares,
as subject to the provisions of this Plan which shall represent as a result
thereof, approximately 94% of the then issued and outstanding shares of G&L.
Subsequent to the date hereof, the Shareholders shall, upon the surrender of
the GRAPHITE certificates representing their respective beneficial and record
ownership of all of the issued and outstanding shares of GRAPHITE to G&L, as
soon as practicable hereafter, the Shareholders shall be entitled to receive a
certificate(s) evidencing shares of the exchanged G&L stock as provided for
herein. Upon the consummation of the transaction contemplated herein, G&L
shall be the beneficial and record owner of all of the issued and outstanding
stock of GRAPHITE.
1.2 Further Assurances. Subsequent to the execution hereof, and
from time to time thereafter, the Shareholders shall execute such additional
instruments and take such other action as G&L may request in order to more
effectively sell, transfer and assign clear title and ownership in the
GRAPHITE shares to G&L.
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SECTION 2
Closing
The Closing contemplated by Section 1.1 shall be held at the office of
Xxxxxx X. Xxxxxxx, Esq., at the hour of 3:00 P.M., Mountain Time, on November
30, 1993, whose address is 0000 Xxxxx Xxxxxxxx Xx., Xxxxx 000, Xxxx Xxxx
Xxxx, Xxxx, 00000, or in any event no later than December 31, 1993, unless
another place or time is agreed upon in writing by the parties. The Closing
may also be accomplished by wire, express mail or other courier service,
conference telephone communications or as otherwise agreed by the respective
parties or their duly authorized representatives.
SECTION 3
Representations, Warranties and Covenants of G&L
G&L represents and warrants to, and covenants with, the Shareholders and
GRAPHITE as follows:
3.1 Corporate Status. G&L is a corporation duly organized, validly
existing and in good standing under the laws of the State of Utah,
incorporated on the 5th day of January, 1954.
3.2 Capitalization. The authorized capital stock of G&L as of the
Closing Date consists of 50,000,000, par value of $0.001. As of the date
hereof there are 999,000 common shares of G&L issued and outstanding. The
foregoing shares constitute fully paid, non-assessable shares. There are no
outstanding options, warrants, or calls or any understandings, agreements,
commitments, contracts or promises with respect to the issuance of G&L's
common stock or with regard to any option, warrants or other contractual
rights to acquire any of G&L's authorized but unissued common shares.
3.3 Financial Statements. G&L hereby warrants and covenants to
GRAPHITE that the audited balance sheets of G&L for its years ended December
31, 1992, and 1991, and for interim period ended May 31, 1993, and the
related statements of operations, stockholders' equity, and cash flows for the
periods then ended, together with the notes for such periods, have been
prepared by G&L's certified public accountants and have been prepared in
accordance with the generally accepted accounting principles, consistently
applied throughout the periods involved. G&L further warrants and represents
that it can deliver balance sheets for its years ended December 31, 1985
through December 31, 1989.
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3.4 Litigation. There are no material actions, suits, or
proceedings pending or, to best knowledge of G&L, threatened by or against or
affecting G&L at law or in equity, or before any governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind;
G&L does not have any knowledge of any default on its part with respect to
any judgement, order, writ, injunction, decree, warrant, rule, or regulation
of any court, arbitrator, or governmental agency or instrumentality.
3.5 Books and Records. From the date hereof, and for any
reasonable period subsequent thereto, G&L and its present Management will (i)
give to the Shareholders and GRAPHITE or their duly authorized representatives
full access during normal business hours to all of its books, records,
contracts and other corporate documents and properties so that the
Shareholders and GRAPHITE or their duly authorized representatives may inspect
and audit them; and (ii) furnish such information concerning the properties
and affairs of G&L as the Shareholders and GRAPHITE or their duly authorized
representatives may reasonably request. Any such request to inspect G&L's
books and records should be directed to G&L's President, Xx. Xxxxxx Xxxxxx, at
G&L's offices located at 2220 East 0000 Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx,
Xxxx, XXX 000000.
3.6 Confidentiality. Until the Closing (and thereafter if
there is no Closing), G&L and its representatives will keep confidential any
information which they obtain from the Shareholders or from GRAPHITE
concerning its properties, assets and the proposed business operations of
GRAPHITE. If the terms and conditions of this Plan imposed on the parties
hereto are not consummated on or before 5:00 pm MST on December 31, 1993 or
otherwise waived or extended in writing to a date mutually agreeable to the
parties hereto, G&L will return to GRAPHITE all written matter with regard to
GRAPHITE obtained in connection with the negotiation or consummation of this
Plan.
3.7 Conflict with Other Instruments. The transactions
contemplated by this Plan will not result in the breach of any term or
provision of, or constitute a default under any indenture, mortgage, deed of
trust, or other material agreement or instrument to which G&L was or is a
party, or to which any of its assets or operations are subject, and will not
conflict with any provision of the Articles of Incorporation or Bylaws of G&L.
3.8 Corporate Authority. G&L has full corporate power and authority
to enter into this Plan and to carry out its obligations hereunder and will
deliver to the Shareholders and GRAPHITE, or their respective representatives,
at the Closing a certified copy of resolutions of its Board of Directors
authorizing execution of this Plan by its officers and performance thereunder.
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3.9 Special Meeting of Shareholders. G&L hereby warrants and
represents that it has called a Special Meeting of the Shareholders of G&L to
be held on November 30, 1993, at 11:00 A.M. MST at the Red Lion Hotel, 000
Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, for the purposes of ratifying
and adopting the within Plan, and to further adopt resolutions enabling G&L
(i) to change the name of G&L to DIAMOND LAKE MINERALS, INC.; (ii) to elect A.
Xxxxx Xxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxx Xxxx as members of G&L's Board of
Directors to serve until G&L's next Annual Meeting or until their successors
are duly elected and qualified; (iii) to adopt and ratify an Agreement and
Plan of Reorganization as between G&L and GRAPHITE; and (iv) to transact any
other business which may properly come before the Meeting.
3.10 Resignation of Directors. At the Closing, the current
Directors of G&L will submit their resignations as directors, seriatim, and
A. Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx and Xxxxx Xxxx, will be appointed as
Directors to fill the vacancies created thereby.
3.11 Special Covenants and Representations Regarding the Exchanged
G&L Stock. The consummation of this Plan and the transactions herein
contemplated include the issuance of the exchanged G&L shares to the
Shareholders, which constitutes an offer and sale of securities under the
Securities Act of 1933, as amended, and applicable states securities laws, if
any. Such transaction shall be consummated in reliance on exemptions from the
registration and prospectus delivery requirements of such statutes which
depend interalia on the circumstances under which the Shareholders acquire
such securities.
SECTION 4
Representations, Warranties and Covenants of GRAPHITE
and the Shareholders
GRAPHITE and the Shareholders (to their best knowledge, information and
belief) represent and warrant to, and covenant with, G&L as follows:
4.1 GRAPHITE Shares. The Shareholders are the beneficial owners of
all of the issued and outstanding shares of GRAPHITE, of whatever class or
series, and warrants and covenants it has full right, title and interest in
and to the same, free and clear of any encumbrances, liens or adverse claims
of whatever kind or nature.
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4.2 Corporate Status. GRAPHITE is a corporation duly organized,
validly existing and in good standing under the laws of Ontario, Canada.
4.3 Capitalization. GRAPHITE has no maximum on the number of common
shares it is authorized to issue; its current issued and outstanding consists
5,433,333 shares of common stock with all of which are owned beneficially by
the Shareholders.
4.4 Financial Statements. GRAPHITE hereby represents, warrants and
covenants that the financial condition of GRAPHITE as represented by GRAPHITE
both orally and in writing, is a true and correct representation of the
financial condition of GRAPHITE, and that when the books and records of
GRAPHITE are audited, the audited financial statements shall not differ in
any material way with the representations heretofore made by GRAPHITE to G&L.
GRAPHITE hereby acknowledges its understanding that, as a condition precedent
to the Closing, that GRAPHITE shall have its books and records audited for
submission to G&L's independent public accountants in order that the be same
ready for consolidation as of the Closing Date, but in any event, no later
than thirty days from the Date of Closing, unless otherwise agreed to in
writing by the parties. GRAPHITE further certifies that the audited balance
sheet of GRAPHITE, shall reflect an approximate minimum of $ 1,000,000
(Canadian) in assets, and $ 180,000 (Canadian) in liabilities.
4.5 Undisclosed Liabilities. As of the date hereof, GRAPHITE has no
material or contingent liabilities of any nature, whether accrued, absolute,
or otherwise, except as disclosed to G&L.
4.6 Title to Property. GRAPHITE has good and marketable title to
all of its properties and assets, real and personal, proprietary or otherwise,
as will be reflected in the balance sheets of GRAPHITE, and the properties and
assets of GRAPHITE are subject to no mortgage, pledge, lien or encumbrance.
4.7 Litigation. There are no actions, suits, or proceedings pending
or, to best the knowledge of GRAPHITE, threatened by or against or affecting
GRAPHITE at law or in equity, or before any governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind;
GRAPHITE does not have any knowledge of any default on its part with respect
to any judgement, order, writ, injunction, decree, warrant, rule, or
regulation of any court, arbitrator, or governmental agency or
instrumentality.
4.8 Books and Records. From the date hereof, and for such
reasonable period thereafter as may be deemed appropriate, GRAPHITE will (i)
give to G&L or its duly authorized representatives full access during normal
business hours to all of its offices, books, records, contracts and other
corporate documents and properties so
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that G&L or its duly authorized representatives may inspect and audit them;
and (ii) furnish such information concerning the properties and affairs of
GRAPHITE as G&L or its duly authorized representatives may reasonably request,
including, but not limited to, all information on GRAPHITE's chief asset, the
mining rights to 41 unpatented mining claims, located in Xxxxxxx Xxxxxxxx,
Xxxxxxx, Xxxxxx, which claims contain a high concentration of graphite and
graphite associated minerals. A list of the foregoing claims is attached
hereto as Exhibit A, and incorporated herein by reference.
4.9 Confidentiality. Prior to the date of Closing (and continuously
if there is no Closing), GRAPHITE and the Shareholders and their duly
authorized representatives will keep confidential any information which they
obtain from G&L concerning its assets, liabilities, and business affairs. If
the transactions contemplated by this Plan are not consummated on or before
5:00 pm MST on December 31, 1993, or some other mutually agreed upon date,
GRAPHITE and the Shareholders agree to return to G&L all written matter with
respect to G&L obtained by them in connection with the negotiation or
consummation of this Plan.
4.10 Acquisition of Shares. The Shareholders represent and covenant
that they are acquiring the unregistered common shares of G&L to be delivered
to them under this Plan for through one or more exemptions as provided for
under the Securities Act of 1933, as amended, including the exemption provided
thereunder by Regulation D, Rule 504.
4.11 Title to Shares. The Shareholders are the beneficial and
record owners, free and clear of any liens and encumbrances, of whatever kind
or nature, of all of the shares of GRAPHITE of whatever class or series, which
the Shareholders has contracted to exchange.
SECTION 5
Special Covenants
5.1 GRAPHITE Information Incorporated in G&L's Reports. GRAPHITE
represents and warrants to G&L that all the information furnished under this
Plan shall be true and correct in all material respects and that there is no
omission of any material fact required to make the information stated not
misleading. GRAPHITE agrees to indemnify and hold G&L harmless, including each
of its Directors and Officers, and each person, if any, who controls such
party, under any applicable law from and against any and all losses, claims,
damages, expenses or liabilities to which
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any of them may become subject under applicable law, or reimburse them for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such actions, whether or not resulting in
liability, insofar as such losses, claims, damages, expenses, liabilities, or
actions arise out of or are based on any untrue statement, alleged untrue
statement, or omission of a material fact contained in such information
delivered hereunder.
5.2 Action Subsequent to Closing. Upon the execution hereof,
GRAPHITE will: (i) perform all of its obligations under material contracts,
leases, insurance policies, royalty contracts, and or documents relating to
its assets and business; (ii) use its best efforts to maintain and preserve
its business organization intact, to retain its key employees, and to maintain
its relationship with existing potential customers and clients; and (iii)
fully comply with and perform in all material respects all obligations and
duties imposed on it by the Ontario Department of Northern Affairs & Mines,
including, but not limited to keeping the assessment of GRAPHITE's 41 claims
up to date, and continue to do any all things necessary and requisite for the
actual commencement of mining operations on the claims set forth in Exhibit A
attached hereto and incorporated herein by reference and more particularly
described in the Report on Exploration Activities and Geological Compilation
report prepared for GRAPHITE by MDX GeoServices of Bridgenorth, Ontario.
SECTION 6
Conditions Precedent to Obligations of GRAPHITE
and the Shareholders
All obligations of GRAPHITE and the Shareholders under this Plan are
subject to the satisfaction, on or before the Closing Date, except as
otherwise provided for herein, or waived or extended in writing by the parties
hereto, of the following conditions:
6.1 Accuracy of Representations. The representations and warranties
made by G&L in this Plan were true when made and shall be true as of the
Closing Date (except for changes therein permitted by this Plan) with the same
force and effect as if such representations and warranties were made at and as
of the Closing Date; and, G&L shall have performed and complied with all
covenants and conditions required by this Plan to be performed and complied
with by G&L prior to or at the Closing, unless waived or extended in writing
by the parties hereto. GRAPHITE shall have been furnished with a certificate,
signed by a duly authorized executive officer of G&L and dated the Closing
Date, to the foregoing effect.
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6.2 Officers' Certificate. GRAPHITE and the Shareholders shall
have been furnished with a certificate dated the Closing Date and signed by a
duly authorized executive officer of G&L, to the effect that no litigation,
proceeding, investigation, or inquiry is pending, or to the best knowledge of
G&L, threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Plan, or which might
result in any material adverse change in the assets, properties, business, or
operations of G&L.
6.3 No Material Adverse Change. Prior to the Closing Date, there
shall have not occurred any material adverse change in the financial
condition, business, or operations of G&L, nor shall any event have occurred
which, with lapse of time or the giving of notice or both, may cause or create
any material adverse change in the financial condition, business or operations
of G&L, except as otherwise disclosed to GRAPHITE.
6.4 Accuracy of Financial Information and Completion of Audited
Financial Statements. That the audited financial statements dated December
31, 1992, and 1991 and for the interim period dated May 31, 1993, accurately
represent the financial condition of G&L for that same period, and that no
material adverse change shall have occurred during that interim period through
the Date of Closing.
6.5 Opinion of Counsel of G&L. G&L shall furnish to GRAPHITE and
the Shareholders an opinion dated as of the Closing Date and in form and
substance satisfactory to GRAPHITE and the Shareholders to the effect that:
(a) G&L is a corporation duly organized, validly existing, and in
good standing under the laws of the State of Utah with all requisite corporate
power to perform its obligations under this Plan;
(b) the business of G&L, as presently conducted, including the
upon the consummation hereof, the ownership of all of the issued and
outstanding shares of GRAPHITE, does not require it to register it to register
it as a foreign corporation in any jurisdiction other than under the
jurisdiction of the State of Utah, USA. G&L is not in violation of any
provision of its Articles of Incorporation or Bylaws and G&L has complied to
the best of its knowledge in all material respects with all the laws,
regulations, licensing requirements and orders applicable to its business
activities and has filed with the proper authorities, including the Department
of Commerce, Corporations Division, State of Utah, all statements and reports
required to be filed.
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(c) the authorized and outstanding capital stock of G&L as set
forth in Section 3.2 above, and all issued and outstanding shares have been
duly and validly authorized and issued and are fully paid and non-assessable;
(d) there are no material claims, suits or other legal proceedings
pending or threatened against G&L of any court or before or by any
governmental body which might materially affect the business of G&L or the
financial condition of G&L as a whole and no such claims, suits, or legal
proceedings are contemplated by governmental authorities against G&L;
(e) G&L's initial public distribution of its common stock, sold
pursuant to a prospectus, which was granted an effective date by the United
States Securities Exchange Commission on February 25, 1972, was done in
accordance and in compliance with the rules and regulations as promulgated
under the Securities Act of 1933, as amended, (the "Act"), and complies with
the federal exemption from the registration provisions of the Act, as provided
therefor, and in compliance with the rules and regulations as promulgated by
the Securities Division of the State of Utah in which the public distribution
was made. Subsequent to the termination of its public offering, no stop
orders suspending the effectiveness of the distribution is or was in effect,
and no proceeding since the termination thereof for that purpose are pending
before or threatened by any state or federal agency or authority.
(f) G&L's common stock was distributed in compliance with an
exemption from the registration provisions as promulgated under Section 3(b)
of the Act, Regulation A, and represent and warrant, in connection therewith,
that the shares of common stock distributed pursuant to the foregoing
exemption are now freely tradeable in the over-the-counter market except as to
common shares of G&L beneficially owned by any "controlling person" of G&L or
any "affiliate" thereof, as those terms are defined under the Act.
(g) to the best knowledge of such counsel, the consummation of
the transactions contemplated by this Plan will not violate or contravene the
provisions of the Articles of Incorporation or Bylaws of G&L, or any contract,
agreement, indenture, mortgage, or order by which G&L is bound; and
(h) this Plan constitutes a legal, valid and binding obligation
of G&L enforceable in accordance with its terms, subject to the affect of any
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bankruptcy, insolvency, reorganization, moratorium, or similar law affecting
creditors' rights generally and general principles of equity (regardless of
whether such principles are considered in a proceeding in equity or law).
(i) the execution and delivery of this Plan and the consummation
of the transactions contemplated hereby have been ratified by the shareholders
of G&L and have been duly authorized by its Board of Directors.
6.6 Other Items. GRAPHITE and the Shareholders shall have received
such further documents, certificates or instruments relating to the
transactions contemplated hereby as GRAPHITE and the Shareholders may
reasonable request.
SECTION 7
Conditions Precedent to Obligations of G&L
All obligations of G&L under this Plan are subject, at its option, to the
fulfillment, before or at the Closing, of each of the following conditions:
7.1 Accuracy of Representations. The representations and
warranties made by GRAPHITE and the Shareholders under this Plan 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 and as of the Closing
Date (except for changes therein permitted by this Plan), and GRAPHITE and the
Shareholders shall have performed or complied with all covenants and
conditions required by this Plan prior to or at Closing. G&L shall have been
furnished with a certificate(s), signed by duly authorized officers of
GRAPHITE and the Shareholders and dated the Closing Date, to the foregoing
effect.
7.2 Officers' Certificate. G&L shall have been furnished with a
certificate dated the Closing Date and signed by a duly authorized executive
officer of GRAPHITE to the effect that no litigation, proceeding,
investigation, or inquiry is pending, or to the best knowledge of GRAPHITE,
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Plan, or which might
result in any material adverse change in the assets, properties, business, or
operations of GRAPHITE.
7.3 No Material Adverse Change. Prior to the Closing Date, there
shall have not occurred any material adverse change in the financial
condition, business, or operations of GRAPHITE, nor shall any event have
occurred which, with lapse of time
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or the giving of notice or both, may cause or create any material adverse
change in the financial condition, business or operations of GRAPHITE.
7.4 Opinion of Counsel as of Closing Date. An opinion of counsel
shall be provided to G&L by counsel for GRAPHITE representing that:
(a) GRAPHITE is duly incorporated, validly existing and in good
standing under the laws of Ontario, Canada;
(b) GRAPHITE holds all requisite power and authority to own its
properties and carry on its business as conducted on the Closing Date;
(c) the authorized and outstanding capital of GRAPHITE as set
forth in Section 4.3 above and all issued and outstanding shares of its
capital stock have been duly and validly authorized and issued, and are fully
paid and non-assessable;
(d) the Shareholders are the beneficial and registered owners of
GRAPHITE's issued and outstanding securities according to the books and
records;
(e) to the best knowledge and belief of counsel, no options,
warrants or other rights to acquire shares are outstanding with respect to the
shares of capital stock of GRAPHITE.
(f) this Plan has been duly and validly authorized, executed, and
delivered by GRAPHITE and constitutes the legal and binding obligation of
GRAPHITE, subject to effect of any bankruptcy, insolvency, reorganization,
moratorium, or similar law affecting creditors' rights generally, and general
principles of equity, (regardless of whether such principles are considered a
proceeding in equity or law);
(g) except as otherwise disclosed to G&L or as set forth in this
Plan, such counsel does not have knowledge of any litigation, proceeding, or
governmental investigation threatened against or relating GRAPHITE or its
properties and business or against or relating to the transactions
contemplated by this Plan.
7.5 Other Items. G&L shall receive further documents, certificates,
or instruments relating to the transactions contemplated hereby as G&L may
reasonably request.
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SECTION 8
Termination
8.1 Termination by GRAPHITE or the Shareholders. This Plan may be
terminated at any time prior to the Closing Date by action of the GRAPHITE or
the Shareholders, if G&L shall fail to comply in any material respect with any
of the covenants or agreements contained in this Plan or if any of its
representations and warranties contained herein shall be inaccurate in any
material respect.
8.2 Termination by G&L. This Plan may be terminated at any time
prior to the Closing Date by any action of the Board of Directors of G&L if
either the Shareholders or GRAPHITE shall fail to comply in any material
respect with any of the covenants and agreements contained in this Plan or if
any of its representations and warranties contained herein shall be
inaccurate in any material respect.
8.3 Termination by Mutual Consent. This Plan may be terminated at
any time prior to the Closing Date by mutual consent of G&L, expressed by
action of its Board of Directors, GRAPHITE, or its sole Shareholders, the
Shareholders.
If this Plan is terminated pursuant to Section 8, this Plan shall be of
no further force and effect and no obligation, right or liability shall arise
hereunder. Each party shall bear its own costs in connection herewith.
SECTION 9
General Provisions
9.1 Further Assurances. At any time, and from time to time, after
the Closing, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the
intent and purposes of this Plan.
9.2 Payments of Estimated Costs and Fees. As G&L and GRAPHITE may
mutually determine, G&L and GRAPHITE agree, at their expense, to divide and
pay the estimated costs and fees incurred in connection with the execution and
consummation of the Plan all the parties hereto.
9.3 Press Release and Shareholders Communications. On the Date of
Closing, or as soon thereafter as practicable, G&L, GRAPHITE, and the
Shareholders
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shall cause to have promptly prepared and disseminated a news release
concerning the execution and consummation of the Plan, such press release and
communication to be released promptly and within the time required by the
laws, rules and regulations as promulgated by the United States Securities
and Exchange Commission, and concomitant therewith to cause to be prepared a
full and complete letter to G&L's shareholders which shall contain information
required by Regulation 240.14f-1 as promulgated under section 14(f) as
mandated under the Securities and Exchange Act of 1934, as amended.
9.4 Notices. All notices and other communications required or
permitted hereunder shall be sufficiently given if personally delivered to its
of sent by registered mail, or certified mail, return receipt requested,
postage prepaid, or by prepaid telegram addressed as follows:
If to G&L, to: G&L ENERGY, INC.
0000 Xxxx 0000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
With a copy to: _______________________________
________________________________
________________________________
If to GRAPHITE, to: GRAPHITE MOUNTAIN, INC.
X.X. Xxx 000
Xxxxxxxxx, Xxxxxxx, XXXXXX X0X 0X0
If to the Shareholders: C/O A. Xxxxx Xxxxxxx
same address as above
With a copy to: Xxxxxx X. Xxxxxxx, Esq.
0000 Xx. Xxxxxxxx Xx., Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
or at such other addresses as shall be furnished in writing by any party in
the manner for giving notices hereunder, and any such notice or communication
shall be deemed to have been given as of the date so delivered, mailed, sent
by facsimile transmission, or telegraphed.
9.5 Entire Agreement. This Plan represents the entire agreement
between the parties relating to the subject matter hereof, including any
previous letters of intent, understandings, or agreements between G&L,
GRAPHITE and the Shareholders with
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respect to the subject matter hereof, all of which are hereby merged into this
Plan, which alone fully and completely expresses the agreement of the parties
relating to the subject matter hereof. There are no other courses of dealing,
understandings, agreements, representations, or warranties, written or oral,
except as set forth herein.
9.6 Governing Law. This Plan shall be governed by and construed and
enforced in accordance with the laws of the State of Utah.
9.7 Tax Treatment. GRAPHITE and G&L acknowledge that each are being
by their own tax advisors in connection with this transaction, and neither has
made any representation or warranties to the other with respect to treatment
of such transaction or any part or effect thereof under applicable tax laws,
regulations, or interpretations; and no attorney's opinion or tax revenue
ruling has been obtained with respect to the tax consequences under the
hereunder.
9.8 Attorney's Fees. In the event that any party prevails in any
action or suit to enforce this Plan, or secure relief from any default
hereunder or breach hereof, the non-prevailing party or parties shall
reimburse the prevailing party or parties for all costs, including reasonable
attorney's fees, incurred in connection therewith.
9.9 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 or separately,
and no waiver by any party of the performance of any obligation by the other
shall be construed as a waiver of the same or any other default then,
theretofore, or thereafter occurring or existing. Any time prior to the
expiration of thirty (30) days from the date hereof, this Plan may be amended
by a writing signed by all parties hereto, with respect to any of the terms
contained herein, and any term or condition of this Plan may be waived or the
time for performance thereof may be extended by a writing signed by the party
or parties for whose benefit the provision is intended.
9.10 Counterparts. This Plan may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.11 Headings. The section and subsection headings in this Plan are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Plan.
9.12 Parties in Interest. Except as may be otherwise expressly
provided herein, all terms and provisions of this Plan shall be binding upon
and inure to the benefit of
G & L Energy, Inc./Graphite Mountain, Inc.
AGREEMENT AND PLAN
Page 15
the parties hereto and their respective heirs, beneficiaries, personal and
legal representatives, and assigns.
IN WITNESS WHEREOF, the parties have executed this Plan and Agreement of
Reorganization effective the day and year first above written.
G&L ENERGY, INC.
By: /s/ Xxxxxx X. Xxxxxx Attest: /s/ Xxxx Xxxxxxx
--------------------------- ----------------------------
Xxxxxx X. Xxxxxx, President Xxxx Xxxxxxx, Asst. Secretary
GRAPHITE MOUNTAIN, INC.
By: /s/ A. Xxxxx Xxxxxxx Attest: /s/ X. Xxxxxxxxx
--------------------------- -----------------------------
A. Xxxxx Xxxxxxx, President
The Shareholders:
By: /s/A. Xxxxx Xxxxxxx Attest: /s/ X. Xxxxxxxxx
---------------------------
A. Xxxxx Xxxxxxx
Attorney-in-Fact
