AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
SWAN VALLEY SNOWMOBILES, INC.
AND
NETTAXI ONLINE COMMUNITIES, INC.
TABLE OF CONTENTS
1. Plan of Reorganization 1
2. Exchange of Shares 1
3. Pre-Closing Events 2
4. Exchange of Securities 2
5. Post Acquisition Events 2
6. Other Matters 3
7. Delivery of Shares 3
8. Representations of Nettaxi 4
9. Representations of SVSI and Xxxxx 5
10. Closing 7
11. Conditions Precedent to the Obligations of Nettaxi 7
12. Conditions Precedent to the Obligations of XXXX 0
00. Xxxxxxxxxxxxxxx 00
00. Nature and Survival of Representations 10
15. Documents at Closing 10
16. Finder's Fees 11
17. Miscellaneous 12
Signature Page 13
Exhibit A - Nettaxi Stockholder Schedule
Exhibit B - Amendment to Articles of Incorporation
Exhibit C - Investment Letter
(i)
AGREEMENT AND PLAN OF REORGANIZATION
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This Agreement and Plan of Reorganization (hereinafter the "Agreement") is
entered into effective as of this 24 day of September, 1998, by and among Swan
--
Valley Snowmobiles, Inc., a Nevada corporation (hereinafter "SVSI"); Xxxx Xxxxx,
the principal shareholder of SVSI (hereinafter "Xxxxx") Nettaxi Online
Communities, Inc., a Delaware corporation (hereinafter "Nettaxi"), arid the
owners of all the outstanding shares of common stock of Nettaxi (hereinafter the
"Nettaxi Stockholders").
RECITALS:
WHEREAS, the Nettaxi Stockholders own all of the issued and outstanding
common stock of Nettaxi which comprises 4,726,592 shares (the "Nettaxi Common
Stock"). SVSI desires to acquire the Nettaxi Common Stock solely in exchange for
voting common stock of SVSI, making Nettaxi a wholly-owned subsidiary of SVSI;
and
WHEREAS, the Nettaxi Stockholders (as set forth on the attached Exhibit
"A") desire to acquire voting common stock of SVSI in exchange for the Nettaxi
Common Stock, as more fully set forth herein.
NOW THEREFORE, for the mutual consideration set out herein and other good
and valuable consideration, the legal sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
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1. Plan of Reorganization. It is hereby agreed that all of the Nettaxi
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Common Stock shall be acquired by SVSI in exchange solely for SVSI common voting
stock (the "SVSI Shares"). It is the intention of the parties hereto that all of
the issued and outstanding shares of capital stock of Nettaxi shall be
acquired by SVSI in exchange solely for SVSI common voting stock and that this
entire transaction qualify as a corporate reorganization under Section
368(a)(i)(B) and/or Section 351 of the Internal Revenue Code of 1986, as
amended, and related or other applicable sections thereunder.
2. Exchange of Shares. SVSI and Nettaxi Stockholders agree that on the
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Closing Date or at the Closing as hereinafter defined, the Nettaxi Common Stock
shall be delivered at Closing to SVSI in exchange for the SVSI Shares, after
giving effect to a 1.511 to 1 reverse stock split. (the "SVSI Reverse Stock
Split") as to all presently outstanding shares of SVSI common stock, as follows:
(a) At Closing, SVSI shall, subject to the conditions set forth herein,
issue an aggregate of 12,000,000 shares of SVSI common stock (after giving
effect to the SVSI Reverse Stock Split) for immediate delivery to the Nettaxi
Stockholders on the basis of 2.53 SVSI Shares for each outstanding share of
Nettaxi Common Stock.
(b) Each Nettaxi Stockholder shall execute this Agreement.
(c) Unless otherwise agreed by SVSI and Nettaxi this transaction shall
close only in the event SVSI is able to acquire all of the outstanding Nettaxi
Common Stock.
3. Pre-Closing Events. The Closing is subject to the completion of the
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following:
(a) SVSI shall have authorized 50,000,000 shares of $.001 par value common
stock and 1,000,000 shares of $.001 par value preferred stock. The preferred
stock shall be subject to issuance in such series and with such rights,
preferences and designations as determined in the sole discretion of the board
of directors.
(b) SVSI shall have effectuated the SVSI Reverse Stock Split at or prior to
Closing, and shall have 660,000 shares of its common stock issued and
outstanding and no other shares of capital stock issued or outstanding.
(c) SVSI shall demonstrate to the reasonable satisfaction of Nettaxi that
it has no material assets and no liabilities contingent or fixed.
4. Exchange of Securities. As of the Closing Date each of the following
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shall occur:
(a) Each share of Nettaxi Common Stock issued and outstanding immediately
prior to the Closing Date shall be exchanged for 2.53 SVSI Shares (up to an
aggregate amount of 12,000,000 SVSI Shares to be delivered at Closing). All such
outstanding shares of Nettaxi Common Stock shall be deemed, after Closing, to be
owned by SVSL The holders of such certificates previously evidencing shares of
Nettaxi Common Stock outstanding immediately prior to the Closing Date shall
cease to have any rights with respect to such shares of Nettaxi Common Stock
except as otherwise provided herein or by law;
(b) Any shares of Nettaxi Common Stock held in the treasury of Nettaxi
immediately prior to the Closing Date shall automatically be canceled and
extinguished without any conversion thereof and no payment shall be made with
respect thereto;
(c) The 660,000 shares of SVSI common stock previously issued and
outstanding prior to the Closing, after giving effect to the SVSI Reverse Split,
will remain outstanding.
5. Other Events Occurring at Closing. At Closing, the following
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shall be accomplished:
(a) SVSI shall file an amendment to its Articles of Incorporation with the
Secretary of State of the State of Nevada in substantially the form attached
hereto as Exhibit "B" effecting an amendment to its Articles of Incorporation to
reflect a name change and to accomplish the SVSI Reverse Stock Split, all as set
forth in the attached Exhibit "B".
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(b) The resignation of the existing SVSI officer and director and
appointment of new officers and directors as directed by Nettaxi.
(c) SVSI shall have completed a limited offering under Regulation D, Rule
504, as promulgated by the Securities and Exchange Commission ("SEC") under the
Securities Act of 1933, as amended, of 1,250,000 shares of its common stock at
$.80 per share. The gross proceeds of this offering (the "SVSI Financing") shall
be $1,000,000, which amount, less agreed upon costs, shall be delivered to the
control of new management of SVSI at Closing in good funds. The SVSI Financing
shall have been completed in compliance with all applicable state and federal
securities laws and the securities sold shall be delivered at Closing to the
investors in the SVSI Financing. Persons who have loaned money to Nettaxi, up to
$1,000,000, shall be given the opportunity to convert the principal of said loam
to the purchase of shares in the limited offering prior to Closing upon the same
terms as other investors in the limited offering.
(d) It is recognized by the parties hereto that Nettaxi entered into an
agreement dated September 3, 1998, with Baytree Capital Associates, LLC
("Baytree") wherein Baytree agreed to identify a public company to be involved
in a "reverse merger" with Nettaxi, and that SVSI is the public company agreed
to by Baytree and Nettaxi. Under said Baytree agreement, at Closing of the
transactions described herein, SVSI shall issue 200,000 shares of its common
stock (after given effect to the SVSI Reverse Stock Split) to Baytree. These
200,000 shares are deemed to be covered by the defined term "SVSI Shares" as set
forth herein for purposes of all representations and warranties of SVSI and the
legal opinion given on behalf of SVSI herein. Out of the proceeds of the SVSI
Financing (as further defined herein) there shall be paid at Closing, a
non-accountable expense allowance of $20,000 to Baytrec and the fees and
disbursements of Baytree's legal counsel not to exceed $30,000. Furthermore,
SVSI recognizes and hereby assumes the obligations of Nettaxi set forth in the
Baytree agreement including the obligation to register the 200,000 shares of its
common stock issued to Baytree hereunder at the request of Baytree in accordance
with the express terms and conditions of said agreement including unlimited
"Piggyback" registration rights.
6. Delivery of Shares. On or as soon as practicable after the Closing
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Date, Nettaxi will use its best efforts to cause the Nettaxi Stockholders to
surrender certificates for cancellation representing their shares of Nettaxi
Common Stock, against delivery of certificates representing the SVSI Shares for
which the shares of Nettaxi Common Stock are to be exchanged at Closing.
7. Representations of Nettaxi Stockholders. Each Nettaxi Stockholder
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hereby represents and warrants each only as to its own Nettaxi Common Stock,
effective this date and the Closing Date as follows:
(a) Except as may be set forth in Exhibit "A", the Nettaxi Common Stock is
free from claims, liens, or other encumbrances, and at the Closing Date said
Nettaxi Stockholder will have good title and the unqualified right to transfer
and dispose of such Nettaxi Common Stock.
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(b) Each Nettaxi Stockholder, respectively, is the sole owner of the issued
and outstanding Nettaxi Common Stock as set forth in Exhibit "A";
(c) No Nettaxi Stockholder has the present intent to sell or dispose of the
SVSI Shares and no Nettaxi Stockholder is under a binding obligation, formal
commitment, or existing plan to sell or other-wise dispose of the SVSI Shares.
8. Representations of Nettaxi. Nettaxi hereby represents and warrants
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as follows, which warranties and representations shall also be true as of the
Closing Date:
(a) Except as noted on Exhibit "A", the Nettaxi Stockholders listed on the
attached Exhibit "A" are the sole owners of record and beneficially of the
issued and outstanding common stock of Nettaxi.
(b) Nettaxi has no outstanding or authorized capital stock, warrants,
options or convertible securities other than as described in the Nettaxi
Financial Statements or in Exhibit "A", attached hereto.
(c) The unaudited financial statements as of and for the periods ended
December 31, 1997 and June 30, 1998, which have been delivered to SVSI
(hereinafter referred to as the "Nettaxi Financial Statements") arc complete and
accurate and fairly present the financial condition of Nettaxi as of the dates
thereof and the results of its operations for the periods covered. There are no
material liabilities or obligations, either fixed or contingent, not disclosed
in the Nettaxi Financial Statements or in any exhibit thereto or notes thereto
other than contracts or obligations in the ordinary course of business; and no
such contracts or obligations in the ordinary course of business constitute
liens or other liabilities which materially alter the financial condition of
Nettaxi as reflected in the Nettaxi Financial Statements. Nettaxi has good title
to all assets shown on the Nettaxi Financial Statements subject only to
dispositions and other transactions in the ordinary course of business, the
disclosures set forth therein and liens and encumbrances of record. The Nettaxi
Financial Statements have been prepared in accordance with generally accepted
accounting principles consistently applied (except as may be indicated therein
or in the notes thereto) and fairly present the financial position of Nettaxi as
of the dates thereof and the results of its operations and changes in financial
position for the periods then ended.
(d) Since the date of the Nettaxi Financial Statements, there have not been
any material adverse changes in the financial position of Nettaxi except changes
arising in the ordinary course of business, which changes will in no event
materially and adversely affect the financial position of Nettaxi.
(e) Nettaxi is not a parry to any material pending litigation or, to its
best knowledge, any governmental investigation or proceeding, not reflected in
the Nettaxi Financial Statements, and to its best knowledge, no material
litigation, claims, assessments or any governmental proceedings are threatened
against Nettaxi.
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(f) Nettaxi is in good standing in its jurisdiction of incorporation, and
is in good standing and duly qualified to do business in each jurisdiction where
required to be so qualified except where the failure to so qualify would have no
material negative impact on Nettaxi.
(g) Nettaxi has (or, by the Closing Date, will have filed) all material
tax, governmental and/or related forms and reports (or extensions thereof) due
or required to be filed and has (or will have) paid or made adequate provisions
for all taxes or assessments which have become due as of the Closing Date.
(h) Nettaxi has not materially breached any material agreement to which it
is a party. Nettaxi has previously given SVSI copies or access thereto of all
material contracts, commitments and/or agreements to which Nettaxi is a party
including all relationships or dealings with related parties or affiliates.
(i) Nettaxi has no subsidiary corporations except as described in writing
to SVSL
(j) Nettaxi has made all material corporate financial records, minute
books, and other corporate documents and records available for review to present
management of SVSI prior to the Closing Date, during reasonable business hours
and on reasonable notice.
(k) The execution of this Agreement does not materially violate or breach
any material agreement or contract to which Nettaxi is a party and has been duly
authorized by all appropriate and necessary corporate action under Delaware of
other applicable law and Nettaxi, to the extent required, has obtained all
necessary approvals or consents required by any agreement to which Nettaxi is a
party.
(1) All disclosure information regarding Nettaxi which is to be set forth
in disclosure documents of SVSI or otherwise delivered to SVSI by Nettaxi for
use in connection with the transaction (the "Acquisition") described herein is
true, complete and accurate in all material respects.
9. Representations of SVSI and Xxxxx. SVSI, and Xxxxx to the best of
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his knowledge, hereby jointly and severally represent and warrant as follows,
each of which representations and warranties shall continue to be true as of the
Closing Date:
(a) As of the Closing Date, the SVSI Shares, to be issued and delivered to
the Nettaxi Stockholders hereunder will, when so issued and delivered,
constitute, duly authorized, validly and legally issued shares of SVSI common
stock, fully-paid and nonassessable.
(b) SVSI has the corporate power to enter into this Agreement and to
perform its respective obligations hereunder. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by the board of directors of SVSL The execution and performance
of this Agreement will not constitute a material breach of any agreement,
indenture, mortgage, license or other instrument or document
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to which SVSI is a party and will not violate any judgment, decree, order, writ,
rule, statute, or regulation applicable to SVSI or its properties. The execution
and performance of this Agreement will not violate or conflict with any
provision of the Articles of Incorporation or by-laws of SVSI.
(c) SVSI has delivered to Nettaxi a true and complete copy of its audited
financial statements for the years ended December 31, 1996 and 1997, and prior
to Closing will deliver unaudited financial statements for the six months ended
June 30, 1998, (the "SVSI Financial Statements"). The SVSI Financial Statements
are complete, accurate and fairly present the financial condition of SVSI as of
the dates thereof and the results of its operations for the periods then ended.
There are no material liabilities or obligations either fixed or contingent not
reflected therein. The SVSI Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis (except as may be indicated therein or in the notes thereto) and fairly
present the financial position of SVSI as of the dates thereof and the results
of its operations and changes in financial position for the periods then ended.
(d) Since December 31, 1997, there have not been any material adverse
changes in the financial condition of SVSI except with regard to disbursements
to pay reasonable and ordinary expenses in connection -with maintaining its
corporate status and pursuing the matters contemplated in this Agreement. Prior
to Closing, all accounts payable and other liabilities of SVSI shall be paid and
satisfied in full and SVSI shall have no liabilities either contingent or fixed.
(e) SVSI is not a party to or the subject of any pending litigation,
claims, or governmental investigation or proceeding not reflected in the SVSI
Financial Statements or otherwise disclosed herein, and there are no lawsuits,
claims, assessments, investigations, or similar matters, to the best knowledge
of Xxxxx, threatened or contemplated against or affecting SVSI, its management
or its properties.
(f) SVSI is duly organized, validly existing and in good standing under the
laws of the State of Nevada; has the corporate power to own its property and to
carry on its business as now being conducted and is duly qualified to do
business in any jurisdiction where so required except where the failure to so
qualify would have no material negative impact on it.
(g) SVSI has filed all federal, state, county and local income, excise,
property and other tax, governmental and/or related returns, forms, or reports,
which are due or required to be filed by it prior to the date hereof, except
where the failure to do so would have no material adverse. impact on SVSI, and
has paid or made adequate provision in the SVSI Financial Statements for the
payment of all taxes, fees, or assessments which have or may become due pursuant
to such returns or pursuant to any assessments received. SVSI is not delinquent
or obligated for any tax, penalty, interest, delinquency or charge.
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(h) There are no existing options, calls, warrants, preemptive rights or
commitments of any character relating to the issued or unissued capital stock or
other securities of SVSI, except as contemplated in this Agreement.
(i) The corporate financial records, minute books, and other documents and
records of SVSI have been made available to Nettaxi prior to the Closing and
shall be delivered to new management of SVSI at Closing.
(j) SVSI has not breached, nor is there any pending, or to the knowledge of
management, any threatened claim that SVSI has breached, any of the terms or
conditions of any agreements, contracts or commitments to which it is a party or
by which it or its assets are is bound, The execution and performance hereof
will not violate any provisions of applicable law or any agreement to which SVSI
is subject SVSI hereby represents that it has no business operations or material
assets and it is not a party to any material contract or commitment other than
appointment documents with its transfer agent, and that it has disclosed to
Nettaxi all relationships or dealings with related parties or affiliates.
(k) SVSI common stock is currently approved for quotation on the OTC
Bulletin Board under the symbol "SVSN" and there are no stop orders in effect
with respect thereto.
(1) All information regarding SVSI which has been provided to Nettaxi or
otherwise disclosed in connection with the transactions contemplated herein, is
true, complete and accurate in all material respects. SVSI and Xxxxx
specifically disclaim any responsibility regarding disclosures as to Nettaxi,
its business or its financial condition.
10. Closing. The Closing of the transactions contemplated herein shall
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take place on such date (the "Closing") as mutually determined by the parties
hereto when all conditions precedent have been met and all required documents
have been delivered, which Closing shall be no later than , 1998, unless
extended by mutual consent of all parties hereto. The "Closing Date" of the
transactions described herein (the "Acquisition"), shall be that date on which
all conditions set forth herein have been met and the SVSI Shares are issued in
exchange for the Nettaxi Common Stock.
11. Conditions Precedent to the Obligations of Nettaxi. All obligations
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of Nettaxi under this Agreement are subject to the fulfillment, prior to or as
of the Closing and/or the Closing Date, as indicated below, of each of the
following conditions:
(a) The representations and warranties by or on behalf of Xxxxx and SVSI
contained in. this Agreement or in any certificate or document delivered
pursuant to the provisions hereof shall be true in all material respects at and
as of the Closing and Closing Date as though such representations and warranties
were made at and as of such time.
(b) SVSI shall have performed and complied with all covenants, agreements,
and conditions set forth in, and shall have executed and delivered all documents
required by this
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Agreement to be performed or complied with or executed and delivered by it prior
to or at the Closing.
(c) On or before the Closing, the board of directors, and shareholders
representing a majority interest the outstanding common stock of SVSI, shall
have approved in accordance with applicable state corporation law the execution
and delivery of this Agreement and the consummation of the transactions
contemplated herein.
(d) On or before the Closing Date, SVSI shall have delivered to Nettaxi
certified copies of resolutions of the board of directors and shareholders of
SVSI approving and authorizing the execution, delivery and performance of this
Agreement and authorizing all of the necessary and proper action to enable SVSI
to comply with the terms of this Agreement including the election of Nettaxi's
nominees to the Board of Directors of SVSI and all matters outlined herein.
(e) The Acquisition shall be permitted by applicable law and SVSI shall
have sufficient shares of its capital stock authorized to complete the
Acquisition.
(f) At Closing, the existing sole officer and director of SVSI shall have
resigned in writing from all positions as director and officer of SVSI effective
upon the election and appointment of the Nettaxi nominees.
(g) At the Closing, all instruments and documents delivered to Nettaxi and
Nettaxi Stockholders pursuant to the provisions hereof shall be reasonably
satisfactory to legal counsel for Nettaxi.
(h) The shares of restricted SVSI capital stock to be issued to Nettaxi
Stockholders and in the SVSI Financing at Closing will be validly issued,
nonassessable and fully-paid under Nevada corporation law and will be issued in
compliance with all federal, state and applicable corporation and securities
laws.
(i) Nettaxi and Nettaxi Stockholders shall have received the advice of
their tax advisor, if deemed necessary by them, as to all tax aspects of the
Acquisition.
(j) Nettaxi shall have received all necessary and required approvals and
consents from required parties and its shareholders.
(k) SVSI shall have $1,000,000 in good funds, at Closing, from the SVSI
Financing, for delivery (less costs as described in Section 5(d) and 17(m)
hereof) at the direction of Nettaxi.
(1) At the Closing, SVSI shall have delivered to Nettaxi an opinion of its
counsel dated as of the Closing to the effect that:
(i) SVSI is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
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(ii) This Agreement has been duly authorized, executed and delivered by
SVSI and is a valid and binding obligation of SVSI enforceable in accordance
with its terms;
(iii) SVSI through its board of directors and stockholders has taken all
corporate action necessary for performance under this Agreement;
(iv) The documents executed and delivered by SVSI to Nettaxi and Nettaxi
Stockholders hereunder are valid and binding in accordance with their terms and
vest in Nettaxi Stockholders, as the case may be, all right, title and interest
in and to the SVSI Shares to be issued pursuant to the terms hereof, and the
SVSI Shares when issued will be duly and validly issued, fully-paid and
nonassessable;
(v) SVSI has the corporate power to execute, deliver and perform under this
Agreement;
(vi) Legal counsel for SVSI is not aware of any liabilities, claims or
lawsuits involving SVSI;
12. Conditions Precedent to the Obligations of SVSL. All obligations of
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SVSI under this Agreement are subject to the fulfillment, prior to or at the
Closing, of each of the following conditions:
(a) The representations and warranties by Nettaxi and Nettaxi Stockholders
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof shall be true in all material respects at and as of the
Closing as though such representations and warranties were made at and as of
such time.
(b) Nettaxi shall have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by it prior to or at the Closing;
(c) Nettaxi shall deliver on behalf of the Nettaxi Stockholders a letter
commonly known as an "Investment Letter," signed by each of said shareholders,
in substantially the form attached hereto as Exhibit "C", acknowledging that the
SVSI Shares are being acquired for investment purposes.
(d) Nettaxi shall deliver an opinion of its legal counsel to the effect
that:
(i) Nettaxi is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and is duly
qualified to do business in any jurisdiction where so required except where the
failure to so qualify would have no material adverse impact on Nettaxi;
(h) This Agreement has been duly authorized, executed and delivered by
Nettaxi.
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(iii) The documents executed and delivered by Nettaxi and Nettaxi
Stockholders to SVSI hereunder are valid and binding in accordance with their
terms and vest in SVSI all right, title and interest in and to the Nettaxi
Common Stock, which stock is duly and validly issued, fully-paid and
nonassessable.
13. Indemnification. For a period of one year from the Closing, SVSI
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and Xxxxx agree to jointly and severally indemnify and hold harmless Nettaxi,
and Nettaxi agrees to indemnify and hold harmless SVSI and Xxxxx, at all times
after the date of this Agreement against and in respect of any liability, damage
or deficiency, all actions, suits, proceedings, demands, assessments, judgments,
costs and expenses including attorney's fees incident to any of the foregoing,
resulting from any material misrepresentations made by an indemnifying party to
an indemnified party, an indemnifying party's breach of covenant or warranty or
an indemnifying party's nonfulfillment of any agreement hereunder, or from any
material misrepresentation in or omission from any certificate furnished or to
be furnished hereunder.
14. Nature and Survival of Representations. All representations,
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warranties and covenants made by any party in this Agreement shall survive the
Closing and the consummation of the transactions contemplated hereby for one
year from the Closing. All of the par-ties hereto are executing and carrying out
the provisions of this Agreement in reliance solely on the representations,
warranties and covenants and agreements contained in this Agreement and not upon
any investigation upon which it might have made or any representation, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein.
15. Documents at Closing. At the Closing, the following documents
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shall be delivered:
(a) Nettaxi will deliver, or will cause to be delivered, to SVSI the
following:
(i) a certificate executed by the President and Secretary of Nettaxi to the
effect that all representations and warranties made by Nettaxi under this
Agreement are true and correct as of the Closing, the same as though originally
given to SVSI on said date;
(ii) a certificate from the jurisdiction of incorporation of Nettaxi dated
at or about the Closing to the effect that Nettaxi is in good standing under the
laws of said jurisdiction;
(iii) Investment Letters in the form attached hereto as Exhibit "C"
executed by. each Nettaxi Stockholder;
(iv) such other instruments, documents and certificates, if any, as are
required to be delivered pursuant to the provisions of this Agreement;
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(v) certified copies of resolutions adopted by the shareholders and
directors of Nettaxi authorizing this transaction; and
(vi) all other items, the delivery of which is a condition precedent to the
obligations of SVSI as set forth herein.
(vii) the legal opinion required by Section 12(d) hereof
(b) SVSI will deliver or cause to be delivered to Nettaxi:
(i) stock certificates representing the SVSI Shares to be issued as a part
of the stock exchange as described herein-2
(ii) a certificate of the President of SVSI, to the effect that all
representations and warranties of SVSI made under this Agreement are true and
correct as of the Closing, the same as though originally given to Nettaxi on
said date;
(iii) certified copies of resolutions adopted by SVSI's board of directors
and SVSI's Stockholders authorizing the Acquisition and all related matters
described herein;
(iv) certificate from the jurisdiction of incorporation of SVSI dated at or
about the Closing Date that SVSI is in good standing under the laws of said
state;
(v) opinion of SVSI's counsel as described in Section 11(l) above;
(vi) such other instruments and documents as are required to be delivered
pursuant to the provisions of this Agreement;
(vii) resignation of the existing officer and director of SVSI;
(viii) all corporate and financial records of SVSI; and
(ix) all other items, the delivery of which is a condition precedent to the
obligations of Nettaxi, as set forth in Section 12 hereof.
16. Finder's Fees. SVSI, represents and warrants to Nettaxi, and
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Nettaxi represents and warrants to SVSI that neither of them, or any party
acting on their behalf, has incurred any liabilities, either express or implied,
to any "broker" of "finder" or similar person in connection. with this Agreement
or any of the transactions contemplated hereby other than the arrangements
described in Section 5(d) hereof. In this regard, SVSI, on the one hand, and
Nettaxi on the other hand, will indemnify and hold the other harmless from any
claim, loss, cost or expense whatsoever (including reasonable fees and
disbursements of counsel) from or relating to any such express or implied
liability other than as disclosed herein.
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17. Miscellaneous.
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(a) Further Xxxxxxxxxx.Xx any time, and from time to time, after the
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Closing Date, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the intent
and purposes of this Agreement.
(b) Waive. Any failure on the part of any party hereto to comply with any
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of its obligations, agreements or conditions hereunder may be waived in writing
by the party to whom such compliance is owed.
(c) Termination. All obligations hereunder may be terminated at the
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discretion of either party's board of directors if (i) the closing conditions
specified in Sections 12 and 13 are not met by October 15, 1998, unless
extended, or (ii) any of the representations and warranties made herein have
been materially breached.
(d) Amendment. This Agreement may be amended only in writing as agreed to
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by all parties hereto.
(e) Notices. All notices and other communications hereunder shall be
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in writing and shall be deemed to have been given if delivered in person or sent
by prepaid first class registered or certified mail, return receipt requested.
(f) Headings. The section and subsection headings in this Agreement are
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inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously ir2 two or
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more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(h) Governing Law. This Agreement shall be construed and enforced in
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accordance with the laws of the State of Nevada.
(i) Binding Effect. This Agreement shall be binding upon the parties
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hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(j) Entire Agreement. This Agreement and the attached Exhibits
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constitute the entire agreement of the parties covering everything agreed upon
or understood in the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof.
(k) Time. Time is of the essence.
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(1) Severability. If any part of this Agreement is deemed to be
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unenforceable the balance of the Agreement shall remain in full force and
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effect.
(m) Responsibility and Costs. All fees, expenses and out-of-pocket costs
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and expenses, including, without limitation, fees and disbursements of counsel,
advisors and accountants, incurred by the parties hereto shall be borne solely
and entirely by the party that has incurred such costs and expenses regardless
of whether the transactions contemplated herein are completed. In the event of
completion of the transaction contemplated herein, the legal fees and out of
pocket costs of legal counsel for SVSI incurred in connection with said
transaction up to a maximum of $30,000 shall be paid from the proceeds of the
SVSI Financing,
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
SWAN VALLEY SNOWMOBILES, INC.
By: /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, President and Secretary
/s/ Xxxx Xxxxx
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Xxxx Xxxxx, individually
NETTAXI ONLINE COMMUNITIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx. By: /s/ Xxxx Xxxxxxxx
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Xxxxxx X. Xxxxxxxx, Xx., Secretary Xxxx Xxxxxxxx, President
SHAREHOLDERS OF NETTAXI ONLINE
COMMUNITIES, INC
Xxxxxx X. Xxxxxxxx, Xx.
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Xxxxxx X. Xxxxxxxx, Xx.
Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
13