PLAN AND AGREEMENT OF REORGANIZATION
AND EXCHANGE BY MINE-A-MAX CORPORATION
OF 5,829,871 SHARES OF ITS COMMON STOCK
FOR 100% OF THE SHARES OF STOCK OF
PEABODYS COFFEE, INC.
Mine-A-Max Corporation, a Nevada corporation, located at 0000-0000 Xxxx
00xx Xxxxxx, Xxxxxxxxx, X.X. X0X 0X0, hereinafter referred to as "Mine-A-Max,"
and Peabodys Coffee, Inc., a California corporation, located at 0000 Xxxxxxxx
Xxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxxxx 00000, hereinafter referred to as "Peabodys"
agree as follows:
RECITALS
WHEREAS, this Plan and Agreement of Reorganization of Mine-A-Max and
Peabodys (the "Agreement") shall be entered into pursuant to the terms and
conditions contained herein. This merger is intended to qualify as a tax-free
reorganization under Section 368(a) of the Code.
WHEREAS, the Board of Peabodys deems it to be in the best interest of the
Company to have 100% of its issued and outstanding shares of Common Stock
acquired by Mine-A-Max. Peabodys will present this Agreement to its shareholders
and recommend its approval. A condition to the closing of this Agreement is that
at least 51% of the outstanding voting shares of Peabodys will enter into the
Subscription Agreement attached hereto as EXHIBIT A;
WHEREAS, in exchange for the outstanding shares of Peabodys, Mine-A-Max
will issue and cause to be delivered to the shareholders of Peabodys, 5,829,871
shares of Common Stock, par value $0.001, of Mine-A-Max.
Article 1: PLAN OF REORGANIZATION
EXCHANGE
Section 1.01. In exchange for the outstanding shares of Peabodys,
Mine-A-Max will issue and cause to be delivered to the shareholders of Peabodys,
5,829,871 shares of Common Stock, par value $0.001, of Mine-A-Max.
Section 1.02. Subject to the conditions precedent set forth herein, the
parties shall execute this Agreement at the offices of Peabodys Coffee, Inc.
located at 0000 Xxxxxxxx Xxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxxxx 00000 on March 12,
1999, or at such other time and place as may be fixed by the mutual consent of
the parties hereto.
Section 1.03. Upon receipt of acceptance of the share exchange by 51% of
the shareholders of Peabodys, the Articles of Incorporation of Mine-A-Max will
be amended to the form attached hereto as EXHIBIT B, the Bylaws of Mine-A-Max
will be restated to
the form attached hereto as EXHIBIT C, and the Board of Directors of Mine-A-Max
will resign in favor of the Board of Directors listed on EXHIBIT D (the "Initial
Closing Date"). Upon completion of the exchange, Mine-A-Max will issue to the
holders of Peabodys, 5,829,871 shares (the "Final Closing").
Article 2: WARRANTIES AND REPRESENTATIONS
OF MINE-A-MAX CORPORATION
Section 2.01. Mine-A-Max is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Nevada.
Section 2.02. Mine-A-Max has the corporate power and authority to enter
into this Agreement. The execution and delivery by Mine-A-Max of this Agreement
and the consummation by Mine-A-Max of the transactions contemplated hereby have
been duly and validly authorized by all necessary action by the Board of
Directors and stockholders of Mine-A-Max, and no other action on the part of the
Board of Directors or the stockholders of Mine-A-Max is required to authorize
the execution, delivery and performance of this Agreement and the consummation
by Mine-A-Max of the transactions contemplated hereby.
Section 2.03. Mine-A-Max has 254,606 shares of Common Stock issued and
outstanding and 49,745,394 shares of Common Stock authorized and unissued as of
the date of this transaction. Mine-A-Max currently has 50,000 options to
purchase Common Stock outstanding at a price of $1.00 per share. Mine-A-Max has
no other warrants, rights, convertible notes or other convertible securities to
purchase shares of Common Stock of Mine-A-Max or which convert into shares of
Mine-A-Max Common Stock outstanding.
Section 2.04. As of the Final Closing Date, the amount of debt on the books
of Mine-A-Max shall not exceed $20,000.
Section 2.05. All of the issued and outstanding shares of Mine-A-Max Common
Stock are validly issued, fully paid and non-assessable, and have been issued in
compliance with all applicable federal, state and foreign securities laws.
Mine-A-Max currently does not have any shares of Preferred Stock authorized or
outstanding.
Section 2.06. There are no Liens, pledges, chattel mortgages, or other
encumbrances of any kind against the Assets and Properties of Mine-A-Max or the
5,829,871 shares of Common Stock to be issued by Mine-A-Max pursuant to the
transactions contemplated by this Agreement.
Section 2.07. There are no undisclosed interests, present or future, in the
shares to be issued by Mine-A-Max, nor does Mine-A-Max know of any assertion of
such an interest.
Section 2.08. Mine-A-Max is not required by any provision of federal,
state, or local law to take any further action or to seek any governmental
approval of any nature
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to effectuate the issuance of the Mine-A-Max shares to the Peabodys'
shareholders.
Section 2.09. There are no provisions of any Contract, indenture, or other
instrument to which Mine-A-Max is a party or to which Mine-A-Max shares would be
subject that would prevent, limit, or condition the issuance of the Mine-A-Max
shares to Peabodys shareholders.
Section 2.10. As required by the Articles of Incorporation, Bylaws, or any
other agreement, corporate resolution or law, Mine-A-Max will provide the
appropriate documentation to Peabodys that it has complied with all terms as may
be necessary to obtain Mine-A-Max stockholder approval prior to the issuance of
shares of Mine-A-Max Common Stock to shareholders of Peabodys pursuant to the
terms of this Agreement.
Section 2.11. Mine-A-Max currently has no Subsidiaries nor any interest in
any other corporation, partnership, or limited liability company. To date all
business activities of Mine-A-Max has been in the field of mineral exploration
and mine development. Mine-A-Max has abandoned all current mining projects.
Section 2.12. Mine-A-Max is in all material respects in compliance with all
terms, conditions and provisions of all applicable Environmental Permits and
Environmental Laws. There are no past, pending or threatened Environmental
Claims against Mine-A-Max and Mine-A-Max does not know of any facts or
circumstances which could reasonably be expected to form the basis for any
Environmental Claim against Mine-A-Max. No releases of Hazardous Materials have
occurred at, from, in, to, on or under any site and no Hazardous Materials are
present in, on, about or migrating to or from any Site that could give rise to
an Environmental Claim against Mine-A-Max.
Section 2.13. Mine-A-Max has maintained adequate business liability
insurance coverage of its Assets and Properties and mining activities and has
delivered a copy of all current policies to Peabodys. There is no claim by
Mine-A-Max pending under any such policies as to which coverage has been
questioned, denied or disputed by the underwriters. All premiums due and payable
under all policies have been paid, and Mine-A-Max is otherwise in material
compliance with the terms of such policies (or other policies providing
substantially similar insurance coverage). Mine-A-Max has no knowledge of any
threatened termination of, or premium increase with respect to, any such
policies. Mine-A-Max has never been denied insurance coverage nor has any
insurance policy of Mine-A-Max ever been cancelled for any reason. Mine-A-Max
has in full force and effect fire and casualty insurance policies sufficient in
amount (subject to reasonable deductibles) to allow it to replace any of its
properties that might be damaged or destroyed.
Section 2.14. Mine-A-Max has delivered to Peabodys the audited balance
sheet of Mine-A-Max at January 31, 1999 and September 30, 1998. The balance
sheet has been prepared in conformity with generally accepted accounting
principles applied on a consistent basis and fairly depicts the financial
position of Mine-A-Max as of the dates set forth in such balance sheet.
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Section 2.15. Neither Mine-A-Max, nor any of its officers, directors, or
employees is a party to, nor has been threatened with any litigation or
Governmental proceeding which, if decided adversely to it, would have a material
adverse effect on the business or financial condition of Mine-A-Max, would have
a material adverse effect upon the transaction contemplated hereby, or upon the
financial condition or net worth of Mine-A-Max, or which would create a material
liability on the part of Mine-A-Max.
Section 2.16. Mine-A-Max has filed all federal income Tax Returns and, in
each state where qualified or incorporated, all state income tax or franchise
tax returns which are required to be filed, has paid all Taxes as shown on said
returns as the same have become due, and has paid all assessments received to
the extent that such assessments have become due. None of the tax returns of
Mine-A-Max are subject to any pending IRS audit or inquiry and Mine-A-Max does
not have knowledge of any future audits or inquiries.
Section 2.17. The shares of Common Stock of Mine-A-Max which are to be
issued and delivered to shareholders of Peabodys pursuant to the terms of this
Agreement, when so issued and delivered, will be validly authorized and issued,
and will be fully paid and non-assessable and have been issued in compliance
with federal, state and foreign securities laws. No shareholders of Mine-A-Max
will have any preemptive right of subscription or right of first refusal for
purchase in respect thereof.
Article 3: WARRANTIES AND REPRESENTATIONS
OF PEABODYS COFFEE, INC.
Section 3.01. Peabodys is a corporation duly organized, validly existing
and in good standing under the laws of the State of California.
Section 3.02. Peabodys has the corporate power and authority to enter into
this Agreement.
Section 3.03. By executing this Agreement, Peabodys is acting on its behalf
and that of its shareholders.
Section 3.04. Peabodys has had access to the extent it deems necessary to
the financial information of Mine-A-Max to permit it to evaluate the business of
Mine-A-Max and the merits and risks associated with the purchase of the
Mine-A-Max shares of Common Stock described herein.
Section 3.05. Peabodys recognizes that the Mine-A-Max shares to be acquired
through the exchange must be regarded as speculative and subject to a high
degree of risk. Peabodys has received no assurance whatsoever as to the value of
the Mine-A-Max shares to be issued, nor has Mine-A-Max or any other officer or
director of Mine-A-Max made any representations or promises to Peabodys
regarding any potential appreciation in the value of the Mine-A-Max shares to be
issued.
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Article 4: COVENANTS OF
MINE-A-MAX CORPORATION
Section 4.01. At the Final Closing, Mine-A-Max shall undertake to deliver
to shareholders of Peabodys certificates for the Mine-A-Max shares to be issued.
Section 4.02. From the date of execution of this Agreement, Mine-A-Max
shall take no action that would encumber or restrict the Mine-A-Max shares to be
issued.
Section 4.03. Mine-A-Max will file any and all disclosure documents as may
be required by state, federal and foreign securities laws as a result of the
execution and consummation of this Agreement.
Section 4.04. Upon the Initial Closing Date Mine-A-Max will conduct a
Regulation D, Rule 504 offering in the approximate amount of $660,000.
Mine-A-Max will enter into an agreement (the terms of which shall be mutually
agreed to by Peabodys and Mine-A-Max) with Peabodys , to transfer the funds of
the offering to Peabodys for working capital prior to the closing of the merger.
Section 4.05. Upon the Final Closing Date Mine-A-Max will assume all
outstanding options, warrants and convertible promissory notes of Peabodys.
Section 4.06. Mine-A-Max will file necessary documentation with Standard &
Poor's Corporation (or similar organization) and pay the fees to become listed
in the S&P (or similar organization) corporate records. Mine-A-Max will maintain
such listing on a current basis as required by S&P (or similar organization) for
a period of at least three years.
Article 5: COVENANTS OF
PEABODYS COFFEE, INC.
Section 5.01. Following the execution and consummation of this Agreement,
Peabodys will assist Mine-A-Max in the preparation and filing of all disclosure
documents required by state, federal and foreign securities laws.
Section 5.02. Peabodys will continue to solicit the share exchange of its
shareholders beyond the Initial Closing Date until the shareholders of at least
90% of the shares of Peabodys have elected to exchange their shares pursuant to
the terms of this Agreement.
Section 5.03. Upon the Initial Closing Date Peabodys will enter into an
agreement (the terms of which shall be mutually agreed to by Peabodys and
Mine-A-Max) with Peabodys to receive the funds of a Regulation D, Rule 504
offering, in the approximate amount of $660,000, to be conducted by Mine-A-Max.
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Article 6: CONDUCT OF BUSINESS OF
MINE-A-MAX CORPORATION
Section 6.01. As of the date hereof, Mine-A-Max is a development stage
company with no current business operations and will not engage in any business
operations until the closing of this Agreement.
Section 6.02:
(a) Mine-A-Max will allow Peabodys, and its agents, advisors, counsel and
consultants, from the date hereof until consummation of the Agreement,
full access during normal business hours to all books, accounts,
contracts, commitments, and records of every kind of Mine-A-Max in
order that Peabodys may have full opportunity to investigate and make
inquiries of the officers and directors regarding the affairs of
Mine-A-Max.
(b) Peabodys will use any information received pursuant to Section 6.02(a)
only for its own purposes in connection with the consummation of the
transaction contemplated hereby and will not divulge the information
to any persons not so entitled thereto.
Article 7: CONDUCT OF BUSINESS OF
PEABODYS COFFEE, INC.
PENDING CLOSING
Section 7.01:
(a) Peabodys will allow Mine-A-Max, its officers, advisors, consultants,
counsel and agents, from the date hereof until consummation of the
Agreement, full access during normal business hours of all books,
accounts, contracts, commitments, and records of every kind of
Peabodys (except for information deemed by the directors and officers
of Peabodys to be trade secrets and/or other Intellectual Property) in
order that Mine-A-Xxx xxx have full opportunity to make such
investigation and make inquiries of the officers and directors,
regarding the affairs of Peabodys.
(b) Mine-A-Max will use any information received under Section 7.01(a)
only for its own purposes in connection with the consummation of the
transaction contemplated hereby and will not divulge the information
to any persons not entitled thereto.
Section 7.02. The Board of Directors of Peabodys will cause Peabodys to
carry on its business in substantially the same manner as heretofore, and to
continue in full force insurance coverage comparable in amount and scope and
coverage regularly maintained by it. Peabodys will use its best efforts to
maintain its business organization
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intact and to retain its present employees, and to maintain its relationship
with suppliers and others having business relationships with it.
Article 8: CONDITIONS PRECEDENT TO
OBLIGATIONS OF MINE-A-MAX CORPORATION
TO CLOSE
Section 8.01. The obligation of Mine-A-Max to consummate the Agreement and
the transactions herein shall be subject to the following conditions precedent:
(a) Representations and warranties of Peabodys contained herein shall be
true as of the Initial Closing Date with the same effect as though
made on the Final Closing Date (the "Final Closing Date"). Peabodys
shall have performed all obligations and complied with all covenants
required by this Agreement to be performed or complied with by
Peabodys prior to the Initial Closing Date. Peabodys shall have
delivered to Mine-A-Max a certificate dated as of the Initial Closing
Date certifying as to the truth of the representations and warranties,
as to the performance of the obligations, and as to the compliance
with the covenants.
(b) The execution of the Subscription Agreement by at least 51% of the
voting shares of Peabodys.
Article 9: CONDITIONS PRECEDENT TO
OBLIGATIONS OF PEABODYS COFFEE, INC.
TO CLOSE
Section 9.01. The obligations of the Board of Directors of Peabodys to
consummate the Agreement and transactions contemplated hereby shall be subject
to the following conditions precedent:
(a) Representations and warranties of Mine-A-Max contained herein shall be
true as of the Initial Closing Date with the same effect as though
made on the Final Closing Date. Mine-A-Max shall have performed all
obligations and complied with all covenants required by this Agreement
to be performed or complied with by them prior to the Initial Closing
Date.
(b) All permits, filings and consents required by any state, federal and
foreign securities regulatory agency for the lawful consummation of
the reorganization and the transactions contemplated hereby shall have
been made or obtained.
(c) On each of the Initial Closing Date and Final Closing Date, there
shall be furnished to Peabodys an opinion from counsel for Mine-A-Max,
dated as of the closing date and in form and substance satisfactory to
counsel for Peabodys to the effect that Mine-A-Max is a corporation
duly organized, validly existing, and in good standing under the laws
of the State of
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Nevada, and that the shares of common stock of Mine-A-Max delivered to
Peabodys on the closing date have been duly authorized, issued, and
delivered and are validly issued and outstanding, fully paid and
non-assessable shares of common stock in Mine-A-Max, issued in
compliance with state, federal and foreign securities laws, and such
other matters as may be reasonably requested by Peabodys.
Article 10: CONSUMMATION OF TRANSACTION
Section 10.01. Peabodys shall deliver to Mine-A-Max, on the Final Closing
Date, one hundred percent (100%) of the issued and outstanding shares of stock
of Peabodys as agent for the shareholders of Peabodys.
Section 10.02. On the Final Closing Date, Mine-A-Max shall deliver
certificates representing up to 5,829,871 shares of common stock in such names
and quantities as directed by Peabodys to the shareholders of Peabodys.
Section 10.03. Mine-A-Max shall pay all of its expenses and costs incident
to the preparation of this Agreement and the transactions contemplated hereby,
including but not limited to the solicitation of shareholders of Peabodys in
connection with the exchange and the Regulation D, Rule 504 offering. Peabodys
shall pay all of its expenses and costs incident to the preparation of this
Agreement and the transactions contemplated hereby.
Article 11: INTERPRETATION, NOTICE AND ENFORCEMENT
Section 11.01. Any notice or other communication required or 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,
first-class mail or via confirmed facsimile, hand delivery or a national
recognized overnight delivery service.
Section 11.02. Except as limited by the provisions of Section 11.03 below,
this Agreement shall be binding upon and inure to the benefit of the respective
successors and assigns of the parties, as well as to the parties.
Section 11.03. Any assignment of this Agreement or the rights hereunder of
any of the parties, without the written consent of the other parties hereto,
shall be void.
Section 11.04. This instrument and the exhibits attached 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 an original, but such counterparts together constitute
only one and the same instrument.
Section 11.05. The validity, interpretation, and performance of this
Agreement shall be controlled by and construed under the laws of the State of
California.
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Section 11.06. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
Article 12: INDEMNIFICATION
Section 12.01. Mine-A-Max will defend, indemnify and hold Peabodys, each of
its officers, directors, shareholders, agents, employees, representative, legal
counsel and independent accountants, harmless against all expenses, costs
(including attorneys' fees) claims, Losses, damages, or Liabilities (or actions
in respect thereof), including any of the foregoing incurred in settlement of
any litigation, commenced or threatened, arising out of, based on or resulting
from any legal action, suit, proceeding, injunction or claim relating to this
Agreement or any of the transactions contemplated hereby, including, but not
limited to, any untrue statement (or alleged untrue statement) of a material
fact contained in the information obtained by Mine-A-Max, or any amendment or
supplement thereto, or based on any omission (or alleged omission) to state
therein, a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading or any violation of any rule or regulation promulgated under the
Securities Act and any state or foreign securities law or regulation applicable
to Mine-A-Max. Mine-A-Max shall reimburse Peabodys, each of its officers,
directors, shareholders, agents, employees, representatives, legal counsel and
independent accountants, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing, or defending any such
claim, loss, damage, liability, or expense arising out of, based on or resulting
from any of the foregoing.
Section 12.02. Peabodys will defend, indemnify and hold Mine-A-Max, each of
its officers, directors, shareholders, agents, employees, representative, legal
counsel and independent accountants, harmless against all expenses, costs
(including attorneys' fees) claims, Losses, damages, or Liabilities (or actions
in respect thereof), including any of the foregoing incurred in settlement of
any litigation, commenced or threatened, arising out of, based on or resulting
from any legal action, suit, proceeding, injunction or claim relating to this
Agreement or any of the transactions contemplated hereby, including, but not
limited to, any untrue statement (or alleged untrue statement) of a material
fact contained in the information obtained by Peabodys, or any amendment or
supplement thereto, or based on any omission (or alleged omission) to state
therein, a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading or any violation of any rule or regulation promulgated under the
Securities Act and any state or foreign securities law or regulation applicable
to Peabodys. Peabodys shall reimburse Mine-A-Max, each of its officers,
directors, shareholders, agents, employees, representatives, legal counsel and
independent accountants, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing, or defending any such
claim, loss, damage, liability, or expense arising out of, based on or resulting
from any of the foregoing.
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ARTICLE 13: DEFINITIONS
13.1. DEFINITIONS. (a) As used in this Agreement, the following defined
terms shall have the meanings indicated below:
"ACTIONS OR PROCEEDINGS" means any action, suit, proceeding,
arbitration or Governmental or Regulatory Authority investigation or audit.
"AGREEMENT" means this Agreement and Plan of Reorganization, the
Exhibits and the Confidential Offering Circular and Term Sheet and the
certificates and instruments delivered in connection herewith, as the same may
be amended from time to time in accordance with the terms hereof.
"ASSETS AND PROPERTIES" means all assets and properties of every kind,
nature, character and description (whether real, personal or mixed, whether
tangible or intangible, whether absolute, accrued, contingent, fixed or
otherwise and wherever situated), including the goodwill related thereto,
operated, owned or leased by such Person, including cash, cash equivalents,
Investment Assets, accounts and notes receivable, chattel paper, documents,
instruments, general intangibles, real estate, equipment, inventory, goods and
Intellectual Property.
"CODE" means the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
"CONTRACT" means any legally binding agreement, lease, evidence of
Indebtedness, mortgage, indenture, security agreement or other contract or
business arrangement (whether written or oral).
"ENVIRONMENT" means all air, surface water, groundwater, or land,
including land surface or subsurface, including all fish, wildlife, biota and
all other natural resources.
"ENVIRONMENTAL CLAIM" means any and all administrative or judicial
proceedings, suits, orders, claims, liens, notices, notices of violations,
investigations, complaints, proceedings, or other communication (written or
oral), whether criminal or civil, pursuant to or relating to any applicable
Environmental Law by any Person (including any Governmental or Regulatory
Authority, private person and citizens' group) based upon, alleging, asserting,
or claiming any actual or potential (i) violation of or liability under any
Environmental Law, (ii) violation of any Environmental Permit or (iii) liability
for investigatory costs, cleanup costs, removal costs, remedial costs, response
costs, natural resource damages, property damage, personal injury, fines, or
penalties arising out of, based on, resulting from, or related to the presence,
Release, or threatened Release into the Environment, of any Hazardous Materials
at any location, including any off-Site location to which Hazardous Materials or
materials containing Hazardous Materials were sent for handling, storage,
treatment, or disposal.
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"ENVIRONMENTAL LAW" means all federal, state, local and foreign
environmental, health and safety Laws, and ordinances and all rules and
regulations promulgated thereunder, civil or criminal Laws relating to
emissions, discharges, releases or threatened releases of Hazardous Materials,
pollutants, contaminants, chemicals, or toxic or hazardous substances or wastes
into the Environment.
"ENVIRONMENTAL PERMIT" means any federal, state, local, provincial, or
foreign permits, licenses, approvals, consents or authorizations required by any
Governmental or Regulatory Authority under or in connection with any
Environmental Law and includes any and all orders, consent orders or binding
agreements issued or entered into by a Governmental or Regulatory Authority
under any applicable Environmental Law.
"FINAL CLOSING DATE" means the date which the Certificate of Merger is
filed with the Nevada Secretary of State consummating the Merger.
"GOVERNMENTAL OR REGULATORY AUTHORITY" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision, and shall include any stock exchange,
quotation service and the National Association of Securities Dealers.
"HAZARDOUS MATERIALS" means (a) any petroleum or petroleum products,
radioactive materials, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation and transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls (PCBs),
(b) any chemicals, materials, substances or wastes which are now defined as or
included in the definition of "hazardous substances", "hazardous wastes",
"hazardous materials", "extremely hazardous wastes", "restricted hazardous
wastes", "toxic substances", "toxic pollutants" or words of similar import,
under any Environmental Law; and (c) any other chemical, material, substance or
waste, exposure to which is now prohibited, limited or regulated by any
Governmental or Regulatory Authority.
"INDEBTEDNESS" means all obligations (a) for borrowed money, (b)
evidenced by notes, bonds, debentures or similar instruments, (c) for the
deferred purchase price of goods or services (other than trade payables or
accruals incurred in the ordinary course of business), (d) under capital leases
and (e) in the nature of guarantees of the obligations described in clauses (a)
through (d) above of any other Person.
"INTELLECTUAL PROPERTY" means all trademarks and trademark rights,
trade names and trade name rights, service marks and service xxxx rights,
service names and service name rights, patents and patent rights, utility models
and utility model rights, copyrights, brand names, trade dress, product designs,
product packaging, business and product names, logos, slogans, rights of
publicity, trade secrets, inventions, processes, formulae, industrial models,
processes, designs, specifications, data, technology, methodologies, computer
programs (including all source codes), any
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other confidential and proprietary right or information, whether or not subject
to statutory registration, and all related technical information, manufacturing,
engineering and technical drawings, know-how and all pending applications for
and registrations of patents, utility models, trademarks, service marks and
copyrights, and the right to xxx for past infringement, if any, in connection
with any of the foregoing, and all documents, disks and other media on which any
of the foregoing is stored.
"INITIAL CLOSING DATE" means the date on which Mine-A-Max has obtained
approval by 51% of the voting stock of Peabodys by execution of the Subscription
Agreement and the exhibits attached thereto by such shareholders.
"IRS" means the United States Internal Revenue Service.
"LAW" or "LAWS" means all laws, statutes, rules, regulations,
ordinances and other pronouncements having the effect of law of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision or of any Governmental or Regulatory Authority.
"LIABILITIES" means all Indebtedness, obligations and other
liabilities of a Person, whether absolute, accrued, contingent (or based upon
any contingency), fixed or otherwise, or whether due or to become due which
would be required to be reflected in financial statements prepared in accordance
with GAAP.
"LIENS" means any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind, or
any conditional sale Contract, title retention Contract or other Contract to
give any of the foregoing.
"LOSS(ES)" means any and all damages, fines, fees, Taxes, penalties,
deficiencies, losses and expenses, including interest, reasonable expenses of
investigation, court costs, reasonable fees and expenses of attorneys,
accountants and other experts or other expenses of litigation or other
proceedings or of any claim, default or assessment (such fees and expenses to
include all fees and expenses, including fees and expenses of attorneys,
incurred in connection with (i) the investigation or defense of any Third Party
Claims or (ii) asserting or disputing any rights under this Agreement against
any party hereto or otherwise).
"OPTION" with respect to any Person means any security, right,
subscription, warrant, option, "phantom" stock right or other Contract that
gives the right to (i) purchase or otherwise receive or be issued any shares of
capital stock or other equity interests of such Person or any security of any
kind convertible into or exchangeable or exercisable for any shares of capital
stock or other equity interests of such Person or (ii) receive any benefits or
rights similar to any rights enjoyed by or accruing to the holder of shares of
capital stock or other equity interests of such Person, including any rights to
participate in the equity, income or election of directors or officers of such
Person.
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"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SUBSIDIARY" means any Person in which the Company, directly or
indirectly through Subsidiaries or otherwise, beneficially owns at least 50% of
either the equity interest in, or the voting control of, such Person, whether or
not existing on the date hereof.
"TAX" or "TAXES" means all federal, state, local or foreign net or
gross income, sales, use or other taxes of any nature whatever, whether disputed
or not, together with any interest, penalties, additions to tax or additional
amounts with respect thereto.
"TAX RETURNS" means any returns, reports or statements (including any
information returns) required to be filed for purposes of a particular Tax.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of
the dates set forth below.
MINE-A-MAX CORPORATION PEABODYS COFFEE, INC.
By: ___________________________ By: __________________________
E. Del Thachuk Xxxx Xxxxxxx
President President
Dated: ________________________ Dated: _______________________
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EXHIBIT A
SUBSCRIPTION AGREEMENT
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EXHIBIT B
AMENDMENT TO THE ARTICLES OF INCORPORATION
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EXHIBIT C
RESTATED BYLAWS
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EXHIBIT D
The following is a list of the Board of Directors of Mine-A-Max to be elected
upon the approval of 51% of the shareholders of Peabodys Coffee, Inc. in favor
of the share exchange:
Xxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxxxx Xxxxxxx
E. Del Thachuk
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