EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
by and among
Xxxxxxx Xxx, Inc.
a Nevada corporation
and
Silicon Film Technologies, Inc., a Illinois corporation
effective as of January 8, 2004
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION, is made and entered into this
8th day of January, 2004, by and between Xxxxxxx Xxx, Inc., a Nevada corporation
("Voyager") and Silicon Film Technologies, Inc., a Illinois corporation
("Silicon"), and certain shareholders of Silicon listed on the attached Schedule
I ("Silicon Shareholders"), and specifically incorporated herein by reference
(Silicon and Silicon Shareholders shall be hereinafter jointly referred to as
"Silicon Parties").
PREMISES
A. This Agreement provides for the reorganization of Silicon with and into
Voyager, with Silicon becoming a wholly-owned subsidiary of Voyager, and in
connection therewith, the exchange of the outstanding common stock of Silicon
into shares of common voting stock of Voyager, all for the purpose of effecting
a tax-free reorganization pursuant to sections 351, 354 and 368(a)(1)(B) of the
Internal Revenue Code of 1986, as amended ("IRC"). On the terms and conditions
set forth herein, the parties hereby adopt the Plan of Reorganization embodied
in this Agreement.
B. The boards of directors of Silicon and Voyager have determined, subject
to the terms and conditions set forth in this Agreement, that the exchange
contemplated hereby, as a result of which Silicon would become a wholly owned
subsidiary of Voyager 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
SILICON AND SILICON SHAREHOLDERS
Silicon and each of Silicon Shareholders, individually and neither jointly
nor severally, represents and warrants to Voyager, except as disclosed in this
Agreement or in the case of any representation qualified by its terms to a
particular Schedule, as hereinafter defined, of Silicon attached hereto, that
the statements made in this Article I will be correct and complete at the
Effective Date, as hereinafter defined, provided, however, if there is no
Effective Date, then no party shall be liable for any inaccuracy.
SECTION 1.1 SHAREHOLDERS. Each of the Silicon Shareholders is the owner of
all of the issued and outstanding shares of the capital stock of Silicon
attributed to such Shareholder on Schedule I; each Silicon Shareholder has full
legal title to all Silicon Shares described in Schedule I as being owned by such
Silicon Shareholder free from any and all claims, liens or other encumbrances.
Silicon Shareholders have the unqualified right to sell, transfer, and dispose
of their respective Silicon Shares subject to the applicable securities laws and
the laws of bankruptcy, insolvency and general creditors' rights. Each Silicon
Shareholder represents and warrants that, in regards to such Silicon
Shareholder's shares of Silicon, such Silicon Shareholder has full right and
authority to execute this Agreement and to transfer his shares of Silicon to
Voyager.
SECTION 1.2 ORGANIZATION. Silicon is a corporation duly organized, validly
existing, and in good standing under the laws of Illinois 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 jurisdiction in which the character and location of
the assets owned by it or the nature of the business transacted by it requires
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qualification. Included in the Silicon Schedules (as hereinafter defined) are
complete and correct copies of the articles of incorporation, bylaws and
amendments thereto of Silicon 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 Silicon's articles of incorporation or bylaws. Silicon
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 1.3 CAPITALIZATION. The authorized capitalization of Silicon
consists of seventy five (75) million Class A Common Stock shares, no par value
per share (the "Silicon Class A Shares"), and five (5) million Class B Common
Stock shares (the "Silicon Class B Shares")(Silicon Class A Shares and Silicon
Class B Shares may be collectively referred to as "Silicon Common Shares"), no
par value per share. As of the date of this Agreement, 68,779,200 of the
authorized Class A Shares are issued and outstanding, and 5,000,000 of the Class
B Shares are issued and outstanding. Each share of Silicon Class B Shares is
convertible into one (1) share of Silicon Common A Shares, however, each share
of Class B Shares is entitled to one hundred (100) votes. 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. Except as
may be disclosed in Silicon Schedules, Silicon has no other securities, warrants
or options authorized or issued.
SECTION 1.4 SUBSIDIARIES AND PREDECESSOR CORPORATIONS. Except as otherwise
set forth in the Silicon Schedules, Silicon does not have any other subsidiaries
and does not own, beneficially or of record, any shares of any other
corporation. For purposes herein, all references to Silicon shall include
Silicon and all of its subsidiaries.
SECTION 1.5 FINANCIAL INFORMATION.
(a) Attached hereto as Schedule 1.5 are unaudited financial
statements from the inception of Silicon until June 30, 2003 (the
"Silicon Financial Statements").
(b) Silicon has no liabilities with respect to the payment of any
federal, state, county, local or other taxes (including any
deficiencies, interest or penalties), except for taxes accrued but not
yet due and payable;
(c) Silicon has filed all state, federal and local income tax
returns, including extensions of such tax returns, if any, required to
be filed by it from inception to the date hereof, if any;
(d) The books and records, financial and others, of Silicon 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 herein and the Silicon
Schedules, Silicon has no material contingent liabilities, direct or
indirect, matured or unmatured.
SECTION 1.6 INFORMATION. The information concerning Silicon set forth in
this Agreement and in the Silicon Schedules to the best of Silicon's knowledge,
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.
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SECTION 1.7 OPTIONS AND WARRANTS. Except as may otherwise be disclosed
herein on Schedule 1.7, there are no existing options, warrants, calls or
commitments of any character to which Silicon is a party and by which it is
bound. Pursuant to the existing option agreements (see Schedule 1.7 Options),
appropriate adjustments shall be made in the number of shares for which such
options May be exercised based upon the exchange rate at which each share of
common stock Silicon shall be exchanged for certain number of shares of Voyager
(see Section 3.2 of this Agreement).
SECTION 1.8 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth in
this Agreement, the Silicon Schedules, or as otherwise disclosed to Voyager,
since June 30, 2003:
(a) there has not been: (i) any material adverse change in the
business, operations, properties, assets or condition of Silicon; or
(ii) any damage, destruction or loss to Silicon (whether or not
covered by insurance) materially and adversely affecting the business,
operations, properties, assets or condition of Silicon;
(b) Silicon 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 Silicon; (iv) made any material change in
its method of management, operation or accounting other than in its
ordinary course of business; (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 pay to any present or former officer or employee; (vii)
increased the rate of compensation; 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) Silicon 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 contin gent) 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 Silicon 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 Silicon; 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 Silicon, 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 Silicon.
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SECTION 1.9 TITLE AND RELATED MATTERS. Except as provided herein or in the
Silicon Schedules, Silicon 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 including technical information, copyrights,
trademarks, service marks and tradenames (collectively, the "Assets") which are
reflected in the Silicon 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 subject thereto or affected thereby or otherwise materially
impair present business operations on such properties; and (c) as described in
the Silicon Schedules. Except as set forth in the Silicon Schedules, Silicon
owns free and clear of any liens, claims, encumbrances, royalty interests or
other restrictions or limitations of any nature whatsoever, any and all products
it is currently manufacturing, including the underlying technology and data, and
all procedures, techniques, marketing plans, business plans, methods of
management or other information utilized in connection with Silicon's business.
Except as set forth in the Silicon Schedules, no third party has any right to,
and Silicon 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 Silicon or any
material portion of its properties, assets or rights.
SECTION 1.10 LITIGATION AND PROCEEDINGS. To the best of Silicon's knowledge
and belief, there are no actions, suits, proceedings or investigations pending
or threatened by or against Silicon or affecting Silicon 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 Silicon. Silicon 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 1.11 CONTRACTS.
(a) Except as included or described in the Silicon Schedules,
there are no material contracts, agreements, franchises, license
agreements or other commitments to which Silicon 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 Silicon Schedules or
reflected in the most recent Silicon balance sheet, Silicon 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 Silicon 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 Silicon; or (viii) contract, agreement or other commitment
involving payments by it of more than $10,000 in the aggregate; and
(c) To Silicon's knowledge, all contracts, agreements,
franchises, license agreements and other commitments to which Silicon
is a party or by which its properties are bound and which are material
to the operations of Silicon taken as a whole, are valid and
enforceable by Silicon in all respects, except as limited by
bankruptcy and insolvency laws and by other laws affecting the rights
of creditors generally.
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SECTION 1.12 MATERIAL CONTRACT DEFAULTS. Except as set forth in the Silicon
Schedules, to the best of Silicon's knowledge and belief, Silicon 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 Silicon, and there is no event of
default in any material respect under any such contract, agreement, lease or
other commitment in respect of which Silicon has not taken adequate steps to
prevent such a default from occurring.
SECTION 1.13 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 Silicon is a
party or to which any of its properties or operations are subject.
SECTION 1.14 GOVERNMENTAL AUTHORIZATIONS. To the best of Silicon's
knowledge and except as provided herein or in the Silicon Schedules, Silicon has
all licenses, franchises, permits or other governmental authoriza tions legally
required to enable Silicon 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 Silicon of this Agreement and the consummation by Silicon of the
transactions contemplated hereby.
SECTION 1.15 COMPLIANCE WITH LAWS AND REGULATIONS. To the best of Silicon's
knowledge, except as disclosed in the Silicon Schedules, Silicon 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 Silicon or would not result in Silicon's incurring any
material liability.
SECTION 1.16 INSURANCE. Except as disclosed on Schedule 1.16, Silicon has
no insurable properties and no insurance policies will be in effect at the
Closing Date, as hereinafter defined.
SECTION 1.17 APPROVAL OF AGREEMENT. The board of directors of Silicon has
authorized the execution and delivery of this Agreement by Silicon and has
approved the transactions contemplated hereby. The majority of Silicon's
shareholders approved the transactions contemplated hereby by the written
consent action.
SECTION 1.18 MATERIAL TRANSACTIONS OR AFFILIATIONS. Except as disclosed
herein and in the Silicon Schedules, there exists no material contract,
agreement or arrangement between Silicon 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 Silicon to own beneficially, ten percent
(10%) or more of the issued and outstanding Silicon 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 Silicon than terms
available from otherwise unrelated parties in arms length transactions. There
are no commitments by Silicon, 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 1.19 LABOR RELATIONS. Silicon has never had a work stoppage
resulting from labor problems. To the best knowledge of Silicon, no union or
other collective bargaining organization is organizing or attempting to organize
any employee of Silicon.
SECTION 1.20 PREVIOUS SALES AND ISSUANCE OF SECURITIES. Since inception,
Silicon has issued Silicon Common Shares in reliance upon applicable exemptions
from the registration requirements under the laws of the jurisdiction of
Illinois and other applicable state and federal securities laws, to the
shareholders listed on Schedule I. The shares of Silicon Common Stock issued to
the Silicon Shareholders are legally issued, fully paid and nonassessable and
are not issued in violation of the preemptive or other rights of any person.
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SECTION 1.21 REORGANIZATION RELATED REPRESENTATIONS.
(a) following the Effective Date, Silicon will continue its
historic business or use a significant portion of its historic
business assets in its business;
(b) Silicon is not an investment company as defined in section
368(a)(2)(F)(iii) and (iv) of IRC;
(c) Silicon is not under the jurisdiction of a court in a Title
11 or similar case within the meaning of Section 368(a)(3)(A) of the
IRC.
SECTION 1.22 SILICON SCHEDULES. Upon execution hereof, Silicon will deliver
to Voyager the following schedules, which are collectively referred to as the
"Silicon Schedules" and which consist of separate schedules dated as of the date
of this Agreement and instruments and data as of such date, 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 Silicon;
(b) the financial information of Silicon referenced hereinabove
in Section 1.5;
(c) a list indicating the name and address of the stockholders of
Silicon, together with the number of shares owned by them;
(d) the Silicon Business Plan which includes, among other
matters, information concerning all of Silicon's material licenses,
permits and other governmental authorizations, requests or
applications therefor, pursuant to which Silicon carries on or
proposes to carry on its business (except those which in the
aggregate, are immaterial to the present or proposed business of
Silicon), as well as a description of any material adverse change in
the business operations, property, inventory, assets or condition of
Silicon since the most recent Silicon balance sheet required to be
provided pursuant to Section 1.7; and
Silicon shall cause the Silicon Schedules and the instruments and data
delivered to Voyager hereunder to be updated after the date hereof up to and
including the Closing Date, as hereinafter defined.
SECTION 1.23 TAXES. Silicon has complied with applicable tax filing
requirements, if any.
SECTION 1.24 ADDITIONAL INFORMATION AVAILABLE. Silicon will make available
to Voyager the opportunity to ask questions and receive answers concerning
acquisition of Silicon shares in this transaction, and to obtain any additional
information related thereto which Silicon possesses or can acquire without
unreasonable effort or expense.
SECTION 1.25 LIMITATION ON LIABILITY. Notwithstanding anything to the
contrary contained in this Agreement, Silicon shall not have any liability for
any misrepresentation or breach of any representation or warranty contained in
this Article I, if Voyager has actual knowledge of such misrepresentation or
breach.
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ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
OF VOYAGER
As an inducement to, and to obtain the reliance of Silicon, Voyager
represents and warrants as follows:
SECTION 2.1 ORGANIZATION. Voyager 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 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 Voyager 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"), bylaws of Voyager as in effect on the date hereof
and a certificate of Good Standing. 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 Voyager's
articles of incorporation or bylaws. Voyager has taken all action required by
law, its articles of incorporation, its bylaws or otherwise to authorize the
execution and delivery of this Agreement. Voyager 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 Voyager
consists of 10 million shares of Common Stock, par value $0.0001 per share, of
which 777,600 shares are issued and outstanding, and 5 million shares of
Preferred Stock, $0.0001 par value, of which no shares are issued nor
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. Except as may be disclosed in Voyager Schedules, Voyager
has no other securities, warrants or options authorized or issued.
SECTION 2.3 SUBSIDIARIES. At the Closing, other than as disclosed herein,
Voyager shall own no securities or have any interest in any corporation,
partnership, or other form of business organization, including its current
subsidiaries.
SECTION 2.4 FINANCIAL STATEMENTS.
(a) Attached hereto as Schedule 2.4 are audited financial
statements for the years ended December 31, 2001 and December 31,
2002, and unaudited financial statements for the nine months period
ended September 30, 2003 together with the related footnotes and
report thereon of the auditors rendering such reports (the "Voyager
Financial Statements"). The Voyager Financial Statements are correct
and complete in all respects and fairly present, in accordance with
generally accepted accounting principles ("GAAP"), consistently
applied, the consolidated financial position of Voyager as of such
dates and the results of operations and changes in financial position
for such periods all in accordance with GAAP. The Voyager Financial
Statements comply with the requirements of Regulation S-X of the
Securities and Exchange Commission and the provisions of the
Securities Act of 1933 (the "1933 Act") and will be suitable for
inclusion in any subsequent filing with any state or federal
regulatory agency under the Securities Exchange Act of 1934 (the "1934
Act"). As of the date of this Agreement, Voyager does not have any
source of revenues. Accordingly, Voyager's independent public
accountant, issued an opinion in its Independent Auditor's Report for
the fiscal year ended December 31, 2002 questioning the ability of
Voyager to continue as a going concern. AN INVESTMENT IN VOYAGER
SHARES INVOLVES A HIGH DEGREE OF RISK. SILICON SHAREHOLDERS SHOULD
REVIEW AND CAREFULLY CONSIDER THE DISCLOSURE MATERIALS ATTACHED HERETO
AS EXHIBIT "A", INCLUDING THE RISK FACTORS CONTAINED THEREIN, PRIOR TO
EXECUTING THIS AGREEMENT;
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(b) The books and records, financial and others, of Voyager are
in all material respects complete and correct and have been maintained
in accordance with good business accounting practices;
(c) Voyager has no liabilities with respect to the payment of any
federal, state, county, local or other taxes, current or accrued
(including any deficiencies, interest or penalties);
(d) Voyager has filed or will file prior to the Closing all
state, federal and local income tax returns, including extensions of
such tax returns, if any, required to be filed by it from inception to
the date hereof, if any;
(e) except as and to the extent disclosed herein and the Voyager
Schedules, Voyager has no material contingent liabilities, direct or
indirect, matured or unmatured.
SECTION 2.5 INFORMATION. The information concerning Voyager as set forth in
this Agreement and in the Voyager Schedules, to the best of Voyager's knowledge,
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 OPTIONS AND WARRANTS. Except as May otherwise be disclosed
herein on Schedule 2.6, there are no existing options, warrants, calls or
commitments of any character to which Voyager is a party and by which it is
bound.
SECTION 2.7 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as described
herein or in the Voyager Schedules, since September 30, 2003:
(a) there has not been: (i) any material adverse change in the
business, operations, properties, assets or condition of Voyager; or
(ii) any damage, destruction or loss to Voyager (whether or not
covered by insurance) materially and adversely affecting the business,
operations, properties, assets or condition of Voyager;
(b) Voyager 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 Voyager; (iv) made any material change in
its method of management, operation or accounting other than in its
ordinary course of business; (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 pay to any present or former officer or employee; (vii)
increased the rate of compensation; 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) Except as disclosed to Silicon or as included in the Voyager
Schedules, Voyager 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
Voyager 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 Voyager; 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
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(d) to the best knowledge of Voyager, 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 Voyager.
SECTION 2.8 TITLE AND RELATED MATTERS. As of the Closing Date, Voyager will
own no real, personal or intangible property, other than as disclosed herein.
SECTION 2.9 LITIGATION AND PROCEEDINGS. There are no actions, suits or
proceedings pending or, to the best of Voyager's knowledge and belief,
threatened by or against or affecting Voyager, 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
Voyager. Voyager 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 2.10 CONTRACTS. On the Closing Date and other than as disclosed
herein in Schedule 2.9 or otherwise:
(a) There are no material contracts, agreements, franchises,
license agreements, or other commitments to which Voyager is a party
or by which it or any of its properties are bound;
(b) Voyager 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
Voyager can now foresee) materially and adversely affect, the
business, operations, properties, assets or conditions of Voyager; and
(c) Voyager 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 Voyager;
or (viii) contract, agreement, or other commitment involving payments
by it of more than $10,000 in the aggregate.
SECTION 2.11 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 Voyager is a
party or to which any of its properties or operations are subject.
SECTION 2.12 MATERIAL CONTRACT DEFAULTS. To the best of Voyager's knowledge
and belief, Voyager 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 Voyager, and
there is no event of default in any material respect under any such contract,
agreement, lease or other commitment in respect of which Voyager has not taken
adequate steps to prevent such a default from occurring.
SECTION 2.13 GOVERNMENTAL AUTHORIZATIONS. To the best of Voyager's
knowledge, Voyager 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 Voyager of the transactions contemplated hereby.
9
SECTION 2.14 COMPLIANCE WITH LAWS AND REGULATIONS. To the best of Voyager's
knowledge and belief, Voyager 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
Voyager or would not result in Voyager's incurring any material liability.
SECTION 2.15 INSURANCE. Voyager has no insurable properties and no
insurance policies will be in effect at the Closing Date, as hereinafter
defined.
SECTION 2.16 APPROVAL OF AGREEMENT. The board of directors of Voyager has
authorized the execution and delivery of this Agreement by Voyager and has
approved the transactions contemplated hereby. The approval of this Agreement by
Voyager's shareholders is not required.
SECTION 2.17 MATERIAL TRANSACTIONS OR AFFILIATIONS. Except as stated herein
or in the Voyager Schedules, as of the Closing Date there will exist no material
contract, agreement or arrangement between Voyager 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 Voyager to own beneficially, ten percent (10%) or
more of the issued and outstanding common stock of Voyager and which is to be
performed in whole or in part after the date hereof. Voyager has no commitment,
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 2.18 LABOR RELATIONS. Voyager has never had a work stoppage
resulting from labor problems. Voyager has no employees other than its officers
and directors.
SECTION 2.19 TAXES. (a) Except as provided in Schedule 2.19, Voyager has
timely filed or will file prior to the Closing (within the applicable extension
periods) with the appropriate governmental agencies all governmental tax
returns, information returns, tax reports and declarations which are monetary
liabilities. All governmental tax returns, information returns, tax reports and
declarations filed by Voyager for years for which the statute of limitations has
not run (the "Tax Returns") are or will be as of the Closing Date correct in all
material respects. Voyager has or will (as of the Closing Date) timely paid or
pay (or has collected and paid over in the case of sales, use or similar taxes)
all taxes, additions to tax, penalties, interest, assessments, deposits, and
other governmental charges imposed by law upon it or any of its properties,
tangible or intangible assets, income, receipts, payrolls, transactions,
capital, net worth and franchises, or upon the sale, use or delivery of any item
sold by the Company, other than as may be disclosed in the Schedule of Taxes.
Except as set forth in the Schedule of Taxes, no tax returns have been examined
by the Internal Revenue Service or any other governmental authority. Except as
may be disclosed in the Schedule of Taxes or in any document delivered to
Voyager therewith, Voyager (i) is not currently being audited with respect to
any tax, assessment or other governmental charge; (ii) has not received formal
or informal notice from any governmental agency that an audit or investigation
with respect to any tax, assessment or other governmental charge is to be
initiated; (iii) is not formally or informally discussing material pending
ruling requests or other material tax or assessment issues with the Internal
Revenue Service or any other governmental taxing authority in connection with
any matter concerning any member of Voyager's group; or (iv) has not been
formally or informally notified of any potential tax or assessment issue which
the Internal Revenue Service or any other governmental taxing authority intends
to raise in connection with any matter concerning any member of Voyager's group.
Except (i) as may be disclosed in the Schedule of Taxes, or (ii) in connection
with any pending audit or investigation, Voyager has not granted or proposed any
waiver of any statute of limitations with respect to, or any extension of a
period for the assessment or collection of, or any offer in compromise of any
governmental tax. The accruals and reserves for taxes reflected in the financial
statements are adequate to cover substantially all taxes (including additions to
tax, interest, penalties, and other charges or assessments, if any) which become
due and payable or accruable by reason of the business conducted by Voyager
through the Closing Date herein. Voyager is not now or has it ever been a
corporation which meets the tests of Section 542(b)(2) of the Internal Revenue
Code. Voyager has not participated in, or is required to participate in, for any
period prior to the date of this Agreement the filing of any consolidated tax
return other than (i) as set forth in the Schedule of Taxes, or (ii) as a member
of an affiliated group of which Voyager is the common parent.
10
SECTION 2.20 REPORTING ACT DOCUMENTS. Except as set forth in Voyager's
Schedules, Voyager has, in all reporting act documents, complied in all material
respects with the reporting requirements of the Exchange Act and the rules and
regulations of the Securities and Exchange Commission promulgated thereunder as
of the Closing date. The information contained in each reporting act document of
Voyager, to the best of Voyager's knowledge, is true and correct in all material
respects as of the date thereof, and no reporting act document contains any
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
as of the date thereof. To the best knowledge of current management of Voyager,
there is no negative matters, such as pending investigation or formal inquiry,
which are outstanding concerning Exchange Act reports filed by Voyager prior to
the Closing.
SECTION 2.21 VOYAGER SCHEDULES. Upon execution hereof, Voyager shall
deliver to Silicon the following schedules, which are collectively referred to
as the "Voyager Schedules" which are dated the date of this Agreement, all
complete, true and accurate in all material respects:
(a) complete and correct copies of the articles of incorporation,
bylaws and Certificate of Good Standing of Voyager as in effect as of
the date of this Agreement;
(b) copies of all financial statements of Voyager identified in
Section 2.4(a);
(c) the description of any material adverse change in the
business, operations, property, assets, or condition of Voyager since
September 30, 2003 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 Voyager Schedules under
this Agreement.
Voyager shall cause the Voyager Schedules and the instruments to be
delivered to Silicon hereunder to be updated after the date hereof up to and
including the Closing Date.
SECTION 2.22 ADDITIONAL INFORMATION AVAILABLE. Voyager will make available
to each Silicon Shareholder the opportunity to ask questions and receive answers
concerning the acquisition of Voyager Common Stock in the transaction, and to
obtain any additional information which Voyager possesses or can acquire without
unreasonable effort or expense.
SECTION 2.23 LIMITATION ON LIABILITY. Notwithstanding anything to the
contrary contained in this Agreement, Voyager shall not have any liability for
any misrepresentation or breach of any representation or warranty contained in
this Article II, if Silicon or any of the Silicon Shareholders has actual
knowledge of such misrepresentation or breach.
ARTICLE III
EXCHANGE PROCEDURE
SECTION 3.1 DELIVERY OF SILICON SECURITIES. On the Closing Date, the
holders of the Silicon Common Shares and Preferred Shares shall deliver to
Voyager (i) certificates or other documents evidencing all of the issued and
outstanding Silicon Common and Preferred 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".
11
SECTION 3.2 ISSUANCE OF VOYAGER COMMON SHARES. (a) In exchange for all of
the Silicon Common and Preferred Shares tendered pursuant to Section 3.1,
Voyager shall instruct its Transfer Agent to issue an aggregate of 8,597,400
"restricted" Voyager Common Shares and 625,000 "restricted" Series A Voyager
Preferred Shares to the Silicon shareholders on a pro rata basis and shall cause
such shares to be delivered to Silicon. Each eight (8) shares of Silicon Class A
Common Stock shall be exchanged for one (1) share of Voyager Common Stock and
each eight (8) shares of Silicon Class B Common Stock shall be exchanged for one
(1) share of Voyager Series A Preferred Stock (based on the total issuance of
8,597,400 Voyager Common Shares). Each share of newly issued Voyager Series A
Preferred Stock shall be convertible into one (1) share of Voyager Common Stock,
and shall be entitled to one hundred (100) votes per one Series A Preferred
Share. Following the Closing Date, there will be 9,375,000 Voyager Common Shares
outstanding and 625,000 Voyager series A Preferred Shares outstanding.
(b) No fractional Voyager 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.
(c) The total of 8,597,400 Common Stock shares and 625,000 Series A
Preferred Stock shares to be issued to the Silicon shareholders by Voyager (the
"Silicon Shares") are not being registered under the Securities Act of 1933, as
amended (the "Act") and are issued in reliance on the exemptions from the
registration requirements provided by Regulation D, and are to be issued as
"restricted securities", as that term is defined in Rule 144 promulgated under
the Act, and that the certificates representing the Silicon Shares will bear a
legend to that effect, substantially in the form set forth below:
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF CERTAIN STATES,
AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND ANY APPLICABLE STATE LAWS, (II) TO THE
EXTENT APPLICABLE, RULE 144 UNDER THE ACT (OR ANY SIMILAR RULE UNDER
THE ACT RELATING TO THE DISPOSITION OF SECURITIES), OR (III) AN OPINION
OF COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL
TO THE ISSUER, THAT AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND
APPLICABLE STATE LAW IS AVAILABLE.
SECTION 3.3 UNDERTAKINGS.
(a) Upon execution hereof or as soon thereafter as practical,
management of Voyager and Silicon 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.
(b) Silicon hereby undertakes and provides assurances to Voyager
that it will file a current report on Form 8-K within 15 days of the
Closing in compliance with the Exchange Act, with the audited
financial statements of Silicon and the pro forma statements required
by the Exchange Act and by Regulation S-B by amendment of the Form 8-K
within the time parameters established by the Exchange Act, and will
otherwise comply with the reporting requirements of the Exchange Act.
12
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 Silicon have approved the terms of
this Agreement, all conditions to Closing referenced in this Agreement
have been satisfied or waived by Silicon and all documentation
referenced herein is delivered to the respective party herein, which
shall be the date of January 15, 2004, unless a different date is
mutually agreed to in writing by the parties hereto ("Closing Date").
SECTION 3.5 TERMINATION.
(a) This Agreement may be terminated by the board of directors of
either Voyager or Silicon 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 Article VI below have
not been satisfied in full; or
In the event of termination pursuant to this paragraph (a) of 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 Voyager if Silicon
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 Silicon 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
Silicon. 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 Silicon if Voyager
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 Voyager 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 Voyager.
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.
(d) This Agreement shall be terminated if the Closing of the
transactions contemplated in this Agreement have not occurred by the
Closing Date as that term is defined in Section 3.4.
SECTION 3.6 DIRECTORS OF VOYAGER. Upon the Closing, the present members of
Voyager's Board of Directors shall tender their resignations SERIATIM so that
the following persons are appointed directors of Voyager in accordance with
procedures set forth in the Voyager bylaws: Xxxx Xxxxxxx and Xxxxxxxxx Xxxxxx..
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.
13
SECTION 3.7 OFFICERS OF VOYAGER. Upon the Closing, the present officers of
Voyager shall tender their resignations and provide Voyager with applicable
releases concerning their respective employment agreements. Simultaneous
therewith, the following persons shall be elected as officers of Voyager in
accordance with procedures set forth in the Voyager bylaws:
NAME OFFICE
---- ------
Xxxx Xxxxxxx Chairman
Xxxx Xxxxxxx Chief Executive Officer
and President
Xxxxxxxxx Xxxxxx Chief Financial Officer and Secretary
SECTION 3.8 EFFECTIVE DATE. The parties hereto hereby agree that the
Effective Date of the transaction proposed herein shall be 5:00 P.M. Pacific
Standard Time on January 15, 2004, unless the parties agree otherwise, in
writing.
14
ARTICLE IV
SPECIAL COVENANTS
SECTION 4.1 ACCESS TO PROPERTIES AND RECORDS. Voyager and Silicon will each
afford to the officers and authorized representatives of the other full access
to the properties, books and records of Voyager and Silicon, 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 Voyager and Silicon, as
the case may be, as the other shall from time to time prior to Closing
reasonably request. In addition, Voyager shall provide to Silicon subsequent to
Closing all information necessary to allow Silicon to properly prepare and file
all reports required to be filed pursuant to the Exchange Act, including all
information concerning Voyager's subsidiaries which existed prior to Closing.
SECTION 4.2 INFORMATION FOR VOYAGER PUBLIC REPORTS. Silicon will furnish
Voyager with all information concerning Silicon and the Silicon Stockholders,
including all financial statements, required for inclusion in any public report
to be filed by Voyager pursuant to the Securities Act, the Exchange Act, or any
other applicable federal or state law. Silicon covenants that all information so
furnished to Voyager, 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 misleading. Similarly,
Voyager will provide all information concerning its history and operations
reasonably requested by Silicon.
SECTION 4.3 SPECIAL COVENANTS AND REPRESENTATIONS REGARDING THE VOYAGER
COMMON SHARES TO BE ISSUED IN THE EXCHANGE. The consummation of this Agreement,
including the issuance of the Voyager Common Shares to the stockholders of
Silicon 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 Silicon stockholders acquire such securities. In
connection with reliance upon exemptions from the registration and prospectus
delivery requirements for such transactions, at the Closing, Silicon shall cause
to be delivered, and the Silicon stockholders shall deliver to Voyager, the
Investment Letters and Purchasers' Questionnaires referenced in Section 3.1. The
shareholders of Silicon shall receive disclosure materials attached hereto as
Exhibit "A".
SECTION 4.4 THIRD PARTY CONSENTS. Voyager and Silicon agree to cooperate
with each other in order to obtain any required third party consents to this
Agreement and the transactions herein contemplated.
SECTION 4.5 ACTIONS PRIOR TO CLOSING.
(a) From and after the date of this Agreement until the Closing
Date and except as set forth in the Voyager or Silicon Schedules or as
permitted or contemplated by this Agreement, Silicon and Voyager, to
the extent applicable, 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;
15
(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 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 Voyager nor Silicon 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 4.6 INDEMNIFICATION.
(a) Silicon and its officers and directors hereby agree to
indemnify Voyager and each of the officers, agents and directors of
Voyager 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 incurred as a result of Silicon's breach of any
representation, warranty or covenant made by Silicon 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) Voyager and its officers and directors hereby agrees to
indemnify Silicon and each of the officers, agents, directors and
current shareholders of Silicon as of the 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 incurred as a result of Voyager's breach of any
representation, warranty or covenant made by Voyager 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.
16
ARTICLE V
CONDITIONS PRECEDENT TO OBLIGATIONS
OF VOYAGER
The obligations of Voyager 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 Silicon 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 Silicon shall have performed or complied with all
covenants and condi tions required by this Agreement to be performed or complied
with by Silicon prior to or at the Closing. Voyager shall be furnished with a
certificate, signed by a duly authorized officer of Silicon and dated the
Closing Date, to the foregoing effect.
SECTION 5.2 SILICON'S APPROVAL OF AGREEMENT. The Board of Directors and
stockholders of Silicon, if such stockholders' approval is so required under
Illinois law, shall have approved this Agreement and the transactions
contemplated thereby as described in Section 4.1.
SECTION 5.3 OFFICER'S CERTIFICATE. Voyager shall have been furnished with a
certificate dated the Closing Date and signed by a duly authorized officer of
Silicon to the effect that no litigation, proceeding, investigation or inquiry
is pending or, to the best knowledge of Silicon, 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 Silicon
Schedules, by or against Silicon which might result in any material adverse
change in any of the assets, properties, business or operations of Silicon.
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 Silicon.
SECTION 5.5 OTHER ITEMS. Voyager shall have received such further
documents, certificates or instruments relating to the transactions contemplated
hereby as Voyager may reasonably request.
17
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF SILICON
The obligations of Silicon 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 Voyager 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 Voyager shall have performed and complied with
all cove nants and conditions required by this Agreement to be performed or
complied with by Voyager prior to or at the Closing. Silicon shall have been
furnished with a certificate, signed by a duly authorized executive officer of
Voyager and dated the Closing Date, to the foregoing effect.
SECTION 6.2 OFFICER'S CERTIFICATE. Silicon shall be furnished with a
certificate dated the Closing Date and signed by a duly authorized officer of
Voyager to the effect that no litigation, proceeding, investigation or inquiry
is pending or, to the best knowledge of Voyager, 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 Voyager
Schedules, by or against Voyager which might result in any material adverse
change in any of the assets, properties, business or operations of Voyager.
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 Voyager.
SECTION 6.5 COMPLIANCE WITH REPORTING REQUIREMENTS. As of the Closing Date,
Voyager 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 6.6 CANCELLATION. Simultaneous with or prior to the Closing of this
Agreement, Voyager shall have received for cancellation such number of shares of
its previously issued and outstanding common stock that as a result and on
Closing Date, as defined herein, there will be no more than 777,600 common
shares issued and outstanding
SECTION 6.7 VOYAGER'S TRADING STATUS. As of the Closing Date, as defined
herein, Voyager's Common Stock is not trading in any public market.
SECTION 6.8 NO LIABILITIES. As of the Closing Date, as defined herein the
Voyager balance sheet and the notes thereto, shall reflect that Voyager has: (i)
no receivables; (ii) no accounts payable; (iii) except as stated herein or in
the Voyager Schedules, no liabilities, whether absolute, accrued, known or
unknown, contingent or otherwise, whether due or to become due, including,
without limitation, liabilities as guarantor under any guaranty or other
governmental charges.
SECTION 6.9 OTHER ITEMS. Silicon shall have received such further
documents, certificates, or instruments relating to the transactions
contemplated hereby as Silicon may reasonably request.
18
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 BROKERS AND FINDERS. Except as set forth in Schedule 7.1, 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 Illinois.
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 Voyager: Xxxxxxx Xxx, Inc.
0000 Xxxxxxxx Xxxxxx Xx., Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
With copies to: Xxxxx X. Xxxxx, Esq.
Law Offices of Xxxxx X. Xxxxx
610 Newport Center Dr., Suite 1400
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
If to Silicon: Silicon Film Technologies, Inc.
0000 Xxxxxx Xxxxx Xxxxx X-0
Xxxxxx Xxxxx, Xxxxxxxx 00000
With copies to: Xxxxxxx Xxxxxx & XxXxxx, LLC(Corporate Counsel)
Xxx Xxxxxxx, Esq.
0000 Xxxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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. The prevailing party in any proceeding
brought to enforce or interpret any provision of this Agreement shall be
entitled to recover its reasonable attorney's fees, costs and disbursements
incurred in connection with such proceeding, including but not limited to the
costs of experts, accountants and consultants and all other costs and services
reasonably related to the proceeding, including those incurred in any bankruptcy
or appeal, from the non-prevailing party or parties.
19
SECTION 7.5 CONFIDENTIALITY. Each party hereto agrees with the other
parties that, unless and until the reorganization contemplated 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 between
Voyager and Silicon and, except for the Silicon shareholders or as otherwise
specifically provided herein, no director, officer, stock holder, 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 three years.
SECTION 7.10 COUNTERPARTS; FACSIMILE SIGNATURES. 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. This Agreement May
be executed by providing facsimile signatures by the parties hereto, however,
the original signatures shall be delivered within five (5) business days from
the date of execution of this Agreement.
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 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.
20
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
inure 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
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 apprized 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.
SECTION 7.21 JOINT PREPARATION. This Agreement is to be deemed to have
been prepared jointly by the parties hereto and any uncertainty or ambiguity
existing herein, if any, shall not be interpreted against any party, but shall
be interpreted according to the application of the rules of interpretation for
arm's length agreements.
SECTION 7.22 ARBITRATION AND VENUE. Any controversy arising out of or
relating to this Agreement or any modification or extension thereof, including
any claim for damages and/or rescission, shall be settled by arbitration in Los
Angeles, Illinois in accordance with the Commercial Arbitration Rules of the
American Arbitration Association before one arbitrator. The arbitrator sitting
in any such controversy shall have no power to alter or modify any express
provisions of this Agreement or to render any award which by its terms effects
any such alteration, or modification. The parties consent to the jurisdiction of
the Superior Court of Illinois, and of the United States District Court for the
Central District of Illinois for all purposes in connection with such
arbitration including the entry of judgment on any award. The parties consent
that any process or notice of motion or other application to either of said
courts, and any paper in connection with arbitration, May be served by certified
mail or the equivalent, return receipt requested, or by personal service or in
such manner as May be permissible under the rules of the applicable court or
arbitration tribunal, provided a reasonable time for appearance is allowed. Each
of the parties shall, subject to the award of the arbitrators, pay an equal
share of the arbitrators' fees except the arbitrators shall have the power to
award recovery of all costs (including the attorneys' fees, administrative fees,
arbitrators' fees and court fees) to the prevailing party, as determined by the
arbitrators. This section shall survive the termination of this Agreement.
21
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.
Date: February 18, 2004
XXXXXXX XXX, INC.
ATTEST:
/Xxxxx Xxxxxx/ By: /Xxxxx Xxxxxx/
---------------------------- ----------------------------------
Secretary or President
Assistant Secretary
ATTEST: SILICON FILM TECHNOLOGIES, INC.
/Xxxx Xxxxxxx/ By: /Xxxxxxxxx XxXxxx/
---------------------------- ----------------------------------
Secretary or President
Assistant Secretary
22
SILICON SHAREHOLDERS:
Name:/Xxxx Xxxxxxx/
Name: /Xxxxxxxxx XxXxxx/
23
SCHEDULE I
--------------------
LIST OF SILICON SHAREHOLDERS
--------------------
ON FILE WITH SILICON'S CORPORATE RECORDS
----------------------------------------
24
EXHIBIT "A"
DISCLOSURE MATERIALS
FORMS 10-QSB OF XXXXXXX XXX, INC. FILED FOR THE QUARTERS ENDED MARCH 31, 2003,
JUNE 30, 2003 AND SEPTEMBER 30, 2003; FORM 10-KSB FOR THE FISCAL YEAR ENDED
DECEMBER 31, 2002 AND FORM 8-K FILED IN OCTOBER, 2003.
25
EXHIBIT "B"
FORM OF INVESTMENT LETTER AND POWER OF ATTORNEY
26
INVESTMENT LETTER AND POWER OF ATTORNEY
January __, 2004
Xxxxxxx Xxx, Inc.
0000 Xxxxxxxx Xxxxxx Xx., Xxxxx 000
Xxxxxx, XX 00000
Ladies & Gentlemen:
The undersigned herewith deposits certificate(s) for shares of common stock
and/or preferred stock of Silicon Film Technologies, Inc., ("Silicon"), as
described below (endorsed, or having executed stock powers attached) in
acceptance of and subject to the terms and conditions of that certain Agreement
and Plan of Reorganization (the "Agreement"), between Silicon and Xxxxxxx Xxx,
Inc. ("Voyager" or the "Company"), dated January , 2004, receipt of which is
hereby acknowledged, in exchange for shares of Common Stock of Voyager (the
"Exchange Shares"). If any condition precedent to the Agreement is not satisfied
within the relevant time parameters established in the Agreement (or any
extension thereof), the certificate(s) are to be returned to the undersigned.
The undersigned hereby represents, warrants, covenants and agrees with you
that, in connection with the undersigned's acceptance of the terms of the
Agreement and Exchange Shares and as of the date of this letter:
1. The undersigned has received and has read the Agreement, and hereby
agrees to and accepts the terms and conditions of the Agreement.
2. The undersigned does hereby appoint, Xxxx Xxxxxxx, Silicon's President
("Attorney") as its lawful attorney and agent with full power to execute any
amendments to the Agreement which may be agreed to after the date hereof, which
amendments would have been approved by the majority of the Silicon's
shareholders, on behalf of the undersigned and further grants unto the Attorney,
full power and authority to do and perform each and every act necessary to be
done to complete the same, subject only to removal or substitution by the
undersigned upon written notification to the Attorney of the foregoing.
3. The undersigned is aware that his, her or its acceptance of the Exchange
Shares is irrevocable, absent an extension of the Expiration Date of any
material change to any of the terms and conditions of the Agreement.
4. The undersigned warrants full authority to deposit all shares referred
to above and that Voyager will acquire a good and unencumbered title thereto.
5. The undersigned has full power and authority to enter into this
agreement and that this agreement constitutes a valid and legally binding
obligation of the undersigned.
6. The undersigned represents that the undersigned is_____/ is not_____an
"Accredited Investor" as that term is defined in Section 501(a) of Regulation D
promulgated under the Securities Act of 1933, as amended (the "Act"), because
the undersigned meets one or more of the following requirements: PLEASE CHECK AS
MANY BOXES THAT APPLY ONLY IF YOU ARE ACCREDITED INVESTOR:
27
|_| He or she is a natural person whose individual net worth, or joint net
worth with such investor's spouse, exceeds $1,000,000 and either he or she
is able to bear the economic risk of investment in the proposed investments
or the proposed investments will not exceed 10% of his or her net worth or
joint net worth with such investor's spouse;
|_| He or she is a natural person who had individual income in excess of
$200,000 in each of the two most recent years, or (except in Illinois)
joint income with such investor's spouse in excess of $300,000 in each
ofthose years and reasonably expects to reach the same income level in the
current year, and either such investor is able to bear the economic risk of
investment in the proposed investments or the proposed investments will not
exceed 10% of his or her net worth or joint net worth with such investor's
spouse;
|_| It is an organization described in ss. 501(c)(3) of the Internal Revenue
Code of 1986 as amended, (i.e., tax exempt entities), corporation,
Massachusetts or similar business trust, or partnership, not formed for the
specific purpose of acquiring the proposed investments, with total assets
in excess of $5,000,000;
|_| It is a trust, with total assets in excess of $5,000,000, not formed for
the specific purpose of acquiring the proposed investments, whose purchases
are directed by a sophisticated person as described under the first
alternative above;
|_| It is a bank as defined in ss. 3(a)(2) of the Securities Act of 1933, or a
savings and loan association or other institution as defined in ss.
3(a)(5)(A) of the Securities Act of 1933 whether acting in its individual
or fiduciary capacity;
|_| It is a broker registered pursuant toss. 15 of the Securities Exchange Act
of 1934;
|_| It is an insurance company as defined inss. 2(13) of the Securities Act of
1933;
|_| It is an investment company registered under the Investment Company Act of
1940 or a business development company as defined in ss. 2(a)(48) of that
Act;
|_| It is a Small Business Investment Company licensed by the U.S. Small
Business Administration under ss. 301 (c) or (d) of the Small Business
Investment Act of 1958;
|_| It is a private business development company as defined in ss. 202(a)(22)
of the Investment Advisers Act of 1940;
|_| It is an employee benefit plan within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, if the investment decision
is made by a plan fiduciary, as defined in ss. 3(21) of such Act, which is
either a bank, savings and loan association, insurance company, or
registered investment adviser, or if the employee benefit plan has total
assets in excess of $5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are Accredited Investors as described
above;
|_| He or she is a director or executive officer of the Company;
|_| It is an entity in which all the equity owners are Accredited Investors
since they are all described above.
7. By execution hereof, the undersigned hereby confirms that the Voyager
common stock to be received in exchange for Silicon common stock and/or
preferred stock (the "Securities"), will be acquired for investment for the
undersigned's own account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that the undersigned has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By execution hereof, the undersigned further represents
the undersigned does not have any contract, undertaking, agreement or
arrangement with any third party, with respect to any of the Securities.
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8. The undersigned understands that the Securities are being issued
pursuant to available exemption thereto and have not been registered under the
Securities Act of 1933, as amended (the "1933 Act"), or under any state
securities laws. The undersigned understands that no registration statement has
been filed with the United States Securities and Exchange Commission nor with
any other regulatory authority and that, as a result, any benefit which might
normally accrue to a holder such as me by an impartial review of such a
registration statement by the Securities and Exchange Commission or other
regulatory authority willnot be forthcoming. The undersigned understands that
he/she/it cannot sell the Securities unless such sale is registered under the
1933 Act and applicable state securities laws or exemptions from such
registration become available. In this connection the undersigned understands
that the Company has advised the Transfer Agent for the Common Shares that the
Securities are "restricted securities" under the 1933 Act and that they May not
be transferred by the undersigned to any person without the prior consent of the
Company, which consent of the Company will require an opinion of my counsel to
the effect that, in the event the Securities are not registered under the 1933
Act, any transfer as May be proposed by the undersigned must be entitled to an
exemption from the registration provisions of the 1933 Act. To this end,the
undersigned acknowledges that a restrictive legend will be placed upon the
certificate representing the Securities and that the Transfer Agent has been
advised of such facts.
9. The undersigned represents that it is experienced in evaluation and
investing in securities of companies and acknowledges that he/she/it is able to
fend for itself, can bear the economic risk of this investment and has such
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of the investment in the Securities.
10. The undersigned represents that all information provided by the
undersigned herein is true and correct as of the date thereof.
IN WITNESS WHEREOF, the undersigned has duly executed this Investment
Letter as of the date indicated hereon.
Dated: ____________, 2004
Very truly yours,
--------------------------------------
(signature)
--------------------------------------
(print name in full)
--------------------------------------
(address)
29
