AGREEMENT AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER dated as of 20 September 2005 (the “Agreement”),
between IPtimize,
Inc.,
a
Colorado corporation (“IPtimize”), Simmetech,
Inc. ,
a
Minnesota corporation (“JGRT” and doing business as “Jaguar Resorts”) and
Iptimize
Operations, Inc.,
a
wholly-owned Subsidiary of JGRT (“Subsidiary”). IPtimize, JGRT and Subsidiary
may also be referred to herein as the “Constituent Corporations” or the
“Parties.”
WHEREAS,
the Parties acknowledge and affirm the following:
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A.
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IPtimize
is a corporation duly organized and existing under the laws of the
State
of Colorado.
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B.
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JGRT
is a corporation duly organized and existing under the laws of the
State
of Minnesota.
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C.
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Subsidiary
is a corporation which is 100% owned by JGRT and is duly organized
and
existing under the laws of the State of
Minnesota.
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D.
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E.
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The
Minnesota Business Corporations Act (the “Minnesota Act”) permits a merger
of a business corporation in the state of Minnesota with and into
of a
business corporation of another
jurisdiction.
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F.
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IPtimize
and JGRT and their respective Boards of Directors declare it advisable
and
to the advantage, welfare, and best interests of said corporations
and
their respective stockholders to merge IPtimize with and into JGRT
pursuant to the provisions of the Colorado Act and pursuant to the
provisions of the Minnesota Act upon the terms and conditions hereinafter
set forth.
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G.
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The
respective Boards of Directors of IPtimize and JGRT have approved
this
Agreement; the shareholders of IPtimize have approved the merger;
and JGRT
has directed that this Agreement be submitted to a vote of its
shareholders.
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H.
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For
federal income tax purposes, it is intended that the merger qualify
as a
reorganization under Section 368(a) of the Internal Revenue Code
of 1986,
as amended (the “IRC”).
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1
ARTICLE
1
THE
MERGER
1.1 Merger
In
accordance with the provisions of this Agreement and applicable provisions
of
the Colorado Act and the Minnesota Act, IPtimize shall be merged with and into
a
wholly-owned subsidiary of JGRT (the “Merger”). Following the Merger, the
separate existence of IPtimize shall cease and JGRT shall be, and is herein
sometimes referred to as, the “Surviving Corporation.” The name of the Surviving
Corporation shall be “IPtimize, Inc.” For the purposes of this Agreement, this
form of transaction may also be referred to herein as a “reverse triangular
merger.”
1.2 Filing
and Effectiveness
The
Merger shall become effective when the following actions shall have been
completed:
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(a)
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This
Agreement and the Merger shall have been adopted and approved by
the
shareholders of JGRT in accordance with the requirements of the Minnesota
Act;
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(b)
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JGRT
shall have formed a wholly-owned subsidiary for the purposes of this
Merger in accordance with the requirements of the Minnesota Act (the
“Subsidiary”);
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(c)
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JGRT
shall have authorized and executed a one-for-fifty (1:50) reverse
split of
its Common Stock, which such adjusted share count shall be as reflected
herein;
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(d)
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IPtimize
shall have executed a one-for-two (1:2) reverse split of its Common
and
Preferred Stock, which such adjusted share count shall be as reflected
herein;
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(e)
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All
of the conditions precedent to the consummation of the Merger specified
in
this Agreement shall have been satisfied or duly waived by the party
entitled to satisfaction thereof;
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(f)
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(g)
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Executed
Articles of Merger meeting the requirements of the Minnesota Act
shall
have been filed with the Secretary of State of the State of Minnesota
in
substantially the form attached hereto as Exhibit B.
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2
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(h)
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The
date and time when the Merger shall become effective, as aforesaid,
is
herein called the “Closing.”
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(i)
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JGRT
shall have been deemed to be auditable by a competent auditing firm,
with
all necessary data and materials delivered by JGRT to
IPtimize.
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1.3 Effect
of the Merger
Upon
the
Closing, the separate existence of IPtimize shall cease and JGRT, through the
Subsidiary, as the Surviving Corporation: (i) shall continue to possess all
of
the assets, rights, powers and property of JGRT as constituted immediately
prior
to the Closing, except for those liabilities set forth on Exhibit C;
(ii)
shall be subject to all actions previously taken by the Board of Directors
of
IPtimize and the Board of Directors of JGRT; (iii) succeed, without transfer,
to
all of the assets, rights, powers and property of IPtimize in the manner more
fully set forth in the Colorado Act and the Minnesota Act; (iv) shall continue
to be subject to all of the debts, liabilities and obligations of IPtimize
as
constituted immediately prior to the Closing, except for those liabilities
set
forth on Exhibit C,
in the
same manner as if JGRT had itself incurred them, all as more fully provided
under the applicable provisions of the Colorado Act and the Minnesota
Act.
ARTICLE
2
CHARTER
DOCUMENTS, DIRECTORS AND OFFICERS
2.1 Certificate
of Incorporation
Attached
hereto as Exhibit D
and made
a part hereof is a copy of the Articles of Incorporation of JGRT as in effect
in
the State of Minnesota immediately prior to the Closing; and said Articles
of
Incorporation shall continue in full force and effect as the Articles of
Incorporation of the Surviving Corporation until duly amended in accordance
with
the provisions thereof and applicable law.
2.2 Subsidiary
Attached
hereto as Exhibit D-2
and made
a part hereof is a copy of the Articles of Incorporation of Subsidiary as in
effect immediately prior to the Closing; and shall continue in full force and
effect as a subsidiary of the Surviving Corporation until duly amended in
accordance with the provisions thereof and applicable law.
2.3 Bylaws
Attached
hereto as Exhibit E
and made
a part hereof is a copy of the Bylaws of JGRT as in effect immediately prior
to
the Closing; and said Bylaws shall continue in full force and effect as the
Bylaws of the Surviving Corporation until duly amended in accordance with the
provisions thereof and applicable law.
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2.4 Directors
and Officers
The
directors and officers of IPtimize immediately prior to the Closing shall be
the
directors and officers of the Surviving Corporation until their successors
shall
have been duly elected and qualified or until as otherwise provided by law,
the
Certificate of Incorporation of the Surviving Corporation or the Bylaws of
the
Surviving Corporation. The officers of JGRT shall have resigned their respective
positions, however Xxxxxx Xxxxxx shall become a director of the Surviving
Corporartion.
ARTICLE
3
MANNER
OF CONVERSION OF STOCK
3.1 IPtimize
Shares
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(a)
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Common
Stock:
Upon the Closing, (i) each share of IPtimize Common Stock, with a
par
value of $.001 per share, issued and outstanding immediately prior
thereto
shall by virtue of the Merger, and without any action by the Constituent
Corporations, the holder of such shares or any other person, be converted
into and exchanged for 15,452,750
(30,905,500 shares before giving effect to the 1:2 reverse split
of
IPtimize stock as approved) fully paid and non-assessable shares
of Common
Stock, on a one-for-one basis, par value $.001 per share, of JGRT
(the
Surviving Corporation.) The Parties acknowledge that of the above
15,452,750 shares, 2,852,500 Common Stock shares of IPtimize (5,705,000
shares before giving effect to the 1:2 reverse split of IPtimize
stock as
approved) are as-to-be-converted by holders of a total of $570,500
of
IPtimize Bridge Notes, and that such conversion to equity is expected
by
the holders after completion of this Agreement. IPtimize makes no
guarantee that all such notes will be converted by the
holders.
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(b)
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Series
A Preferred Stock:
Upon the Closing, (i) each share of IPtimize Series A Preferred Stock,
with a par value of $.001 per share, issued and outstanding immediately
prior thereto shall by virtue of the Merger, and without any action
by the
Constituent Corporations, the holder of such shares or any other
person,
be converted into and exchanged for 750,000
(1,500,000 shares before giving effect to the 1:2 reverse split of
IPtimize stock as approved) fully paid and non-assessable shares
of Series
A Preferred Stock, on a one-for-one basis, par value $.001 per share,
of
JGRT (the Surviving Corporation.) When combined with the Common Stock,
the
total number of shares of JGRT to be issued to IPtimize shareholders
shall
be 16,202,750
shares.
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3.2 JGRT
Shares
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(a)
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JGRT:
The issued Common Stock shares of the JGRT as the Surviving Corporation:
(i) shall be after giving effect to a one-for-fifty (1:50) reverse
split
of its stock as authorized and executed by the Board of Directors
of JGRT;
(ii) shall not be converted or exchanged in any manner, but each
said
Common Stock share which is issued as of the Closing shall continue
to
represent one issued share of the Surviving Corporation; and shall
thus
consist of a total of 400,786
shares outstanding as of the Closing (the “JGRT Shares” and which was
previously 20,039,313 shares before giving effect to the reverse
split).
JGRT shall have no other class of equity in existence as of the
Closing.
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(b)
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Subsidiary:
JGRT shall have issued and outstanding one hundred (100) Common Stock
shares of Subsidiary which are 100% owned by JGRT and which shall
not be
converted or exchanged in any manner, but each said Common Stock
share
which is issued as of the Closing shall continue to represent one
issued
share of Subsidiary. Subsidiary shall have no other class of equity
in
existence as of the Closing.
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3.3
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Minnivestco
Shares
The Parties acknowledge and affirm that Minnivestco, LLC (“Minnivestco”),
as a consultant to this transaction, shall be issued 800,000
Common Stock shares of the Surviving Corporation upon the completion
of
the Merger as defined herein. Minnivestco is an entity beneficially
controlled by Xxxxxx Xxxxxx, who is also a shareholder and director
of
JGRT.
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3.4
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Excelsus
Shares
The Parties acknowledge and affirm that the parties below, as consultants
to this transaction, shall be issued a total of 1,675,700
Common Stock shares of the Surviving Corporation upon the completion
of
the Merger as defined herein, as follows:
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(a)
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Excelsus
Capital, LLC (“Excelsus”)
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900,700
shares
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(b)
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Red
Room, LLC
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500,000
shares
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(c)
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Xxxxx
Consulting, Inc.
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275,000
shares
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3.5
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Total
Shares to Be Issued in the Surviving Corporation
The number of shares to be issued in the Surviving Corporation per
sections 3.1, 3.2, 3.3 and 3.4 hereby shall total 19,079,236
Common Stock shares.
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3.6 Surrender
of Certificates
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(a)
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Each
certificate, if any, which immediately prior to the Closing represented
shares of capital stock of IPtimize, shall be surrendered at the
Closing
or as soon as practicable thereafter. Certificates of the capital
stock of
IPtimize shall be exchanged for certificates evidencing and representing
ownership of the number of shares of capital stock of JGRT (as the
Surviving Corporation) into which said shares of capital stock of
IPtimize
shall have been converted at the
Closing.
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(b)
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If
any certificate representing stock of JGRT (as the Surviving Corporation)
is to be issued in a name other than that in which a surrendered
certificate theretofore representing stock of IPtimize is registered,
it
shall be a condition of such issuance that the surrendered certificate
shall be properly endorsed or otherwise in proper form for transfer
and
that the person requesting such issuance shall either pay to JGRT
or its
transfer agents any transfer or other taxes required by reason of
the
issuance of a certificate or certificates representing IPtimize stock
in a
name other than that of the registered holder of the certificate
so
surrendered or establish to the satisfaction of JGRT or its transfer
agents that such tax has been paid or is not applicable. It shall
be the
affirmative duty of each shareholder to submit such certificates
for
transfer and exchange.
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ARTICLE
4
REVERSE
SPLIT OF JGRT STOCK PRIOR TO CLOSING
4.1 Reverse
Split.
The
Board of Directors of JGRT shall have authorized and executed, subject to any
vote by the JGRT shareholders as may be necessary, the one-for-fifty (1:50)
reverse split of the JGRT stock outstanding prior to the Agreement (the “JGRT
Reverse Split”). The Board of Directors represents and warrants that such JGRT
Reverse Split shall have been duly executed and recorded according to the
Articles of Incorporation of JGRT and the Minnesota Act, such that a previous
total of 20,039,313 shares of JGRT shall have been surrendered and 400,786
JGRT
shares shall have been authorized for issuance in their place.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF IPTIMIZE
IPtimize
represents and warrants to JGRT that the statements contained in this Article
are correct and complete as of the date of this Agreement and will be correct
and complete as of the Closing (as though made then and as though the Closing
were substituted for the date of this Agreement throughout this Article) with
respect to itself.
5.1 Organization
of IPtimize.
IPtimize
is duly organized, validly existing, and in good standing under the laws of
Colorado.
5.2 Authorization
of Transaction.
IPtimize
has full corporate power and authority to execute and deliver this Agreement
and
to perform his obligations hereunder. This Agreement constitutes the valid
and
legally binding obligation of IPtimize, enforceable in accordance with its
terms
and conditions. Except as expressly contemplated hereby, IPtimize need not
give
any notice to, make any filing with, or obtain any authorization, consent,
or
approval of any government or governmental agency in order to consummate the
transactions contemplated by this Agreement.
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5.3 Non-contravention.
Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which IPtimize
is subject or any provision of its charter or bylaws; or (ii) conflict with,
result in a breach of, constitute a default under, result in the acceleration
of, create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease, license, instrument,
or other arrangement to which IPtimize is a party or by which it is bound or
to
which any of its assets is subject, except for such notices or consents which
have been given or obtained by IPtimize on or prior to the Closing.
5.4 Capitalization.
The
authorized capital stock of IPtimize consists of 100,000,000 shares of Common
Stock, $.001 par value per share, and 30,000,000 shares of Series A Preferred
Stock, $.001 par value per share. As of the date of this Agreement, there are
15,352,750 (30,705,500 shares before giving effect to the 1:2 reverse split
of
IPtimize stock as approved) shares of Common Stock and 750,000 (1,500,000 shares
before giving effect to the 1:2 reverse split of IPtimize stock as approved)
shares of Series A Preferred Stock issued and outstanding. The number of shares
hereby is inclusive of warrants for the purchase of shares and shares to be
converted by holders of notes of IPtimize as defined in Section 3.1(a) hereby.
There are no additional outstanding or authorized options, warrants, purchase
rights, subscription rights, conversion rights, exchange rights, or other
contracts or commitments that could require IPtimize to issue, sell, or
otherwise cause to become outstanding any of its capital stock. There are no
outstanding or authorized stock appreciation, phantom stock, profit
participation, or similar rights with respect to IPtimize’s Common Stock or
Series A Preferred Stock. There are no voting trusts, proxies, or other
agreements or understandings with respect to the voting of the capital stock
of
IPtimize.
5.5 Investment.
IPtimize
is not acquiring the shares of JGRT with a view to or for sale in connection
with any distribution thereof within the meaning of the Securities Act of 1933.
IPtimize has had access to all information concerning JGRT and its operations
which it required to make its investment decision.
5.6 Brokers'
Fees.
IPtimize
has no liability or obligation to pay any fees or commissions to any broker,
finder, or agent with respect to the transactions contemplated by this Agreement
for which JGRT could become liable or obligated. IPtimize acknowledges that
Minnivestco and Excelsus have acted as consultants to the transaction for which
shares in the Surviving Corporation shall be issued as defined in Sections
3.3
and 3.4 hereby.
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ARTICLE
6
REPRESENTATIONS
AND WARRANTIES OF JGRT
JGRT
represents and warrants to IPtimize that the statements contained in this
Article 6 are correct and complete as of the date of this Agreement and will
be
correct and complete as of the Closing (as though made then and as though the
Closing were substituted for the date of this Agreement throughout this Article
6).
6.1 Organization
of JGRT.
JGRT
is a
corporation duly organized, validly existing, and in good standing under the
laws of Minnesota. JGRT has no subsidiaries, except the Subsidiary defined
herein.
6.2 Authorization
of Transaction.
JGRT
has
full corporate power and authority to execute and deliver this Agreement and
to
perform its obligations hereunder, including shareholder approval as may be
required by the Minnesota Act. This Agreement constitutes the valid and legally
binding obligation of JGRT, enforceable in accordance with its terms and
conditions. Except as expressly contemplated hereby, JGRT need not give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order to consummate the
transactions contemplated by this Agreement.
6.3 Non-contravention.
Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which JGRT
is
subject or any provision of its charter or bylaws; or (ii) conflict with, result
in a breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or cancel,
or
require any notice under any agreement, contract, lease, license, instrument,
or
other arrangement to which JGRT is a party or by which it is bound or to which
any of its assets is subject, except for such notices or consents which have
been given or obtained by JGRT on or prior to the Closing.
6.4 Capitalization.
The
authorized capital stock of JGRT consists of 100,000,000 shares of Common Stock,
$.001 par value per share, and 10,000,000 shares of Preferred Stock. As of
the
date of this Agreement, there were 400,786 (20,039,313 shares before giving
effect to the authorized and executed JGRT Reverse Split) shares of Common
Stock
and no shares of Preferred Stock issued and outstanding. There are no
outstanding or authorized options, warrants, purchase rights, subscription
rights, conversion rights, exchange rights, or other contracts or commitments
that could require JGRT to issue, sell, or otherwise cause to become outstanding
any of its capital stock. There are no outstanding or authorized stock
appreciation, phantom stock, profit participation, or similar rights with
respect to JGRT’s Common Stock. There are no voting trusts, proxies, or other
agreements or understandings with respect to the voting of the capital stock
of
JGRT.
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6.5 Brokers'
Fees.
JGRT
has
no liability or obligation to pay any fees or commissions to any broker, finder,
or agent with respect to the transactions contemplated by this Agreement for
which IPtimize could become liable or obligated. JGRT acknowledges that
Minnivestco and Excelsus have acted as consultants to the transaction for which
shares in the Surviving Corporation shall be issued as defined in Sections
3.3
and 3.4 hereby.
6.6 Events
Subsequent to Year End.
Since
the
most recent calendar-fiscal year end of JGRT, there has not been any material
adverse change in the business, financial condition, operations, results of
operations, or future prospects of JGRT taken as a whole.
6.7 Undisclosed
Liabilities.
JGRT
has
no material liability (whether known or unknown, whether asserted or unasserted,
whether absolute or contingent, whether accrued or un-accrued, whether
liquidated or un-liquidated, and whether due or to become due, including any
liability for taxes), except for (i) liabilities set forth on the JGRT Financial
Statements; and (ii) liabilities which have arisen after the date of the JGRT
Financial Statements in the ordinary course of business. As used herein, “JGRT
Financial Statements” consist of the financial statements of IPtimize previously
delivered to IPtimize in the form attached hereto as Exhibit H.
6.8 Legal
Compliance.
JGRT
has
complied with all applicable laws (including rules, regulations, codes, plans,
injunctions, judgments, orders, decrees, rulings, and charges thereunder) of
federal, state, local, and foreign governments (and all agencies thereof),
and
no action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against JGRT alleging any failure
so to comply, except where the failure to comply would not have a material
adverse effect on the business, financial condition, operations, results of
operations, or future prospects of JGRT.
6.9 Tax
Matters.
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(a)
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JGRT
has filed all income tax returns that it has been required to file.
All
such income tax returns were correct and complete in all material
respects. All income taxes owed by JGRT (whether or not shown on
any
income tax return) have been paid. JGRT is not currently the beneficiary
of any extension of time within which to file any income tax
return.
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(b)
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There
is no material dispute or claim concerning any income tax liability
of
JGRT either (i) claimed or raised by any authority in writing; or
(ii) as
to which JGRT has knowledge based upon personal contact with any
agent of
such authority.
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6.10 Contracts.
The
JGRT
Financial Statements disclose all material contracts of JGRT. Each contract
or
legal obligation of JGRT which is to be assumed by JGRT in connection with
the
Merger is listed on Exhibit I
hereto.
To the extent requested, true and correct copies of such contracts have been
delivered to JGRT for due diligence purposes.
6.11 Environmental,
Health and Safety Matters.
JGRT
and
its predecessors and affiliates have complied and are in compliance, in each
case in all material respects, with all Environmental, Health, and Safety
Requirements. As used herein “Environmental, Health & Safety Requirements”
means any Environmental, Health & Safety law or regulation including air and
water quality laws and regulations and other similar requirements.
6.12 Disclosure.
The
representations and warranties contained in this Article 6 do not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements and information contained in this Article 6
not
misleading.
6.13 Financial
Statements.
The
JGRT
Financial Statements are true and correct in all material respects, have been
prepared on a consistent basis, and fairly represent the business, financial
condition, assets and liabilities of JGRT.
6.14 Litigation.
There
is
no claim, suit, action, proceeding or investigation pending or, to the knowledge
of JGRT, pending against JGRT or any of its subsidiaries or assets which,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on JGRT.
6.15 Materials
Required for Audit.
To
the
best of its knowledge, JGRT has maintained its records, data and materials
related to the financial accounting of the business, and has all such data
and
materials immediately available, such that an audit may be completed per
regulatory requirements.
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ARTICLE
7
REPRESENTATIONS
AND WARRANTIES OF SUBSIDIARY
JGRT
represents and warrants to IPtimize that Subsidiary has been formed solely
for
the purpose of this Merger and that no contract, liabilities or other
obligations exist in Subsidiary.
7.1 Organization
of Subsidiary.
Subsidiary
is a corporation duly organized, validly existing, and in good standing under
the laws of Minnesota and 100% owned by JGRT.
7.2 Authorization
of Transaction.
JGRT
has
full corporate power and authority to execute and deliver Subsidiary with regard
to this Agreement and to perform its obligations hereunder, including
shareholder approval as may be required by the Minnesota Act.
7.3 Non-contravention.
Neither
the execution and the delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will (i) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which JGRT
or
Subsidiary is subject or any provision of its charter or bylaws; or (ii)
conflict with, result in a breach of, constitute a default under, result in
the
acceleration of, create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which JGRT or Subsidiary is a party or
by
which it is bound or to which any of its assets is subject, except for such
notices or consents which have been given or obtained by JGRT on or prior to
the
Closing.
7.4 Capitalization.
The
authorized capital stock of Subsidiary consists of one hundred (100) shares
of
Common Stock, $.001 par value per share, and no shares of Preferred Stock.
As of
the date of this Agreement, there were one hundred (100) Common Stock shares.
There are no outstanding or authorized options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights, or other contracts
or
commitments that could require Subsidiary to issue, sell, or otherwise cause
to
become outstanding any of its capital stock. There are no outstanding or
authorized stock appreciation, phantom stock, profit participation, or similar
rights with respect to Subsidiary’s Common Stock. There are no voting trusts,
proxies, or other agreements or understandings with respect to the voting of
the
capital stock of JGRT.
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ARTICLE
8
PRE-CLOSING
COVENANTS
The
Parties agree as follows with respect to the period between the execution of
this Agreement and the Closing:
8.1 General.
Each
of
the Parties will use its reasonable best efforts to take all action and to
do
all things necessary, proper, or advisable in order to consummate and make
effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth in Article
10
below).
8.2 Notices
and Consents.
Each
of
the Parties will give any notices to, make any filings with, and use its
reasonable best efforts to obtain any authorizations, consents, and approvals
of
governments and governmental agencies in connection with the transactions
contemplated hereby.
8.3 Operation
of Business.
JGRT,
including Subsidiary, will not engage in any practice, take any action, or
enter
into any transaction outside the ordinary course of business, including, but
not
limited to declaration of dividends or distributions, redemptions, splits,
recapitalizations, or similar events respecting its capital stock prior to
Closing.
8.4 Full
Access For Due Diligence.
JGRT
will
permit representatives of IPtimize to have full access at all reasonable times,
and in a manner so as not to interfere with the normal business operations
of
JGRT, to all premises, properties, personnel, books, records (including tax
records), contracts, and documents of or pertaining to JGRT. IPtimize and JGRT
will treat and hold as such any Confidential Information they receive from
JGRT,
will not use any of the Confidential Information except in connection with
this
Agreement, and, if this Agreement is terminated for any reason whatsoever,
will
return to JGRT all tangible embodiments (and all copies) of the Confidential
Information which are in their possession.
ARTICLE
9
POST-CLOSING
COVENANTS
The
Parties agree as follows with respect to the period following the
Closing.
9.1 General.
In
case
at any time after the Closing any further action is necessary to carry out
the
purposes of this Agreement, each of the Parties will take such further action
(including the execution and delivery of such further instruments and documents)
as any other Party reasonably may request, all at the sole cost and expense
of
the requesting Party. JGRT acknowledges and agrees that from and after the
Closing IPtimize will be entitled to possession of all documents, books, records
(including tax records), agreements, and financial data of any sort relating
to
JGRT.
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9.2 Litigation
Support.
In
the
event and for so long as IPtimize or JGRT actively are contesting or defending
against any action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand in connection with (i) any transaction contemplated under
this
Agreement; or (ii) any fact, situation, circumstance, status, condition,
activity, practice, plan, occurrence, event, incident, action, failure to act,
or transaction on or prior to the Closing Date involving JGRT, then JGRT and
its
affiliates will cooperate with IPtimize or JGRT in the contest or defense,
make
available their personnel, and provide such testimony and access to their books
and records as shall be necessary in connection with the contest or defense,
all
at the sole cost and expense of the contesting or defending Party.
ARTICLE
10
CONDITIONS
TO OBLIGATION TO CLOSE
10.1 Assumption
of JGRT Liabilities by IPtimize.
IPtimize
shall assume only such liabilities as defined in Exhibit C
hereto.
10.2 No
Lock-Up of the JGRT Shares.
The JGRT
Shares, which upon effective approval with the approving authorities for public
trading on a stock exchange (which shall be applied and designated only after
the Closing), shall be deemed freely tradable subsequent to the provisions
of
the 1934 Act of the Securities and Exchange Commission. There shall be no
“lock-up” or other form of trading restriction to be imposed by the Surviving
Corporation upon such shares.
10.3 New
CUSIP Number.
IPtimize
shall apply for a new “CUSIP” number post merger and all certificates issued
shall be issued with such newly issued CUSIP number.
10.4 Conditions
to Obligation of JGRT and Subsidiary.
The
obligations of JGRT and IPtimize to consummate the transactions to be performed
by them in connection with the Closing are subject to satisfaction of the
following conditions:
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(a)
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the
representations and warranties set forth in Articles 6 and 7 above
shall
be true and correct in all material respects at and as of the
Closing;
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(b)
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JGRT
shall have performed and complied with all of its covenants hereunder
in
all material respects through the Closing, including Article 4
hereby;
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(c)
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JGRT
and Subsidiary shall have procured all of the material third party
consents required to be obtained by it to accomplish the transactions
contemplated hereby;
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(d)
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no
action, suit, or proceeding shall be pending before any court or
quasi-judicial or administrative agency of any federal, state, local,
or
foreign jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would (i)
prevent
consummation of any of the transactions contemplated by this Agreement;
(ii) cause any of the transactions contemplated by this Agreement
to be
rescinded following consummation; or (iii) affect materially and
adversely
the right of JGRT to own its assets and to operate its businesses
(and no
such injunction, judgment, order, decree, ruling, or charge shall
be in
effect);
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(e)
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JGRT
shall have delivered to IPtimize a certificate to the effect that
each of
the conditions specified above in paragraphs 10.1 (a) through (d)
is
satisfied in all respects;
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(f)
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all
actions to be taken by JGRT and Subsidiary in connection with consummation
of the transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance
to IPtimize.
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(g)
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JGRT
shall have delivered to IPtimize all necessary data and materials
related
to the financial records of JGRT specifically for the purpose of
completing an audit, and as necessary for regulatory
requirements.
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10.5 Conditions
to Obligation of IPtimize.
The
obligation of IPtimize to consummate the transactions to be performed by it
in
connection with the Closing is subject to satisfaction of the following
conditions:
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(a)
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the
representations and warranties set forth in Article 5 above shall
be true
and correct in all material respects at and as of the Closing
Date;
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(b)
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IPtimize
shall have performed and complied with all of their covenants hereunder
in
all material respects through the
Closing;
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(c)
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IPtimize
shall have procured all of the material third party consents required,
if
any, to be obtained by them to accomplish the transactions contemplated
hereby;
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(d)
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no
action, suit, or proceeding shall be pending before any court or
quasi-judicial or administrative agency of any federal, state, local,
or
foreign jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would (i)
prevent
consummation of any of the transactions contemplated by this Agreement;
or
(ii) cause any of the transactions contemplated by this Agreement
to be
rescinded following consummation (and no such injunction, judgment,
order,
decree, ruling, or charge shall be in
effect);
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(e)
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IPtimize
shall have delivered to JGRT a certificate to the effect that each
of the
conditions specified above in paragraphs 10.2 (a) through (d) is
satisfied
in all respects;
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(f)
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all
actions to be taken by IPtimize in connection with consummation of
the
transactions contemplated hereby and all certificates, opinions,
instruments, and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance
to JGRT.
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ARTICLE
11
SURVIVAL
OF REPRESENTATIONS AND WARRANTIES
The
representations and warranties of the parties contained in Articles 5, 6 and
7
of this Agreement shall survive the Closing hereunder.
ARTICLE
12
MISCELLANEOUS
12.1 Further
Assurances
From
time
to time, as and when required by IPtimize, JGRT or its successors or assigns
in
equity interest shall execute and deliver on behalf of JGRT such deeds and
other
instruments, and shall take or cause to be taken by it such further and other
actions, as shall be appropriate or necessary in order to vest or perfect in
or
conform of record the title to and possession of all the property, interests,
assets, rights, privileges, immunities, powers, franchises and authority of
JGRT
and to otherwise to carry out the purposes of this Agreement. The officers
and
directors of JGRT are fully authorized in the name and on behalf of JGRT or
otherwise to take any and all such action and to execute and deliver any and
all
such deeds and other instruments.
12.2 Agreement
Executed
copies of this Agreement will be on file at the principal place of business
of
the Surviving Corporation at 0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000, and copies thereof will be furnished to any stockholder of
a
Constituent Corporation, upon request at such shareholder’s cost. IPtimize shall
be responsible for all post-closing filings with any and all state and federal
agencies.
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12.3 No
Third-Party Beneficiaries.
This
Agreement shall not confer any rights or remedies upon any Person other than
the
Parties and their respective successors and permitted assigns.
12.4 Entire
Agreement.
This
Agreement (including the documents referred to herein) constitutes the entire
agreement among the Parties and supersedes any prior understandings, agreements,
Letter of Intent, or representations by or among the Parties, written or oral,
to the extent they related in any way to the subject matter hereof.
12.5 Succession
and Assignment.
This
Agreement shall be binding upon and inure to the benefit of the Parties named
herein and their respective successors and permitted assigns. No Party may
assign either this Agreement or any of his or its rights, interests, or
obligations hereunder without the prior written approval of the other Party;
provided, however, that IPtimize may (i) assign any or all of its rights and
interests hereunder to one or more of its affiliates; and (ii) designate one
or
more of its affiliates to perform its obligations hereunder (in any or all
of
which cases IPtimize nonetheless shall remain responsible for the performance
of
all of its obligations hereunder).
12.6 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which together will constitute one and the same
instrument.
12.7 Headings.
The
section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of this
Agreement.
12.8 Notices.
All
notices, requests, demands, claims, and other communications hereunder will
be
in writing. Any notice, request, demand, claim, or other communication hereunder
shall be deemed duly given if (and then two business days after) it is sent
by
registered or certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below:
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If
to IPtimize:
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0000
X. Xxxxxxxx Xxxxxx, Xxxxx 000
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Xxxxxx,
Xxxxxxxx 00000
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Attention:
Contract Administration, 000-000-0000
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To
JGRT:
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00000
Xxxxxxx Xxxx
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Xxxx
Xxxxxx, XX 00000
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Attention:
Xxxxxx X. Xxxxxx
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Any
Party
may send any notice, request, demand, claim, or other communication hereunder
to
the intended recipient at the address set forth above using any other means
(including personal delivery, expedited courier, messenger service, telecopy,
telex, ordinary mail, or electronic mail), but no such notice, request, demand,
claim, or other communication shall be deemed to have been duly given unless
and
until it actually is received by the intended recipient. Any Party may change
the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Parties notice
in the manner herein set forth.
12.9 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the domestic
laws of the State of Colorado, without giving effect to any choice or conflict
of law provision or rule (whether of the State of Colorado or any other
jurisdiction).
12.10 Amendments
and Waivers.
No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by each of the Parties. No waiver by any Party
of
any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
12.11 Severability.
Any
term
or provision of this Agreement that is invalid or unenforceable in any situation
in any jurisdiction shall not affect the validity or enforceability of the
remaining terms and provisions hereof or the validity or enforceability of
the
offending term or provision in any other situation or in any other
jurisdiction.
12.12 Expenses.
Each
of
the Parties will bear its own costs and expenses (including legal fees and
expenses) incurred in connection with this Agreement and the transactions
contemplated hereby unless other wise indicated herein. Any sales tax, filing
or
recording fees or similar expense shall be paid by IPtimize.
12.13 Construction.
The
Parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the Parties
and no presumption or burden of proof shall arise favoring or disfavoring any
Party by virtue of the authorship of any of the provisions of this Agreement.
Any reference to any federal, state, local, or foreign statute or law shall
be
deemed also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise.
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12.14 Status.
Nothing
contained in this Agreement shall cause a Party to be deemed an agent, employee,
franchisee, joint venture, partner or legal representative of any other Party,
and no Party shall purport to act in any such capacity for any other
Party.
12.15 Arbitration.
Any and
all disputes arising out of or relating to this Agreement shall be resolved
by
arbitration. All arbitration hereunder will be conducted by the American
Arbitration Association (“AAA”). If the AAA is dissolved, disbanded or becomes
subject to any state or federal bankruptcy or insolvency proceeding, the parties
will remain subject to binding arbitration which will be conducted by a mutually
agreeable arbitral forum. The parties agree that all arbitrator(s) selected
will
be attorneys with at least five (5) years securities and corporate
reorganization experience. The arbitrator(s) will decide if any inconsistency
exists between the rules of any applicable arbitral forum and the arbitration
provisions contained herein. If such inconsistency exists, the arbitration
provisions contained herein will control and supersede such rules. The site
of
all arbitration proceedings will be in the Division of the Federal Judicial
District in which AAA maintains a regional office that is closest to 0000 X.
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement and Plan of
Merger to be signed by their respective officers thereunto duly authorized
as of
the date first written above.
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By:_________________________________
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Xxxx
X. Xxxxx, CEO and Chairman
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SIMMETECH,
INC.
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By:_________________________________
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Xxxxxx
X. Xxxxxx, Chairman
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SUBSIDIARY
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By:_________________________________
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Xxxxxx
X. Xxxxxx, President
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EXHIBIT
A
CERTIFICATE
OF MERGER
EXHIBIT
B
ARTICLES
OF MERGER
EXHIBIT
C
LIABILITIES
OF JGRT INCLUDED
AND
LIABILITIES EXCLUDED FROM MERGER
EXHIBIT
D
ARTICLES
OF INCORPORATION OF JGRT
EXHIBIT
D-1
ARTICLES
OF INCORPORATION OF SUBSIDIARY
EXHIBIT
E
BYLAWS
OF JGRT
EXHIBIT
H
JGRT
FINANCIAL STATEMENTS
19
EXHIBIT
I
MATERIAL
CONTRACTS OF JGRT
20
