Exhibit 10.1
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement is made as of the 20th day of August, 2003 by and among YzApp
International Inc., a Nevada corporation (hereinafter referred to as "YzApp NV")
YzApp Solutions Inc., a Canadian Federal corporation (hereinafter referred to as
"YzApp Canada"), and each of the undersigned holders of outstanding common
shares of YzApp Canada as of this date (hereinafter referred to as the "YzApp
Canada Shareholders" collectively).
This Agreement provides for the exchange of not less than fifty-one percent of
the outstanding common shares of YzApp Canada for shares of common voting stock
of YzApp NV, and other valuable consideration, all for the purpose of YzApp
Canada becoming a subsidiary of YzApp NV and YzApp NV carrying on the business
of YzApp Canada as set forth herein.
AGREEMENT
Now, therefore, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived here from, it is hereby agreed as follows:
ARTICLE 1: REPRESENTATIONS AND WARRANTIES OF YzApp NV
As an inducement to, and to obtain the reliance of YzApp Canada Shareholders,
YzApp NV represents and warrants as follows:
1.1. Organization, Good Standing, Power, Etc. YzApp NV
(i) is a corporation duly organized, validly existing and in good standing under
the law of the State of Nevada; (ii) was incorporated by YzApp Canada., on
December 26, 2002 solely for the purpose of this Agreement and Plan of
Reorganization; (iii) is qualified or authorized to do business as a foreign
corporation and is in good standing in all jurisdictions in which qualification
or authorization may be required; (iv) has all requisite corporate power and
authority, licenses and permits to own or lease and operate its properties and
carry on its business as presently and to be conducted; and (v) to execute,
deliver and perform this Agreement and consummate the transactions contemplated
hereby.
1.2. Capitalization. The authorized capital stock of YzApp NV consists solely of
50,000,000 shares of Common Stock, US$0.001 par value, (the "YzApp NV Common
Stock"), and 1,000,000 shares of Preferred Stock of which, on the date hereof
1,228,500 shares of YzApp NV Common Stock and no shares of Preferred Stock are
issued and outstanding and no shares are held in the treasury of YzApp NV. At
the closing of the transactions contemplated by this Agreement ("Closing") all
Shares of YzApp NV Common Stock to be issued to YZAPP Canada Shareholders will
be duly authorized and lawfully and validly issued as fully paid and
non-assessable with no further personal liability attaching to the ownership
thereof. All of the issued and outstanding shares of the YzApp NV Common Stock
have been duly authorized and validly issued and are fully paid and
non-assessable with no personal liability attaching to the ownership thereof and
were not issued in violation of the preemptive or other rights of any person.
1.3 Options, Warrants, Rights, Etc. By Closing, YzApp NV will not have
outstanding any options, warrants or other rights to purchase or convert any
obligation into, any shares of the YzApp NV Common Stock, nor any instruments or
obligations to confer or create such rights.
ARTICLE 2: REPRESENTATIONS AND WARRANTIES
OF YzApp Canada
As an inducement to, and to obtain the reliance of the YzApp Canada
Shareholders, YzApp Canada represents and warrants as follows:
2.1. Organization, Good Standing, Power, Etc. YzApp Canada:
(i) is a corporation duly organized, validly existing and in good standing under
the federal laws of Canada;
(ii) has all requisite corporate power and authority, licenses, permits and
franchises to own or lease and operate its properties and carry on its business
as presently being conducted and to execute, deliver and perform this Agreement
and consummate the transactions contemplated hereby; and
(iii) is not a reporting issuer under any Canadian securities laws.
2.2. Capitalization. As of the date hereof the authorized capital of YzApp
Canada consists of an unlimited number of common shares, of which 19,040,000
common shares are outstanding and are held by fewer than 50 shareholders. YzApp
Canada hereby covenants and agrees not to issue any further common shares prior
to Closing. All of such issued and outstanding common shares of YzApp Canada
have been duly authorized and validly issued and are fully paid and
non-assessable with no further personal liability attaching to the ownership
thereof. There is no published market for the common shares of YzApp Canada.
2.3. Options, Warrants, Rights, Etc. At the time of Closing, YzApp Canada will
not have outstanding any options, warrants or other rights to purchase or
convert any obligation into, any shares of the YzApp Canada, nor any instruments
or obligations to confer or create such rights.
2.4 Subsidiaries. YzApp Canada does not have any subsidiaries and does not own a
controlling interest in any capital stock of any corporation.
2.5. Authorization of Agreement. This Agreement has been or will be at Closing
duly and validly authorized, executed and delivered by YzApp Canada.
2.6. Financial Statements. YzApp Canada has delivered or will deliver prior to
Closing, to YzApp NV and the YzApp Canada Shareholders, audited financial
statements of YzApp Canada for its most fiscal year ending July 31, 2003
consisting of Balance Sheets as at July 31, 2003 and 2002, .............. These
financial statements have been prepared to the best of YzApp Canada's ability in
accordance with generally accepted accounting principles applied on a basis
consistent with that of prior years or periods, are correct and complete and to
the best knowledge of YzApp Canada's management fairly present the financial
position and results of operations of YzApp Canada as of the date thereof and
for the periods indicated in such statements. The Balance Sheets of YzApp Canada
included in the statements make full and adequate provisions for all
obligations, liabilities or commitments (fixed and contingent) of YzApp Canada
as of their respective dates. As of the date of such financial statements, YzApp
Canada has no undisclosed obligations, liabilities or commitments (fixed or
contingent) not required to be reserved against in the foregoing financial
statements or disclosed in the notes thereto in accordance with generally
accepted accounting principles, except the transactions contemplated by this
Agreement.
2.7. Tax Matters. On or before Closing, YzApp Canada will have prepared and
filed with the appropriate Canadian federal, provincial and local governmental
agencies, and any applicable foreign countries and political subdivisions
thereof, all tax returns required to be filed; YzApp Canada will have paid all
taxes shown on such tax returns to be payable or which have become due pursuant
to any assessment, deficiency, notice, 30 day letter or similar notice received
by it; and the provisions for income taxes payable in the Balance Sheets of
YzApp Canada delivered to YzApp NV are sufficient for all accrued and unpaid
taxes, whether or not disputed and for all periods to and including the date of
such Balance Sheets. On or before Closing, YzApp Canada will provide true and
accurate copies of all tax returns filed since its date of incorporation.
2.8. Material Contracts. There has not occurred any default by YzApp Canada of
any event which with the lapse of time or the election of any person other than
YzApp Canada or any combination thereof, will become a default, except defaults,
if any, which will not result in any material loss to or liability of YzApp
Canada.
2.9 Permits, Licenses, Etc. YzApp Canada has all permits, licenses, orders and
approvals of federal, state, local or foreign governmental or regulatory bodies
that are required in order to permit it to carry on their business as presently
conducted.
2.10. Compliance with Applicable Laws. The conduct by YzApp Canada of its
business does not violate or infringe upon any domestic (federal, state or
local) or foreign law, statute, ordinance or regulation now in effect, or, to
the knowledge of YzApp Canada, proposed to be adopted, the enforcement of which
would materially and adversely affect its business or the value of its
properties or assets.
2.11 Litigation. There is no material claim, action, suit, proceeding,
arbitration, investigation or inquiry pending before any federal, state,
municipal, foreign or other court or governmental or administrative body or
agency, or any private arbitration tribunal, or to the knowledge of YzApp
Canada, threatened, against, relating to or affecting YzApp Canada or any of its
properties or business, or the transactions contemplated by this Agreement; nor
to the knowledge of YzApp Canada is there any basis for any such material claim,
action, suit, proceeding, arbitration, investigation or inquiry which may have
any adverse effect upon the assets, properties or business of YzApp Canada, or
the transactions contemplated by this Agreement. Neither YzApp Canada nor any
officer, director, partner or employee of YzApp Canada, has been permanently or
temporarily enjoined by order, judgment or decree of any court or other tribunal
or any agency from engaging in or continuing any conduct or practice in
connection with the business engaged in by YzApp Canada. There is not in
existence at present any order, judgment or decree of any court or other
tribunal or any agency enjoining or requiring YzApp Canada to take any material
action of any kind or to which YzApp Canada and its business, properties or
assets are subject or bound. YzApp Canada is not in default under any order,
license, regulation or demand of any federal, state or municipal or other
governmental agency or with respect to any order, writ, injunction or decree of
any court which would have a materially adverse impact upon YzApp Canada's
operations or affairs.
2.12. Other Information. None of the information and documents which have been
furnished or made available by YzApp Canada or any of its representatives to the
YzApp Canada Shareholders or any of their representatives in connection with the
transactions contemplated by this Agreement is materially false or misleading or
contains any material misstatements of fact or omits any material fact necessary
to be stated in order to make the statements therein not misleading.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES
OF YzApp Canada SHAREHOLDERS
As an inducement to, and to obtain the reliance of YzApp Canada and YzApp NV,
each YzApp Canada Shareholder represents and warrants as follows:
3.1. Investment Representation. The YzApp Canada Shareholder is acquiring shares
of YzApp NV Common Stock issuable hereunder for its own account and agrees not
to distribute any shares issuable hereunder within the meaning of the United
States Securities Act of 1933, as amended, (the "1933 Act") unless:
(a) an appropriate registration statement has been filed with the
United States Securities and Exchange Commission ("SEC")
qualifying such sale, transfer, distribution or other
disposition or unless an exemption from registration under the
1933 Act is available according to opinion of counsel for
YzApp NV; and
(b) the sale is made in compliance with the prospectus and
registration requirements under applicable Canadian securities
laws unless an exemption from such requirements is available
according to the opinion of counsel for YzApp NV.
Each certificate representing YzApp NV shares issued hereunder shall be stamped
or otherwise imprinted or endorsed with the following or substantially similar
legends:
"The shares represented by this certificate have not been registered under the
United States Securities Act of 1933, as amended, (the "Act") nor any state
securities laws. These shares may not be offered for sale, sold or otherwise
transferred except pursuant to an effective registration statement under the Act
or if in the opinion of counsel acceptable to YzApp NV that an exemption from
such registration is available." "Unless permitted under securities legislation,
the holder of the securities shall not trade the securities before the earlier
of (i) the date that is 12 months and a day after the date the issuer first
became a reporting issuer in any of Alberta, British Columbia, Manitoba, Nova
Scotia, Ontario, Quebec and Saskatchewan, if the issuer is a SEDAR filer; and
(ii) the date that is 12 months and a day after the later of (A) the
distribution date, and (b) the date the issuer became a reporting issuer in the
local jurisdiction of the purchaser of the securities that are subject of the
trade."
By execution of this Agreement and the Subscription Agreement attached hereto as
Exhibit 3.1, the YzApp Canada Shareholder represents that it has sufficient
investment experience and financial means to understand and assume the financial
risks associated with this transaction and confirms those representations
contained in Exhibit 3.1 intended to establish the availability of an exemption
from the registration requirements of the 1933 Act and from the registration
and/or qualification requirements of any other applicable securities law.
3.2 Ownership Representation. All of the common shares of YzApp Canada held by
the YzApp Canada Shareholder and exchanged for YzApp NV Common Stock hereunder
are and will be on Closing legally and beneficially owned by the YzApp Canada
Shareholder, and on Closing will be transferred to YzApp NV free and clear of
all liens, charges, mortgages and other encumbrances and all pre-emptive and
similar rights other than those created by YzApp NV.
ARTICLE 4: PLAN OF EXCHANGE AND CLOSING
4.1. The Exchange. Provided that YzApp Canada Shareholders holding not
less than fifty-one percent (51%) of the issued and outstanding common shares of
YzApp Canada execute and agree to exchange their common shares of YzApp Canada
for shares of YzApp NV Common Stock hereunder, the common shares of such YzApp
Canada Shareholders shall be exchanged for YzApp NV Common Stock on the basis of
one (1) share of YzApp NV Common Stock share for every two (2) common shares of
YzApp Canada delivered at Closing. Provided the foregoing condition is met, this
Agreement shall be binding upon and enforceable against each YzApp Canada
Shareholder that executes and delivers this Agreement, notwithstanding the fact
that this Agreement is not signed by all YzApp Canada Shareholders.
A). At Closing, each YzApp Canada Shareholder that executes this
Agreement shall deliver to YzApp NV, certificates representing its common shares
of YzApp Canada properly endorsed for transfer thereto and an executed
Subscription Agreement in the form attached as Exhibit 3.1 hereto (the
"Subscription Agreement").
B). The obligation of YzApp NV to deliver YzApp NV Common Stock is
conditioned upon and subject to receipt of certificates representing not less
than fifty-one percent (51%) of the outstanding common shares of YzApp Canada
properly endorsed for transfer thereto and executed Subscription Agreements for
the YzApp NV Common Stock to be exchanged for such shares.
4.2. Closing. The Closing of the transactions contemplated by this Agreement
shall take place on such date as may be agreed upon by YzApp Canada and YzApp
NV, but no later than October 31, 2003 or such other date as the signatories to
this Agreement may agree to (herein called the "Closing Date"), at the offices
of YzApp Canada, or such other location as YzApp Canada and YzApp NV may agree
to.
4.3. Closing Events. At the Closing, each of the parties hereto shall execute,
acknowledge, and deliver (or shall cause to be executed, acknowledged, and
delivered) any agreements, resolutions, or other instruments required by this
Agreement to be so delivered at or prior to the Closing, together with such
other items as may be reasonably requested by the parties hereto and their
respective legal counsel in order to give effect to or evidence the transactions
contemplated hereby.
4.4 Directors of YzApp NV. On the Closing Date, YzApp NV shall deliver to YzApp
Canada certified resolutions to the effect that, effective immediately following
the Closing, the Board of Directors of YzApp NV shall consist of the following
individuals:
Xxxxx Xxxxxxx Chairman, Director
Xxxxxxx Xxxx Director
Xxxx Xxxxx Director
4.5. Officers of YzApp NV. On the Closing Date, YzApp NV shall deliver certified
resolutions to YzApp Canada to the effect that, effective immediately following
the Closing, the Board of YzApp NV shall have elected as new officers of YzApp
NV to consist of the following individuals:
Xxxxx Xxxxxxx President, Chief Executive Officer, Treasurer
Xxxxxxx Xxxx Secretary
ARTICLE 5: MISCELLANEOUS
5.1. Expenses and Further Assurances. The parties hereto shall each bear their
respective costs and expenses incurred in connection with the transactions
contemplated by this Agreement. Each party hereto will use its best efforts
provide any and all additional information, execute and deliver any and all
documents or other written material and perform any and all acts necessary to
carryout the intent of this Agreement.
5.2. Survival of Representations, Warranties and Covenants. All of the
representations, warranties and covenants made as of the date of this Agreement
and as of Closing, shall survive the closing of this transaction.
5.3. Successors and Assigns. All representations, warranties, covenants and
agreements in this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, representatives,
successors and assigns whether so expressed or not.
5.4. Governing Law. This Agreement is to be governed by and interpreted under
the laws of the State of Nevada, without giving effect to the conflicts of laws
principles thereof. In addition, the parties hereby submit to the non-exclusive
jurisdiction in the Courts of the Province of British Columbia for the
resolution of any disputes arising under or with respect to this Agreement.
5.5. Section and Other Headings. The section and other headings herein contained
are for convenience only and shall not be construed as part of this Agreement.
5.6. Counterparts. This Agreement may be executed in any number of counterparts
and each counterpart shall constitute an original instrument, but all such
separate counterparts shall constitute but one and the same instrument.
5.7. Entire Agreement. This Agreement, together with the Subscription Agreements
signed by YzApp Canada Shareholders hereunder, constitute the entire agreement
between the parties hereto and supersede all prior agreements, understandings
and arrangements, oral or written, between the parties hereto with respect to
the subject matter hereof. This Agreement may not be amended or modified, except
by a written agreement signed by all signatories hereto.
5.8. Severability. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffectual
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction.
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement to
be executed by their respective Officers, hereunto duly authorized, as of the
date indicated.
YzApp International Inc.
By: /s/ Xxxxx Xxxxxxx /s/ Xxxxxxxx Xxxx
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Xxxxx Xxxxxxx, President Xxxxxxx Xxxx, Secretary
Dated: August 20, 2003 Dated: August 20, 2003
YzApp Solutions Inc.
By: /s/ Xxxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxxxx (Signing for YSI)
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Xxxxx Xxxxxxx, President Xxxxxxx Xxxxxxxxx, Secretary
Dated: August 20, 2003 Dated: August 20, 2003
YzApp Solutions Inc. - Shareholders
/s/ Xxxxxxxxxx X. Bernaschek /s/ Xxxxxxx Xxxxxxx
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Xxxxxxxxxx X. Bernaschek Xxxxxxx Xxxxxxx
Dated: August 26, 2003 Dated: August 28, 2003
/s/ Xxxxxxx Xxxx /s/ Xxxx Xxxxx
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Xxxxxxx Xxxx Xxxx Xxxxx
Dated: August 25, 2003 Dated: October 3, 2003
/s/ Xxxxx Xxxxxxx /s/ Xxxx Xxxxxxxx
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Xxxxx Xxxxxxx Xxxx Xxxxxxxx
Dated: August 25, 2003 Dated: August 26, 2003
/s/ Xxxxxxx Xxxx /s/ Xxxxx XxxXxxxx
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Xxxxxxx Xxxx Xxxxx XxxXxxxx
Dated: August 26, 2003 Dated: September 4, 2003
/s/ Xxx Xxxxxx /s/ Xxxxx XxXxx
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Xxx Xxxxxx Xxxxx XxXxx
Dated: September 12, 2003 Dated: August 25, 2003
/s/ Xxxxxx Neighbour /s/ Xxxxx X. Xxxxxxx, Xx.
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Xxxxxx Neighbour Xxxxx X. Xxxxxxx, Xx.
Dated: September 4, 2003 Dated: August 26, 2003
/s/ Xxx Xxxxxxx /s/ Xxxxxxx Xxxxx
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Xxx Xxxxxxx Xxxxxxx Xxxxx
Dated: Ausust 20, 2003 Dated: August 20, 2003
/s/ Xxxx Xxxx /s/ Xxxx Xxxxxxx
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Xxxx Xxxx Xxxx Xxxxxxx
Dated: September 19, 2003 Dated: August 28, 2003
/s/ Xxxxxxx Xxxxxxxxx /s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxxxxx
Dated: August 28, 2003 Dated: August 26, 2003
/s/ Xxxxx St. Arnaud /s/ Xxxx St. Arnaud
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Xxxxx St. Xxxxxx Xxxx St. Arnaud
Dated: August 20, 2003 Dated: August 20, 2003
/s/ Xxxxx Xxxxxxx /s/ Xxxxxx Xxxxx
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Xxxxx Xxxxxxx Xxxxxx Xxxxx
Dated: August 31, 2003 Dated: September 30, 2003
/s/ Xxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
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Xxxx Xxxxxxx Silver Top Development
Dated: September 4, 2003 Dated: August 25, 2003
/s/ Xxxxx-Xxxxx Xxxxx /s/ Stefani Biertuempel
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Xxxxx-Xxxxx Xxxxx Stefani Biertuempel
Dated: October 21, 2003 Dated: October 25, 2003
/s/ Victorian Portfolio /s/ Xxxxxxx Xxxx
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Victorian Portfolio Xxxxxxx Xxxx
Dated: October 23, 2003 Dated: October 21, 2003
/s/ Xxxxxxxxx Xxxxx
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Xxxxxxxxx Xxxxx
Dated: August 26, 2003
