Exhibit 3.5
AGREEMENT AND PLAN OF EXCHANGE
AGREEMENT AND PLAN OF EXCHANGE ("Agreement"), dated as of the 1st day
of July, 1999, by and between Xxxxxxx Corporation, a Nevada corporation
("Xxxxxxx"), and Press Realty Advisors, L.L.C., a Utah Limited Liability
Corporation ("PRA").
Plan of Exchange
The Plan of Exchange will consist of the acquisition by Xxxxxxx of all
the assets, of whatever type or sort, of PRA in exchange for the issuance by
Xxxxxxx to PRA of a total of 19,200,000 restricted shares of Xxxxxxx'x common
stock, having a par value of $.001, to be issued upon and subject to the terms
and conditions of the Agreement hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the mutual and
dependent covenants hereinafter contained, the parties hereto represent,
warrant, covenant, and agree as follows:
ARTICLE I
1.1 Agreement to Consummate Transactions. Subject to the terms and
conditions of this Agreement, PRA and Xxxxxxx agree to consummate or cause to be
consummated, the transactions contemplated by Sections 1.2 through 8.1 of the
Agreement ("Transaction"), and agree that the consummation of each of the
Transactions is conditional upon the consummation of each of the other
Transactions.
1.2 Closing. A meeting of the parties to the Agreement ("Closing")
will take place at which time certificates, letters and other documents required
by this Agreement will be delivered or exchanged. The Closing will take place at
some convenient place and time as soon as practicable upon presentation of all
the documents required hereby. This agreement shall be effective from and after
July 1, 1999.
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1.3 Consummation of Transactions. If at the Closing no condition
exists which would permit any of the parties to terminate this Agreement, or a
condition then exists and the party entitled to terminate because of that
condition elects not to do so, then and thereupon Xxxxxxx and PRA will exchange
the documents necessary to effect the transaction contemplated by this
agreement.
1.4 Acquisition of Assets. Upon, and subject to the terms and
conditions herein stated, Xxxxxxx shall acquire from PRA, and PRA shall
transfer, assign and convey to Xxxxxxx, all of its assets of whatever type or
sort, including but not limited to (1) the right to use the name "Press Realty
Advisors", (2) all its right, title and interests in one or more assumed
business names of "DBA's", and all its right, title and interest in and to real
property located at 0000 X. 0000 Xxxx and 0000 X. 0000 Xxxx, Xxxx Xxxx Xxxx,
Xxxx. The foregoing real property interests will be accomplished by the delivery
or assignments of existing Uniform Real Estate Contracts by which PRA has
acquired the properties.
1.5 Consideration, Issuance and Delivery of Stock. In consideration
of, and in exchange for the foregoing transfer, assignment and conveyance, and
subject to compliance by PRA with its warranties and undertakings contained
herein. Xxxxxxx shall issue to PRA one certificate representing 19,200,000
restricted shares of Xxxxxxx'x par value $.001 common stock registered in the
name of Press Realty Advisors, L.L.C. This certificate will be issued by Xxxxxxx
with the understanding that the underlying shares will be reconveyed to the six
(6) stockholders of PRA pro rata to their respective equity interests therein.
These Xxxxxxx shares, when issued, will not have been registered under the
Securities Act of 1933 or the Blue Sky laws of any State, but will be issued in
reliance on the exemption from registration provided by (S) 4(2) of the
Securities Act of 1933 and the exemptions provided by all applicable State Blue
Sky laws for transactions by an issuer not involving any public
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offering. When issued, these shares will be deemed "restricted securities" as
that phrase is defined by Paragraph (a)(3) of Rule 144 promulgated by the
Securities Commission (17 C.F.R. (S) 230.144). Each certificate representing the
shares of Xxxxxxx issued to PRA and thereafter, to PRA's stockholders, shall
bear a standard form investment legend stating that the shares are not
registered under the Securities Act of 1933 and cannot be sold, hypothecated, or
transferred without registration or under an appropriate exemption from
registration. Xxxxxxx has not represented, directly or indirectly, that it will
take any measures to make any exemption from registration required to permit
distribution of the Xxxxxxx shares available PRA or any of its stockholders.
ARTICLE II
Representations and Warranties of PRA
PRA represents and warrants to Xxxxxxx as follows:
2.1 Organization and Good Standing. PRA is a Limited Liability
Company duly organized, validly existing and in good standing under the laws of
the State of Utah and has the corporate power to carry on its business as it is
now being conducted. Copies of PRA's Articles of Incorporation, both as
presently in effect, which have been delivered to Xxxxxxx, are complete and
correct.
2.2 Capitalization. PRA's authorized capital stock consists of
50,000,000 shares of common stock having $.001 par value per share, of which
19,200,000 shares are held by six (6) persons. No pre-emptive rights are
conferred by the class of stock, and there are no outstanding warrants, calls,
commitments, convertible securities or demands constituting valid claims to any
other or additional shares of PRA.
2.3 Authority. PRA has the corporate power to enter into this
Agreement and carry out the transactions contemplated hereby. The execution,
delivery, and performance of the Agreement by PRA will have been duly and
validly authorized and adopted by PRA's Board of Directors, this
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Agreement and the consummation of the Plan of Exchange will have been duly and
validly authorized and approved by all necessary corporate action on the part of
PRA, and this Agreement will be legally binding, and enforceable against PRA in
accordance with its terms, subject to applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting creditor's rights generally from
time to time in effect and subject to principles of equity which may affect the
availability of remedies with respect thereto. To the best knowledge of PRA, the
entering into this Agreement by PRA does not, and the consummation by PRA of the
Transactions contemplated by this Agreement will not violate the provisions of
(i) any applicable laws of the United States or any other state or jurisdiction
in which PRA does business; (ii) PRA's Certificate of Incorporation or By-Laws;
or (iii) any judgment or decree applicable to PRA subject to the obtaining of
PRA of the permits, approvals, consents, authorizations and modifications
referred to in Section 6.3 hereof, no default or breach will occur in any
material respect by virtue of the Plan of Exchange under any material contract,
agreement, mortgage, indenture or other instrument, which PRA is a part or by
which it is bound, and no material right of PRA under any such existing
contract, agreement, mortgage, indenture or other instrument will be
extinguished by virtue of the Agreement.
2.4 Rights, Titles and Interests. The assets and other interests to
be acquired by Xxxxxxx represent 100% of all the assets and business of PRA. PRA
will not withhold or withdraw any of the same without the written approval of
Xxxxxxx.
2.5 Financial Statements. PRA's financial report attached hereto as
Exhibit A and incorporated herein by reference are true and correct in all
material particulars.
2.6 Absence of Certain Changes of Events. Except as disclosed by
Xxxxxxx in writing, there has not been:
A. Any material adverse change in the assets or the business
prospects or conditions, financial or otherwise of PRA; nor to the knowledge of
PRA has any event or condition occurred which may result in such change;
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B. Any sale or transfer by PRA of any material, tangible asset,
or any mortgage, pledge, lease or lien, change or encumbrance on any assets,
other than in the ordinary course of business.
2.7 Litigation. Except as disclosed to Xxxxxxx, there are no judicial
or administrative actions, suits, proceeding or investigations pending, or, to
the best knowledge and belief of PRA threatened against which might result in
any material adverse change in the condition (financial or other), properties,
assets, business, operations or prospects of PRA or in any material liability on
the part of PRA or which question the validity of this Agreement or of any
action taken or to be taken in connection herewith. There are no citations,
fines or penalties heretofore asserted against PRA under any federal, state or
local law relating to air or water pollution, or other environmental protection
matters, or relating to occupational health or safety.
2.8 Disclosing of Material Information. Neither this Agreement nor
any exhibits hereto contains any untrue statement or material fact, or omits to
state a material fact necessary to make the statements herein or therein not
misleading, relating to the business or affairs of PRA. There is no fact known
to PRA which materially adversely affects the business, condition (financial or
otherwise) or prospects of PRA which has not been set further herein or
disclosed to Xxxxxxx.
2.9 Liabilities. There are no material liabilities of PRA, whether
accrued, absolute, contingent or otherwise, which arose or relate to any
transaction of PRA, its agents or servants occurring prior to the statement
date, which are not disclosed by or reflected in said financial statements.
There are no such liabilities of PRA which have arisen or relate to any
transaction of PRA, its agents or servants, occurring since that statement date,
other than normal liabilities incurred in the normal conduct of the business of
PRA, and none of which have a material adverse effect on the business or
financial condition of PRA. As of the date hereof, there are no known
circumstances, conditions, happenings, events or arrangements, contractual or
otherwise, which may hereafter give rise to liabilities, except in the normal
course of business of PRA, except as disclosed in the
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Disclosure Statement.
2.10 Taxes. PRA owes no State or Federal taxes of any type or sort
except accrued corporate franchise taxes which are not yet due, and there are no
unpaid taxes which are, or could become a lien on the properties and assets of
PRA.
2.11 Accuracy of All Statements Made by PRA. No representation or
warranty by PRA in this Agreement, nor any statement certificate, schedule or
exhibit hereto furnished or to be furnished by or on behalf of PRA pursuant to
this Agreement, nor any document or certificate delivered to Xxxxxxx pursuant to
this Agreement or in connection with actions contemplated hereby, contains or
shall contain any untrue statement of material fact or omits or shall omit a
material fact necessary to make the statement contained therein not misleading.
ARTICLE III
Representations and Warranties of Xxxxxxx
Xxxxxxx represents and warrants to PRA as follows:
3.1 Organization and Good Standing of Xxxxxxx. Xxxxxxx is a
corporation duly organized, existing and of good standing under the laws of the
State of Nevada with full corporate power to carry on its business as it is now
being conducted. Xxxxxxx has qualified as a foreign corporation to do business
and is in good standing in each jurisdiction in which the character and location
of any properties owned or leased by it, or the nature of the business
previously transacted by it, makes such qualification necessary. Copies of
Xxxxxxx'x Articles of Incorporation, as amended, and By-Laws, both as presently
in effect, are complete and correct.
3.2 Capitalization. Xxxxxxx'x authorized capital stock consists of
50,000,000 shares of common stock, par value of $.001, of which 24,000,000
shares, are issued and outstanding, fully paid and non-assessable. There are no
outstanding warrants to purchase Xxxxxxx common stock. No preemptive rights are
conferred by the class of stock, and there are no outstanding calls,
commitments, convertible securities or demands, other than those listed above,
of any character relating to the capital
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stock of Xxxxxxx, whether issued or unissued. Investment shares of Xxxxxxx
common stock to be issued in connection with this Agreement, when so issued will
be duly authorized, validly issued, fully paid, and non-assessable. Prior to the
close, 19,200,000 of the outstanding common shares of Xxxxxxx will be
surrendered to the corporation and canceled, thus reducing to 4,800,000 the
number of Xxxxxxx common shares outstanding. The issuance of 19,200,000
restricted common shares of Xxxxxxx in accordance with this Agreement shall
raise the total shares outstanding to 24,000,000 common shares.
3.3 Authority. Trecero has the corporate power to enter into this
Agreement and to carry out the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by Xxxxxxx has been duly and validly
authorized and approved by Xxxxxxx'x Board of Directors. Otherwise, the entering
into this Agreement by Xxxxxxx does not, and the consummation by PRA and Xxxxxxx
of the transactions contemplated hereby, will not violate the provisions of (i)
any applicable laws of the State of Nevada, or any other jurisdiction in which
Xxxxxxx does business; (ii) Xxxxxxx'x Articles of Incorporation; as amended, or
its By-Laws; or (iii) any judgement or decree applicable to subject to the
obtaining of Xxxxxxx approvals, consents, authorizations and modifications
referred to in Section 6.3 hereof, no default or breach will occur in any
material respect by virtue of this Agreement under any material contract,
mortgage, agreement, indenture or other instrument applicable to Xxxxxxx and no
rights of Xxxxxxx under any existing contract, agreement, mortgage, indenture or
other instrument will be extinguished by virtue of the Agreement.
3.4 Financial Statements. Audited financial statements for Xxxxxxx as
of a date no later than December 31, 1998 are presently being prepared. Xxxxxxx
has represented, however, that it does not have any substantial assets or
liabilities which would materially affect its status as an inactive business
corporation except accrued attorneys' fees in the approximate amount of $50,000.
Within ninety days, Xxxxxxx will present audited financial statements as of
December 31, 1998, and
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unaudited stub period reports as at the end of each calendar quarter thereafter
which shall, when presented, have been prepared in accordance with generally
accepted accounting principles consistently followed through the periods covered
by such statements, and present fairly, in accordance with generally accepted
accounting principles, the financial condition of Xxxxxxx and the results of its
operations for the periods covered thereby. There have not been any material
change in the financial condition, properties, assets, liabilities, business or
operations of Xxxxxxx sufficient to effect any changes in the representations
regarding Xxxxxxx'x financial status which is set forth in this paragraph.
3.5 Absence of Certain Changes or Events. Since the date of Xxxxxxx'x
last financial report there have not been:
A. Any material adverse change in the assets of Xxxxxxx.
Xxxxxxx has conducted no active business operations since the date of its last
financial report nor, to the knowledge of Xxxxxxx, has any event or condition
occurred which may result in a material change thereof.
B. Until the date of Closing, Xxxxxxx will conduct no active
business operations.
3.6 Litigation. There are no judicial or administrative actions,
suits of a material nature, proceedings or investigations pending, or threatened
against Xxxxxxx which might result in any material adverse change in the
condition or prospects of Xxxxxxx or in any material liability on the part of
Xxxxxxx or which question the validity of the Agreement of any action taken or
to be taken in connections herewith. There are no citations, fines or penalties
heretofore asserted against Xxxxxxx under any federal, state or local law
relating to air or water pollution, or other environmental protection matters,
or relating to occupational health or safety.
3.7 Disclosing of Material Information. Neither this Agreement nor
any exhibit hereto contains any untrue statement of material fact, or admits to
state a material fact necessary to make the statement herein or therein not
misleading, relating to the business or affairs of to the best knowledge and
belief of its sole remaining officer and director.
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3.8 Liabilities. There are no material liabilities of Xxxxxxx,
whether accrued, absolute, contingent or otherwise, which arose or relate to any
transaction of Xxxxxxx, its agent or servants occurring prior to the statement
date, which are not disclosed by or reflected in said financial statements.
There are no such liabilities of Xxxxxxx which have arisen or relate to any
transaction of Xxxxxxx, its agents or servants, occurring since that statement
date, and none of which have a material adverse effect on the business or
financial condition of Xxxxxxx. As of the date hereof, there are no known
circumstances, conditions, happenings, events or arrangements, contractual or
otherwise, which may hereafter give rise to and claims against or liabilities of
Xxxxxxx.
3.9 Taxes. All federal, province, county and local income, ad
valorem, excise, profits, franchise, occupation, property, sales, use, gross
receipts and other taxes (including any interest or penalties relating thereto)
and assessments which are due and payable have been duly reported, fully paid
and discharged as reported by Xxxxxxx, and there are no unpaid taxes which are,
or could become a lien on the properties and assets of Xxxxxxx, except as
provided for in the financial statements of their date, or have been incurred in
the normal course of business of Xxxxxxx since that date. All tax returns of any
kind required to be filed have been filed and the taxes paid or accrued.
3.10 Accuracy of All Statements Made by Xxxxxxx. No representation or
warranty by Xxxxxxx in this Agreement, nor any statement certificate, schedule
or exhibit hereto furnished or to be furnished by or on behalf of Xxxxxxx
pursuant to this Agreement, nor any document or certificate delivered to PRA
pursuant to this Agreement or in connection with actions contemplated hereby
contains or shall contain any untrue statement of material fact or omits or
shall omit a material fact necessary to make the statement contained therein not
misleading.
ARTICLE IV
Covenants of PRA
PRA Covenants with Xxxxxxx as follows:
4.1 Negative Covenants. From the date of this Agreement, and PRIOR to
closing, PRA
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will not, without the prior written consent of Xxxxxxx engage in any of the
following transactions.
A. Conduct any active business operations except those
necessary to maintain its property and any intangible assets;
B. Pay any dividend or make any distribution in respect to this
capital stock;
C. Sell any of its assets, other than in the ordinary course of
business;
D. Amend its Certificate of Incorporation or its By-Laws;
E. Recapitalize, reorganize or be a party to any merger or
consolidation or sale of all or substantially all of its assets; or
F. Make any loans or grant increases in compensation to its
officers or employees.
4.2 Affirmative Covenants. Prior to the Closing Date, PRA will do or
has done the following:
A. Obtain the written consent of all the members of PRA's Board
of Directors and the written consent of its six (6) stockholders to its entry
into and performance of this Agreement;
B. PRA will use its best efforts to preserve its business
organization intact, and retain the services of its officers and employees;
C. PRA will afford to the officers, attorneys, accountants and
other authorized representatives of Xxxxxxx full and free access to its
properties, books, tax returns and records, in order that Xxxxxxx may have a
full opportunity to make such investigations as Xxxxxxx desires of the affairs
of PRA;
D. PRA will promptly advise Xxxxxxx in writing of any
materially adverse change in the financial condition, business, or operations,
any breach of its representatives or warranties contained herein, and any
material contract, agreement, license or other arrangement which, if in effect
on the date of this Agreement, should have been included in this Agreement; and
E. PRA will use its best efforts to accomplish all actions
necessary to consummate
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the Plan of Exchange, including the satisfaction of all the conditions set forth
in this Agreement.
ARTICLE V
Covenants of Xxxxxxx
Xxxxxxx covenants with PRA as follows:
5.1 Negative Covenants. Xxxxxxx will not, without prior written
consent of PRA:
A. Declare any dividends payable in shares of Xxxxxxx common
stock;
B. Split or combine or reclassify the outstanding shares of
Xxxxxxx common stock; or
C. Issue any additional common shares.
5.2 Affirmative Covenants. Prior to Closing date, Xxxxxxx will do the
following:
X. Xxxxxxx will immediately cause 19,200,000 of its 24,000,000
outstanding common shares to be returned to the corporation and canceled,
reducing to 4,800,000 the number of its common shares outstanding. Promptly
after the Closing, Xxxxxxx will issue and deliver the 19,200,000 shares of
Xxxxxxx common stock required by this agreement, and will take all other actions
necessary to perform Xxxxxxx'x obligations hereunder;
X. Xxxxxxx will promptly advise PRA in writing of any
materially adverse changes in the financial condition, business, operations, or
key personnel of Xxxxxxx, any breach of its representatives or warranties
contained herein, and any material contract, agreement, license or other
arrangement which, if in effect on the date of this Agreement, should have been
included in the Agreement;
X. Xxxxxxx will afford to the officers, attorneys, accountants
and other authorized representatives of PRA full and free access to its
properties, books, tax returns and records, in order that PRA may have a full
opportunity to make such investigations as PRA desires of the affairs of
Xxxxxxx.
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ARTICLE VI
Mutual Conditions
Neither PRA nor Xxxxxxx will be obligated to complete or cause to be
completed the transactions contemplated by this Agreement unless the following
conditions have been met PRIOR to or at the Closing:
6.1 Absence of Restraint. No order to restrain, enjoin or otherwise
prevent the consummation of this Agreement, or the transactions contemplated
herein shall have been entered by any court of or administrative body, and no
proceeding to obtain any such order shall have been commenced or shall be
threatened.
6.2 Absence of Termination. The obligations to consummate the
transactions contemplated hereby shall not have been canceled pursuant to
Section 9.1.
6.3 Required Approvals. PRA and Xxxxxxx shall have received all such
approvals, consents, authorizations or modifications as may be required to
permit the performance by PRA and Xxxxxxx of their respective obligations under
this Agreement, and the consummation of the transaction herein contemplated.
ARTICLE VII
Conditions to PRA's Obligations
PRA shall not be obligated to complete or cause to be completed the
transactions contemplated by this Agreement unless the following conditions have
been met PRIOR to or at the Closing:
7.1 Compliance with Representations, Warranties and Covenants. All of
the representations and warranties of Xxxxxxx made in or pursuant to this
Agreement are true and shall be true in all material respects at and as of the
Closing date, with the same force and effect for changes contemplated or
permitted by the Agreement or otherwise approved in writing by PRA. Xxxxxxx
shall have complied with and performed all of the covenants contained in this
Agreement to be performed
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by them at or prior to the Closing Date.
ARTICLE VIII
Conditions to Obligations of Xxxxxxx
Xxxxxxx shall not be obligated to complete or cause to be completed the
transactions contemplated by this Agreement unless the following conditions have
been met PRIOR to or at the Closing:
8.1 Representations, Warranties and Covenants. All of the
representations and warranties of PRA contained in this Agreement and in its
Business Plan provided Xxxxxxx are true and shall be true in all material
respects at and as of the Closing Date.
ARTICLE IX
Miscellaneous
9.1 Termination. This Agreement may be terminated or canceled, and
the transactions contemplated hereby may be abandoned, notwithstanding
stockholder authorization, at any time before consummation of the Agreement:
A. By mutual consent of the Board of Directors of PRA and
Xxxxxxx;
B. By any party in the event that any of the conditions
specified in Article VI shall not have been satisfied within the time
contemplated by this Agreement;
C. By Xxxxxxx if any of the conditions specified in Article
VIII shall not have been satisfied within the time contemplated by this
Agreement; or
D. By PRA if any of the conditions specified in Article VII
shall not have been satisfied within the time contemplated by this Agreement.
9.2 Effect of Termination. If this Agreement is terminated, this
Agreement, except as to Sections 9.3 and 9.4, shall no longer be of any force or
effect and there shall be no liability on the part of any part of any party or
its respective directors, officers or stockholders provided, however, that in
the case of a termination without cause by a party or a termination pursuant to
Section 9.1 (c) or (d)
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public officials and of corporate officers, opinions of corporate general
counsel, and such other evidence as such counsel may reasonably deem
appropriate, and as to matters governed by laws of jurisdictions other than the
United States or the state in which said counsel is located, an opinion of local
counsel in jurisdictions, which counsel shall be satisfactory to the other
parties in the exercise of their reasonable judgement.
9.8 Notices. Any notice to any party hereto pursuant to this
Agreement shall be given by Certified or Registered mail, addressed as follows:
Xxxxxxx Corporation
000 X. Xxxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Press Realty Advisors, L.L.C.
0000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
9.9 Amendment. This Agreement may be amended with the approval of the
Board of Directors of PRA and Xxxxxxx at any time before or after approval
thereof by the stockholders of PRA and Xxxxxxx, but after any such stockholder
approval, no amendment shall be made which substantially and adversely changes
the terms hereof. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto.
9.10 Entire Agreement; Counterparts; Applicable Law. This Agreement
(a) constitutes the entire agreement and superseded all PRIOR agreements and
understanding, both written and oral among the parties with respect to the
subject matter hereof, (b) may be executed in several counterparts, each of
which will be deemed an original and all of which shall constitute one and the
same instrument, and (c) shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of Nevada.
9.11 Titles. The titles and capitals of the Sections and paragraphs of
this Agreement are included for convenience of reference any and shall have no
effect on the constructions or meaning o this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXXXXX CORPORATION
By: /s/ Xxxxx Xxxx Morphen
---------------------------------------
Xxxxx Xxxx Xxxxxxx, President and sole
Director
PRESS REALTY ADVISORS, L.L.C.
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx, President
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