Exhibit 2.2
ACQUISITION AGREEMENT AND PLAN OF MERGER
ACQUISITION AND PLAN OF MERGER AGREEMENT ("Agreement") made October 23, 2007 by
and among NATIONAL FILING AGENTS, INC. a Nevada corporation ("Parent"),
National Filing Agents Acquisition Corporation, a Nevada corporation, and
subsidiary of National Filing Agents, Inc. ("Sub"), and Plantation Working
Interests, LLC, a private limited liability company, organized in Texas (the
"Company").
RECITALS:
A. The Board of Directors of Parent as well as the majority of shareholders of
the Parent and all of the Members of the Company have determined that a merger
of Sub with and into the Company (the "Merger"), upon the terms and subject to
the conditions set forth in this Agreement, would be fair and in the best
interests of their respective shareholders, and such the Board of Director of
the Parent and the Members of the LLC have approved such Merger, pursuant to
which shares of Common Stock of the Company ("Company Common Stock") issued and
outstanding immediately prior to the Effective Time of the Merger (as defined
in Section 1.03) will be converted into the right to receive Common Stock of
Parent ("Parent Common Stock") other than Dissenting Shares (as defined in
Section 2.01(d)).
B. Parent, Sub and the Company desire to make certain representations,
warranties, covenants and agreements in connection with the Merger and also to
prescribe various conditions to the Merger.
C. For federal income tax purposes, the parties intend that the Merger shall
qualify as a reorganization under the provisions of Section 368 of the Internal
Revenue Code of 1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the representations, warranties, covenants
and agreements contained in this Agreement, the parties agree as follows:
ARTICLE I
THE MERGER
1.01 The Merger. Upon the terms and subject to the conditions set forth in
this Agreement, and in accordance with Nevada Corporations Code (the "Nevada
Statutes"), Sub shall be merged with and into the Company at the Effective
Time of the Merger. At the Effective Time of the Merger, the separate
existence of Sub shall cease, and the Parent shall continue as the surviving
corporation (the "Surviving Corporation") and shall change its corporate name
to Bonanza Oil & Gas, Inc. Further, shortly after the effective time, the
Parent has agreed to forward split is common stock on a two point one-for-one
(2.1:1) basis.
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1.02 Closing. Unless this Agreement shall have been terminated and the
transactions herein contemplated shall have been abandoned pursuant to Section
7.01 and subject to the satisfaction or waiver of the conditions set forth in
Article VI, the closing of the Merger (the "Closing") will take place at 10:00
a.m. on the business day after satisfaction of the conditions set forth in
Article VI (or as soon as practicable thereafter following satisfaction or
waiver of the conditions set forth in Article VI) (the "Closing Date"), at the
Law Offices of Xxxxxx X. Xxxx, 000 X. Xxxxxxx, Xxxxx 000, Xxx Xxxxx, XX, unless
another date, time or place is agreed to in writing by the parties hereto.
1.03 Effective Time of Merger. As soon as practicable following the
satisfaction or waiver of the conditions set forth in Article VI, the parties
shall file articles of merger (the "Articles of Merger") executed in accordance
with the relevant provisions of the Nevada Statutes and shall make all other
filings or recordings required under Nevada Statutes. The Merger shall become
effective at such time as the Articles of Merger are duly filed with the
Secretary of State of Nevada, or at such other time as is permissible in
accordance with the Nevada Statutes and as Parent and the Company shall agree
should be specified in the Articles of Merger (the time the Merger becomes
effective being the "Effective Time of the Merger"). Parent shall use
reasonable efforts to have the Closing Date and the Effective Time of the
Merger to be the same day.
1.04 Effects of the Merger. The Merger shall have the effects set forth in the
applicable provisions of Nevada Statutes.
1.05 Articles of Incorporation; Bylaws; Purposes.
(a) The Certificate of Incorporation of the Parent in effect
immediately prior to the Effective Time of the Merger shall be the Certificate
of Incorporation of the Surviving Corporation until thereafter changed or
amended as provided therein or by applicable law.
(b) The Bylaws of the Parent in effect at the Effective Time of the
Merger shall be the Bylaws of the Surviving Corporation until thereafter
changed or amended as provided therein or by applicable law.
(c) The purposes of the Surviving Corporation and the total number of
its authorized capital stock shall be as set forth in the Certificate of
Incorporation of the Parent in effect immediately prior to the Effective Time
of the Merger until such time as such purposes and such number may be amended
as provided in the Certificate of Incorporation of the Surviving Corporation
and by applicable law.
1.06 Directors. The directors of the Parent at the Effective Time shall resign
and the directors of the Company at the Effective Time of the Merger shall be
the directors of the Surviving Corporation, until the earlier of their
resignation or removal or until their respective successors are duly elected
and qualified, as the case may be.
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1.07 Officers. The officers of the Parent at the Effective Time shall resign
and the officers of the Company at the Effective Time of the Merger shall be
the officers of the Surviving Corporation, until the earlier of their
resignation or removal or until their respective successors are duly elected
and qualified, as the case may be.
ARTICLE II
EFFECT OF THE MERGER
ON THE CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS
2.01 Effect on Capital Stock. As of the Effective Time of the Merger, by
virtue of the Merger and without any action on the part of the holders of
shares of Company Common Stock or any shares of capital stock of Sub:
(a) Common Stock of Sub. Each share of common stock of Sub issued and
outstanding immediately prior to the Effective Time of the Merger shall be
converted into one share of Common Stock of the Surviving Corporation and shall
be the issued and outstanding capital stock of the Surviving Corporation.
(b) Cancellation of Parent-Owned Company Common Stock. Each share of
Company Common Stock that is owned by Parent, Sub or any other subsidiary of
Parent shall automatically be cancelled and retired and shall cease to exist,
and no Parent Common Stock or other consideration shall be delivered or
deliverable in exchange therefor.
(c) Conversion of Company Common Stock. Except as otherwise provided
herein, each issued and outstanding share of Company Common Stock shall be
converted into fully paid and nonassessable shares of Parent Common Stock in
accordance with the Exchange Ratio described in Section 2.02 (the "Merger
Consideration"). 8,126,984 unregistered shares of said Merger Consideration
shall be the "Initial Deposit" and deposited by the Parent with the Exchange
Agent (as described below) further to Section 2.04(a), Section 6.02(h)(i)(j)
and Section 6.03(e)(f) herein,
(d) Dissenting Shares. Notwithstanding anything in this Agreement to
the contrary, shares of Company Common Stock issued and outstanding immediately
prior to the Effective Time of the Merger held by a holder (if any) who has the
right to demand payment for and an appraisal of such shares in accordance with
the Nevada Statutes ("Dissenting Shares") shall not be converted into a
right to receive Merger Consideration unless such holder fails to perfect or
otherwise loses such holder's right to such payment or appraisal, if any. If,
after the Effective Time of the Merger, such holder fails to perfect or loses
any such right to appraisal, each such share of such holder shall be treated as
a share that had been converted as of the Effective Time of the Merger into the
right to receive Merger Consideration in accordance with this Section 2.01.
The Company shall give prompt notice to Parent of any demands received by the
Company for appraisal of shares of Company Common Stock, and Parent shall have
the right to participate in all negotiations and proceedings with respect to
such demands. The Company shall not, except with the prior written consent of
Parent, make any payment with respect to, or settle or offer to settle, any
such demands.
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(e) Cancellation and Retirement of Company Common Stock. As of the
Effective Time of the Merger, shares of Company Common Stock issued and
outstanding immediately prior to the Effective Time of the Merger, shall no
longer be outstanding and shall automatically be cancelled and retired and
shall cease to exist, and each holder of a certificate representing any such
shares of Company Common Stock shall cease to have any rights with respect
thereto, except the right to receive the applicable Merger Consideration to be
issued in consideration therefor upon surrender of such certificate in
accordance with Section 2.04.
2.02 Exchange Ratio. The "Exchange Ratio" is as follows:
Each share of Company Common Stock shall be converted into 1:1 of a share
of Parent Common Stock in the Merger, an Exchange Ratio of 1:1. The Company
has a total of one million five hundred seven thousand nine hundred thirty-
seven (1,507,937) equity membership shares issued and outstanding owned by
seven (7) members. The Initial Deposit shall be distributable by the Exchange
Agent effective as of the Effective Time of the Merger in accordance with the
provisions of Section 2.04(a) herein and the Escrow Deposit shall be
distributable pursuant to the provisions of Section 2.04(b)(iv) herein. No
fractional Parent Common Stock shall be issued in the Merger. If the product
of the number of shares a Company shareholder holds immediately prior to the
Closing multiplied by the exchange ratio would result in the issuance of a
fractional share of Parent Common Stock, that product will be rounded down to
the nearest whole number of shares of Parent Common Stock if it is equal to or
less than the fraction of one-half (.5) of one Parent Common Stock or round up
to the nearest whole number of shares of Parent Common Stock if the said
product is greater than the fraction of one-half (.5) of one Parent Common
Stock.
2.03 Stock Options; Warrants.
(a) Assumption. At the Effective Time of the Merger, all options to
purchase Company Common Stock then outstanding under the Company's Stock Option
Plan (the "Company Option Plan"), and all options to purchase Company Common
Stock then outstanding which are not under the Company Option Plan, and all
outstanding warrants to purchase Company Common Stock then outstanding in each
case whether vested or unvested, and the Company Option Plan itself, shall be
assumed by Parent in accordance with Section 2.03(b) hereof.
(b) Stock Options and Warrants. At the Effective Time of the Merger,
each outstanding option to purchase Company Common Stock (each, a "Company
Stock Option"), whether or not granted under the Company Option Plan, and all
outstanding warrants to purchase Company Common Stock the outstanding whether
or not vested, shall by virtue of the Merger be assumed by Parent. Each Company
Stock Option and Warrant so assumed by Parent under this Agreement will
continue to have, and be subject to, the same terms and conditions of such
options immediately prior to the Effective Time of the Merger (including,
without limitation, any repurchase rights or vesting provisions and provisions
regarding the acceleration of vesting on certain transactions), except that (i)
each Company Stock Option and Warrant will be exercisable (or will become
exercisable in accordance with its terms) for that number of whole shares of
Parent Common Stock equal to the product of the number of Company Shares that
were issuable
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upon exercise of such Company Stock Option or Warrant immediately prior to the
Effective Time of the Merger multiplied by the Exchange Ratio, rounded down to
the nearest whole number of shares of Parent Common Stock if the said product
is equal to or less than the fraction of one-half (.5) of one Parent Common
Stock or rounded up to the nearest whole number of shares of Parent Common
Stock if the said product is greater than the fraction of one-half (.5) of one
Parent Common Stock, and (ii) the per share exercise price for the shares of
Parent Common Stock issuable upon exercise of such assumed Company Stock Option
and Warrant will be equal to the quotient determined by dividing the exercise
price per Company Share at which such Company Stock Option and Warrant was
exercisable immediately prior to the Effective Time of the Merger by the
Exchange Ratio, rounded up to the nearest whole cent. Parent shall comply with
the terms of all such Company Stock Options and Warrants and use its best
efforts to ensure, to the extent required by, and subject to the provisions of,
the Company Option Plan and permitted under the Code or other relevant laws and
regulations that any Company Stock Option that qualified for tax treatment
under Section 424(b) of the Code prior to the Effective Time of the Merger
continue to so qualify after the Effective Time of the Merger. Parent shall
take all corporate actions necessary to reserve for issuance a sufficient
number of shares of Parent Common Stock for delivery upon exercise of all
Company Stock Options and Warrants on the terms set forth in this Section
2.03(b).
2.04 Exchange of Certificates
(a) Exchange Agent. As soon as reasonably practicable as of or after
the Effective Time of the Merger, Parent shall deposit the Initial Deposit with
its transfer agent (the "Exchange Agent"), for the benefit of the holders of
shares of Company Common Stock, for exchange in accordance with this Article
II. Any shares remaining in the Escrow Deposit (as described below) after the
Settlement Date (as described below) will be transferred by the Escrow Agent
(as described below) to the Exchange Agent further to the provisions of Section
2.04(b)(vi) herein, for the benefit of the holders of shares of Company Common
Stock, for disbursement pro rata to the holders of shares of Company Common
Stock as of the Effective Date of the Merger.
(b) Escrow Deposit.
(i) At the Effective Time of the Merger, Parent will cause to
be delivered to the law offices of Xxxxxx X. Xxxx, as escrow agent (the "Escrow
Agent") the Merger Consideration Escrow Deposit and the Parent Escrow Deposit
to be held pursuant by the Escrow Agent.
(ii) The settlement date (the "Settlement Date") shall be
such date which is within three months from the Effective Time of the Merger
and the date of the resolution of any contests further to Section 8.03 herein.
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(iii) After the Settlement Date (a) all shares of the Parent
Escrow Deposit pursuant to which Indemnity Claims were paid further to the
provisions of the Escrow Agreement and (b) all remaining shares, if any, in the
Merger Consideration Escrow Deposit shall be transferred by the Escrow Agent to
the Exchange Agent for disbursement further to Section 2.04(a) herein, said
transfer to take place within ten (10) business days after the Settlement Date.
Exchange Agent shall deliver stock certificates of Parent Common Stock to
Company shareholders of record as of the date immediately prior to the Closing
within twenty (20) business days of receiving the aforementioned shares from
Escrow Agent. The number of shares of Parent Common Stock referenced above and
evidenced in the delivered stock certificates to each Company shareholder will
be in accordance with said shareholder's pro rata holding of Company Common
Stock as of the date immediately prior to the Closing and the terms of Section
2.02 hereof.
(c) Exchange Procedures. As soon as practicable after the Effective
Time of the Merger, each holder of an outstanding certificate or certificates
which prior thereto represented shares of Company Common Stock shall, upon
surrender to the Exchange Agent of such certificate or certificates and
acceptance thereof by the Exchange Agent, be entitled to a certificate or
certificates representing the number of shares of Parent Common Stock into
which the aggregate number of shares of Company Common Stock previously
represented by such certificate or certificates surrendered shall have been
converted pursuant to this Agreement. The Exchange Agent shall accept such
certificates upon compliance with such reasonable terms and conditions as the
Exchange Agent may impose to effect an orderly exchange thereof in accordance
with normal exchange practices. After the Effective Time of the Merger, there
shall be no further transfer on the records of the Company or its transfer
agent of certificates representing shares of Company Common Stock and if such
certificates are presented to the Company for transfer, they shall be cancelled
against delivery of certificates for Parent Common Stock as hereinabove
provided. If any certificate for such Parent Common Stock is to be issued in a
name other than that in which the certificate for Company Common Stock
surrendered for exchange is registered, it shall be a condition of such
exchange that the certificate so surrendered shall be properly endorsed, with
signature guaranteed, or otherwise in proper form for transfer and that the
person requesting such exchange shall pay to Parent or its transfer agent any
transfer or other taxes or other costs required by reason of the issuance of
certificates for such Parent Common Stock in a name other than that of the
registered holder of the certificate surrendered, or establish to the
satisfaction of Parent or its transfer agent that all taxes have been paid.
Until surrendered as contemplated by this Section 2.04(b), each certificate for
shares of Company Common Stock shall be deemed at any time after the Effective
Time of the Merger to represent only the right to receive upon such surrender
the Merger Consideration as contemplated by Section 2.01.
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(d) Distributions with Respect to Unexchanged Shares. No dividends or
other distributions with respect to Parent Common Stock with a record date
after the Effective Time of the Merger shall be paid to the holder of any
unsurrendered certificate for shares of Company Common Stock with respect to
the shares of Parent Common Stock represented thereby until the surrender of
such certificate in accordance with this Article II. In addition, after the
Settlement Date, all remaining shares, if any, in the Parent Escrow Deposit
shall be transferred by the Escrow Agent to the Parent for cancellation, said
transfer to take place within ten (10) business days after the Settlement Date.
(e) No Further Ownership Rights in Company Common Stock. All shares
of Parent Common Stock issued upon the surrender for exchange of certificates
representing shares of Company Common Stock in accordance with the terms of
this Article II shall be deemed to have been issued (and paid) in full
satisfaction of all rights pertaining to the shares of Company Common Stock
theretofore represented by such certificates.
(f) No Liability. None of Parent, Sub, the Company or the Exchange
Agent shall be liable to any person in respect of any shares of Parent Common
Stock (or dividends or distributions with respect thereto) delivered to a
public official pursuant to any applicable abandoned property, escheat or
similar law. If any certificates representing shares of Company Common Stock
shall not have been surrendered prior to November 30, 2007 any such shares,
dividends or distributions in respect of such certificate shall, to the extent
permitted by applicable law, become the property of the Surviving Corporation,
free and clear of all claims or interests of any person previously entitled
thereto.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01 Representations and Warranties of the Company. Except as set forth in
the Company Disclosure Schedule (as defined in subsection 3.01(a)), attached
hereto, or a certain schedule comprising the Disclosure Schedule, the Company
represents and warrants to Parent and Sub as follows:
(a) Organization, Standing and Corporate Power. The Company was
organized as a limited liability company on August 17, 2007, under the laws of
the State of Texas and is a predecessor to Plantation Exploration, Inc.
Plantation Working Interests, LLC was originally capitalized with $950,000.
This Limited Liability Company has since operated as an investor in oil and gas
projects. The Company acquired 8 oil and gas xxxxx in Xxxxxxxx County, Texas.
The Company has the requisite organizational power and authority to carry on
its business as now being conducted. The Company is duly qualified or licensed
to do business and is in good standing in each jurisdiction in which the nature
of its business or the ownership or leasing of its properties makes such
qualification or licensing necessary, other than in such jurisdictions where
the failure to be so qualified or licensed (individually or in the aggregate)
would not have a material adverse effect (as defined in Section 9.02) with
respect to the Company.
(b) Subsidiaries. The Company does own subsidiaries, directly or
indirectly, and the share ownership in the Company reflects proportional
ownership of the subsidiaries.
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(c) Capital Structure. The equity of the Company consists of one
million five hundred seven thousand nine hundred thirty-seven (1,507,937)
equity membership shares issued and outstanding owned by seven (7) members.
Except as set forth above, no equity shares of capital stock or other equity
securities of the Company are issued, reserved for issuance or outstanding.
All outstanding equity shares of capital stock of the Company are duly
authorized, validly issued, fully paid and nonassessable and not subject to
preemptive rights. There are no outstanding bonds, debentures, notes or other
indebtedness or other securities of the Company having the right to vote (or
convertible into, or exchangeable for, securities having the right to vote) on
any matters on which the members of the Company may vote. The Company
Disclosure Schedule sets forth the outstanding Capitalization of the Company.
Except as set forth above, there are no outstanding securities, options,
warrants, calls, rights, commitments, agreements, arrangements or undertakings
of any kind to which the Company is a party or by which it is bound obligating
the Company to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock or other equity or voting securities
of the Company or obligating the Company to issue, grant, extend or enter into
any such security, option, warrant, call, right, commitment, agreement,
arrangement or undertaking. Other than the Company Stock Options and Company
Warrants, there are no outstanding contractual obligations, commitments,
understandings or arrangements of the Company to repurchase, redeem or
otherwise acquire or make any payment in respect of any shares of capital stock
of the Company.
(d) Authority; Noncontravention. The Company has the requisite
corporate and other power and authority to enter into this Agreement and to
consummate the Merger. The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of the Company. This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms. The execution and
delivery of this Agreement do not, and the consummation of the transactions
contemplated by this Agreement and compliance with the provisions hereof will
not, conflict with, or result in any breach or violation of, or default (with
or without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of or "put" right with respect to any
obligation or to loss of a material benefit under, or result in the creation of
any lien upon any of the properties or assets of the Company under, (i) the
Articles of Incorporation or Bylaws of the Company, (ii) any loan or credit
agreement, note, bond, mortgage, indenture, lease or other agreement,
instrument, permit, concession, franchise or license applicable to the Company,
its properties or assets, or (iii) subject to the governmental filings and
other matters referred to in the following sentence, any judgment, order,
decree, statute, law, ordinance, rule, regulation or arbitration award
applicable to the Company, its properties or assets. No consent, approval,
order or authorization
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of, or registration, declaration or filing with, or notice to, any federal,
state or local government or any court, administrative agency or commission or
other governmental authority, agency, domestic or foreign (a "Governmental
Entity"), is required by or with respect to the Company in connection with the
execution and delivery of this Agreement by the Company or the consummation by
the Company of the transactions contemplated hereby, except, with respect to
this Agreement, for the filing of the Articles of Merger with the Secretary of
State of Nevada.
(e) Absence of Certain Changes or Events. Since August 17, 2007
(inception) the Company has conducted its business only in the ordinary course
consistent with past practice, and there is not and has not been: (i) any
material adverse change with respect to the Company; (ii) any condition, event
or occurrence which individually or in the aggregate could reasonably be
expected to have a material adverse effect or give rise to a material adverse
change with respect to the Company; (iii) any event which, if it had taken
place following the execution of this Agreement, would not have been permitted
by Section 4.01 without prior consent of Parent; or (iv) any condition, event
or occurrence which could reasonably be expected to prevent, hinder or
materially delay the ability of the Company to consummate the transactions
contemplated by this Agreement.
(f) Litigation; Labor Matters; Compliance with Laws.
(i) There is no suit, action or proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting
the Company or any basis for any such suit, action, proceeding or investigation
that, individually or in the aggregate, could reasonably be expected to have a
material adverse effect with respect to the Company or prevent, hinder or
materially delay the ability of the Company to consummate the transactions
contemplated by this Agreement, nor is there any judgment, decree, injunction,
rule or order of any Governmental Entity or arbitrator outstanding against the
Company having, or which, insofar as reasonably could be foreseen by the
Company, in the future could have, any such effect.
(ii) The Company is not a party to, or bound by, any
collective bargaining agreement, contract or other agreement or understanding
with a labor union or labor organization, nor is it the subject of any
proceeding asserting that it has committed an unfair labor practice or seeking
to compel it to bargain with any labor organization as to wages or conditions
of employment nor is there any strike, work stoppage or other labor dispute
involving it pending or, to its knowledge, threatened, any of which could have
a material adverse effect with respect to the Company.
(iii) The conduct of the business of the Company complies
with all statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees or arbitration awards applicable thereto.
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(g) Benefit Plans. The Company is not a party to any collective
bargaining agreement or any bonus, pension, profit sharing, deferred
compensation, incentive compensation, stock ownership, stock purchase, phantom
stock, retirement, vacation, severance, disability, death benefit,
hospitalization, medical or other plan, arrangement or understanding (whether
or not legally binding) under which the Company currently has an obligation to
provide benefits to any current or former employee, officer or director of the
Company (collectively, "Benefit Plans").
(h) Certain Employee Payments. The Company is not a party to any
employment agreement which could result in the payment to any current, former
or future director or employee of the Company of any money or other property or
rights or accelerate or provide any other rights or benefits to any such
employee or director as a result of the transactions contemplated by this
Agreement, whether or not (i) such payment, acceleration or provision would
constitute a "parachute payment" (within the meaning of Section 280G of the
Code), or (ii) some other subsequent action or event would be required to cause
such payment, acceleration or provision to be triggered.
(i) Tax Returns and Tax Payments. The Company has timely filed all
Tax Returns required to be filed by it, has paid all Taxes shown thereon to be
due and has provided adequate reserves in its financial statements for any
Taxes that have not been paid, whether or not shown as being due on any
returns. No material claim for unpaid Taxes has been made or become a lien
against the property of the Company or is being asserted against the Company,
no audit of any Tax Return of the Company is being conducted by a tax
authority, and no extension of the statute of limitations on the assessment of
any Taxes has been granted by the Company and is currently in effect. As used
herein, "taxes" shall mean all taxes of any kind, including, without
limitation, those on or measured by or referred to as income, gross receipts,
sales, use, ad valorem, franchise, profits, license, withholding, payroll,
employment, excise, severance, stamp, occupation, premium value added, property
or windfall profits taxes, customs, duties or similar fees,, assessments or
charges of any kind whatsoever, together with any interest and any penalties,
additions to tax or additional amounts imposed by any governmental authority,
domestic or foreign. As used herein, "Tax Return" shall mean any return, report
or statement required to be filed with any governmental authority with respect
to Taxes.
(j) Environmental Matters. The Company is in compliance with all
applicable Environmental Laws. "Environmental Laws" means all applicable
federal, state and local statutes, rules, regulations, ordinances, orders,
decrees and common law relating in any manner to contamination, pollution or
protection of human health or the environment, and similar state laws.
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(k) Material Contract Defaults. The Company is not, or has not,
received any notice or has any knowledge that any other party is, in default in
any respect under any Material Contract; and there has not occurred any event
that with the lapse of time or the giving of notice or both would constitute
such a material default. For purposes of this Agreement, a Material Contract
means any contract, agreement or commitment that is effective as of the Closing
Date to which the Company is a party (i) with expected receipts or expenditures
in excess of $100,000, (ii) requiring the Company to indemnify any person,
(iii) granting exclusive rights to any party, (iv) evidencing indebtedness for
borrowed or loaned money in excess of $100,000 or more, including guarantees of
such indebtedness, or (v) which, if breached by the Company in such a manner
would (A) permit any other party to cancel or terminate the same (with or
without notice of passage of time) or (B) provide a basis for any other party
to claim money damages (either individually or in the aggregate with all other
such claims under that contract) from the Company or (C) give rise to a right
of acceleration of any material obligation or loss of any material benefit
under any such contract, agreement or commitment.
(l) Properties. The Company has good, clear and marketable title to
all the tangible properties and tangible assets reflected in the latest balance
sheet as being owned by the Company or acquired after the date thereof which
are, individually or in the aggregate, material to the Company's business
(except properties sold or otherwise disposed of since the date thereof in the
ordinary course of business), free and clear of all material liens.
(m) Trademarks and Related Contracts. To the knowledge of the Company:
(i) As used in this Agreement, the term "Trademarks" means
trademarks, service marks, trade names, Internet domain names, designs,
slogans, and general intangibles of like nature; the term "Trade Secrets" means
technology; trade secrets and other confidential information, know-how,
proprietary processes, formulae, algorithms, models, and methodologies; the
term "Intellectual Property" means patents, copyrights, Trademarks,
applications for any of the foregoing, and Trade Secrets; the term "Company
License Agreements" means any license agreements granting any right to use or
practice any rights under any Intellectual Property (except for such agreements
for shrink-wrap or click wrap software or other off-the-shelf products that are
generally available for less than $25,000), and any written settlements
relating to any Intellectual Property, to which the Company is a party or
otherwise bound; and the term "Software" means any and all computer programs,
including any and all software implementations of algorithms, models and
methodologies, whether in source code or object code.
(ii) To the knowledge of the Company, none of the Company's
Intellectual Property, Software or Company License Agreements infringe upon the
rights of any third party that may give rise to a cause of action or claim
against the Company or its successors.
(n) Board Recommendation. The Members of the Company have unanimously
determined that the terms of the Merger are fair to and in the best interests
of the shareholders of the Company and recommended that the holders of the
shares of Company Common Stock approve the Merger.
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(o) Required Company Vote. The affirmative vote of a majority of the
equity shares of the Company's equity stock is the only vote of the holders of
any class or series of the Company's securities necessary to approve the Merger
(the "Company Shareholder Approval").
3.02 Representations and Warranties of Parent and Sub. Except as set forth in
the disclosure schedule delivered by Parent to the Company at the time of
execution of this Agreement (the "Parent Disclosure Schedule"), Parent and Sub
represent and warrant to the Company as follows:
(a) Organization, Standing and Corporate Power. Each of Parent, Sub
and the other Parent Subsidiaries (as defined in Section 3.02(b)) is (or at
Closing will be) duly organized, validly existing and in good standing under
the laws of the State of Nevada, as is applicable, and has the requisite
corporate power and authority to carry on its business as now being conducted.
Each of Parent, Sub and the other Parent Subsidiaries is duly qualified or
licensed to do business and is in good standing in each jurisdiction in which
the nature of its business or the ownership or leasing of its properties makes
such qualification or licensing necessary, other than in such jurisdictions
where the failure to be so qualified or licensed (individually or in the
aggregate) would not have a material adverse effect with respect to Parent.
(b) Subsidiaries. The only direct or indirect subsidiaries of Parent
are listed in the Parent Disclosure Schedule (together with Sub, the "Parent
Subsidiaries"). All the outstanding shares of capital stock of each such
Parent Subsidiary which is a corporation have been validly issued and are fully
paid and nonassessable and, except as set forth in the Parent Disclosure
Schedule, are owned (of record and beneficially) by Parent, free and clear of
all Liens. Except for the capital stock of its subsidiaries, which are
corporations, Parent does not own, directly or indirectly, any capital stock or
other ownership interest in any corporation, partnership, business association,
joint venture or other entity.
(c) Capital Structure. The authorized capital stock of Parent
consists of 60,000,000 shares of Parent Common Stock, $0.001 par value, of
which 10,231,419 shares of Parent Common Stock are issued and outstanding.
There are no convertible notes, options and otherwise instruments outstanding.
immediately after the Effective Time of the Merger, 6,180,000 shares of Parent
Common Stock held by the two affiliated shareholders shall be automatically
cancelled, further to a separate Share Cancellation Agreement. Upon the
cancellation of these shares, the Parent has agreed to transfer the assets, any
intellectual property and liabilities to the former President of National
Filings Agents, Inc. And, Phoenix Capital, Inc., has agreed to pay the two
affiliated shareholders, the sum of Forty-five Thousand ($45,000) Dollars in
exchange for the benefit of the Parent to complete the acquisition of
Plantation Working Interests, LLC. (See Exhibit B.)
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Also authorized are 15,000,000 shares of preferred stock, $0.001 par value,
none of which is issued and outstanding. Except as set forth above, no shares
of capital stock or other equity securities of Parent are issued, reserved for
issuance or outstanding. All outstanding shares of capital stock of Parent are,
and all shares which may be issued pursuant to this Agreement will be, when
issued, duly authorized, validly issued, fully paid and nonassessable and, not
subject to preemptive rights, and issued in compliance with all applicable
state and federal laws concerning the issuance of securities. There are no
outstanding bonds, debentures, notes or other indebtedness or other securities
of Parent having the right to vote (or convertible into, or exchangeable for,
securities having the right to vote) on any matters on which shareholders of
Parent may vote. Except as set forth above, there are no outstanding
securities, options, warrants, calls, rights, commitments, agreements,
arrangements or undertakings of any kind to which Parent or any of its
subsidiaries is a party or by which any of them is bound obligating Parent or
any its subsidiaries to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of capital stock or other equity
securities of Parent or any of its subsidiaries or obligating Parent or any of
its subsidiaries to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock or other equity securities of Parent
or any of its subsidiaries or obligating Parent or any of its subsidiaries to
issue, grant, extend or enter into any such security, option, warrant, call,
right, commitment, agreement, arrangement or undertaking. There are no
outstanding contractual obligations, commitments, understandings or
arrangements of Parent or any of its subsidiaries to repurchase, redeem or
otherwise acquire or make any payment in respect of any shares of capital stock
of Parent or any of its subsidiaries. The authorized capital stock of Sub
consists of 75,000,000 shares of common stock, $0.001 par value per share, no
shares have been issued.
(d) Authority; Noncontravention. Parent and Sub have all requisite
corporate authority to enter into this Agreement and to consummate the
transactions contemplated by this Agreement. The execution and delivery of
this Agreement by Parent and Sub and the consummation by Parent and Sub of the
transactions contemplated by this Agreement have been (or at Closing will have
been) duly authorized by all necessary corporate action on the part of Parent
and Sub. This Agreement has been duly executed and delivered by and
constitutes a valid and binding obligation of each of Parent and Sub,
enforceable against each such party in accordance with its terms. The
execution and delivery of this Agreement do not, and the consummation of the
transactions contemplated by this Agreement and compliance with the provisions
of this Agreement will not, conflict with, or result in any breach or violation
of, or default (with or without notice or lapse of time, or both) under, or
give rise to a right of termination, cancellation or acceleration of or "put"
right with respect to any obligation or to loss of a material benefit under, or
result in the creation of any lien upon any of the properties or assets of
Parent or any of its subsidiaries under, (i) the articles of incorporation or
bylaws of Parent or Sub or the comparable charter or organizational documents
of any other subsidiary of
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Parent, (ii) any loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise or license
applicable to Parent, Sub or any other subsidiary of Parent or their respective
properties or assets, or (iii) subject to the governmental filings and other
matters referred to in the following sentence, any judgment, order, decree,
statute, law, ordinance, rule, regulation or arbitration award applicable to
Parent, Sub or any other subsidiary of Parent or their respective properties or
assets, other than, in the case of clauses (ii) and (iii), any such conflicts,
breaches, violations, defaults, rights, losses or liens that individually or in
the aggregate could not have a material adverse effect with respect to Parent
or could not prevent, hinder or materially delay the ability of Parent to
consummate the transactions contemplated by this Agreement. No consent,
approval, order or authorization of, or registration, declaration or filing
with, or notice to, any Governmental Entity is required by or with respect to
Parent, Sub or any other subsidiary of Parent in connection with the execution
and delivery of this Agreement by Parent or Sub or the consummation by Parent
or Sub, as the case may be, of any of the transactions contemplated by this
Agreement, except for the filing of the Articles of Merger with the Secretary
of State of Nevada, as required, and such other consents, approvals, orders,
authorizations, registrations, declarations, filings or notices as may be
required under the "blue sky" laws of various states.
(e) S.E.C. Documents; Undisclosed Liabilities. Parent has filed all
reports, schedules, forms, statements and other documents as required by the
Securities and Exchange Commission (the "S.E.C.") and Parent has delivered or
made available to the Company all reports, schedules, forms, statements and
other documents filed with the S.E.C. (collectively, and in each case including
all exhibits and schedules thereto and documents incorporated by reference
therein, the "Parent S.E.C. Documents"). As of their respective dates, the
Parent S.E.C. Documents complied in all material respects with the requirements
of the Securities Act or the Securities Exchange Act of 1934, as the case may
be, and the rules and regulations of the S.E.C. promulgated thereunder
applicable to such Parent S.E.C. documents, and none of the Parent S.E.C.
Documents (including any and all consolidated financial statements included
therein) as of such date contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Except to the extent revised or superseded by a
subsequent filing with the S.E.C. (a copy of which has been provided to the
Company prior to the date of this Agreement), none of the Parent S.E.C.
Documents contains any untrue statement of a material fact or omits to state
any material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The consolidated
financial statements of Parent included in such Parent S.E.C. Documents comply
as to form in all material respects with applicable accounting requirements and
the published rules and regulations of the S.E.C. with respect thereto, have
been prepared in accordance with generally accepted accounting principles
(except, in the case of unaudited consolidated quarterly statements, as
permitted by Form 10-QSB of the S.E.C.) applied on a consistent basis during
the
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periods involved (except as may be indicated in the notes thereto) and fairly
present the consolidated financial position of Parent and its consolidated
subsidiaries as of the dates thereof and the consolidated results of operations
and changes in cash flows for the periods then ended (subject, in the case of
unaudited quarterly statements, to normal year-end audit adjustments as
determined by Parent's independent accountants). Except as set forth in the
Parent S.E.C. Documents, at the date of the most recent audited financial
statements of Parent included in the Parent S.E.C. Documents, neither Parent
nor any of its subsidiaries had, and since such date neither Parent nor any of
such subsidiaries has incurred, any liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise) which, individually or in
the aggregate, could reasonably be expected to have a material adverse effect
with respect to Parent.
(f) Absence of Certain Changes or Events. Except as disclosed in the
Parent S.E.C. Documents, since the date of the most recent financial statements
included in the Parent S.E.C. Documents, Parent has conducted its business only
in the ordinary course consistent with past practice in light of its current
business circumstances, and there is not and has not been: (i) any material
adverse change with respect to Parent; (ii) any condition, event or occurrence
which, individually or in the aggregate, could reasonably be expected to have a
material adverse effect or give rise to a material adverse change with respect
to Parent; (iii) any event which, if it had taken place following the execution
of this Agreement, would not have been permitted by Section 4.02 without the
prior consent of the Company; or (iv) any condition, event or occurrence which
could reasonably be expected to prevent, hinder or materially delay the ability
of Parent to consummate the transactions contemplated by this Agreement.
(g) Interim Operations of Sub. Sub was formed in September 6, 2007
solely for the purpose of engaging in the transactions contemplated hereby, has
(or will have) engaged in no other business activities and has (or will have)
conducted its operations only as contemplated hereby.
(h) Litigation; Labor Matters; Compliance with Laws.
There is no suit, action or proceeding or investigation
pending or, to the knowledge of Parent, threatened against or affecting Parent
or any basis for any such suit, action, proceeding or investigation that,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect with respect to Parent or prevent, hinder or materially
delay the ability of Parent to consummate the transactions contemplated by this
Agreement, nor is there any judgment, decree, injunction, rule or order of any
Governmental Entity or arbitrator outstanding against Parent having, or which,
insofar as reasonably could be foreseen by Parent, in the future could have,
any such effect.
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(ii) Parent is not a party to, or bound by, any collective
bargaining agreement, contract or other agreement or understanding with a labor
union or labor organization, nor is it the subject of any proceeding asserting
that it has committed an unfair labor practice or seeking to compel it to
bargain with any labor organization as to wages or conditions of employment nor
is there any strike, work stoppage or other labor dispute involving it pending
or, to its knowledge, threatened, any of which could have a material adverse
effect with respect to Parent.
(iii) The conduct of the business of Parent complies with all
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees or
arbitration awards applicable thereto.
(i) Benefit Plans. Parent is not a party to any Benefit Plan under
which Parent currently has an obligation to provide benefits to any current or
former employee, officer or director of Parent.
(j) Certain Employee Payments. Parent is not a party to any employment
agreement which could result in the payment to any current, former or future
director or employee of Parent of any money or other property or rights or
accelerate or provide any other rights or benefits to any such employee or
director as a result of the transactions contemplated by this Agreement,
whether or not (i) such payment, acceleration or provision would constitute a
"parachute payment" (within the meaning of Section 280G of the Code), or (ii)
some other subsequent action or event would be required to cause such payment,
acceleration or provision to be triggered.
(k) Tax Returns and Tax Payments. Parent has timely filed all Tax
Returns required to be filed by it, has paid all Taxes shown thereon to be due
and has provided adequate reserves in its financial statements for any Taxes
that have not been paid, whether or not shown as being due on any returns. No
material claim for unpaid Taxes has been made or become a lien against the
property of Parent or is being asserted against Parent, no audit of any Tax
Return of Parent is being conducted by a tax authority, and no extension of the
statute of limitations on the assessment of any Taxes has been granted by
Parent and is currently in effect.
(l) Environmental Matters. Parent is in compliance with all applicable
Environmental Laws.
(m) Material Contract Defaults. Parent is not, or has not, received
any notice or has any knowledge that any other party is, in default in any
respect under any Material Contract; and there has not occurred any event that
with the lapse of time or the giving of notice or both would constitute such a
material default. For purposes of this Agreement, a Material Contract means any
contract, agreement or commitment that is effective as of the Closing Date to
which Parent is a party (i) with expected receipts or expenditures in excess of
$10,000, (ii) requiring Parent to indemnify any person, (iii) granting
exclusive rights to any party, (iv) evidencing indebtedness for borrowed or
loaned money in excess of $10,000 or more, including guarantees of such
indebtedness, or (v) which, if breached by Parent in such a manner would (A)
permit any other party to cancel or terminate the same (with or without notice
of passage of time) or (B) provide
16
a basis for any other party to claim money damages (either individually or in
the aggregate with all other such claims under that contract) from Parent or
(C) give rise to a right of acceleration of any material obligation or loss of
any material benefit under any such contract, agreement or commitment.
(n) Properties. Parent has good, clear and marketable title to all the
tangible properties and tangible assets reflected in the latest balance sheet
as being owned by Parent or acquired after the date thereof which are,
individually or in the aggregate, material to Parent's business (except
properties sold or otherwise disposed of since the date thereof in the ordinary
course of business), free and clear of all material liens.
(o) Trademarks and Related Contracts.
(i) As used in this Agreement, the term "Parent License
Agreements" means any license agreements granting any right to use or practice
any rights under any Intellectual Property, and any written settlements
relating to any Intellectual Property, to which Parent is a party or otherwise
bound.
(ii) To the knowledge of Parent, none of Parent's
Intellectual Property, Software or Parent License Agreements infringe upon the
rights of any third party that may give rise to a cause of action or claim
against Parent or its successors.
(p) Board Recommendation. The Board of Directors of Parent has
unanimously determined that the terms of the Merger are fair to and in the best
interests of the shareholders of Parent.
(q) Majority Shareholder Recommendation. The majority of shareholders
of the Parent representing 60% of the issued and outstanding shares determined
that the terms of the Merger are fair to and in the best interests of the
shareholders of Parent.
ARTICLE IV
COVENANTS RELATING TO
CONDUCT OF BUSINESS PRIOR TO MERGER
4.01 Conduct of Company, Parent and Sub. From the date of this Agreement and
until the Effective Time, or until the prior termination of this Agreement,
Company and Parent shall not, unless mutually agreed to in writing:
(a) engage in any transaction, except in the normal and ordinary
course of business, or create or suffer to exist any Lien or other encumbrance
upon any of their respective assets or which will not be discharged in full
prior to the Effective Time;
(b) sell, assign or otherwise transfer any of their assets, or cancel
or compromise any debts or claims relating to their assets, other than for fair
value, in the ordinary course of business, and consistent with past practice;
(c) fail to use reasonable efforts to preserve intact their present
business organizations, keep available the services of their employees and
preserve its material relationships with customers, suppliers, licensors,
licensees, distributors and others, to the end that its good will and on-going
business not be impaired prior to the Effective Time;
17
(d) except for matters related to complaints by former employees
related to wages, suffer or permit any material adverse change to occur with
respect to Company and Parent or their business or assets; or
(e) make any material change with respect to their business in
accounting or bookkeeping methods, principles or practices, except as required
by GAAP.
ARTICLE V
ADDITIONAL AGREEMENTS
5.01 Shareholders Meetings. The Company will, as promptly as practicable
following the execution of this Agreement, call, give notice of, convene and
hold a meeting of its shareholders (the "Shareholders Meeting") for the purpose
of approving this Agreement and the transactions contemplated by this Agreement
or obtain the unanimous written consent of its shareholders for the same
aforementioned purpose.
5.02 Access to Information; Confidentiality.
(a) The Company shall, and shall cause its officers, employees,
counsel, financial advisors and other representatives to, afford to Parent and
its representatives reasonable access during normal business hours during the
period prior to the Effective Time of the Merger to its properties, books,
contracts, commitments, personnel and records and, during such period, the
Company shall, and shall cause its officers, employees and representatives to,
furnish promptly to Parent all information concerning its business, properties,
financial condition, operations and personnel as such other party may from time
to time reasonably request. For the purposes of determining the accuracy of
the representations and warranties of the Company set forth herein and
compliance by the Company of its obligations hereunder, during the period prior
to the Effective Time of the Merger, Parent shall provide the Company and its
representatives with reasonable access during normal business hours to its
properties, books, contracts, commitments, personnel and records as may be
necessary to enable the Company to confirm the accuracy of the representations
and warranties of Parent set forth herein and compliance by Parent and Sub of
their obligations hereunder, and, during such period, Parent shall, and shall
cause its subsidiaries, officers, employees and representatives to, furnish
promptly to the Company upon its request (i) a copy of each report, schedule,
registration statement and other document filed by it during such period
pursuant to the requirements of federal or state securities laws and (ii) all
other information concerning its business, properties, financial condition,
operations and personnel as such other party may from time to time reasonably
request. Except as required by law, each of the Company, Sub, and Parent will
hold, and will cause its respective directors, officers, employees,
accountants, counsel, financial advisors and other representatives and
affiliates to hold, any nonpublic information in confidence.
18
(b) No investigation pursuant to this Section 5.02 shall affect any
representations or warranties of the parties herein or the conditions to the
obligations of the parties hereto.
5.03 Best Efforts. Upon the terms and subject to the conditions set forth in
this Agreement, each of the parties agrees to use its best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, and to assist
and cooperate with the other parties in doing, all things necessary, proper or
advisable to consummate and make effective, in the most expeditious manner
practicable, the Merger and the other transactions contemplated by this
Agreement. Parent, Sub and the Company will use their best efforts and
cooperate with one another (i) in promptly determining whether any filings are
required to be made or consents, approvals, waivers, permits or authorizations
are required to be obtained (or, which if not obtained, would result in an
event of default, termination or acceleration of any agreement or any put right
under any agreement) under any applicable law or regulation or from any
governmental authorities or third parties, including parties to loan agreements
or other debt instruments and including such consents, approvals, waivers,
permits or authorizations as may be required to transfer the assets and related
liabilities of the Company to the Surviving Corporation in the Merger, in
connection with the transactions contemplated by this Agreement, and (ii) in
promptly making any such filings, in furnishing information required in
connection therewith and in timely seeking to obtain any such consents,
approvals, permits or authorizations. Parent and the Company shall mutually
cooperate in order to facilitate the achievement of the benefits reasonably
anticipated from the Merger.
5.04 Public Announcements. Parent and Sub, on the one hand, and the Company,
on the other hand, will consult with each other before issuing, and provide
each other the opportunity to review and comment upon, any press release or
other public statements with respect to the transactions contemplated by this
Agreement and shall not issue any such press release or make any such public
statement prior to such consultation, except as may be required by applicable
law or court process. The parties agree that the initial press release or
releases to be issued with respect to the transactions contemplated by this
Agreement shall be mutually agreed upon prior to the issuance thereof.
Notwithstanding the foregoing, Company may disclose the contemplated Merger in
letters to the Company's optionees for purposes of fulfilling the Company's
obligations under the Company Option Plan to the said optionees.
5.05 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the
party incurring such expenses.
5.06 Directorships. Upon the Effective Time of the Merger, all officers and
directors of Parent shall have resigned and Parent shall have taken all action
to cause Xxx Xxxxxx, Xxxx Xxxxxxx, and Ran Xxxxxx as directors of the
Registrant. The board will appoint Xxx Xxxxxx as Chief Executive Officer; Xxxx
Xxxxxxx as President; and, Ran Xxxxxx as Chief Financial Officer.
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5.07 No Solicitation. Except as previously agreed to in writing by the other
party, neither Company or Parent shall authorize or permit any of its officers,
directors, agents, representatives, or advisors to (a) solicit, initiate or
encourage or take any action to facilitate the submission of inquiries,
proposals or offers from any person relating to any matter concerning any
merger, consolidation, business combination, recapitalization or similar
transaction involving Company or Parent, respectively, other than the
transaction contemplated by this Agreement or any other transaction the
consummation of which would or could reasonably be expected to impede,
interfere with, prevent or delay the Merger or which would or could be expected
to dilute the benefits to the Company of the transactions contemplated hereby.
Company or Parent will immediately cease and cause to be terminated any
existing activities, discussions and negotiations with any parties conducted
heretofore with respect to any of the foregoing.
ARTICLE VI
CONDITIONS PRECEDENT
6.01 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligation of each party to effect the Merger is subject to the
satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) Representations and Warranties. The representations and
warranties of the Company set forth in this Agreement shall be true and correct
in all material respects, in each case as of the date of this Agreement and as
of the Closing Date as though made on and as of the Closing Date.
(b) No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Merger shall be in effect.
(c) No Dissent. Holders of no more than five percent (5%) of the
Company's Common Stock shall have dissented to the Merger.
6.02 Conditions to Obligations of Parent and Sub. The obligations of Parent
and Sub to effect the Merger are further subject to the following conditions:
(a) Representations and Warranties. The representations and
warranties of the Parent and Sub set forth in this Agreement shall be true and
correct in all material respects, in each case as of the date of this Agreement
and as of the Closing Date as though made on and as of the Closing Date.
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(b) No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the Merger shall be in effect.
(c) No Litigation. There shall not be pending or threatened by any
Governmental Entity any suit, action or proceeding (or by any other person any
suit, action or proceeding which has a reasonable likelihood of success), (i)
challenging or seeking to restrain or prohibit the consummation of the Merger
or any of the other transactions contemplated by this Agreement or seeking to
obtain from Parent or any of its subsidiaries any damages that are material in
relation to Parent and its subsidiaries taken as a whole, (ii) seeking to
prohibit or limit the ownership or operation by the Company, Parent or any of
its subsidiaries of any material portion of the business or assets of the
Company, Parent or any of its subsidiaries, or to dispose of or hold separate
any material portion of the business or assets of the Company, Parent or any of
its subsidiaries, as a result of the Merger or any of the other transactions
contemplated by this Agreement, (iii) seeking to impose limitations on the
ability of Parent or Sub to acquire or hold, or exercise full rights of
ownership of, any shares of Company Common Stock or Common Stock of the
Surviving Corporation, including, without limitation, the right to vote the
Company Common Stock or Common Stock of the Surviving Corporation on all
matters properly presented to the shareholders of the Company or the Surviving
Corporation, respectively, or (iv) seeking to prohibit Parent or any of its
subsidiaries from effectively controlling in any material respect the business
or operations of the Company.
(d) Filing of Merger Agreement. Parent shall have filed or will
promptly file after the Closing Date in the office of the Secretary of State or
other office of each jurisdiction in which such filings are required for the
Merger to become effective. (See Exhibit "A")
(e) Registrations. Parent shall deliver to the Company written
resignations of all of the officers of the Parent and evidence of election of
those new directors and officers as further described in Section 5.06 herein.
(f) Cancellation Agreement. Parent shall deliver to the Company the
executed share Cancellation Agreement attached hereto as Exhibit B.
(g) 8-K. Parent shall file a Form 8-K with the SEC within four days
of the closing of the Merger containing audited financial statements of the
Company as required by Regulation S-X.
(h) NFA has agreed to issued 1,507,937 unregistered shares to the
seven members of Plantation Working Interests, LLC, for the purpose of
acquiring 100% interest in Plantation Working Interests, LLC.
(i) The Parent has agreed to issue 190,476 unregistered shares each to
Azure Vista, L.P., LLC, and Phoenix Capital, Inc. to be paid as a consulting
compensation fee for Plantation Working Interests, LLC.
(j) The Parent has agreed to issue 190,476 to Ran Xxxxxx to serve as
Chief Financial Officer and director of the Parent
(k) Purchase of APClark. The Company has agreed to purchase a 25%
interest in APClark from Xxxxx Energy, Inc. for a total of 3,000,000 shares in
the Parent. APClark covers approximately 6,700 acres located in the APClark
field in Southwestern Xxxxxx County, TX.
21
6.03 Conditions to Obligation of the Company. The obligation of the Company to
effect the Merger is further subject to the following conditions:
(a) Representations and Warranties. The representations and
warranties of Parent and Sub set forth in this Agreement shall be true and
correct in all material respects, in each case as of the date of this Agreement
and as of the Closing Date as though made on and as of the Closing Date. The
Company shall have received a certificate signed on behalf of Parent by the
president of Parent to such effect.
(b) The Company is to provide the Parent with audited financial
statements for the past two fiscal years along with reviewed interim
financials.
(c) Performance of Obligations of Parent and Sub. Parent and Sub
shall have performed the obligations required to be performed by them under
this Agreement at or prior to the Closing Date (except for such failures to
perform as have not had or could not reasonably be expected, either
individually or in the aggregate, to have a material adverse effect with
respect to Parent or adversely affect the ability of Parent to consummate the
transactions herein contemplated or perform its obligations hereunder), and the
Company shall have received a certificate signed on behalf of Parent by the
president of Parent to such effect.
(d) No Litigation. There shall not be pending or threatened any suit,
action or proceeding before any court, Governmental Entity or authority (i)
pertaining to the transactions contemplated by this Agreement or (ii) seeking
to prohibit or limit the ownership or operation by the Company, Parent or any
of its subsidiaries, or to dispose of or hold separate any material portion of
the business or assets of the Company, Parent or of its any subsidiaries.
(e) Contribution of Assets. Xx. Xxx Xxxxxx and Xx. Xxxx Xxxxxxx are
the owners of United Production & Exploration or Global Production, Inc. They
are required to contribute/assign various nonmonetary assets, which consists of
a lease on Cadillac Prospect in Mercedes Field which is 100% owned by United
Petroleum & Exploration and the lease on Damon Mound oil field which is 50%
owned by Global Production, along with seismic data. Xx. Xxx Xxxxxx and Xx.
Xxxx Xxxxxxx have agreed to serve as the new officers/directors of the Parent
and donate the aforementioned assets to the Parent in exchange for 3,047,620
shares (1,523,810 shares each) of common stock in the Parent.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.01 Termination. This Agreement may be terminated and abandoned at any time
prior to the Effective Time of the Merger:
(a) by mutual written consent of Parent and the Company;
22
(b) by either Parent or the Company if any Governmental Entity shall
have issued an order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and nonappealable;
(c) by either Parent or the Company if the Merger shall not have been
consummated on or before November 30, 2007 (other than as a result of the
failure of the party seeking to terminate this Agreement to perform its
obligations under this Agreement required to be performed at or prior to the
Effective Time of the Merger);
(d) by Parent, if a material adverse change shall have occurred
relative to the Company;
(e) by Parent, if the Company willfully fails to perform in any
material respect any of its material obligations under this Agreement; or
(f) by the Company, if Parent or Sub willfully fails to perform in any
material respect any of their respective obligations under this Agreement.
7.02 Effect of Termination. In the event of termination of this Agreement by
either the Company or Parent as provided in Section 7.01, this Agreement shall
forthwith become void and have no effect, without any liability or obligation
on the part of Parent, Sub or the Company, other than the provisions of the
last sentence of Section 5.02(a) and this Section 7.02. Nothing contained in
this Section shall relieve any party for any breach of the representations,
warranties, covenants or agreements set forth in this Agreement.
7.03 Amendment. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties.
7.04 Extension; Waiver. Subject to Section 7.01(c), at any time prior to the
Effective Time of the Merger, the parties may (a) extend the time for the
performance of any of the obligations or other acts of the other parties, (b)
waive any inaccuracies in the representations and warranties contained in this
Agreement or in any document delivered pursuant to this Agreement, or (c) waive
compliance with any of the agreements or conditions contained in this
Agreement. Any agreement on the part of a party to any such extension or
waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party. The failure of any party to this Agreement to assert any
of its rights under this Agreement or otherwise shall not constitute a waiver
of such rights.
7.05 Procedure for Termination, Amendment, Extension or Waiver. A termination
of this Agreement pursuant to Section 7.01, an amendment of this Agreement
pursuant to Section 7.03 or an extension or waiver of this Agreement pursuant
to Section 7.04 shall, in order to be effective, require in the case of Parent,
Sub or the Company, action by its Board of Directors or Members.
23
7.06 Return of Documents. In the event of termination of this Agreement for
any reason, Parent, Sub and Company will return to the other party all of the
other party's documents, work papers, and other materials (including copies)
relating to the transactions contemplated in this Agreement, whether obtained
before or after execution of this Agreement. Parent, Sub and Company will not
use any information so obtained from the other party for any purpose and will
take all reasonable steps to have such other party's information kept
confidential.
ARTICLE VIII
INDEMNIFICATION AND RELATED MATTERS
8.01 Survival of Representations and Warranties. The representations and
warranties in this Agreement or in any instrument delivered pursuant to this
Agreement shall survive the Effective Time of the Merger until the Settlement
Date.
8.02 Indemnification.
(a) Irrespective of any due diligence investigation conducted by
Company with regard the transactions contemplated hereby, the Parent shall
indemnify and hold the Company and each of its officers and directors (the
"Company Representatives") harmless from and against any and all liabilities,
obligations, damages, losses, deficiencies, costs, penalties, interest and
expenses (collectively, "Losses") arising out of, based upon, attributable to
or resulting from any and all Losses incurred or suffered by the Company or any
of the Company Representatives resulting from or arising out of any breach of a
representation, warranty or covenant made by Parent as set forth herein.
(b) Notwithstanding anything to the contrary contained in this
Agreement, in the absence of any fraud or intentional misconduct on the party
of the Parent, the sole remedy of the Company or the Company Representatives
further to this Section 8.02 shall be offset of such Losses against shares held
in the Parent Escrow Deposit as further described in the Escrow Agreement and
in Section 8.04 herein.
(c) The Company shall indemnify and hold the Parent and each of its
officers and directors (the "Parent Representatives") harmless from and against
any and all liabilities, obligations, damages, losses, deficiencies, costs,
penalties, interest and expenses (collectively, "Losses") arising out of, based
upon, attributable to or resulting from any and all Losses incurred or suffered
by the Parent or any of the Parent Representatives resulting from or arising
out of any breach of a representation, warranty or covenant made by Company as
set forth herein.
24
(d) Notwithstanding anything to the contrary contained in this
Agreement, in the absence of any fraud or intentional misconduct on the party
of the Company, the sole remedy of the Parent or the Parent Representatives
further to this Section 8.02 shall be offset of such Losses against shares held
in the Merger Consideration Escrow Deposit as further described in the Escrow
Agreement and in Section 8.04 herein.
8.03 Notice of Indemnification. In the event any proceeding shall be
threatened or instituted or any claim or demand shall be asserted in respect of
which payment may be sought by the Parent or any Parent Representative or by
the Company or any Company Representative, against the other, as the case may
be (each an "Indemnitee"), under the provisions of this Article VIII (an
"Indemnity Claim"), the Indemnitee shall promptly cause written notice of the
assertion of any such Claim of which it has knowledge which is covered by this
indemnity to be forwarded to the Parent Representative, who shall be Xxxxxx X.
Xxxxxxxxx, III, or the Company Representative, who shall be Xxx Xxxxxx, as the
case may be, and the Escrow Agent. Any notice of an Indemnity Claim by reason
of any of the representations, warranties or covenants contained in this
Agreement shall state specifically the representation, warranty or covenant
with respect to which the Indemnity Claim is made, the facts giving rise to an
alleged basis for the Claim, and the amount of the liability asserted against
the Indemnitor by reason of the Indemnity Claim. Within ten (10) days of the
receipt of such written notice, the Parent Representative or the Company, as
the case may be, shall notify the Indemnitee in writing of its intent to
contest the indemnification obligation (a "Contest") or to accept liability
hereunder.
If the Parent Representative or the Company, as the case may be, accepts
liability, the Parent Representative, or the Company, as the case may be, will
deliver a Notice to Escrow Agent that there is a determination of liability
under Section 8.03 and the Escrow Agent shall be instructed to adjust the
Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as the case
may be, further to the Escrow Agreement. If the Parent Representative or the
Company, as the case may be, does not respond within ten (10) days of the
request of such written notice to such written notice, the Parent
Representative or the Company, as the case may be, will be deemed to accept
liability as it relates to the Parent Escrow Deposit or the Merger
Consideration Escrow Deposit, as the case may be. In such event, the Indemnitee
will deliver a Notice to the Escrow Agent that there is a determination of
liability to this Section 8.03 and the Escrow Agent shall be instructed to
adjust the Parent Escrow Deposit or the Merger Consideration Escrow Deposit, as
the case may be, further to the Escrow Agreement. In the event of a Contest,
within ten (10) days of the receipt of the written notice thereof, the parties
will select arbitrators and submit the dispute to binding arbitration in
Nevada. The arbitrators shall be selected by the mutual agreement of the
parties. If the parties can not agree on the arbitrator, each may select one
arbitrator and the two designated arbitrators shall select the third
arbitrator. If the third arbitrator can not be agreed upon, the Federal
District Court for Nevada shall select the third arbitrator. A decision by the
individual arbitrator or a majority decision by the three arbitrators shall be
final and binding upon the parties. Such arbitration shall follow the rules of
the American Arbitration
25
Association and must be resolved by the arbitrators within thirty (30) days
after the matter is submitted to arbitration. If the arbitration is ruled
favorably for Parent so that there is a determination of a Loss, the Indemnitee
will deliver a Notice to Escrow Agent that there is a determination of
liability pursuant to this Section 8.03 and the Escrow Agent shall be
instructed to adjust the Parent Escrow Deposit or the Merger Consideration
Escrow Deposit, as the case may be, further to the Escrow Agreement.
ARTICLE IX
GENERAL PROVISIONS
9.01 Notices. All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if delivered
personally or sent by facsimile, electronic mail, or overnight courier
(providing proof of delivery) to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to Parent or Parent Representative, to:
National Filing Agents, Inc.
0000 Xxxxxxxx Xxxx Xxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx, III, President
with a copy to:
Law Offices of Xxxxxx X. Xxxx
000 Xxxxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Fax: (000) 000-0000
(b) if to the Company, to:
Plantation Working Interests, LLC
0000 Xxxx Xxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxx, CEO
Telephone: 000-000-0000
26
9.02 Definitions. For purposes of this Agreement:
(a) an "affiliate" of any person means another person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such first person;
(b) "material adverse change" or "material adverse effect" means, when
used in connection with the Company or Parent, any change or effect that either
individually or in the aggregate with all other such changes or effects is
materially adverse to the business, assets, properties, condition (financial or
otherwise) or results of operations of such party and its subsidiaries taken as
a whole (after giving effect in the case of Parent to the consummation of the
Merger);
(c) "person" means an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity; and
(d) a "subsidiary" of any person means another person, an amount of
the voting securities, other voting ownership or voting partnership interests
of which is sufficient to elect at least a majority of its board of Directors,
members or other governing body (or, if there are no such voting interests,
fifty percent (50%) or more of the equity interests of which) is owned directly
or indirectly by such first person.
9.03 Interpretation. When a reference is made in this Agreement to a Section,
Exhibit or Schedule, such reference shall be to a Section of, or an Exhibit or
Schedule to, this Agreement unless otherwise indicated. The headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation".
9.04 Entire Agreement; No Third-Party Beneficiaries. This Agreement and the
other agreements referred to herein constitute the entire agreement, and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter of this Agreement. This
Agreement is not intended to confer upon any person other than the parties any
rights or remedies.
9.05 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Nevada, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
9.06 Assignment. Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise by any of the parties without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and assigns.
27
9.07 Enforcement. The parties agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed In
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Nevada, this being in addition to any other remedy
to which they are entitled at law or in equity. In addition, each of the
parties hereto (a) consents to submit itself to the personal jurisdiction of
the Xxxxx County Superior Court in the event any dispute arises out of this
Agreement any of the transactions contemplated by this Agreement to the extent
such courts would have subject matter jurisdiction with respect to such
dispute, (b) agrees that it will not attempt to deny or defeat such personal
jurisdiction or venue by motion or other request for leave from any such court,
and (c) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated by this Agreement in any state court other
than such court.
9.08 Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
9.09 Counterparts. This Agreement may be executed in one or more identical
counterparts, all of which shall be considered one and the same instrument and
shall become effective when one or more such counterparts shall have been
executed by each of the parties and delivered to the other parties.
28
IN WITNESS WHEREOF, the undersigned have caused their duly authorized
officers (or representatives in the case of Sub) to execute this Agreement as
of the date first above written.
NATIONAL FILING AGENTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx, III
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx, III
Title: President
Attest:
By: /s/ Xxxxxx X. Xxxxxxxxx, III
-------------------------------
Name: Xxxxxx X. Xxxxxxxxx, III
Title: Secretary
National Filing Agents Acquisition
Corporation (Merger Sub)
By: /s/ Xxxxxx X. Xxxxxxxxx, III
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx, III
Title: President
Attest:
By: /s/ Xxxxxx X. Xxxxxxxxx, III
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx, III
Title: Secretary
Plantation Working Interests, LLC
By: /s/ Xxx Xxxxxx
----------------------------------
Name: Xxx Xxxxxx
Title: Chief Executive Officer
Attest:
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: President
29
Exhibit A
ARTICLES OF MERGER
OF
NATIONAL FILING AGENTS, INC.
a Nevada corporation
and
National Filing Agents Acquisition
Corporation
a Nevada corporation
XXXX XXXXXX Entity #
Secretary of State
[state seal] 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0 Document Number:
Xxxxxx Xxxx, Xxxxxx 00000-0000
(000) 000 0000
Website: xxxxxxxxxxxxxxxx.xxx Date Filed:
In the office of
----------------------------------------------- /s/ Xxxx Xxxxxx
- Articles of Merger - Xxxx Xxxxxx
- (Pursuant to NRS 92A.200) - Secretary of State
- Page 1 -
-----------------------------------------------
ABOVE SPACE IS FOR OFFICE USE ONLY
(Pursuant to Nevada Revised Statutes Chapter 92A)
(excluding 92A.200(4b))
1) Name and jurisdiction of organization of each constituent entity (NRS 92A.
200). If there are more than four merging entities, check box [ ] and
attach an 8 1/2" X 11" blank sheet containing the required information
for each additional entity.
National Filing Agents Acquisition Corporation
----------------------------------------------
Name of merging entity
Nevada Corporation
------------ ------------
Jurisdiction Entity type*
-------------------
Name of merging entity
------------ ------------
Jurisdiction Entity type*
-------------------
Name of merging entity
------------ ------------
Jurisdiction Entity type*
-------------------
Name of merging entity
------------ ------------
Jurisdiction Entity type*
and,
National Filing Agents, Inc.
----------------------------
Name of surviving entity
Nevada Corporation
------------ ------------
Jurisdiction Entity type*
* Corporation, non-profit corporation, limited partnership, limited-liability
company or business trust.
Filing Fee: $350.00
This form must be accompanied by appropriate fees.
XXXX XXXXXX
Secretary of State
[state seal] 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxx Xxxx, Xxxxxx 00000-0000
(000) 000 0000
Website: xxxxxxxxxxxxxxxx.xxx
-----------------------------------------------
- Articles of Merger -
- (Pursuant to NRS 92A.200) -
- Page 2 -
-----------------------------------------------
ABOVE SPACE IS FOR OFFICE USE ONLY
2) Forwarding address where copies of process may be sent by the Secretary of
State of Nevada (if a foreign entity is the survivor in the merger - NRS
92A.1 90):
Attn: National Filing Agents, Inc.
----------------------------
c/o: 0000 Xxxxxxxx Xxxx Xxx
-------------------------
Xxx Xxxxx, Xxxxxx 00000
------------------------
3) (Choose one)
[X] The undersigned declares that a plan of merger has been adopted by
each constituent entity (NRS 92A.200).
[ ] The undersigned declares that a plan of merger has been adopted
by the parent domestic entity (NRS 92A.180)
4) Owner's approval (NRS 92A.200)(options a, b, or c must be used, as
applicable, for each entity)(if there are more than four merging entities,
check box [ ] and attach an 8 1/2" X 11" blank sheet containing the
required information for each additional entity):
(a) Owner's approval was not required from
---------------------------------------------------------
Name of merging entity, if applicable
---------------------------------------------------------
Name of merging entity, if applicable
---------------------------------------------------------
Name of merging entity, if applicable
---------------------------------------------------------
Name of merging entity, if applicable
and, or;
---------------------------------------------------------
Name of surviving entity, if applicable
This form must be accompanied by appropriate fees.
XXXX XXXXXX
Secretary of State
[state seal] 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxx Xxxx, Xxxxxx 00000-0000
(000) 000 0000
Website: xxxxxxxxxxxxxxxx.xxx
-----------------------------------------------
- Articles of Merger -
- (Pursuant to NRS 92A.200) -
- Page 3 -
-----------------------------------------------
ABOVE SPACE IS FOR OFFICE USE ONLY
(b) The plan was approved by the required consent of the owners of*:
National Filing Agents Acquisition Corporation
----------------------------------------------
Name of merging entity, if applicable
-------------------------------------
Name of merging entity, if applicable
-------------------------------------
Name of merging entity, if applicable
-------------------------------------
Name of merging entity, if applicable
and, or;
National Filing Agents, Inc.
---------------------------------------
Name of surviving entity, if applicable
* Unless otherwise provided in the certificate of trust or governing
instrument of a business trust, a merger must be approved by all the trustees
and beneficial owners of each business trust that is a constituent entity in
the merger.
This form must be accompanied by appropriate fees.
XXXX XXXXXX
Secretary of State
[state seal] 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxx Xxxx, Xxxxxx 00000-0000
(000) 000 0000
Website: xxxxxxxxxxxxxxxx.xxx
-----------------------------------------------
- Articles of Merger -
- (Pursuant to NRS 92A.200) -
- Page 4 -
-----------------------------------------------
ABOVE SPACE IS FOR OFFICE USE ONLY
(c) Approval of plan of merger for Nevada non-profit corporation (NRS
92A.160):
The plan of merger has been approved by the directors of the
corporation and by each public officer or other person whose approval
of the plan of merger is required by the articles of incorporation of
the domestic corporation.
-------------------------------------
Name of merging entity, if applicable
-------------------------------------
Name of merging entity, if applicable
-------------------------------------
Name of merging entity, if applicable
-------------------------------------
Name of merging entity, if applicable
and, or;
National Filing Agents Acquisition Corporation
---------------------------------------
Name of surviving entity, if applicable
This form must be accompanied by appropriate fees.
XXXX XXXXXX
Secretary of State
[state seal] 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxx Xxxx, Xxxxxx 00000-0000
(000) 000 0000
Website: xxxxxxxxxxxxxxxx.xxx
-----------------------------------------------
- Articles of Merger -
- (Pursuant to NRS 92A.200) -
- Page 5 -
-----------------------------------------------
ABOVE SPACE IS FOR OFFICE USE ONLY
5) Amendments, if any, to the articles or certificate of the surviving
entity. Provide article numbers, if available. (NRS 92A.200)*:
Article I - Corporate Name
Bonanza Oil & Gas, Inc.
----------------------------------------------------
6) Location of Plan of Merger (check a or b):
[ ] (a) The entire plan of merger is attached;
or,
[X] (b) The entire plan of merger is on file at the registered office of
the surviving corporation, limited-liability company or business
trust, or at the records office address if a limited partnership, or
other place of business of the surviving entity (NRS 92A.200).
7) Effective date (optional)**: October 23, 2007
----------------------
* Amended and restated articles may be attached as an exhibit or integrated
into the articles of merger. Please entitle them "Restated" or "Amended and
Restated," accordingly. The form to accompany restated articles prescribed
by the secretary of state must accompany the amended and/or restated
articles. Pursuant to NRS 92A.180 (merger of subsidiary into parent - Nevada
parent owning 90% or more of subsidiary), the articles of merger may not
contain amendments to the constituent documents of the surviving entity
except that the name of the surviving entity may be changed.
** A merger takes effect upon filing the articles of merger or upon a later
date as specified in the articles, which must not be more than 90 days after
the articles are filed (NRS 92A.240).
This form must be accompanied by appropriate fees.
XXXX XXXXXX
Secretary of State
[state seal] 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0
Xxxxxx Xxxx, Xxxxxx 00000-0000
(000) 000 0000
Website: xxxxxxxxxxxxxxxx.xxx
-----------------------------------------------
- Articles of Merger -
- (Pursuant to NRS 92A.200) -
- Page 6 -
-----------------------------------------------
ABOVE SPACE IS FOR OFFICE USE ONLY
8) Signatures - Must be signed by: An officer of each Nevada corporation; All
general partners of each Nevada limited partnership; All general partners
of each Nevada limited partnership; A manager of each Nevada limited-
liability company with managers or all the members if there are no
managers; A trustee of each Nevada business trust (NRS 92A.230)*
(If there are more than four merging entities, check box [ ] and attach an
8 1/2" X 11" blank sheet containing the required information for each
additional entity.):
National Filing Agents Acquisition Corporation
----------------------------------------------
Name of merging entity
/s/ Xxxxxx X. Xxxxxxxxx, III Director October 23, 2007
---------------------------- -------- ----------
Signature Title Date
------------------------
Name of merging entity
------------------------ -------- ----------
Signature Title Date
------------------------
Name of merging entity
------------------------ -------- ----------
Signature Title Date
------------------------
Name of merging entity
------------------------ -------- ----------
Signature Title Date
National Filing Agents, Inc.
------------------------
Name of surviving entity
/s/ Xxxxxx X. Xxxxxxxxx, III President October 23, 2007
---------------------------- --------- ----------
Signature Title Date
* The articles of merger must be signed by each foreign constituent entity in
the manner provided by the law governing it (NRS 92A.230). Additional
signature blocks may be added to this page or as an attachment, as needed.
IMPORTANT: Failure to include any of the above information and submit the
proper fees may cause this filing to be rejected.
This form must be accompanied by appropriate fees.
Exhibit B
SHARE CANCELLATION AGREEMENT
THIS CANCELLATION AGREEMENT (this "Agreement") is made and entered into as of
this 17th day of October 2007 by and among Messrs. Xxxxxx Xxxxxxxxx, Xx. and
Xxxxxx X. Xxxxxxxxx, III ("the two affiliated shareholders"), the principal
stockholders of National Filing Agents, Inc., a Nevada corporation ("NFLA").
Xxxxxx Xxxxxxxxx, Xx. and Xxxxxx X. Xxxxxxxxx, III are father and son
respectfully. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Acquisition Agreement and Plan
of Merger (hereinafter defined).
RECITALS
NATINAL FILING AGENTS, INC. and its two affiliated shareholders are parties to
an Agreement and Plan of Reorganization, dated October 23, 2007 (as may be
amended from
time to time, the "Merger Agreement"). In accordance with the Merger
Agreement, the two affiliated shareholders agreed to return 6,180,000 National
Filing Agents unregistered common shares to the Company's Treasury. The
cancellation of their shares are effective immediately upon the closing of the
Acquisition Agreement and Plan of Merger. The two affiliated shareholders are
returning all of their shares to the corporate treasury in exchange for $45,000
and the transfer of the personal assets and liabilities of National Filing
Agents to the former President of the Parent. It is the responsibility of the
two affiliated shareholders to return their shares to National Filing Agents'
transfer agent, for cancellation upon the closing of the merger.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
CANCELLATION OF SHARES
----------------------
Promptly after the date hereof, the two affiliated shareholders of the Parent
will deliver 6,180,000 unregistered common shares of NFLA to the Company's
Stock Transfer Agent for cancellation. The Parent's transfer agent is: Empire
Stock Transfer, Henderson, Nevada.
EXCHANGE OF ASSETS/LIABILITIES FOR CANCELLATION OF SHARES
---------------------------------------------------------
Upon the cancellation of these shares, the Parent has agreed to transfer the
assets, any intellectual property and liabilities of National Filings, Inc. to
the former President of National Filings Agents, Inc. Further, Phoenix
Capital, Inc. , has agreed to pay the two affiliated shareholders, the sum of
Forty-five Thousand ($45,000) Dollars in exchange for the benefit of the Parent
to complete the acquisition of Plantation Working Interests, LLC. Phoenix
Capital, Inc. upon close of the Acquisition Agreement and Plan of Merger will
own 190,476 common shares in the Parent.
MISCELLENOUS ITEMS
------------------
Construction. The validity, enforcement and construction of this Agreement
shall be governed by the laws of the State of Nevada, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
Binding Effect. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, legatees, assigns and
transferees, as the case may be.
Severability. If any provision or section of this Agreement is determined to
be void or otherwise unenforceable, it shall not affect the validity or
enforceability of any other provisions of this Agreement which shall remain
enforceable in accordance with their terms.
Execution in Counterparts. This Agreement may be executed in any number of
counterparts (including facsimile counterparts), each of which shall be deemed
to be an original, but all of which together shall constitute one and the same
instrument.
Amendments. This Agreement may be amended from time to time but only by
written agreement signed by all of the parties hereto.
Entire Agreement. This Agreement constitutes the entire understanding and
agreement of the parties relating to the subject matter hereof and supersedes
any and all prior understandings, agreements, negotiations and discussions,
both written and oral, between the parties hereto with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
National Filing Agents, Inc.
By: /s/ Xxxxxx X. Xxxxxxxxx, III
---------------------------------
Name: Xxxxxx X. Xxxxxxxxx, III
President
Affiliated Shareholders:
/s/ Xxxxxx X. Xxxxxxxxx, III
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx, III
(agrees to cancel 180,000 shares of National Filing Agents, Inc.)
/s/ Xxxxxx Xxxxxxxxx, Xx.
---------------------------
Name: Xxxxxx Xxxxxxxxx, Xx.
(agrees to cancel 6,000,000 shares of National Filing Agents, Inc.)
