Exhibit 2.1
PLAN AND AGREEMENT OF REORGANIZATION
BY EXCHANGE BY
GOLDSPRING, INC.
OF ITS VOTING STOCK FOR
SUBSTANTIALLY ALL THE ASSETS OF
ECOVERY, INC.
GOLDSPRING, INC., a Florida Corporation, (hereinafter called "Buyer"),
and ECOVERY, INC., a Nevada Corporation, (hereinafter called "Seller"), hereby
execute this Plan and Agreement of Reorganization (the "Agreement") and agree as
follows:
ARTICLE 1. PLAN OF REORGANIZATION
Section 1.01. Plan Adopted. A plan of reorganization the parties hereto
pursuant to the provisions of Section 368(a)(1)(C) of the internal Revenue Code
of 1986 is adopted as follows.
(a) Seller will transfer to Buyer substantially all of its assets
("Assets") which include, but are not limited to, (1) all
mining claims and equipment, (2) miscellaneous office
equipment, (3) miscellaneous office furniture, (4) any other
right, title or interest in any mining activity that the
Company may be involved in, whether in negotiation or process
that is not yet finalized.
(b) In exchange for the purchase of the Assets transferred by
Seller, Buyer will issue and deliver to Seller, or its
designees or assigns, a total of Ninety Million restricted
shares (90,000,000) of its voting common stock.
Section 1.02. Closing Date. Subject to the conditions precedent set
forth herein to the obligations of the parties to consummate the
transaction, the plan of reorganization shall be consummated at the
office of A & Jaclin, LLP, Freehold Executive Center, 0000 Xxxxx 0
Xxxxx, 0xx Xxxxx, Xxxxxxxx, XX 00000, on the effective date of March
11, 2003 with the "Closing Date" to be on or before July 30, 2003 at
10:00am, or such other place and date as may be fixed by mutual consent
of the parties. Such date shall be the "Closing Date" referred to
herein.
Section 1.03. Due Diligence. Buyer acknowledges that upon execution of
this Agreement, it has completed any and all due diligence, which it
wishes to undertake, and approves the assets of the seller.
ARTICLE 2. COVENANTS, REPRESENTATIONS,
AND WARRANTIES OF SELLER
Section 2.01 Legal Status. Seller is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Nevada,
with corporate power to own
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property and carry on its business as it is now being conducted. Seller is a
sophisticated investor. Seller is duly qualified to do business in each
jurisdiction in which the character and location of its properties make such
qualification necessary.
Section 2.02. Subsidiaries and/or Affiliates. Seller has 2 wholly owned
affiliates (LLC's), and no interest in any other corporation, firm or
partnership. Seller's affiliates are as follows:
(a) GoldSpring, LLC, a Nevada Limited Liability Company. This is a
single member LLC and is member managed. Ecovery, Inc. is the
sole and managing member.
(b) EcoVat Copper Nevada, LLC, a Nevada Limited Liability Company.
This is a single member LLC and is member managed. Ecovery,
Inc is the sole and managing member.
All of Seller's covenants, representations and warranties shall and do apply to
each of Seller's wholly owned affiliates.
Section 2.03. Capitalization. Seller has an authorized capitalization
of One Hundred Million (100,000,000) shares of common stock. As of the date of
this Agreement Eleven Million (11,000,000) shares of common stock are validly
issued and outstanding, fully paid and non-assessable.
Section 2.04. Financial Statements. Seller has supplied copies of its
most recent audited financial statements to Buyer and its Auditor has supplied a
letter stating that there should be no problem to completing an audit within 60
days of closing.
Section 2.05. Business and Properties. (a) Seller has delivered to
Buyer materials regarding its assets and operations which when acquired will be
the businesses and properties of Buyer. The materials are substantially
completed and the information reported therein is correct in all material
respects. Except as previously disclosed to Buyer in writing, Seller does not
know of any circumstances, events, or other information, occurring prior to or
subsequent to February 28, 2003, which would adversely affect the values as of
December 31, 2002, or subsequent thereto, set forth in the list of properties.
(B) Except for business interests and properties sold or otherwise
disposed of in the ordinary course of business since February 28, 2003, on or
within sixty (60) days after the closing date Seller will have good and
marketable title to all the businesses and interests in its properties, real and
personal, reflected in the list as of February 28, 2003 free and clear of all
mortgages, liens, or encumbrances, other than the following:
(I) The lien of current taxes not yet due and payable
(II) Minor exceptions, not in the aggregate material.
(III) Such imperfections of title as do not materially detract from
or interfere with the operations, value, or use of the
properties subject thereto or affected thereby, or materially
affect the title thereto.
(IV) An amount of $4,650,000.00 payable to Harlesk Nevada, Inc.,
out of net operating profit from gold production on the
GoldSpring claims. Seller and Buyer and Harlesk agree that
Buyer shall issue 46,500 shares of the Company's newly
authorized Preferred Convertible/Redeemable shares to Harlesk
Nevada, Inc. in satisfaction of the above payments. (Formula
and shares shall be determined and issued within 30 days of
closing).
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(c) All leases or mining claims included among the properties, or
to which any of the properties are subject, are in good
standing, valid and effective and, to the best of Seller's
knowledge, information, and belief after reasonable
investigation by Seller, there is not under any of such leases
any existing material default or event of default or event
which with notice of lapse of time or both would constitute a
material default.
(d) The equipment, included among the properties, is in good
condition and repair, subject only to ordinary wear and tear.
(e) There exists no restriction on the right of Seller to convey,
assign, and transfer all the properties, and convey good title
thereto to Buyer.
Section 2.06. Activities Since Balance Sheet Date. Except as previously
disclosed to Buyer in writing, since December 31, 2002, Seller has not:
(a) Suffered any changes in its financial condition or
the operations of its business, materially and
adversely affecting its properties, or the earning
power thereof, not suffered any damage, destruction
or loss, whether covered by insurance or not,
materially and adversely affecting the properties or
the earning power thereof.
(b) Sold, exchanged, or otherwise disposed of any of its
business or properties or any interest therein.
(c) Except in the ordinary course of business, entered
into any Agreement or arrangement selling,
exchanging, or otherwise disposing of any of its
assets or granting any preferential or other right to
purchase any of its assets or rights or requiring the
consent of any party to the transfer and assignment
of such assets or rights.
(d) Discharged or satisfied any lien or encumbrance or
paid any obligation or liability, absolute or
contingent, other than current liabilities shown on
its balance sheet, including non-current liabilities
so shown which have become current by the passage of
time, current liabilities incurred since that date in
the ordinary course of business.
(e) Except current liabilities incurred or obligations
under contracts entered into in the ordinary course
of business, incurred or agreed to incur any
contractual obligation of liability, absolute or
contingent.
(f) Issued any stock, bonds, or other securities, or any
options with respect thereto.
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(g) Except to the extent consistent with past practice,
granted any increase in the compensation of, or paid
any bonus to, any employee.
(h) Except in the ordinary course of business, waived any
right or claim having value.
(i) Declared to paid any dividends, or made, or agreed to
made, or agreed to make, any other distribution to
any shareholder.
(j) Mortgaged or pledged or, except in the ordinary
course of business, subjected to lien, charge, or any
other encumbrance any of its assets, tangible or
intangible.
(k) Entered into any transaction or transactions the
effect of which, considered as a whole, would be to
cause its net ownership in any of its businesses to
be materially less than it was at such date.
(l) Sold, assigned, or transferred any patents,
copyrights, or other intangible assets.
(m) Had any labor troubles other than routine grievance
matters, none of which is material.
(n) Entered into any transaction other than in the
ordinary course of business.
(o) Made any expenditure for capital items, including
construction and work-in-process, or investment in
stock of or advances in any form to corporations or
business firms in the excess of Five Thousand and
No/100ths Dollars ($5,000).
Section 2.07. Schedules Furnished. Seller has delivered to Buyer the
schedules enumerated below which include information and documentation
regarding Seller's wholly owned affiliates. To the extent that any such
schedule identifies any contract, Agreement or other instrument in
general terms in lieu of specific descriptions thereof, the schedule
will be supplemented by setting forth specific descriptions as Buyer
may request. If after the date hereof there shall be any change in the
matters reflected in any such schedule, Seller will deliver to Buyer
prior to the effective date appropriate supplements to the schedule so
affected, making such deletions, modifications, and additions as may be
required in order that Buyer shall have received complete and correct
information as the matters to be reflected in each such schedule. Each
of the schedules and any supplement thereto, delivered by Seller to
Buyer, are substantially complete and the information reported therein
or in any documents provided hereunder is correct in all material
respects as of the date of such schedule or supplement.
(a) Schedule 1 - Off-Balance Sheet Liabilities and
Obligations: This schedule lists all indebtedness or
liabilities affecting Seller or any of its assets or
rights which arise under sale and leaseback
arrangements, through-put Agreements, and any other
Agreements or arrangements which fall within the
category or concept of off-balance sheet financing.
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(b) Schedule 2 - Guaranties: This schedule lists all
indebtedness or liabilities of any person, firm, or
corporation, which Seller has guaranteed or otherwise
become liable for, absolutely or contingently.
(c) Schedule 3 - Certain Material Contracts: This
schedule lists all Agreements, contracts, and other
instruments, to the extent not listed in any other
schedule, not cancelable by Seller on ninety (90)
days notice without penalty which involve a payment
or payments to be made by or to Seller, or a
liability or liabilities of or to Seller, in excess
of five thousand dollars ($5,000) any year.
(d) Schedule 4 - Pending Litigation: This schedule lists
all litigation and proceedings pending or threatened
in courts and governmental commissions and bureaus
affecting Seller or any of its properties or rights
which are not fully covered by insurance.
(e) Schedule 5 - Restrictions on Transfer of Properties:
This schedule lists any of the properties, the
transfer of which by Seller as herein contemplated is
subject to any restriction, or which requires the
consent of any third party, pursuant to a
preferential or other right of purchase or otherwise,
and describes in detail each such restriction,
consent requirement, or purchase right.
(f) Schedule 6 - Options, Warrants, or Other Stock
Purchase Rights: This schedule lists all commitments
by Seller to issue shares of capital stock pursuant
to outstanding options, warrants, or rights of
conversion.
(g) Schedule 7 - Employment and Deferred Compensation
Contracts: This schedule lists all employment,
deferred compensation, and similar contacts by which
Seller is bound
Section 2.08. Compliance with Laws and Regulations. Seller, to the best
of its knowledge, is in compliance with all laws, regulations, and
orders applicable to its business.
Section 2.09. Agreement Not Violative of Law or Instrument. The
execution and carrying out of this Agreement and compliance with the
provisions thereof by Seller will not violate, with or without the
giving of notice or passage of time, any provision of law applicable to
the Seller, and with not conflict with, or result in the breach or
termination of any provision of or constitute a default under, or
result in the creation of any lien, charge, or encumbrance upon any of
the businesses or properties, pursuant to any corporate charter,
bylaws, indenture, mortgage, deed of trust, or other Agreements or
instrument to which Seller is a party or by or by which Seller of any
of its properties may be bound.
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Section 2.10. Taxes. Seller has filed all federal, state, county, and
other local tax returns which are required to be filed, and will make
payment of all taxes which have or may become due pursuant to said
returns or pursuant to any assessment received by Seller.
Section 2.11. Not in Default. Seller has not received any notice of
default and, to the knowledge of any of its officers or directors, is
not in default under:
(a) Any order, writ, injunction, or decree of any court
or any commission or other administrative agency.
(b) Any Agreement or obligation to which it is a party or
by which it is bound or to which it may be subject.
Section 2.12. Not Obligated for Broker's Fee Seller has not incurred
any obligation or liability, contingent or otherwise, for a broker's or
finder's fee in respect of the matters provided for in this Agreement.
Section 2.13. Contract or Commitment Relating to Businesses or
Properties. Except as set forth in the list of business and/or
properties, Seller does not have any lease, contract, or commitment,
written or oral, which relates to any of the properties, and it has
duly complied with all provisions of such lease, contract, or
commitment set forth in the list and is not in default with respect to
any of them.
Section 2.14. Litigation. There is no litigation, proceeding, or
governmental investigation pending, or to the knowledge of any of the
officers or directors of Seller, threatened, affecting Seller or any of
its properties, or its right to enter into this Agreement or to perform
its obligations hereunder, not do any of such officers or directors
know of any ground for any such litigation, proceeding, or
investigation.
Section 2.15. Insurance. Seller now has in force fire, liability, and
other insurance with respect to its properties as set forth in Schedule
S and, except in accordance with the written approval of Buyer pending
the closing date, will not change, increase, or decrease any such
insurance.
Section 2.16 approval of Board. The Board of Directors of Seller,
acting at a special meting thereof called for the purpose and duly held
on February 19, 2003, has duly approved the transactions contemplated
hereby and has authorized the execution and delivery of this Agreement
by Seller, and the performance by Seller. A copy of Seller's Board of
Directors Resolution is attached hereto as Exhibit "B" and incorporated
herein by reference.
Section 2.17. Character of Statements. The information provided and to
be provided by Seller and its officers and directors to Buyer pursuant
to this Agreement, for use in any proxy statement or listing
application, does not and will not contain any statement which, at the
time and in the light of the circumstances under which it is made, is
false or misleading with respect to any material fact, and does not and
will not omit to state any material fact in order to make the
statements therein not false or misleading.
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Section 2.19. No other Representations and Warranties. Seller makes no
other representations and warranties not set forth herein.
ARTICLE 3. COVENANTS, REPRESENTATIONS,
AND WARRANTIES OF BUYER
Section 3.01. Legal Status. Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the State of
Florida, with corporate power to own property and carry on its business
as it is now being conducted.
Section 3.02. Subsidiaries Buyer has no subsidiaries or any interest in
any other corporation, firm, or partnership.
Section 3.03. Capitalization. Buyer has an authorized capitalization of
One Hundred Fifty Million (150,000,000), Common Shares, $0.000666 par
value per share. As of the date of this Agreement 101,501,278 common
shares issued and outstanding fully paid and non-assessable (includes
90,000,000 issued to Ecovery Shareholders) of which 11, 001,278 are
unrestricted. Prior to the closing date, Visator will file an amendment
to its Articles of Incorporation increasing the authorized common stock
to 500,000,000 Shares and will authorize 100,000 Preferred
Convertible/Redeemable Shares @ $100.00 for the purpose of converting
existing and future production payment obligations incurred. A copy of
Buyer's stock ledger, dated February 28, 2003 and confirmed and
acknowledged by Buyer's transfer agent, is attached hereto as Exhibit
"C" and incorporated herein by reference.
Section 3.04. Financial Statements. (a) Buyer has delivered to Seller
its latest audited balance sheet and the related audited statements of
income and retained earnings, a copy of which is attached hereto as
Exhibit "D" and incorporated herein by reference. All such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis and present fairly
the financial position of Buyer.
(a)Buyer's auditor shall have confirmed, in a writing
addressed to Seller, attached hereto as Exhibit "E" and
incorporated herein by reference, that said auditor has no
disagreements with Buyer's current management regarding any
matter affecting such auditor's audited financial statements
for Buyer.
Section 3.05. Properties. (a) Buyer has delivered to Seller a list as
of December 31, 2002, of the properties of Buyer. The list is
substantially complete and the information reported therein is correct
in all material respects. Except as previously disclosed to Seller in
writing, Buyer does not know or any circumstances, events, or other
information, occurring prior to or subsequent to December 31, 2002,
which would adversely affect the values as of December 31, 2002, or
subsequent thereto, set forth in the list of the properties.
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(b)Except for properties and interests in properties sold or
otherwise disposed of in the ordinary course of business since December
31, 2002,on the closing date Buyer will have good and marketable title
to all the properties and interests in properties, real and personal,
reflected in the list as of December 31, 2002, free and clear of all
mortgages, liens, or encumbrances, other than the following:
(i) The lien of current taxes not yet due and
payable. (ii)Minor exceptions, not in the aggregate
material
(iii)Such imperfections of title or easements as do
not materially detract from or interfere with the
operations, value, or use of the properties subject
thereto or affected thereby, or materially affect
the title thereto.
(c) Any such leases included among the properties, or to
which any of the properties are subject, are in good
standing, valid and effective and, to the best of
Buyer's knowledge, information, and belief after
reasonable investigation by buyer, there is not under
any such leases any existing material default or
event of default or event which with notice or lapse
of time or both would constitute a material default
and in respect of which Buyer has not taken adequate
steps to prevent a default from occurring.
Section 3.06. Activities Since Balance Sheet Date. Except as previously
disclosed to Seller in writing, since December 31,2002, Buyer has not:
(a) Suffered any change in its financial condition or the
operations of its business, materially and adversely affecting
its properties, or the earning power thereof, not suffered any
damage, destruction, or loss, whether covered by insurance or
not, materially and adversely affecting the properties or the
earning power thereof.
(b) Except in the ordinary course of business, sold, exchanged, or
otherwise disposed of, or entered into any Agreement or
arrangement to sell, exchange, or otherwise dispose of any of
its properties, rights, or any interest therein.
Section 3.07. Litigation. There are no actions or proceedings pending,
or, to the knowledge of Buyer, threatened against, by, or affecting the
Buyer in any court or before any governmental agency, domestic or
foreign, which, of decided adversely to the Buyer, would materially and
adversely affect the condition or operations, financial or otherwise,
of Buyer. The Buyer, to its knowledge, is not in default with respect
to any order, writ, injunction, or decree of any such court or agency.
Section 3.08. Employment of Seller Employees. At the closing, Buyer
will offer to employ those employees of Seller listed in Schedule 7,
upon terms and conditions satisfactory to Buyer.
Section 3.09. Status of Shares Deliverable. The shares of stock of
Buyer deliverable pursuant to this Agreement, when issued and delivered
as provided in this Agreement, will be validly issued and outstanding
shares of common stock of Buyer, fully paid and non-assessable, and
will be restricted voting stock of the Buyer.
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Section 3.10 Approval of Board. The Board of Directors of Buyer, acting
at a special meeting thereof called for the purpose and duly held on
March 12, 2003, had duly approved the transactions contemplated hereby
and has authorized the execution and delivery of the Agreement by
Buyer, and the performance by Buyer. The resolution giving such
authorization and approval have not since been altered, amended or
revoked. A copy of Buyer's Board of Directors Resolution is attached
hereto as Exhibit "F" and incorporated herein by reference.
Section 3.11. No other Representations and Warranties. Buyer makes no
other representations and warranties not set forth herein.
ARTICLE 4, CONDUCT OF BUSINESS OF
SELLER PENDING CLOSING
Section 4.01. Preservation of and Access to Mining Properties,
Information, and Documents. From the date of this Agreement until the
closing date, Seller will:
(a) Except for depreciation through ordinary wear and
tear, maintain and keep its businesses and properties
in as good financial condition as at present.
(b) Use its best efforts to perform all its obligations
under contracts relating to or affecting the
businesses and/or its properties.
Section 4.02. Submission to Shareholder. Seller has secured majority
consent of its outstanding shares, for this Agreement and the plan
distribution contemplated by Section 1.01 hereof. A copy of the
Shareholders' Resolution approving the transactions contemplated by
this Agreement is attached hereto as Exhibit "G" and incorporated
herein by reference.
Section 4.03. Furnish Proxy and Listing Information. Seller, and its
officers and directors, will furnish to Buyer such information as shall
be needed for use in any proxy statement, filing statement or listing
application which may be required or deemed desirable by Buyer in order
to consummate the transactions contemplated hereby.
Section 4.04 Satisfy Conditions Precedent. Seller will use its best
efforts to cause the satisfaction of all conditions precedent contained
in this Agreement.
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ARTICLE 5. CONDUCT OF BUSINESS OF
BUYER PENDING CLOSING
Section 5.01. Carry on Business as Usual. Pending the consummation of
the plan of reorganization, Buyer will carry on its business in
substantially the same manner as heretofore.
Section 5.02. Satisfy Conditions Precedent. Buyer will use its best
efforts to cause the satisfaction of all conditions precedent contained
in this Agreement.
Section 5.03 Negative Covenants. Except with the prior written consent
of Seller, Buyer will not declare to pay a dividend, or declare or make
any other distribution to its shareholders.
Section 5.04. Submission to Shareholders. Buyer shall submit to its
outstanding shares of each class for their approval, if necessary, this
Agreement and the principal terms of the shares for-assets exchange
described in it. Buyer shall use its best efforts to cause its
outstanding shares of each class to approve this agreement in the
manner required by Florida's Corporation Law.
ARTICLE 6. CONDITIONS PRECEDENT
TO OBLIGATIONS OF BUYER TO CLOSE
Section 6.01. The obligations of the Buyer hereunder are, at its
option, subject to the conditions that on or before the closing date:
(a) Compliance with Terms, Conditions, and Covenants. All
the terms, conditions, and covenants of this
Agreement to be complied with by the Seller on or
before the closing date shall have been complied
with, and Seller shall have delivered to Buyer a
certificate signed by its chairman and treasurer to
such effect.
(b) Truth of Representation and Warranties. The
representations and warranties made by Buyer herein
shall be correct, as of the closing date, with the
same force as though such representations and
warranties had been made on the closing date, and
Buyer shall have delivered to Seller a certificate
signed by its chief executive officer to such effect
as to such other matters as the Seller may reasonably
request.
(c) Permit Granted. The Florida Secretary of State or
other official as appropriate shall have granted to
Buyer an appropriate permit, if necessary,
authorizing it to issue shares of its common stock in
accordance with this Agreement.
(d) Approval by Outstanding Shares. The principal terms
of this Agreement and the shares-for-assets exchange
covered by it shall have been approved as required by
the outstanding shares of each class of both Buyer
and Seller.
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ARTICLE 7. CONDITIONS PRECEDENT TO
OBLIGATIONS OF SELLER TO CLOSE
Section 7.01. The obligations of the Seller hereunder are, at its
option, subject to the conditions that on or before the closing date:
(a) Compliance With Terms, Conditions, and Covenants. All
the terms, conditions, and covenants of this
Agreement to the complied with by Buyer on or before
the closing date shall have been complied with, and
Buyer shall have delivered to Seller a certificate
signed by its President to such effect.
(b) Reimbursement to Seller. Buyer shall reimburse Seller
the sum of $100,000.00 paid by seller to gain title
to the Harlesk Nevada, Inc's Spring Valley and Gold
Canyon Placer gold mining claims located in Lyon
County, Nevada. Payment of such amount shall be in
the form of a promissory note to Seller to be paid
twenty-five (25%) percent from financing the Buyer is
to receive and the balance paid from production.
(c) Truth of Representations and Warranties. The
representations and warranties made by Buyer herein
shall be correct, as of the closing date, with the
same force as though such representations and
warranties had been made on the closing date, and
Buyer shall have delivered to Seller a certificate
signed by its chief executive officer to such effect
and as to such other matters as the Seller may
reasonably request.
(d) No tax Ruling. Seller has not received a written
ruling or rulings of the Internal Revenue Service, to
the effect that the sale of the assets and business
of Seller and the distribution to the shareholders of
Seller of the shares of common stock of Buyer will
not result in the recognition of any taxable income
or deductible loss by Seller or by its shareholders.
(e) No substantial Adverse Change. There shall have been
no substantial adverse change in the financial
condition or operations of Buyer and no suspension of
trading in its stock on the Over the Counter
Electronic Bulletin Board (OTC).
(f) Approval of Shareholders. All corporate proceedings
requisite to the sale and transfer by Seller and its
Shareholders of its voting stock, and its liquidation
and dissolution, shall have be approved and consented
to by the Shareholders of Seller in the manner
required by applicable law or other applicable
requirements. A copy of Seller's Shareholders'
resolution is attached hereto as Exhibit "G" and
incorporated herein by reference.
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(g) Approval by majority outstanding Shares. The
principal terms of this Agreement have been approved,
as required by the Nevada Revised Statutes and the
Florida Business Law by a majority of the outstanding
shares of each class of both Buyer and Seller.
ARTICLE 8. CONSUMMATION OF
TRANSACTION
Section 8.01. Consideration of Seller. Seller will deliver to Buyer, on
the closing date, all of its assets, including, but no limited to, all its
mining claims in Nevada.
Section 8.02. Consideration of Buyer. (a) Except for liabilities and
obligations specified in Subsection (b), upon receipt of the assets of Seller,
Buyer will assume, and will deliver to Seller, the appropriate instruments
evidencing assumption by Buyer of all of the liabilities and obligations of
Seller reflected or referred to in its list of properties and thereafter
incurred in the ordinary course of business to and including the closing date,
including all obligations under Agreements, contacts, and other arrangements to
which it is a part.
(b)Buyer shall assume and be responsible for any and all
liabilities of the Seller.
(c) Buyer shall cause to be delivered to Seller at the
closing date Ninety Million (90,000,000) shares of
Buyers restricted voting common stock.
(d) The directors of Buyer shall tender their
resignations effective upon closing of this
transaction and Buyer shall cooperate with Seller in
the election of a new Board of Directors.
Section 8.03. Post Closing Actions of Seller. Within twelve (12) months
of the Closing Date, Seller shall distribute to its current
shareholders the shares of common stock of Buyer received pursuant to
the exchange as well as any other assets held by Seller at such time.
Section 8.04 Expenses. Each party hereto shall pay its own expenses
incident to this Agreement and the transactions contemplated hereby,
including all fees of its counsel, accountants, and employees whether
or not such transactions shall be consummated.
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ARTICLE 9. INTERPRETATION AND
ENFORCEMENT
Section 9.01. Indemnification. (a) Each party hereto agrees to protect,
defend, indemnify, and hold harmless the other party, its successors
and assigns, against and in respect of all loss, damage, or expense
occasioned by any breach by such indemnifying party of any of its
representations, warranties, covenants, or Agreements contained herein.
(b)Each party hereto will indemnify and hold harmless the other party
against and in respect of any claim for brokerage or other commission
relative to this Agreement or to the transactions contemplated hereby,
based in any way on Agreements, arrangements, or understandings claimed
to have been made by such party with any third party.
(c) Seller agrees to indemnify and hold harmless the Buyer from
any loss, damage, or expenses, including reasonable counsel
fees, sustained or incurred by Buyer by reason of any claim
asserted against Buyer to pay or discharge any liability of
obligation of Seller not expressly assume by Buyer under the
terms hereof.
Section 9.02 Specific Performance. Seller acknowledges that the assets
to be transferred to Buyer pursuant to plan and Agreement are unique
and that Buyer will have no adequate remedy at law if Seller shall fail
to perform any of its obligations hereunder. In such event Buyer shall
have the right, in addition to all other rights, and remedies, to
specific performance of this plan and Agreement of reorganization.
Section 9.03 Survival of Covenants, Representations, and Warranties.
All covenants, Agreements, representations, and warranties made
hereunder and in any certificates delivered at the closing shall be
deemed to be material and to have been relied upon by Buyer and Seller,
notwithstanding any investigation made by Buyer and Seller or on their
respective behalf, and shall survive the closing.
Section 9.04. Assignment. Except with the written consent of the other
party, the rights and obligations under this Agreement shall not be
assignable by either party. Nothing herein expressed or implied is
intended to confer upon any person, other that the parties hereto or
their respective successors, assigns, heirs, and legal representatives,
any fights, remedies, or liabilities under or by reason of this
Agreement.
Section 9.05. Notices. Any notice or other communication required to
permitted hereunder shall be deemed to be properly given when deposited
in the United States mails for transmittal by certified or registered
mail, postage prepaid, or when deposited with a public telegraph
company for transmittal, charges prepaid, if such communication is
addressed:
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In the case of Seller, to: Ecovery, Inc., Attn. Xxxxx Parent, CEO, Director
14354 N. Xxxxx Xxxxx Xxxxxx Blvd. #4
Xxxxxxxxxx, XX 00000
In the case of Buyer, to: Goldspring, Inc. Inc., Attn. Xxxxxxx Xxxxxxxx,
President
000 Xxxx 00xx Xxxxxx, #00
Xxx Xxxx, Xxx Xxxx, 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 9.06. Entire Agreement; Counterparts. This instrument and the exhibits
hereto contain the entire Agreement between the parties with respect to the
transaction contemplated hereby. It may be executed in any number of
counterparts, each of which shall be deemed and original, but such counterparts
together constitute only on and the same instrument. A facsimile signature shall
constitute and original signature.
Section 9.07. Controlling Law. The validity, interpretation, and performance of
this Agreement shall be controlled by and construed under the laws of the State
of New York, USA.
Section 9.08. Jurisdiction. The parties hereto expressly and irrevocably consent
to the jurisdiction of the State of New York. Any action brought by or against
either party in connection with the negotiation, execution, performance,
termination, or breach of this Agreement shall be brought in the State of New
York, unless otherwise agreed to in writing by all parties.
Section 9.09. Attorneys' Fees. Should it be necessary to institute any action to
enforce the terms of this Agreement, the parties hereby agree that the
prevailing party in any such action shall be entitled to recover its reasonable
attorneys' fees, as well as all costs of the action, including, but not limited
to court or arbitration tribunal costs, filing fees, exhibit fees, forensic
consultant fees, litigation support costs and expert witness fees. Further,
recoverable attorney fees and costs shall include the costs for such items for
appeals. This paragraph shall remain independent from any judgment entered to
enforce its terms, shall not merge therewith, and shall entitle the prevailing
party to attorneys fees and costs incurred in connection with post judgment
collection and enforcement efforts.
Section 9.10. Further Actions and Assurances. At any time before or after the
Closing Date, each party will execute, acknowledge, and deliver all further
assignments, conveyances, assurances, instruments of transfer, or other
documents reasonably requested by any other party, and will take all other
actions consistent with the terms of this Agreement that may reasonably be
requested by such party for the purpose of assigning, transferring, granting,
conveying, and confirming or reducing to possession, all of the Shares to be
purchased and sold pursuant to this Agreement.
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Section 9.11. Severability. If any provision of this Agreement is held by a
court to be unenforceable or invalid for any reason, the remaining provisions of
this Agreement shall be unaffected by such holding. If the invalidation of any
such provision materially alters the Agreement of the parties, then the parties
shall immediately adopt new provisions to replace those, which were declared
invalid.
Section 9.12 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart will be deemed to be original instrument
if such counterpart bears the original signatures of the parties hereto;
however, all such counterparts together will constitute but one Agreement.
IN WITNESS WHEREOF, the parties hereto execute this Agreement effective Xxxxx
00, 0000, xx Xxx Xxxx, Xxx Xxxx.
SELLER: ECOVERY, INC., A NEVADA CORPORATION
By: /s/ Xxxxx Parent
-----------------------------
Xxxxx Parent, CEO, Director
By: /s/ Xxxxxx Xxxxxx
------------------------------
Secretary
BUYER: GOLDSPRING, INC. A FLORIDA CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
President
By:
------------------------------------------
Secretary
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