EXHIBIT 2.1
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement"), entered into
this 4th day of August 2000, is by, between, and among Shadows Bend
Development, Inc. (formerly known as Silver Beaver Mining Company, Inc.), a
publicly held Nevada corporation (hereinafter the "Purchaser"), Shadows Bend
Development, Inc., a Louisiana corporation (hereinafter the "Private
Company"), and the shareholders of the Private Company who are listed on
Schedule "A" hereto and have executed Subscription Agreements in the form
attached in Schedule "B" hereto (the "Shareholders").
RECITALS:
WHEREAS, the Purchaser wishes to acquire, and the Shareholders, by
executing Schedule "B" hereto, are willing to sell, all of the outstanding
stock of the Private Company in exchange solely for a part of the voting stock
of the Purchaser whereby the Shareholders would acquire a controlling interest
of the Purchaser; and
WHEREAS, the parties hereto intend to qualify such transaction as a
tax-free exchange pursuant to Section 368(a)(1)(B) of the Internal Revenue
Code of 1986, as amended;
NOW, THEREFORE, based upon the stated premises, which are incorporated
herein by reference, and for and in consideration of the mutual covenants and
agreements set forth herein, the mutual benefits to the parties to be derived
herefrom, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto approve and adopt this
Agreement and Plan of Reorganization and mutually covenant and agree with each
other as follows:
1. Shares to be Transferred and Shares to be Issued
1.1 Transfer of Shares by Private Company Shareholders. On the
Closing Date the Shareholders shall transfer to the Purchaser certificates for
the number of shares of the common stock of the Private Company described in
Schedule "A," attached hereto and incorporated herein, which in the aggregate
shall represent all of the issued and outstanding shares of the common stock
of the Private Company.
1.2 Issuance of Shares to Private Company Shareholders. In
exchange for the transfer of the common stock of the Private Company pursuant
to subsection 1.1. hereof, the Purchaser shall on the Closing Date and
contemporaneously with such transfer of the common stock of the Private
Company to it by the Shareholders issue and deliver to the Shareholders the
number of shares of common stock of the Purchaser specified on Schedule "A"
hereof such that the Shareholders shall own approximately 91.87% of the
outstanding common stock of the Purchaser.
2. Representations and Warranties of the Private Company. The
Private Company represents and warrants to the Purchaser as set forth below.
These representations and warranties are made as an inducement for the
Purchaser to enter into this Agreement and, but for the making of such
representations and warranties and their accuracy, the Purchaser would not be
a party hereto.
2.1 Organization and Authority. The Private Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Louisiana with full power and authority to enter into and
perform the transactions contemplated by this Agreement. The Private Company
does not have any subsidiaries or own any interest in any other entity, except
for Diamond Holding LLC, which is duly organized, validly existing, and in
good standing under the laws of the State of Louisiana.
2.2 Capitalization. As of the date of the Closing, the Private
Company will have a total of no more than 9,187,174 shares of common stock
issued and outstanding. All of the shares will have been duly authorized and
validly issued and will be fully paid and nonassessable. There are, and will
be at closing, no options, warrants, debentures, conversion privileges, or
other rights, agreements, or commitments obligating the Private Company to
issue or to transfer from treasury any additional shares of capital stock of
any class. Schedule "A" accurately sets forth all of the shareholders of
record of the Private Company and the number of shares held of record by each
Shareholder.
2.3 Directors and Officers. Xxxxxxx Scachetano is the sole
director and officer of the Private Company.
2.4 Performance of This Agreement. The execution and
performance of this Agreement and the transfer of stock contemplated hereby
have been authorized by the board of directors of the Private Company.
2.5 Financials. True copies of the financial statements of the
Private Company for the period ended July 15, 2000, have been furnished to the
Purchaser. The financial statements have been audited by Xxxxx Xxxxxx, P.C.,
Certified Public Accountant. Said financial statements are true and correct
in all material respects and present an accurate and complete disclosure of
the financial condition of the Private Company as of June 30, 2000, and the
earnings for the periods covered, in accordance with generally accepted
accounting principles applied on a consistent basis.
2.6 Liabilities. There are no material liabilities of the
Private Company, whether accrued, absolute, contingent or otherwise, which
arose or relate to any transaction of the Private Company, its agents or
servants occurring prior to July 15, 2000, which are not disclosed by or
reflected in said financial statements. As of the date hereof, there are no
known circumstances, conditions, happenings, events or arrangements,
contractual or otherwise, which may hereafter give rise to liabilities, except
in the normal course of business of the Private Company.
2.7 Absence of Certain Changes or Events. Except as set forth
in this Agreement, since July 15, 2000, there has not been (i) any material
adverse change in the business, operations, properties, level of inventory,
assets, or condition of the Private Company, or (ii) any damage, destruction,
or loss to the Private Company (whether or not covered by insurance)
materially and adversely affecting the business, operations, properties,
assets, or conditions of the Private Company.
2.8 Litigation. To the best knowledge and reasonable belief of
the Private Company, there are no legal, administrative or other proceedings,
investigations or inquiries, product liability or other claims, judgments,
injunctions or restrictions, either threatened, pending, or outstanding
against or involving the Private Company or its subsidiaries, if any, or their
assets, properties, or business, nor does the Private Company or its
subsidiaries know, or have reasonable grounds to know, of any basis for any
such proceedings, investigations or inquiries, product liability or other
claims, judgments, injunctions or restrictions. In addition, there are no
material proceedings existing, pending or reasonably contemplated to which any
officer, director, or affiliate of the Private Company or as to which any of
the Shareholders is a party adverse to the Private Company or any of its
subsidiaries or has a material interest adverse to the Private Company or any
of its subsidiaries.
2.9 Taxes. All federal, state, foreign, county and local
income, profits, franchise, occupation, property, sales, use, gross receipts
and other taxes (including any interest or penalties relating thereto) and
assessments which are due and payable have been duly reported, fully paid and
discharged as reported by the Private Company, and there are no unpaid taxes
which are, or could become a lien on the properties and assets of the Private
Company, except as provided for in the financial statements of the Private
Company, or have been incurred in the normal course of business of the Private
Company since that date. All tax returns of any kind required to be filed
have been filed and the taxes paid or accrued. There are no disputes as to
taxes of any nature payable by the Private Company.
2.10 Hazardous Materials. No hazardous material has been
released, placed, stored, generated, used, manufactured, treated, deposited,
spilled, discharged, released, or disposed of on or under any real property
currently or previously owned or leased by the Private Company or any of its
subsidiaries.
2.11 Accuracy of All Statements Made by the Private Company. No
representation or warranty by the Private Company in this Agreement, nor any
statement, certificate, schedule, or exhibit hereto furnished or to be
furnished by or on behalf of the Private Company pursuant to this Agreement,
nor any document or certificate delivered to the Purchaser by the Private
Company pursuant to this Agreement or in connection with actions contemplated
hereby, contains or shall contain any untrue statement of material fact or
omits or shall omit a material fact necessary to make the statements contained
therein not misleading.
3. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to the Private Company as set forth below. These
representations and warranties are made as an inducement for the Private
Company to enter into this Agreement and, but for the making of such
representations and warranties and their accuracy, the Private Company would
not be parties hereto.
3.1 Organization and Good Standing. The Purchaser is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Nevada with full power and authority to enter into and
perform the transactions contemplated by this Agreement. The Purchaser does
not have any subsidiaries or own any interest in any other entity.
3.2 Capitalization. As of the date of the Closing, the
Purchaser will have a total of no more than 812,466 shares of common stock
issued and outstanding (excluding the shares to be issued pursuant to this
Agreement). All of the shares will have been duly authorized and validly
issued and will be fully paid and nonassessable. Except for the Purchaser's
obligations hereunder with respect to the shares to be issued pursuant to
subsection 1.2 hereof, there are no options, warrants, debentures, conversion
privileges, or other rights, agreements, or commitments obligating the
Purchaser to issue or to transfer from treasury any additional shares of
capital stock of any class. As of the Closing, the Articles of Incorporation,
as amended, of the Purchaser (the "Purchaser Articles") and as currently in
effect shall remain unchanged, except as provided herein.
3.3 Performance of This Agreement. The execution and
performance of this Agreement and the issuance of stock contemplated hereby
have been authorized by the board of directors of the Purchaser.
3.4 Financials. True copies of the financial statements of the
Purchaser consisting of the balance sheets as of the fiscal years ended
December 31, 1999 and 1998 (audited) and the period ended June 30, 2000
(unaudited), and statements of income, cash flow and changes in stockholder's
equity for each of the periods then ended, have been delivered by the
Purchaser to the Private Company. These annual statements have been examined
and certified by Xxxxx Xxxxxx, P.C., Certified Public Accountant. Said
financial statements are true and correct in all material respects and present
an accurate and complete disclosure of the financial condition of the
Purchaser as of June 30, 2000, and the earnings for the periods covered, in
accordance with generally accepted accounting principles applied on a
consistent basis.
3.5 Liabilities. There are no material liabilities of the
Purchaser, whether accrued, absolute, contingent or otherwise, which arose or
relate to any transaction of the Purchaser, its agents or servants which are
not disclosed by or reflected in said financial statements. As of the date
hereof, there are no known circumstances, conditions, happenings, events or
arrangements, contractual or otherwise, which may hereafter give rise to
liabilities, except in the normal course of business of the Purchaser.
3.6 Litigation. To the best knowledge and reasonable belief of
the Purchaser, there are no legal, administrative or other proceedings,
investigations or inquiries, product liability or other claims, judgments,
injunctions or restrictions, either threatened, pending, or outstanding
against or involving the Purchaser or its subsidiaries, if any, or their
assets, properties, or business, nor does the Purchaser or its subsidiaries
know, or have reasonable grounds to know, of any basis for any such
proceedings, investigations or inquiries, product liability or other claims,
judgments, injunctions or restrictions. In addition, there are no material
proceedings existing, pending or reasonably contemplated to which any officer,
director, or affiliate of the Purchaser is a party adverse to the Purchaser or
any of its subsidiaries or has a material interest adverse to the Purchaser or
any of its subsidiaries.
3.7 Taxes. All federal, state, foreign, county and local
income, profits, franchise, occupation, property, sales, use, gross receipts
and other taxes (including any interest or penalties relating thereto) and
assessments which are due and payable have been duly reported, fully paid and
discharged as reported by the Purchaser, and there are no unpaid taxes which
are, or could become a lien on the properties and assets of the Purchaser,
except as provided for in the financial statements of the Purchaser, or have
been incurred in the normal course of business of the Purchaser since that
date. All tax returns of any kind required to be filed have been filed and
the taxes paid or accrued. There are no disputes as to taxes of any nature
payable by the Purchaser.
3.8 Hazardous Materials. No hazardous material has been
released, placed, stored, generated, used, manufactured, treated, deposited,
spilled, discharged, released, or disposed of on or under any real property
currently or previously owned or leased by the Purchaser or any of its
subsidiaries.
3.9 Legality of Shares to be Issued. The shares of common stock
of the Purchaser to be issued by the Purchaser pursuant to this Agreement,
when so issued and delivered, will have been duly and validly authorized and
issued by the Purchaser and will be fully paid and nonassessable.
3.10 Accuracy of All Statements Made by the Purchaser. No
representation or warranty by the Purchaser in this Agreement, nor any
statement, certificate, schedule, or exhibit hereto furnished or to be
furnished by the Purchaser pursuant to this Agreement, nor any document or
certificate delivered to the Private Company pursuant to this Agreement or in
connection with actions contemplated hereby, contains or shall contain any
untrue statement of material fact or omits to state or shall omit to state a
material fact necessary to make the statements contained therein not
misleading.
4. Covenants of the Parties.
4.1 Corporate Records.
a. Simultaneous with the execution of this Agreement by the
Private Company, if not previously furnished, such entity shall deliver to the
Purchaser copies of the articles of incorporation, as amended, and the current
bylaws of the Private Company, and copies of the resolutions duly adopted by
the board of directors of the Private Company approving this Agreement and the
transactions herein contemplated.
b. Simultaneous with the execution of this Agreement by the
Purchaser, if not previously furnished, such entity shall deliver to the
Private Company copies of the Purchaser Articles, and the current bylaws of
the Purchaser, and copies of the resolutions duly adopted by the board of
directors of the Purchaser approving this Agreement and the transactions
herein contemplated.
4.3 Access to Information.
a. The Purchaser and its authorized representatives shall
have full access during normal business hours to all properties, books,
records, contracts, and documents of the Private Company, and the Private
Company shall furnish or cause to be furnished to the Purchaser and its
authorized representatives all information with respect to its affairs and
business as the Purchaser may reasonably request. The Purchaser shall hold,
and shall cause its representatives to hold confidential, all such information
and documents, other than information that (i) is in the public domain at the
time of its disclosure to the Purchaser; (ii) becomes part of the public
domain after disclosure through no fault of the Purchaser; (iii) is known to
the Purchaser or any of its officers or directors prior to disclosure; or (iv)
is disclosed in accordance with the written consent of the Private Company.
In the event this Agreement is terminated prior to Closing, the Purchaser
shall, upon the written request of the Private Company, promptly return all
copies of all documentation and information provided by the Private Company
hereunder.
b. The Private Company and its authorized representatives
shall have full access during normal business hours to all properties, books,
records, contracts, and documents of the Purchaser, and the Purchaser shall
furnish or cause to be furnished to the Private Company and its authorized
representatives all information with respect to its affairs and business the
Private Company may reasonably request. The Private Company shall hold, and
shall cause its representatives to hold confidential, all such information and
documents, other than information that (i) is in the public domain at the time
of its disclosure to the Private Company; (ii) becomes part of the public
domain after disclosure through no fault of the Private Company; (iii) is
known to the Private Company or any of its officers or directors prior to
disclosure; or (iv) is disclosed in accordance with the written consent of the
Purchaser. In the event this Agreement is terminated prior to Closing, the
Private Company shall, upon the written request of the Purchaser, promptly
return all copies of all documentation and information provided by the
Purchaser hereunder.
4.3 Actions Prior to Closing. From and after the date of this
Agreement and until the Closing Date:
a. The Purchaser and the Private Company shall each carry
on its business diligently and substantially in the same manner as heretofore,
and neither party shall make or institute any unusual or novel methods of
purchase, sale, management, accounting or operation.
b. Neither the Purchaser nor the Private Company shall
enter into any contract or commitment, or engage in any transaction not in the
usual and ordinary course of business and consistent with its business
practices.
c. Neither the Purchaser nor the Private Company shall
amend its articles of incorporation or bylaws or make any changes in
authorized or issued capital stock, except as provided in this Agreement.
d. The Purchaser and the Private Company shall each use its
best efforts (without making any commitments on behalf of the company) to
preserve its business organization intact.
e. Neither the Purchaser nor the Private Company shall do
any act or omit to do any act, or permit any act or omission to act, which
will cause a material breach of any material contract, commitment, or
obligation of such party.
f. The Purchaser and the Private Company shall each duly
comply with all applicable laws as may be required for the valid and effective
issuance or transfer of stock contemplated by this Agreement.
g. Neither the Purchaser nor the Private Company shall sell
or dispose of any property or assets, except products sold in the ordinary
course of business.
h. The Purchaser and the Private Company shall each
promptly notify the other of any lawsuits, claims, proceedings, or
investigations that may be threatened, brought, asserted, or commenced against
it, its officers or directors involving in any way the business, properties,
or assets of such party.
4.4 Shareholders' Approval. The Purchaser shall promptly submit
this Agreement and the transactions contemplated hereby for the approval of
its stockholders by majority written consent or at a meeting of stockholders
and, subject to the fiduciary duties of the board of directors of the
Purchaser under applicable law, shall use its best efforts to obtain
stockholder approval and adoption of this Agreement and the transactions
contemplated hereby. In connection with such written action by, or meeting
of, stockholders, the Purchaser shall prepare a proxy or information statement
to be furnished to the shareholders of the Purchaser setting forth information
about this Agreement and the transactions contemplated hereby. The Private
Party shall promptly furnish to the Purchaser all information, and take such
other actions, as may reasonably be requested in connection with any action to
be taken by the Purchaser in connection with the immediately preceding
sentence. The Private Company shall have the right to review and provide
comments to the proxy or information statement prior to mailing to the
shareholders of the Purchaser.
4.5 No Covenant as to Tax or Accounting Consequences. It is
expressly understood and agreed that neither the Purchaser nor its officers or
agents has made any warranty or agreement, expressed or implied, as to the tax
or accounting consequences of the transactions contemplated by this Agreement
or the tax or accounting consequences of any action pursuant to or growing out
of this Agreement.
4.6 Indemnification. The Private Company shall indemnify
Purchaser for any loss, cost, expense, or other damage (including, without
limitation, attorneys' fees and expenses) suffered by Purchaser resulting
from, arising out of, or incurred with respect to the falsity or the breach of
any representation, warranty, or covenant made by the Private Company herein,
and any claims arising from the operations of the Private Company prior to the
Closing Date. Purchaser shall indemnify and hold the Private Company harmless
from and against any loss, cost, expense, or other damage (including, without
limitation, attorneys' fees and expenses) resulting from, arising out of, or
incurred with respect to, or alleged to result from, arise out of or have been
incurred with respect to, the falsity or the breach of any representation,
covenant, warranty, or agreement made by Purchaser herein, and any claims
arising from the operations of Purchaser prior to the Closing Date. The
indemnity agreement contained herein shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any party
and shall survive the consummation of the transactions contemplated by this
Agreement.
4.7 Publicity. The parties agree that no publicity, release, or
other public announcement concerning this Agreement or the transactions
contemplated by this Agreement shall be issued by any party hereto without the
advance approval of both the form and substance of the same by the other
parties and their counsel, which approval, in the case of any publicity,
release, or other public announcement required by applicable law, shall not be
unreasonably withheld or delayed.
4.8 Expenses. Except as otherwise expressly provided herein,
each party to this Agreement shall bear its own respective expenses incurred
in connection with the negotiation and preparation of this Agreement, in the
consummation of the transactions contemplated hereby, and in connection with
all duties and obligations required to be performed by each of them under this
Agreement.
4.9 Further Actions. Each of the parties hereto shall take all
such further action, and execute and deliver such further documents, as may be
necessary to carry out the transactions contemplated by this Agreement.
5. Conditions Precedent to the Purchaser's Obligations. Each and
every obligation of the Purchaser to be performed on the Closing Date shall be
subject to the satisfaction prior thereto of the following conditions:
5.1 Truth of Representations and Warranties. The
representations and warranties made by the Private Company in this Agreement
or given on its behalf hereunder shall be substantially accurate in all
material respects on and as of the Closing Date with the same effect as though
such representations and warranties had been made or given on and as of the
Closing Date.
5.2 Performance of Obligations and Covenants. The Private
Company shall have performed and complied with all obligations and covenants
required by this Agreement to be performed or complied with by it prior to or
at the Closing.
5.3 Officer's Certificate. The Purchaser shall have been
furnished with a certificate (dated as of the Closing Date and in form and
substance reasonably satisfactory to the Purchaser), executed by an executive
officer of the Private Company, certifying to the fulfillment of the
conditions specified in subsections 5.1 and 5.2 hereof.
5.4 No Litigation or Proceedings. There shall be no litigation
or any proceeding by or before any governmental agency or instrumentality
pending or threatened against any party hereto that seeks to restrain or
enjoin or otherwise questions the legality or validity of the transactions
contemplated by this Agreement or which seeks substantial damages in respect
thereof.
5.5 No Material Adverse Change. As of the Closing Date there
shall not have occurred any material adverse change, financially or otherwise,
which materially impairs the ability of the Private Company to conduct its
business or the earning power thereof on the same basis as in the past.
5.6 Shareholders' Approval. The holders of not less than a
majority of the outstanding common stock of the Purchaser shall have voted for
authorization and approval of this Agreement and the transactions contemplated
hereby.
5.7 Shareholders' Execution of Subscription Agreement. Each of
the Shareholders shall have duly executed and delivered a Subscription
Agreement in the form as set forth in Schedule "B" as of the Closing Date.
6. Conditions Precedent to Obligations of the Private Company. Each
and every obligation of the Private Company to be performed on the Closing
Date shall be subject to the satisfaction prior thereto of the following
conditions:
6.1 Truth of Representations and Warranties. The
representations and warranties made by the Purchaser in this Agreement or
given on its behalf hereunder shall be substantially accurate in all material
respects on and as of the Closing Date with the same effect as though such
representations and warranties had been made or given on and as of the Closing
Date.
6.2 Performance of Obligations and Covenants. The Purchaser
shall have performed and complied with all obligations and covenants required
by this Agreement to be performed or complied with by it prior to or at the
Closing.
6.3 Officer's Certificate. The Private Company shall have been
furnished with a certificate (dated as of the Closing Date and in form and
substance reasonably satisfactory to the Private Company), executed by an
executive officer of the Purchaser, certifying to the fulfillment of the
conditions specified in subsections 6.1 and 6.2 hereof.
6.4 No Litigation or Proceedings. There shall be no litigation
or any proceeding by or before any governmental agency or instrumentality
pending or threatened against any party hereto that seeks to restrain or
enjoin or otherwise questions the legality or validity of the transactions
contemplated by this Agreement or which seeks substantial damages in respect
thereof.
6.5 No Material Adverse Change. As of the Closing Date there
shall not have occurred any material adverse change, financially or otherwise,
which materially impairs the ability of the Purchaser to conduct its business.
6.6 No Liabilities. As of the Closing Date the Purchaser shall
not have aggregate liabilities in excess of $1,000.
7. Change of Management. Upon and as a condition of Closing this
Agreement:
7.1 Prior to Closing the Purchaser will present to its Board of
Directors for approval the appointment of Xxxxxxx Xxxxxxxxxxxx and Xxxxx
Xxxxxxxxx Xx. as directors of the Purchaser effective immediately following
the Closing of this Agreement. Prior to Closing the Private Company will
furnish material information of Xxxxxxx Xxxxxxxxxxxx and Xxxxx Xxxxxxxxx Xx.
as nominees to be elected by the shareholders of the Purchaser. Purchaser
reserves the right to refuse to cause the nomination of any or all such
persons as directors of Purchaser if, after review of the foregoing
information concerning said persons, it is the opinion of Purchaser that the
election of such persons would not be in the best interests of Purchaser.
7.2 The Private Company reserves the right to terminate this
Agreement if nominees selected by it are not elected or appointed as set forth
above.
8. Closing.
8.1 Time and Place. The Closing of this transaction ("Closing")
shall take place at 00 Xxxx 000 Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx, at
10:00 am, on October 13, 2000, or at such other time and place as the parties
hereto shall agree upon. Such date is referred to in this Agreement as the
"Closing Date."
8.2 Documents To Be Delivered by the Private Company. At the
Closing the Private Company shall deliver to the Purchaser the following
documents:
a. Executed copies of Schedule "B" executed by all of the
shareholders of the Private Company and the certificates for the number of
shares of common stock of the Private Company in the manner and form required
by subsection 1.1 hereof.
b. A stock certificate in the name of the Purchaser
representing all of the outstanding shares of stock of the Private Company.
c. The certificate required pursuant to subsection 5.3
hereof.
d. A certificate of good standing, or other evidence, from
the State of Louisiana dated not more than twenty days prior to Closing.
e. A signed consent and/or minutes of the Private Company's
directors and shareholders approving this Agreement and each matter to be
approved under this Agreement.
f. Such other documents of transfer, certificates of
authority, and other documents as the Purchaser may reasonably request.
8.3 Documents To Be Delivered by the Purchaser. At the Closing
the Purchaser shall deliver to the Private Company the following documents:
a. Authorization for issuance of certificates for the
number of shares of common stock of the Purchaser as determined in subsection
1.2 hereof.
b. The certificate required pursuant to subsection 6.3
hereof.
c. A certificate of good standing, or other evidence, from
the State of Nevada dated not more than twenty days prior to Closing.
d. A signed consent and/or minutes of the Purchasers's
directors approving this Agreement and each matter to be approved under this
Agreement.
e. Such other documents of transfer, certificates of
authority, and other documents as the Private Company may reasonably request.
9. Termination. This Agreement may be terminated by the Purchaser or
the Private Company by notice to the other if, (i) at any time prior to the
Closing Date any event shall have occurred or any state of facts shall exist
that renders any of the conditions to its or their obligations to consummate
the transactions contemplated by this Agreement incapable of fulfillment, or
(ii) on October 15, 2000, if the Closing shall not have occurred. Following
termination of this Agreement no party shall have liability to another party
relating to such termination, other than any liability resulting from the
breach of this Agreement by a party prior to the date of termination.
10. Miscellaneous.
10.1 Notices. All communications provided for herein shall be
in writing and shall be deemed to be given or made when served personally or
when deposited in the United States mail, certified return receipt requested,
addressed as follows, or at such other address as shall be designated by any
party hereto in written notice to the other party hereto delivered pursuant to
this subsection:
Purchaser: Xxxxxx Xxxx, President
00 Xxxx 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
With Copy to: Xxxxxx X. Xxxxx
Attorney at Law
00 Xxxx 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Private Company Xxxxxxx Xxxxxxxxxxxx, President
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx Xxxxx, XX 00000
10.2 Default. Should any party to this Agreement default in any
of the covenants, conditions, or promises contained herein, the defaulting
party shall pay all costs and expenses, including a reasonable attorney's fee,
which may arise or accrue from enforcing this Agreement, or in pursuing any
remedy provided hereunder or by the statutes of the State of Utah.
10.3 Assignment. This Agreement may not be assigned in whole or
in part by the parties hereto without the prior written consent of the other
party or parties, which consent shall not be unreasonably withheld.
10.4 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, their heirs,
executors, administrators, successors and assigns.
10.5 Partial Invalidity. If any term, covenant, condition, or
provision of this Agreement or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, the remainder of
this Agreement or application of such term or provision to persons or
circumstances other than those as to which it is held to be invalid or
unenforceable shall not be affected thereby and each term, covenant,
condition, or provision of this Agreement shall be valid and shall be
enforceable to the fullest extent permitted by law.
10.6 Entire Agreement. This Agreement constitutes the entire
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all negotiations, representations, prior discussions,
letters of intent, and preliminary agreements between the parties hereto
relating to the subject matter of this Agreement.
10.7 Interpretation of Agreement. This Agreement shall be
interpreted and construed as if equally drafted by all parties hereto.
10.8 Survival of Covenants, Etc. All covenants,
representations, and warranties made herein to any party, or in any statement
or document delivered to any party hereto, shall survive the making of this
Agreement and shall remain in full force and effect until the obligations of
such party hereunder have been fully satisfied.
10.9 Further Action. The parties hereto agree to execute and
deliver such additional documents and to take such other and further action as
may be required to carry out fully the transactions contemplated herein.
10.10 Amendment. This Agreement or any provision hereof may not
be changed, waived, terminated, or discharged except by means of a written
supplemental instrument signed by the party or parties against whom
enforcement of the change, waiver, termination, or discharge is sought.
10.11 Full Knowledge. By their signatures, the parties
acknowledge that they have carefully read and fully understand the terms and
conditions of this Agreement, that each party has had the benefit of counsel,
or has been advised to obtain counsel, and that each party has freely agreed
to be bound by the terms and conditions of this Agreement.
10.12 Headings. The descriptive headings of the various
sections or parts of this Agreement are for convenience only and shall not
affect the meaning or construction of any of the provisions hereof.
10.13 Counterparts. This Agreement may be executed in two or
more partially or fully executed counterparts, each of which shall be deemed
an original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto executed the foregoing Agreement
and Plan of Reorganization as of the day and year first above written.
PURCHASER: Shadows Bend Development, Inc.
A Nevada Corporation
By /s/ Xxxxxx Xxxx, President
PRIVATE COMPANY: Shadows Bend Development, Inc.
A Louisiana Corporation
By /s/ Xxxxxxx Xxxxxxxxxxxx, President
SCHEDULE "A"
TO THE
AGREEMENT AND PLAN OF REORGANIZATION
NO. OF SHARES OF NO. OF SHARES OF
NAME OF THE PRIVATE COMPANY THE PURCHASER
SHAREHOLDER TO BE TRANSFERRED TO BE ISSUED
Xxxxxxx X. Xxxxxxxxxxxx 4,987,174 4,987,174
Xxxxxx X. Xxxxxxx 420,000 420,000
Capital Resource Holding, L.L.C. 252,000 252,000
Palisade Properties, Inc. 3,528,000 3,528,000
TOTAL 9,187,174 9,187,174
