EX-2
ACQUISITION AGREEMENT
AGREEMENT (this "Agreement") made and entered into as of the 23rd
day of March, 2000, by and between XXXXXXXXX.XXX, INC., a California
corporation ("SPC" or the "Purchaser") and PLUME CREEK, INC., a
Nevada corporation ("PCI").
W I T N E S S E T H:
WHEREAS, the parties hereto deem it to be desirable and in the best
interests of each corporation that PCI, with 4,332,562 shares of issued and
outstanding stock acquire SPC such that 42,240,000 shares of the issued and
outstanding capital stock of PCI be acquired by SPC and Xxxxxxxxxx
Securities and/or its assigns shall receive 1,900,000 shares of PCI stock, as
described herein so that at closing there shall be 48,472,562 shares of stock
of PCI; and
WHEREAS, it is the express intention of PCI and SPC that this Agreement
constitute a plan of reorganization intended to qualify for federal income tax
purposes as a "reorganization" within the meaning of IRC Sections 368(a)(1)(B)
and 368(a)(2)(E):
NOW, THEREFORE, in consideration of the premises, representations,
warranties and covenants contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. THE ACQUISITION.
1.1 THE ACQUISITION.
At the Effective Time (as defined in Section 1.2), upon the terms and
subject to the conditions of this Agreement, SPC shall acquire control of PCI
(the "Reverse Merger") in accordance with the applicable laws of the State of
Nevada.. As a result of the Reverse Merger, the outstanding shares of capital
stock of SPC shall be held by PCI in the manner provided in Article 2.
1.2 EFFECTIVE TIME.
The Reverse Merger shall become effective at the Closing.
1.3 CLOSING.
The closing of the Reverse Merger (the "Closing") will take place at
the offices of Xxxxx Xxxxxxxxx, Esq., 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxx Xxxxx, Xxxxxxx 00000, on March 23, 2000 or at such other place as the
parties hereto mutually agree, on a date and at a time to be specified by the
parties, which shall in no event be later than 10:00 a.m., local time, provided
that the closing conditions set forth in Article 5 have been satisfied or, if
permissible, waived in accordance with this Agreement, or on such other date
as the parties hereto mutually agree (the "Closing Date").
1.4 CERTIFICATE OF INCORPORATION AND BYLAWS OF PCI.
At the Effective Time, (i) the Certificate of Incorporation of PCI, a copy
of which is attached hereto as Exhibit "A" as in effect immediately prior to
the Effective Time shall be the Certificate of Incorporation of PCI until
thereafter amended as provided by law and such Certificate of Incorporation,
and (ii) the Bylaws of PCI, a copy of which is attached hereto as Exhibit "B",
as in effect immediately prior to the Effective Time shall be the Bylaws of
PCI until thereafter amended as provided by law, the Certificate of
Incorporation of PCI, and such Bylaws.
1.5 DIRECTORS OF PCI.
>From and after the Closing, the directors of PCI shall be Xxxxx Xxxxxxx,
Xxxx Xxxxxx, Xxxxxxx Xxxxxx and H. Xxxxxxx Xxxxxxxxx. The directors of PCI
shall serve until their successors shall have been duly elected or appointed
and qualified or until their earlier death, resignation, or removal in
accordance with PCI's Certificate of Incorporation and Bylaws.
2. STATUS AND CONVERSION OF SECURITIES.
(a) STOCK OF PCI.
Each share of common stock of SPC issued and outstanding at the Effective
Time shall, by virtue of the Reverse Merger and without any action on the
part of the holders thereof, be converted into the right to receive One (1)
share of common stock of PCI (the "Stock Consideration"), except that any
shares of SPC Common Stock held in its treasury at the Closing shall be
cancelled without payment of any consideration thereof.
(b) EXCHANGE OF SPC COMMON STOCK.
At the Closing, PCI shall deliver to its transfer agent instructions to
forthwith issue from its authorized but unissued shares and distribute to
holders of certificates representing shares of SPC Common Stock, upon
surrender to PCI of such certificates for issuance in the name of PCI,
together with a duly-executed stock power, if applicable, one or more
certificates representing the number of whole shares of PCI Common Stock
in exchange for the shares represented by the certificate(s) that shall have
been converted pursuant to Section 2(a). Such instructions shall be
accompanied by an opinion of PCI's counsel, sufficient in form and scope to
cause the transfer agent to comply with PCI's instructions. Upon surrender of
his or her SPC shares, each shareholder thereof prior to the Closing shall be
deemed the owner of the number of PCI shares into which such SPC shares
are to be converted pursuant hereto.
(c) As of the Closing, the holders of certificates representing
shares of SPC Common Stock shall cease to have any rights as shareholders
of the SPC, except such rights, if any, as they may have pursuant to the law
of the jurisdiction of formation. Except as provided above, until such
certificates are surrendered for exchange, each such certificate shall, after
the Closing, represent for all purposes only the right to receive the number
of whole shares of PCI Common Stock into which the shares of SPC Common Stock
have been converted by the Reverse Merger as provided in Sections 2 (a) hereof.
(d) DISSENTERS' RIGHTS. All of the shareholders of SPC, shall
have waived any dissenters' rights.
2.2 EMPLOYMENT AGREEMENTS. N/A
2.3 OTHER TRANSACTIONS AT CLOSING.
In addition to the transactions referred to in this Article 1 above, at the
Closing, SPC shall deliver to PCI the following:
(a) The minute books, stock certificate books, stock transfer
ledgers, and corporate seal;
(b) Resignations of all officers and directors of SPC;
(c) Certificate of Good Standing as to the Company issued by
the appropriate governmental authorities of each state in which the Company
is qualified to do business;
(d) Certified copy of the Certificate of Incorporation of the
Company, and all amendments thereto, certified by the Secretary of State of
the state of incorporation; and
(e) A copy of Bylaws of the Company, certified by the
secretary or assistant secretary thereof as being true, complete, and correct.
3. REPRESENTATIONS AND WARRANTIES OF SPC.
SPC represent and warrant to PCI as follows:
3.1 ORGANIZATION AND QUALIFICATION.
SPC does not own any capital stock of any corporation or any interest
in any other joint venture, partnership, association, trust, or other entity.
The business and operations of SPC is conducted solely by and through SPC.
Schedule 3.1 correctly sets forth SPC's place of incorporation, principal
place of business, and jurisdictions in which it is qualified to do business.
SPC is a corporation duly organized, validly existing, and in good standing
under the laws of its jurisdiction of incorporation, with all requisite power
and authority, and all necessary consents, authorizations, approvals, orders,
licenses, certificates, and permits of and from, and declarations and filings
with, all federal, state, local, and other governmental authorities, and all
courts and other tribunals, to own, lease, license, and use its properties and
assets and to carry on the business in which it is now engaged and the
business in which it contemplates engaging. SPC is duly qualified to transact
the business in which it is now engaged and is in good standing as a foreign
corporation in every jurisdiction in which its ownership, leasing, licensing,
or use of property or assets or the conduct of its business makes such
qualification necessary.
3.2 CAPITALIZATION.
The authorized capital stock of SPC consists of 100,000,000 shares of Common
Stock, of which 42,240,000 shares are outstanding. Said Common Stock is
validly authorized, validly issued, fully paid, and nonassessable, has not
been issued and is not owned or held in violation of any preemptive right of
stockholders, and is owned of record and beneficially by the Shareholders as
set forth on Exhibit "C" attached hereto. The Common Stock is owned by their
respective shareholders free and clear of all liens, security interests,
pledges, charges, encumbrances, stockholders' agreements, and voting trusts.
There is no commitment, plan, or arrangement to issue, and no outstanding
option, warrant, or other right calling for the issuance of, any share of
capital stock of the Company or any security or other instrument convertible
into, exercisable for, or exchangeable for capital stock of the Company.
There is no outstanding security or other instrument convertible into or
exchangeable for capital stock of SPC.
3.3 FINANCIAL CONDITION.
SPC has delivered to PCI true and correct copies of the following: the
audited balance sheets of SPC respectively as of December 31, 1998 and 1997
and the unaudited balance sheet of SPC as of December 31, 1999, the audited
statements of income, statements of retained earnings, and statements of cash
flows of the Company for the years ended December 31, 1998 and 1997, and the
unaudited statements of income, statements of retained earnings and statements
of cash flow of the Company for the twelve months ended December 31, 1999. SPC
represents that such balance sheet presents fairly the financial condition,
assets, liabilities, and stockholders' equity of SPC as of its date; each such
statement of income and statement of retained earnings presents fairly the
results of operations of SPC for the period indicated and their retained
earnings as of the date indicated; and each such statement of cash flows
presents fairly the information purported to be shown therein. SPC understands
that the financial statements referred to in this Section 3.3 have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved and are in accordance
with the books and records of SPC. Since December 31, 1999:
(a) There has at no time been a material adverse change in the
financial condition, results of operations, business, properties, assets,
liabilities, or the future prospects of SPC.
(b) SPC has not authorized, declared, paid, or effected any
dividend or liquidating or other distribution in respect of its capital stock
or any direct or indirect redemption, purchase, or other acquisition of any
stock of SPC.
(c) The operations and business of SPC has been conducted in all
material respects only in the ordinary course.
(d) SPC has not suffered an extraordinary loss (whether or not
covered by insurance) or waived any right of substantial value. There is no
fact known to the Shareholders, which materially and adversely affects or in
the future (as far as the Shareholders can reasonably foresee) may materially
and adversely affect the financial condition, results of operations, business,
properties, assets, liabilities, or future prospects of the Company; provided,
however, that the Shareholders express no opinion as to political or economic
matters of general applicability.
3.4 TAX AND OTHER LIABILITIES.
(a) SPC has no known liability of any nature, accrued or
contingent, including without limitation liabilities for Taxes (as defined in
Section 2.4(f) and liabilities to customers or suppliers, other than the
following:
(i) Liabilities for which full provision has been made on the
balance sheet (the "Last Balance Sheet") as of December 31, 1999 (the "Last
Balance Sheet Date"); and
(ii) Other liabilities arising since the Last Balance
Sheet Date and prior to the Closing in the ordinary course of
business which are not materially inconsistent with the representations and
warranties of any Shareholder or any other provision of this Agreement.
(b) Without limiting the generality of Section 3.4(a), SPC states:
(i) The Company and any combined, consolidated, unitary or
affiliated group of which the Company is or has been a member prior to the
Closing Date: (i) has paid all Taxes required to be paid on or prior to the
Closing Date (including, without limitation, payments of estimated Taxes) for
which the Company could be held liable, except for Taxes which are being
contested in good faith and by appropriate proceedings; and (ii) has
accurately and timely filed (or filed an extension for), all federal, state,
local, and foreign tax returns, reports, and forms with respect to such
taxes required to be filed by them on or before the Closing Date.
(ii) The amount set up as provisions for Taxes on the
Last Balance Sheet are sufficient for all accrued and unpaid Taxes of the
Company, whether or not due and payable and whether or not in dispute, under
tax laws as in effect on the Last Balance Sheet Date or now in effect, for the
period ended on such date and for all periods prior thereto.
(iii) There is no material dispute or claim concerning
any liability for Taxes of the Company either (i) claimed or raised by any
authority in writing, or (ii) as to which the Company has knowledge based upon
personal contact with any agent of such authority.
(c) Exhibit "D" sets forth all federal, state, local and
foreign income tax returns filed with respect to SPC for taxable periods on or
after January 1, 1996 ("Tax Returns"), indicates those Tax Returns that
currently are subject to audit. SPC has delivered or made available to PCI
complete and correct copies of all Tax Returns, examination reports, and
statements of deficiencies assessed against, or agreed to by the Company
since January 1, 1996. SPC has not waived any statute of limitations in
respect of Taxes or agreed to any extension of time with respect to any Tax
assessment or deficiency.
(d) SPC has not filed a consent under Section 341(f) of the
Internal Revenue Code (the "Code"). The Merging Companies have not made
any payments, nor is it obligated to make any payments, nor is a party to any
agreement that under certain circumstances could obligate it to make any
payment that will not be deductible under Section 280G of the Code. The
Merging Companies will not have any liability on or after the Closing Date
pursuant to any tax sharing or tax allocation agreement. Each SPC has no
liability for the Taxes of any other person under Treasury Regulation 1.1502-
6 (or any similar provision of state, local or foreign law), as a transferee
or successor, by contract, or otherwise.
(e) For purposes of this Agreement, "Taxes" shall mean all
federal, state, local or foreign taxes, assessments, duties which are payable
or remittable by the Company or levied upon the Company or any property of
the Company, or levied with respect to its assets, franchises, income,
receipts, including, without limitation, import duties, excise, franchise,
gross receipts, utility, real property, capital, personal property,
withholding, FICA, unemployment compensation, sales or use, withholding,
governmental charges (whether or not requiring the filing of a return), and
all additions to tax, penalties and interest relating thereto.
3.5 LITIGATION AND CLAIMS.
SPC represents that there is no litigation, arbitration, claim,
governmental or other proceeding (formal or informal), or investigation
pending, threatened, or in prospect with respect to said Company, or any of
its respective businesses, properties, or assets. The Company is not affected
by any present or threatened strike or other labor disturbance nor is any
union attempting to represent any employee of the Company as collective
bargaining agent. The Company is not in violation of, or in default with
respect to, any law, rule, regulation, order, judgment, or decree; nor is the
Company required to take any action in order to avoid such violation or
default.
3.6 PROPERTIES.
(a) SPC owns no real property. Set forth on Exhibit "E" is
a list of all real property leased by SPC.
(b) Set forth in Schedule 3.6(b) is a true and complete list
of all personal properties and assets (other than real property) owned by the
Company or leased or licensed by the Company from or to a third party. All
such properties and assets owned by the Company are reflected on the Last
Balance Sheet (except for acquisitions subsequent to the Last Balance Sheet
Date which are noted on Schedule 3.6(b)). All such properties and assets
owned, leased, or licensed by the Company are in good and usable condition
(reasonable wear and tear which is not such as to affect adversely the
operation of the business of the Company excepted).
(c) All accounts and notes receivable reflected on the Last
Balance Sheet, or arising since the Last Balance Sheet Date, have been
collected, or are believed to be collectible in the ordinary course subject to
adjustment consistent with industry standards.
(d) No real property owned, leased, or licensed by the Company lies
in an area which is, or to the knowledge of Sellers will be, subject to zoning,
use, or building code restrictions that would prohibit the continued effective
ownership, leasing, licensing, or use of such real property in the business
which the Company is now engaged.
(e) The Company has not caused or permitted its respective
businesses, properties, or assets to be used to generate, manufacture, refine,
transport, treat, store, handle, dispose of, transfer, produce, or process any
Hazardous Substance (as such term is defined in this Section 3.6(e)) except in
compliance with all applicable laws, rules, regulations, orders, judgments,
and decrees, and has not caused or permitted the Release (as such term is
defined in this Section 3.6(e)) of any Hazardous Substance on or off the site
of any property of the Company. The term "Hazardous Substance" shall mean
any hazardous waste, as defined by 42 U.S.C. ss.6903(5), any hazardous
substance, as defined by 42 U.S.C. ss.9601(14), any pollutant or contaminant,
as defined by 42 U.S.C. ss.9601(33), and all toxic substances, hazardous
materials, or other chemical substances regulated by any other law, rule, or
regulation. The term "Release" shall have the meaning set forth in 42 U.S.C.
ss.9601(22).
3.7 CONTRACTS AND OTHER INSTRUMENTS.
Exhibit "F" accurately and completely sets forth a list of all
material contracts, agreements, loan agreements, instruments, leases, licenses,
arrangements, or understandings with respect to SPC not otherwise identified
in this Agreement or on any other Exhibit hereto. Each such contract,
agreement, loan agreement, instrument, lease, or license is in full force and
is the legal, valid, and binding obligation of SPC and (subject to applicable
bankruptcy, insolvency, and other laws affecting the enforceability of
creditors' rights generally) is enforceable as to it in accordance with its
terms. SPC is not in violation, in breach of, or in default with respect to
any material terms of any such contract, agreement, loan agreement, instrument,
lease, or license. Except for employment agreements and as disclosed in Exhibit
"F", the Company is not a party to any contract, agreement, loan agreement,
instrument, lease, license, arrangement, or understanding with, any
Shareholder or any director, officer, or employee of the Company, or any
relative or affiliate of any shareholder or of any such director, officer, or
employee. The stock ledgers and stock transfer books and the minute book
records of the Company relating to all issuances and transfers of the
stockholders of the Board of Directors and committees thereof of the Company
since its incorporation made available to SPC are the original stock ledgers
and stock transfer books and minute book records of the Company or exact
copies thereof.
3.8 EMPLOYEES.
(a) SPC represents that it does not have and it does not
contribute to, any pension, profit-sharing, option, other incentive plan, or
any other type of Employee Benefit Plan (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
does not have any obligation to or non-customary arrangement with employees
for bonuses, incentive compensation, vacations, severance pay, insurance,
or other benefits, other than a 401(k) plan as described on Schedule 3.8(a)
hereof.
(b) Exhibit "G" contains a true and correct statement of the
names, relationship with SPC, present rates of compensation (whether in the
form of salary, bonuses, commissions, or other supplemental compensation
now or hereafter payable), and aggregate compensation for the twelve month
period ending December 31, 1999 of each director, officer, or other employee
of the SPC whose aggregate compensation for the fiscal year ended December 31,
1999 exceeded $100,000 per annum or whose aggregate compensation presently
exceeds the rate of $100,000 per annum. Since December 31, 1999, the Company
has not changed the rate of compensation of any of its directors, officers,
employees, agents, dealers, or distributors, nor has any Employee Benefit Plan
or program been instituted or amended to increase benefits thereunder.
3.9 PATENTS, TRADEMARKS, ET CETERA.
Except as disclosed on Schedule 3.9, the Company does not own or
have pending, or is licensed under, any patent, patent application, trademark,
trademark application, trade name, service xxxx, copyright, franchise, or
other intangible property or asset (all of the foregoing being herein called
"Intangibles"). Those Intangibles listed on Schedule 3.9 are in good standing
and uncontested. Neither any Shareholder, any director, officer, or employee
of the Company, nor any relative or affiliate of any Shareholder or of any
such director, officer, or employee, possesses any Intangible which relates to
the business of the Company. There is no right under any Intangible
necessary to the business of the Company as presently conducted, except such
as are so designated in Schedule 3.9. The Company has not infringed, is
ifringing, or has received notice of infringement with asserted Intangibles of
others. To the knowledge of the Shareholders, there is no infringement by
others of Intangibles of the Company.
3.10 QUESTIONABLE PAYMENTS.
None of the Company, any director, officer, agent, employee, or other
person associated with or acting on behalf of the Company has, directly, or
indirectly: used any corporate funds for unlawful contributions, gifts,
entertainment, or other unlawful expenses relating to political activity; made
any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from
corporate funds; established or maintained any unlawful or unrecorded fund
of corporate monies or other assets; made any false or fictitious entry on the
books or records of the Company; or made any bribe, kickback, or other
payment of a similar or comparable nature, whether lawful or not, to any
person or entity, private or public, regardless of form, whether in money,
property, or services, to obtain favorable treatment in securing business or to
obtain special concessions, or to pay for favorable treatment for business
secured or for special concessions already obtained.
3.11 AUTHORITY.
(a) The Company and each of the Shareholders, if necessary,
have the capacity to execute, deliver, and perform this Agreement.
(b) No consent of any party to any material lease, license,
distribution, agency, consulting, employment, financing, lending,
installment sale or conditional sale, security, pledge, guarantee, or other
agreement, arrangement, or understanding to which the Company or any
Shareholder is a party, or to which any of its or his properties or assets are
subject, is required for the execution, delivery, or performance of this
Agreement, except as disclosed in Schedule 3.11. Neither the Company nor
any Shareholder has made any agreement or understanding not approved in
writing by SPC as a condition for obtaining any consent, authorization,
approval, order, license, certificate, or permit required for the consummation
of the transactions contemplated by this Agreement. The execution, delivery,
and performance of this Agreement by the Company and the Shareholders
will not violate, result in a breach of, conflict with, or (with or without the
giving of notice or the passage of time or both) entitle any party to terminate
or call a default under such lease, license, distribution, agency, consulting,
employment, financing, lending, installment sale or conditional sale,
security, pledge, guarantee, or other agreement, or understanding, or violate
or result in a breach of any term of the certificate of incorporation (or other
charter document) or by-laws of the Company or, to the Shareholders'
knowledge, violate, result in a breach of, or conflict with any law, rule,
regulation, order, judgment, or decree binding on the Company, or to which
any of its operations, business, properties, or assets are subject.
3.12 NONDISTRIBUTIVE INTENT.
Each shareholder is acquiring the shares of PCI Stock to be
issued hereunder to him for his own account (and not for the account of
others) for investment and not with a view to the distribution thereof. No
shareholder will sell or otherwise dispose of such shares without registration
under the Securities Act of 1933, as amended (the "Securities Act"), or an
exemption therefrom, and the certificate or certificates representing such
shares may contain a legend to the foregoing effect. Each shareholder
understands that he may not sell or otherwise dispose of such shares in the
absence of either a registration statement under the Securities Act or an
exemption from the registration provisions of the Securities Act.
4. REPRESENTATIONS AND WARRANTIES OF PCI.
PCI represents and warrants to SPC as follows:
4.1 ORGANIZATION.
PCI is a corporation duly organized, validly existing and in good
standing under the laws of Nevada. PCI has all requisite power and authority,
corporate or otherwise, to carry on and conduct its business as it is now being
conducted and to own or lease its properties and assets, and is duly qualified
and in good standing in every state of the United States in which the conduct
of the business of PCI or the ownership of such properties and assets requires
it to be so qualified, except where the failure to be so qualified would not
have a material adverse effect on the business, assets or financial condition
of PCI.
4.2 VALIDITY OF SHARES.
The Shares of PCI Stock to be delivered to the shareholders pursuant to this
Agreement, when issued in accordance with the terms and provisions of this
Agreement, will be validly authorized, validly issued, fully paid, and
nonassessable.
4.3 AUTHORITY.
PCI has all requisite power and authority to execute, deliver, and
perform this Agreement. All necessary corporate proceedings of PCI has been
duly taken to authorize the execution, delivery, and performance of this
Agreement by SPC. This Agreement has been duly authorized, executed and
delivered by PCI, is the legal, valid, and binding obligation of PCI, and is
enforceable as to them in accordance with its terms.
4.4 SEC REPORTS.
Since September, 1999, PCI has filed all reports, registrations, proxy
or information statements and all other material documents, together with any
amendments or supplements required to be made thereto ("SEC Reports"),
required to be filed with the Securities and Exchange Commission (the "SEC")
under the Securities Act or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and PCI has heretofore made available to its
shareholders true copies of all such reports. As of their respective dates,
such reports referred to herein complied, as of their respective dates, in all
material respects with all rules and regulations promulgated by the SEC and
did not, or will not, as the case may be, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein
or omit to state any fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not materially
misleading.
5. CONDITIONS TO OBLIGATIONS OF PCI.
The obligations of PCI under this Agreement are subject, at the option of
PCI, to the following conditions:
5.1 ACCURACY OF REPRESENTATIONS AND COMPLIANCE WITH CONDITIONS.
All representations and warranties of SPC contained in this Agreement shall
be accurate as of the Closing as though such representations and warranties
were then made in exactly the same language by SPC and regardless of knowledge
or lack thereof on the part of SPC or changes beyond its or their control; as
of the Closing, SPC shall have performed and complied with all covenants and
agreements and satisfied all conditions required to be performed and complied
with by SPC at or before such time by this Agreement; and PCI shall have
received a certificate executed by SPC dated the date of the Closing to that
effect.
5.2 OPINION OF COUNSEL.
SPC shall have delivered to PCI on the date of the Closing the opinion
of counsel, dated as of the Closing Date, in form and substance satisfactory
to counsel for SPC, substantially to the effect that:
(a) The Company is a corporation validly existing and in good
standing under the laws of the State of California, with all requisite
corporate power and authority to own, lease, license, and use its properties
and assets and to carry on the business in which it is now engaged.
(b) The Company is duly qualified to transact the business in
which it is now engaged and is in good standing as a foreign corporation in
the state of NA.
(c) The authorized and outstanding capital stock of the Company
is as set forth in Section 3.2 of this Agreement, and all the outstanding
shares of capital stock of the Company are validly authorized, validly
issued, fully paid, and nonassessable.
(d) This Agreement has been duly authorized, executed, and
delivered by the Company and the Shareholders, constitutes the legal, valid,
and binding obligation of the shareholders, and (subject to applicable
bankruptcy, insolvency, and other laws affecting the enforceability of
creditors' rights generally) is enforceable as to the Company and the
Shareholders in accordance with its terms.
5.3 OTHER CLOSING DOCUMENTS.
The Company and the Shareholders shall have delivered to PCI at or prior to
the Closing such other documents as PCI may reasonably request in order to
enable the Purchaser to determine whether the conditions to its obligations
under this Agreement have been met and otherwise to carry out the provisions
of this Agreement.
5.4 LEGAL ACTION.
There shall not have been instituted or threatened any legal proceeding
relating to, or seeking to prohibit or otherwise challenge the consummation
of, the transactions contemplated by this Agreement, or to obtain substantial
damages with respect thereto.
5.5 NO GOVERNMENTAL ACTION.
There shall not have been any action taken, or any law, rule, regulation,
order, judgment, or decree proposed, promulgated, enacted, entered, enforced,
or deemed applicable to the transactions contemplated by this Agreement by any
federal, state, local, or other governmental authority or by any court or
other tribunal, including the entry of a preliminary or permanent injunction,
which, in the sole judgment of PCI, (a) makes any of the transactions
contemplated by this Agreement, illegal, (b) results in a delay in the ability
of SPC to consummate any of the transactions contemplated by this Agreement,
(c) requires the divestiture by SPC of any of the shares of the Company to be
acquired pursuant to this Agreement or of a material portion of the business
of either SPC and its subsidiaries taken as a whole, or of the Company (d)
imposes material limitations on the ability of SPC effectively to
exercise full rights of ownership of such shares including the right to vote
such shares on all matters properly presented to the stockholders of the
Company, or (e) otherwise prohibits, restricts, or delays consummation of
any of the transactions contemplated by this Agreement or impairs the
contemplated benefits to PCI of any of the transactions contemplated by this
Agreement.
5.6 CONTRACTUAL CONSENTS NEEDED.
The parties to this Agreement shall have obtained at or prior to the
Closing all consents required for the consummation of the transactions
contemplated by this Agreement from any party to any contract, agreement,
instrument, lease, license, arrangement, or understanding to which any of
them is a party, or to which any of them or any of their respective
businesses, properties, or assets are subject.
5.7 MATERIAL ADVERSE CHANGE.
Since December 31, 1999 there has been no event or development or
combinations of changes or developments, individually or in the aggregate,
that could be reasonably expected to have a material adverse effect on the
business, operations, or future prospects of the Company.
6. CONDITIONS TO OBLIGATIONS OF SPC.
The obligations of PCI under the Agreement are subject to the
following conditions.
6.1 ACCURACY OF REPRESENTATIONS AND COMPLIANCE WITH CONDITIONS.
All representations and warranties of PCI contained in this
Agreement shall be accurate when made and, in addition, shall be accurate as
of the Closing as though such representations and warranties were then made
in exactly the same language by PCI and regardless of the knowledge or lack
thereof on the part of the Purchaser or changes beyond its control; as of the
Closing, PCI shall have performed and complied with all conditions required
to be performed and complied with by it at or before such time by this
Agreement, and the Company and the Shareholders shall have received a
certificate executed by an executive officer of PCI, dated the date of the
Closing, to that effect.
6.2 LEGAL ACTION.
There shall not have been instituted or threatened any legal proceeding
relating to, or seeking to prohibit or otherwise challenge the consummation
of, the transactions contemplated by this Agreement, or to obtain substantial
damages with respect thereto.
6.3 OTHER CLOSING DOCUMENTS.
PCI shall have delivered to SPC and the Shareholders at or prior to the
Closing such other documents as the Shareholders may reasonably request in
order to enable the Shareholders to determine whether the conditions to their
obligations under this Agreement have been met and otherwise to carry out the
provisions of this Agreement.
6.4 NO GOVERNMENTAL ACTION.
There shall not have been any action taken, or any law, rule, regulation,
order, judgment, or decree proposed, promulgated, enacted, entered, enforced,
or deemed applicable to the transactions contemplated by this Agreement by
any federal, state, local or other governmental authority or by any court or
other tribunal, including the entry of a preliminary or permanent injunction,
which, in the sole judgment of the Shareholders, (a) makes any of the
transactions contemplated by this Agreement, illegal, (b) results in a delay
in the ability of the Shareholders to consummate any of the transactions
contemplated by this Agreement, or (c) otherwise prohibits, restricts, or
delays consummation of any of the transactions contemplated by this Agreement
or impairs the contemplated benefits to the Shareholders of any of the
transactions contemplated by this Agreement.
6.5 CONTRACTUAL CONSENTS.
The parties to this Agreement shall have obtained at or prior to the
Closing all consents required for the consummation of the transactions
contemplated by this Agreement from any party to any contract, agreement,
instrument, lease, license, arrangement, or understanding to which any of
them is a party, or to which any of them or any of their respective
businesses, properties, or assets are subject.
6.6 OPINION OF COUNSEL.
PCI shall have delivered to SPC and the Shareholders on the date of the
Closing the opinion of counsel to PCI, dated as of the Closing Date, in form
and substance satisfactory to counsel for SPC and the Shareholders,
substantially to the effect that:
(a) PCI is a corporation validly existing and in good standing
under the laws of the state of incorporation, with all requisite corporate
power and authority to own, lease, license, and use their properties and
assets and to carry on their business in which they are now engaged.
(b) This Agreement has been duly authorized, executed, and
delivered by PCI constitutes the legal, valid, and binding obligation of the
PCI and (subject to applicable bankruptcy, insolvency, and other laws
affecting the enforceability of creditors' rights generally) is enforceable as
to PCI in accordance with its terms.
(c) The shares of PCI Common Stock to be delivered to the
Shareholders pursuant to this Agreement when issued in accordance with the
terms and provisions of this Agreement, will be validly authorized, validly
issued, fully paid and nonassessable.
7. COVENANTS OF SPC.
SPC and the Shareholders covenant and agree as follows:
7.1 ACCESS.
Until the Closing (the "Release Time"), the Company will afford the
officers, employees, counsel, agents, investment bankers, accountants, and
other representatives of PCI free and full access to the plants, properties,
books, and records of SPC, will permit them to make extracts from the copies
of such books and records, and will from time to time furnish PCI with such
additional financial and operating data and other information as to the
financial condition, results of operations, businesses, properties, assets,
liabilities, or future prospects of SPC as PCI from time to time may
reasonably request; provided that such access does not materially interfere
with the then business operations of SPC.
7.2 CONDUCT OF BUSINESS.
Until the Release Time, SPC will conduct its affairs so that at the Closing
no representation or warranty of the SPC will be materially inaccurate, no
material covenant or agreement of SPC will be breached, and no material
condition in this Agreement will remain unfulfilled by reason of the actions
or omissions of the Company. Except as otherwise requested by PCI in writing,
until the Release Time, the Shareholders will cause the Company to use its
best efforts to preserve the business operations of SPC intact, to keep
available the services of their present personnel, to preserve in full force
and effect the contracts, agreements, instruments, leases, licenses,
arrangements, and understandings of SPC, and to preserve the good will of
their customers, and others having business relations with any of them. Until
the Release Time, the Shareholders will cause SPC to conduct its business
and operations in all material respects only in the ordinary course.
7.3 ADVICE OF CHANGES.
Until the Release Time, SPC and the Shareholders will immediately advise PCI
in a detailed written notice of any material fact or occurrence or any
pending or threatened occurrence of which any of them obtains knowledge and
which (if existing and known at the date of the execution of this Agreement)
would have been required to be set forth or disclosed in this Agreement or a
Schedule hereto, which (if existing and known at any time prior to or at the
Closing) would make the performance by any party of a material covenant
contained in this Agreement impossible or make such performance materially
more difficult than in the absence of such fact or occurrence, or which (if
existing and known at the time of the Closing) would cause a material
condition to any party's obligations under this Agreement not to be fully
satisfied.
7.4 PUBLIC STATEMENTS.
Neither SPC nor any of the Shareholders shall disseminate any
information to the public regarding this Agreement or the transactions
contemplated hereby, without the prior written consent of PCI.
Notwithstanding the foregoing, nothing contained herein shall prevent the
Company or any Shareholder from releasing any information to any
governmental authority if required to do so by law.
7.5 OTHER PROPOSALS.
Until the Release Time, neither of SPC nor any of the Shareholders shall
authorize nor permit any officer, director, employee, counsel, agent,
investment banker, accountant, or other representative of any of them directly
or indirectly, to: (i) initiate contact with any person or entity in an effort
to solicit any Takeover Proposal (as such term is defined in this Section 7.5);
(ii) cooperate with, or furnish or cause to be furnished any non-public
information relating to the financial conditions, results of operations,
business, properties, assets, liabilities, or future prospects of SPC to, any
person or entity in connection with any Takeover Proposal; (iii) negotiate
with any person or entity with respect to any Takeover Proposal; or (iv) enter
into any agreement or understanding with the intent to effect a Takeover
Proposal of which any of them becomes aware. As used in this Section 7.5,
"Takeover Proposal" shall mean any proposal, other than as contemplated by
this Agreement, (x) for a merger, consolidation, reorganization, other
business combination, or recapitalization involving the Company, for the
acquisition of a five (5%) percent or greater interest in the equity or in any
class or series of capital stock of SPC, for the acquisition of the right to
cast five (5%) percent or more of the votes on any matter with respect to the
Company, or for the acquisition of a substantial portion of any of its assets
other than in the ordinary course of its businesses or (y) the effect of which
prohibits, restricts, or significantly delays the consummation of any of the
transactions contemplated by this Agreement or impairs the contemplated
benefits to the Purchaser or of any of the transactions contemplated by this
Agreement.
7.6 VOTING BY SHAREHOLDERS.
The Shareholders agree that until the Release Time, they will vote all
securities of SPC which they are entitled to vote against (a) any merger,
consolidation, reorganization, other business combination, or capitalization
involving the Company, (b) any sale of assets of the Company, (c) any stock
split, stock dividend, or reverse stock split relating to any class or services
of
SPC's stock, (d) any issuance of any shares of capital stock of the company,
any option, warrant, or other right calling for the issuance of any such share
of capital stock, or any security convertible into or exchangeable for any
such share of capital stock, (e) any authorization of any other class or series
of stock of the Company, (f) the amendment of the certificate of
incorporation (or other charter document) or the by-laws of the Company, or
(g) any other proposition the effect of which may be to prohibits, restricts,
or significantly delays the consummation of any of the transactions
contemplated by this Agreement or impairs materially the contemplated
benefits to the Purchaser of the transactions contemplated by this Agreement.
8. COVENANTS OF PCI.
PCI covenants and agrees as follows:
8.1 CONFIDENTIALITY.
PCI shall insure that all confidential information which SPC, any of its
respective officers, directors, employees, counsel, agents, investment
bankers, or accountants, may now possess or may hereafter create or obtain
relating to the financial condition, results of operations, business,
properties, assets, liabilities, or future prospects of SPC shall not be
published, disclosed, or made accessible by any of them to any other person
or entity at any time or used by any of them without the prior written consent
of SPC; provided, however, that the restrictions of this sentence shall not
apply (a) to the extent required to enforce this Agreement or (b) to the
extent the information shall have otherwise become publicly available.
8.2 SEC FILINGS.
PCI shall use its best efforts to timely file all reports required to be
filed by
it under the Exchange Act.
8.3 AMEX LISTING.
PCI shall use its best efforts to obtain the listing of its Stock on the
AMEX Stock Exchange. PCI currently has a trading symbol ("PLMK") on
the NASDAQ Over the Counter Market.
9. INDEMNIFICATION; SURVIVAL; LIMITATIONS ON LIABILITY.
9.1 INDEMNIFICATION.
(a) Subject to the terms and conditions set forth in Section
9.2, the Shareholders jointly and severally agree to indemnify and hold
harmless PCI, its officers, directors, employees, counsel, and agents,
(collectively, the "Indemnitees"), against and in respect of any and all claims,
suits, actions, proceedings (formal or informal), investigations, judgments,
deficiencies, damages, settlements, liabilities, and reasonable legal and other
expenses related thereto (collectively, "Claims"), as and when incurred,
arising out of or based upon any breach of any representation, warranty,
covenant, or agreement of any Shareholder contained in this Agreement or any
document or instrument delivered in connection with this Agreement.
(b) Each Indemnitee shall give the Shareholders prompt notice of
any claim asserted or threatened against such Indemnitee on the basis of
which such Indemnitee intends to seek indemnification (but the obligations of
the Shareholders shall not be conditioned upon receipt of such notice, except
to the extent that the indemnifying party is actually prejudiced by such
failure to give notice). The Shareholders shall promptly assume the defense
of any Indemnitee, with counsel reasonably satisfactory to such Indemnitee,
and the fees and expenses of such counsel shall be at the sole cost and
expense of the Shareholders. Notwithstanding the foregoing, any Indemnitee
shall be entitled, at his or its expense, to employ counsel separate from
counsel for the Shareholders and from any other party in such action,
proceeding, or investigation. No Indemnitee may agree to a settlement of a
claim without the prior written approval of the Shareholders, which approval
shall not be unreasonably withheld. Notwithstanding the above, if the claim
for indemnification arises out of a breach of the representations set forth in
Section 3.4, the Purchaser, at its option, shall have the sole right to
represent
the Company in any federal, state, local or foreign tax matter, including any
audit or administrative or judicial proceeding or the filing of an amended
return. The Shareholders agree that they will cooperate fully with PCI and its
counsel in the defense or compromise of any such tax matter.
9.2 SURVIVAL.
(a) Subject to the provisions of Section 9.2(b), the covenants,
agreements, representations, and warranties contained in or made
pursuant to this Agreement shall survive the Closing and the delivery of the
purchase price by SPC, irrespective of any investigation made by or on behalf
of any party.
(b) The liabilities and obligations of the Shareholders
under this Merger Agreement shall be subject to the following limitations:
The Shareholders shall have no liability or obligation with respect to
any claim for a breach of a representation or warranty under this Agreement
made after one (1) year from the Closing Date except for claims arising out
of a breach of the representations as to tax liabilities under Section 2.4,
with respect to which the Shareholders shall remain liable until ninety (90)
days after the expiration of the applicable statute of limitations relating
to such tax liabilities; and
10. MISCELLANEOUS.
10.1 BROKERAGE FEES.
Each of the parties hereto represent and warrant to each other that no
person has been engaged as a broker or finder in connection with this
Agreement, except that Xxxxxxxxxx Securities and/or its assigns shall receive
1,900,000 shares of Common Stock of PCI at Closing. If any person shall
assert a claim to a fee, commission, or other compensation on account of
alleged employment as a broker or finder, in connection with or as a result of
any of the transactions contemplated by this Agreement, the person who is
purported to have engaged such broker or finder shall indemnify and hold
harmless the other party against any and all Claims as and when incurred,
arising out of, based upon, or in connection with such Claim by such person,
except to the extent that it is determined in any suit, action, or proceeding
that the other party had engaged such broker or finder.
10.2 FURTHER ACTIONS.
At any time and from time to time, each party agrees, as its or his
expense, to take such actions and to execute and deliver such documents as
may be reasonably necessary to effectuate the purposes of this Agreement.
10.3 SUBMISSION TO JURISDICTION.
Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of the courts of the State of Idaho, and of any federal court
located in the State of Idaho, in connection with any action or proceeding
arising out of or relating to, or a breach of, this Agreement, or of any
document or instrument delivered pursuant to, in connection with, or
simultaneously with this Agreement. Each of the parties hereto agrees that
such court may award reasonable legal fees and expenses to the prevailing
party.
10.4 MODIFICATION.
This Agreement and the Exhibits attached hereto set forth the entire
understanding of the parties with respect to the subject matter hereof,
supersede all existing agreements among them concerning such subject
matter, and may be modified only by a written instrument duly executed by
each party to be charged.
10.5 NOTICES.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested by Federal Express, or Express Mail or delivered (in person
or by telecopy, or similar telecommunications equipment) against receipt to
the party to whom it is to be given at the address set forth in this Section
(or to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section). Any notice given to:
PCI:
cc: Xxxxx Xxxxxxxxx, Esq.
Suite 140
0000 Xxxxxxxxx Xxxxxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
SPC:
10.6 WAIVER.
Any waiver by any party of a breach of any terms of this Agreement
shall not operate as or be construed to be a waiver of any other breach of
that term or of any breach of any other term of this Agreement. The failure of
a party to insist upon strict adherence to any term of this Agreement on one
or more occasions will not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement. Any waiver must be in writing.
10.7 BINDING EFFECT.
The provisions of this Agreement shall be binding upon and inure to
the benefit of the Merging Companies and their successors and assigns, SPC,
and its successors and assigns, and their respective shareholders and their
respective assigns, heirs, and personal representatives, and shall inure to the
benefit of each Indemnitee and its successors and assigns (if not a natural
person) and his/her assigns, heirs and personal representatives (if a natural
person).
10.8 ATTORNEY FEES AND COSTS.
In connection with any litigation arising out of this Agreement, the
prevailing party shall be entitled to recover all costs incurred, including
reasonable attorney's fees.
10.9 NO THIRD-PARTY BENEFICIARIES.
This Agreement does not create, and shall not be construed as
creating, any rights enforceable by any person not a party to this Agreement
(except as provided in 10.8).
10.10 SEVERABILITY.
If any provision of this Agreement is invalid, illegal, or unenforceable,
the
balance of this Agreement shall remain in effect, and if any provision is
inapplicable to any person or circumstance, it shall nevertheless remain
applicable to all other persons and circumstances.
10.11 HEADINGS.
The headings in this Agreement are solely for convenience of
reference and shall be given no effect in the construction or interpretation
of this Agreement.
10.12 COUNTERPARTS; GOVERNING LAW.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. It shall be governed by, and construed in
accordance with, the laws of the State of Nevada, without giving effect to the
rules governing the conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first written above.
SPC
/s/ Xxxxx Xxxxxxx
By:---------------------------
Name:
Title: Chairman
PCI
/s/ Xxxx X. Xxxxxx
By:---------------------------
Name: Xxxx X. Xxxxxx
Title: President
