EXHIBIT 10.1
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (the "Agreement"), entered
into this 16th day of July 1998, is by, between, and among Blue Pines,
Inc., a publicly held Nevada corporation (hereinafter the "Purchaser"),
Net Voice Technologies, Inc., a privately-held Nevada corporation
(hereinafter the "Private Company"), and the shareholders of the Private
Company whose names and signatures are set forth upon the signature page
of this Agreement (the "Shareholders").
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WHEREAS, the Purchaser wishes to acquire, and the Shareholders are
willing to sell, all of the outstanding stock of the Private Company in
exchange solely for a part of the voting stock of the Purchaser whereby
the Shareholders would acquire a controlling interest of the Purchaser; and
WHEREAS, the parties hereto intend to qualify such transaction as a
tax-free exchange pursuant to Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended;
NOW, THEREFORE, based upon the stated premises, which are
incorporated herein by reference, and for and in consideration of the
mutual covenants and agreements set forth herein, the mutual benefits to
the parties to be derived herefrom, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged,
the Purchaser, the Private Company, and the Shareholders approve and
adopt this Agreement and Plan of Reorganization and mutually covenant and
agree with each other as follow:
1. SHARES TO BE TRANSFERRED AND SHARES TO BE ISSUED.
1.1 On the Closing Date the Shareholders shall transfer to the
Purchaser certificates for the number of shares of the common stock of
the Private Company described in Schedule "A," attached hereto and
incorporated herein, which in the aggregate shall represent all of the
issued and outstanding shares of the common stock of the Private Company.
1.2 In exchange for the transfer of the common stock of the
Private Company pursuant to subsection 1.1. hereof, the Purchaser shall
on the Closing Date and contemporaneously with such transfer of the
common stock of the Private Company to it by the Shareholders issue and
deliver to the Shareholders the number of shares of common stock of the
Purchaser specified on Schedule "A" hereof such that the Shareholders
shall own approximately 75% of the outstanding common stock of the Purchaser.
2. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS. Each of
the Shareholders, for himself, herself, or itself, and not for any other
Shareholder, represents and warrants to the Purchaser as set forth below.
These representations and warranties are made as an inducement for the
Purchaser to enter into this Agreement and, but for the making of such
representations and warranties and their accuracy, the Purchaser would
not be a party hereto.
2.1. OWNERSHIP OF STOCK.
a. Each of the Shareholders is the record and beneficial
owner and holder of the number of fully paid and nonassessable shares of
the common stock of the Private Company listed in Schedule "A" hereto as
of the date hereof and will continue to own such shares of the common
stock of the Private Company until the delivery thereof to the Purchaser
on the Closing Date and all such shares of common stock are or will be on
the Closing Date owned free and clear of all liens, encumbrances, charges
and assessments of every nature and subject to no restrictions with
respect to transferability. Each of the Shareholders currently has, and
will have at Closing, full power and authority to dispose, assign, and
transfer his, her, or its shares of the Private Company in accordance
with the terms hereof. Each of the Shareholders currently has, and will
have at Closing, full power and authority to vote his, her, or its shares
of the Private Company, without restriction of any kind.
b. Except for this Agreement, there are no outstanding
options, contracts, calls, commitments, agreements or demands of any
character relating to the common stock of the Private Company listed in
Schedule "A" and owned by each of the Shareholders.
2.2 ACCURACY OF ALL STATEMENTS MADE BY THE SHAREHOLDERS. No
representation or warranty by the Shareholders in this Agreement, nor any
statement, certificate, schedule, or exhibit hereto furnished or to be
furnished by or on behalf of the Shareholders pursuant to this Agreement,
nor any document or certificate delivered to the Purchaser by the
Shareholders 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 statements contained therein not misleading.
3. REPRESENTATIONS AND WARRANTIES OF THE PRIVATE COMPANY. The
Private Company represents and warrants to the Purchaser as set forth
below. These representations and warranties are made as an inducement
for the Purchaser to enter into this Agreement and, but for the making of
such representations and warranties and their accuracy, the Purchaser
would not be a party hereto.
3.1 ORGANIZATION AND AUTHORITY. The Private Company is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Nevada with full power and authority to enter
into and perform the transactions contemplated by this Agreement.
3.2 CAPITALIZATION. As of the date of the Closing, the
Private Company will have a total of no more than 3,000,000 shares of
common stock issued and outstanding. All of the shares will have been
duly authorized and validly issued and will be fully paid and
nonassessable. There are no options, warrants, conversion privileges, or
other rights presently outstanding for the purchase of any authorized but
unissued stock of the Private Company.
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3.3 PERFORMANCE OF THIS AGREEMENT. The execution and
performance of this Agreement and the transfer of stock contemplated
hereby have been authorized by the board of directors of the Private Company.
3.4 FINANCIALS. True copies of the financial statements of
the Private Company for the period ended June 30, 1998, have been
furnished to the Purchaser. Said financial statements are true and
correct in all material respects and present an accurate and complete
disclosure of the financial condition of the Private Company as of June
30, 1998, and the earnings for the periods covered, in accordance with
generally accepted accounting principles applied on a consistent basis.
3.5 LIABILITIES. There are no material liabilities of the
Private Company, whether accrued, absolute, contingent or otherwise,
which arose or relate to any transaction of the Private Company, its
agents or servants occurring prior to June 30, 1998, which are not
disclosed by or reflected in said financial statements. 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 the Private Company.
3.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth
in this Agreement, since June 30, 1998, there has not been (i) any
material adverse change in the business, operations, properties, level of
inventory, assets, or condition of the Private Company, or (ii) any
damage, destruction, or loss to the Private Company (whether or not
covered by insurance) materially and adversely affecting the business,
operations, properties, assets, or conditions of the Private Company.
3.7 LITIGATION. There are no legal, administrative or other
proceedings, investigations or inquiries, product liability or other
claims, judgments, injunctions or restrictions, either threatened,
pending, or outstanding against or involving the Private Company or its
subsidiaries, if any, or their assets, properties, or business, nor does
the Private Company or its subsidiaries know, or have reasonable grounds
to know, of any basis for any such proceedings, investigations or
inquiries, product liability or other claims, judgments, injunctions or
restrictions. In addition, there are no material proceedings existing,
pending or reasonably contemplated to which any officer, director, or
affiliate of the Private Company or as to which any of the Shareholders
is a party adverse to the Private Company or any of its subsidiaries or
has a material interest adverse to the Private Company or any of its
subsidiaries.
3.8 TAXES. All federal, state, foreign, county and local
incomes, 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 the Private Company,
and there are no unpaid taxes which are, or could become a lien on the
properties and assets of the Private Company, except as provided for in
the financial statements of the Private Company, or have been incurred in
the normal course of business of the Private Company since that date.
All tax returns of any kind required to be filed have been filed and the
taxes paid or accrued.
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3.9 HAZARDOUS MATERIALS. No hazardous material has been
released, placed, stored, generated, used, manufactured, treated,
deposited, spilled, discharged, released, or disposed or on or under any
real property currently or previously owned or leased by the Private
Company or any of its subsidiaries.
3.10 BUSINESS PLAN. All of the information contained in the
business plan of the Private Company, a copy of which has been furnished
to the Purchaser, is true and correct in all material respects and does
not contain any untrue statement of material fact or omit a material fact
necessary to make the statement contained therein not misleading.
3.11 ACCURACY OF ALL STATEMENTS MADE BY THE PRIVATE COMPANY.
No representation or warranty by the Private Company in this Agreement,
nor any statement, certificate, schedule, or exhibit hereto furnished or
to be furnished by or on behalf of the Private Company pursuant to this
Agreement, nor any document or certificate delivered to the Purchaser by
the Private Company 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 statements contained therein not misleading.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants to the Private Company and to the Shareholders as
set forth below. These representations and warranties are made as an
inducement for the Private Company and the Shareholders to enter into
this Agreement and, but for the making of such representations and
warranties and their accuracy, the Private Company and the Shareholders
would not be parties hereto.
4.1 ORGANIZATION AND GOOD STANDING. The Purchaser is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Nevada with full power and authority to enter
into and perform the transactions contemplated by this Agreement.
4.2 CAPITALIZATION. As of the date of the Closing, the
Purchaser will have a total of no more than 995,050 post 1:3 reverse
split shares of common stock issued and outstanding. All of the shares
will have been duly authorized and validly issued and will be fully paid
and nonassessable. Except for the Purchaser's obligations hereunder with
respect to the shares to be issued pursuant to subsection 1.2 hereof,
there are no options, warrants, conversion privileges, or other rights
presently outstanding for the purchase of any authorized but unissued
stock of the Purchaser. As of the Closing, the Articles of
Incorporation, as amended, of the Purchaser (the "Purchaser Articles")
and as currently in effect shall be in the form previously furnished to
the Private Company and the Shareholders providing among other things for
one authorized class of stock and 100,000,000 shares of the stock
authorized. The rights, preferences, and privileges of the common stock
shall be as set forth in the Purchaser Articles.
4.3 PERFORMANCE OF THIS AGREEMENT. The execution and
performance of this Agreement and the issuance of stock contemplated
hereby have been authorized by the board of directors of the Purchaser.
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4.4 FINANCIALS. True copies of the financial statements of
the Purchaser consisting of the balance sheets as of the fiscal years
ended December 31, 1997, 1996, and 1995 (audited), and statements of
income, cash flow and changes in stockholder's equity for each of the
periods then ended, have been delivered by the Purchaser to the Private
Company. These statements have been examined and certified by Xxxxxxxx,
Xxxxxxxx & Xxxxxx, X.X., Certified Public Accountant. Said financial
statements are true and correct in all material respects and present an
accurate and complete disclosure of the financial condition of the
Purchaser as of December 31, 1997, and the earnings for the periods
covered, in accordance with generally accepted accounting principles
applied on a consistent basis.
4.5 LIABILITIES. There are no material liabilities of the
Purchaser, whether accrued, absolute, contingent or otherwise, which
arose or relate to any transaction of the Purchaser, its agents or
servants which are not disclosed by or reflected in said financial
statements. 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 the Purchaser.
4.6 LITIGATION. There are no legal, administrative or other
proceedings, investigations or inquiries, product liability or other
claims, judgments, injunctions or restrictions, either threatened,
pending, or outstanding against or involving the Purchaser or its
subsidiaries, if any, or their assets, properties, or business, nor does
the Purchaser or its subsidiaries know, or have reasonable grounds to
know, of any basis for any such proceedings, investigations or inquiries,
product liability or other claims, judgments, injunctions or
restrictions. In addition, there are no material proceedings existing,
pending or reasonably contemplated to which any officer, director, or
affiliate of the Purchaser is a party adverse to the Purchaser or any of
its subsidiaries or has a material interest adverse to the Purchaser or
any of its subsidiaries.
4.7 TAXES. All federal, state, foreign, county and local
income, 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 the Purchaser, and
there are no unpaid taxes which are, or could become a lien on the
properties and assets of the Purchaser, except as provided for in the
financial statements of the Purchaser, or have been incurred in the
normal course of business of the Purchaser since that date. All tax
returns of any kind required to be filed have been filed and the taxes
paid or accrued.
4.8 HAZARDOUS MATERIALS. No hazardous material has been
released, placed, stored, generated, used, manufactured, treated,
deposited, spilled, discharged, released, or disposed of on or under any
real property currently or previously owned or leased by the Purchaser or
any of its subsidiaries.
4.9 LEGALITY OF SHARES TO BE ISSUED. The shares of common
stock of the Purchaser to be issued by the Purchaser pursuant to this
Agreement, when so issued and delivered, will have been duly and validly
authorized and issued by the Purchaser and will be fully paid and nonassessable.
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4.10 ACCURACY OF ALL STATEMENTS MADE BY THE PURCHASER. No
representation or warranty by the Purchaser in this Agreement, nor any
statement, certificate, schedule, or exhibit hereto furnished or to be
furnished by the Purchaser pursuant to this Agreement, nor any document
or certificate delivered to the Private Company or the Shareholders
pursuant to this Agreement or in connection with actions contemplated
hereby, contains or shall contain any untrue statement of material fact
or omits to state or shall omit to state a material fact necessary to
make the statements contained therein not misleading.
5. COVENANTS OF THE PARTIES.
5.1 CORPORATE RECORDS.
a. Simultaneous with the execution of this Agreement by
the Private Company, if not previously furnished, such entity shall
deliver to the Purchaser copies of the articles of incorporation, as
amended, and the current bylaws of the Private Company, and copies of the
resolutions duly adopted by the board of directors of the Private Company
approving this Agreement and the transactions herein contemplated.
b. Simultaneous with the execution of this Agreement by
the Purchaser, if not previously furnished, such entity shall deliver to
the Private Company copies of the Purchaser Articles, and the current
bylaws of the Purchaser, and xxxxx of the resolutions duly adopted by the
board of directors of the Purchaser approving this Agreement and the
transactions herein contemplated.
5.2 ACCESS TO INFORMATION.
a. The Purchaser and its authorized representatives
shall have full access during normal business hours to all properties,
books, records, contracts, and documents of the Private Company, and the
Private Company shall furnish or cause to be furnished to the Purchaser
and its authorized representatives all information with respect to its
affairs and business as the Purchaser may reasonably request. The
Purchaser shall hold, and shall cause its representatives to hold
confidential, all such information and documents, other than information
that (i) is in the public domain at the time of its disclosure to the
Purchaser; (ii) becomes part of the public domain after disclosure
through no fault of the Purchaser; (iii) is known to the Purchaser or any
of its officers or directors prior to disclosure; or (iv) is disclosed in
accordance with the written consent of the Private Company. In the event
this Agreement is terminated prior to Closing, the Purchaser shall, upon
the written request of the Private Company, promptly return all copies of
all documentation and information provided by the Private Company hereunder.
b. The Private Company and its authorized
representatives shall have full access during normal business hours to
all properties, books, records, contracts, and documents of the
Purchaser, and the Purchaser shall furnish or cause to be furnished to
the Private Company and its authorized representatives all information
with respect to its affairs and business the Private
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Company may reasonably request. The Private Company shall hold, and
shall cause its representatives to hold confidential, all such
information and documents, other than information that (i) is in the
public domain at the time of its disclosure to the Private Company; (ii)
becomes part of the public domain after disclosure through no fault of
the Private Company; (iii) is known to the Private Company or any of its
officers or directors prior to disclosure; or (iv) is disclosed in
accordance with the written consent of the Purchaser. In the event this
Agreement is terminated prior to Closing, the Private Company shall, upon
the written request of the Purchaser, promptly return all copies of all
documentation and information provided by the Purchaser hereunder.
5.3 ACTIONS PRIOR TO CLOSING. From and after the date of this
Agreement and until the Closing Date:
a. The Purchaser and the Private Company shall each
carry on its business diligently and substantially in the same manner as
heretofore, and neither party shall make or institute any unusual or
novel methods of purchase, sale, management, accounting or operation.
b. Neither the Purchaser nor the Private Company shall
enter into any contact or commitment, or engage in any transaction not in
the usual and ordinary course of business and consistent with its
business practices.
c. Neither the Purchaser nor the Private Company shall
amend its articles of incorporation or bylaws or make any changes in
authorized or issued capital stock, except as provided in this Agreement.
d. The Purchaser and the Private Company shall each use
its best efforts (without making any commitments on behalf of the
company) to preserve its business organization intact.
e. Neither the Purchaser nor the Private Company shall
do any act or omit to do any act, or permit any act or omission to act,
which will cause a material breach of any material contract, commitment,
or obligation of such party.
f. The Purchaser and the Private Company shall each duly
comply with all applicable laws as may be required for the valid and
effective issuance or transfer of stock contemplated by this Agreement.
g. Neither the Purchaser nor the Private Company shall
sell or dispose of any property or assets, except products sold in the
ordinary course of business.
h. The Purchaser and the Private Company shall each
promptly notify the other of any lawsuits, claims, proceedings or
investigations that may be threatened, brought, asserted, or commenced
against it, its officers or directors involving in any way the business,
properties, or assets of such party.
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5.4 SHAREHOLDERS' APPROVAL. The Purchaser shall promptly
submit this Agreement and the transactions contemplated hereby for the
approval of its stockholders by majority written consent or at a meeting
of stockholders and, subject to the fiduciary duties of the Board of
directors of the Purchaser under applicable law, shall use its best
efforts to obtain stockholder approval and adoption of this Agreement and
the transactions contemplated hereby. In connection with such written
action by, or meeting of, stockholders, the Purchaser shall prepare a
proxy or information statement to be furnished to the shareholders of the
Purchaser setting forth information about this Agreement and the
transactions contemplated hereby. The Private Party shall promptly
furnish to the Purchaser all information, and take such other actions, as
may reasonably be requested in connection with any action to be taken by
the Purchaser in connection with the immediately preceding sentence. The
Private Company shall have the right to review and provide comments to
the proxy or information statement prior to mailing to the shareholders
of the Purchaser.
5.5 NO COVENANT AS TO TAX OR ACCOUNTING CONSEQUENCES. It is
expressly understood and agreed that neither the Purchaser nor its
officers or agents has made any warranty or agreement, expressed or
implied, as to the tax or accounting consequences of the transactions
contemplated by this Agreement or the tax or accounting consequences of
any action pursuant to or growing out of this Agreement.
5.6 INDEMNIFICATION. The Private Company and the
Shareholders, severally and not jointly, shall indemnify Purchaser for
any loss, cost, expense, or other damage (including, without limitation,
attorneys' fees and expenses) suffered by Purchaser resulting from,
arising out of, or incurred with respect to the falsity or the breach of
any representation, warranty, or covenant made by the Private Company or
the Shareholders herein, and any claims arising from the operations of
the Private Company prior to the Closing Date. Purchaser shall indemnify
and hold the Private Company and the Shareholders harmless from and
against any loss, costs, expense, or other damage (including, without
limitation, attorneys' fees and expenses) resulting from, arising out of,
or incurred with respect to, or alleged to result from, arise out of or
have been incurred with respect to, the falsity or the breach of any
representation, covenant, warranty, or agreement made by Purchaser
herein, and any claims arising from the operations of Purchaser prior to
the Closing Date. The indemnity agreement contained herein shall remain
operative and in full force and effect, regardless of any investigation
made by or on behalf of any party and shall survive the consummation of
the transactions contemplated by this Agreement.
5.7 PUBLICITY. The parties agree that no publicity, release,
or other public announcement concerning this Agreement or the
transactions contemplated by this Agreement shall be issued by any party
hereto without the advance approval of both the form and substance of the
same by the other parties and their counsel, which approval, in the case
of any publicity, release, or other public announcement required by
applicable law, shall not be unreasonably withheld or delayed.
5.8 EXPENSES. Except as otherwise expressly provided herein,
each party to this Agreement shall bear its own respective expenses
incurred in connection with the negotiation and preparation of this
Agreement, in the consummation of the transactions contemplated hereby,
and in
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connection with all duties and obligations required to be performed by
each of them under this Agreement.
5.9 FURTHER ACTIONS. Each of the parties hereto shall take
all such further action, and execute and deliver such further documents,
as may be necessary to carry out the transactions contemplated by this
Agreement.
5.10 NAME CHANGE. Prior to closing, the Purchaser shall
present to its shareholders for approval an amendment to the Purchaser's
articles of incorporation authorizing a change of name of the Purchaser
to "Net Voice Technologies Corporation," or some other name designated by
the Private Company.
5.11 REVERSE STOCK SPLIT. Prior to closing, the Purchaser
shall present to its shareholders for approval one-for-three reverse
stock split of the outstanding common stock of the Purchaser such that at
closing the Purchaser shall have not more than 995,050 shares of common
stock outstanding.
5.12 AMENDMENT TO ARTICLES OF INCORPORATION. Prior to closing,
the Purchaser shall present to its shareholders for approval an amendment
to its articles of incorporation to eliminate all but the first sentence
of Article IX of such articles of incorporation.
6. CONDITIONS PRECEDENT TO THE PURCHASER'S OBLIGATIONS. Each and
every obligation of the Purchaser to be performed on the Closing Date
shall be subject to the satisfaction prior thereto of the following conditions:
6.1 TRUTH OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Private Company and the
Shareholders in this Agreement or given on their behalf hereunder shall
be substantially accurate in all material respects on and as of the
Closing Date with the same effect as though such representations and
warranties had been made or given on and as of the Closing Date.
6.2 PERFORMANCE OF OBLIGATIONS AND COVENANTS. The Private
Company and the Shareholders shall have performed and complied with all
obligations and covenants required by this Agreement to be performed or
complied with by them prior to or at the Closing.
6.3 OFFICER'S CERTIFICATE. The Purchaser shall have been
furnished with a certificate (dated as of the Closing Date and in the
form and substance reasonably satisfactory to the Purchaser), executed by
an executive officer of the Private Company, certifying to the
fulfillment of the conditions specified in subsections 6.1 and 6.2 hereof.
6.4 NO LITIGATION OR PROCEEDINGS. There shall be no
litigation or any proceeding by or before any governmental agency or
instrumentality pending or threatened against any party
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hereto that seeks to restrain or enjoin or otherwise questions the
legality or validity of the transactions contemplated by this Agreement
or which seeks substantial damages in respect thereof.
6.5 NO MATERIAL ADVERSE CHANGE. As of the Closing Date there
shall not have occurred any material adverse change, financially or
otherwise, which materially impairs the ability of the Private Company to
conduct its business or the earning power thereof on the same basis as in
the past.
6.6 SHAREHOLDERS' APPROVAL. The holders of not less than a
majority of the outstanding common stock of the Purchaser shall have
voted for authorization and approval of this Agreement and the
transactions contemplated hereby.
6.7 SHAREHOLDERS' EXECUTION OF AGREEMENT. This Agreement
shall have been duly executed and delivered by each of the parties owning
in the aggregate all of the outstanding stock of the Private Company as
of the Closing Date.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE PRIVATE COMPANY AND
THE SHAREHOLDERS. Each and every obligation of the Private Company and
the Shareholders to be performed on the Closing Date shall be subject to
the satisfaction prior thereto of the following conditions:
7.1 TRUTH OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties made by the Purchaser in this Agreement or
given on its behalf hereunder shall be substantially accurate in all
material respects on and as of the Closing Date with the same effect as
though such representations and warranties had been made or given on and
as of the Closing Date.
7.2 PERFORMANCE OF OBLIGATIONS AND COVENANTS. The Purchaser
shall have performed and complied with all obligations and covenants
required by this Agreement to be performed or complied with by it prior
to or at the Closing.
7.3 OFFICER'S CERTIFICATE. The Private Company shall have
been furnished with a certificate (dated as of the Closing Date and in
form and substance reasonably satisfactory to the Private Company),
executed by an executive officer of the Purchaser, certifying to the
fulfillment of the conditions specified in subsections 7.1 and 7.2 hereof.
7.4 NO LITIGATION OR PROCEEDINGS. There shall be no
litigation or any proceeding by or before any governmental agency or
instrumentality pending or threatened against any party hereto that seeks
to restrain or enjoin or otherwise questions the legality or validity of
the transactions contemplated by this Agreement or which seeks
substantial damages in respect thereof.
7.5 NO MATERIAL ADVERSE CHANGE. As of the Closing Date there
shall not have occurred any material adverse change, financially or
otherwise, which materially impairs the ability of the Purchaser to
conduct its business.
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7.6 NO MATERIAL LIABILITIES OF PURCHASER. As of the Closing
Date the Purchaser shall have no liabilities which in the aggregate
exceed $1,000.
7.7 NAME CHANGE. Prior to closing, the Purchaser shall have
duly authorized an amendment to the Purchaser's articles of incorporation
authorizing a change of name of the Purchaser to "Net Voice Technologies
Corporation," or some other name designated by the Private Company.
7.8 REVERSE STOCK SPLIT. Prior to closing, the Purchaser
shall have duly authorized a one-for-three reverse stock split of the
outstanding common stock of the Purchaser such that at closing the
Purchaser shall have not more than 995,050 shares of common stock outstanding.
7.9 AMENDMENT TO ARTICLES OF INCORPORATION. Prior to closing,
the Purchaser shall have duly authorized an amendment to its articles of
incorporation to eliminate all but the first sentence of Article IX of
such articles of incorporation.
8. SECURITIES LAW PROVISIONS.
8.1 RESTRICTED SECURITIES. Each of the parties hereto,
severally and not jointly, represents that he, she, or it is aware that
the shares issued or transferred to him, her, or it will not have been
registered pursuant to the Securities Act of 1933, as amended (the "1933
Act"), or any state securities act, and thus will be restricted
securities as defined in Rule 144 promulgated by the Securities and
Exchange Commission (the "SEC"). Therefore, under current
interpretations and applicable rules, he, she, or it will probably have
to retain such shares for a period of at least one year and at the
expiration of such one year period his, her, or its sales may be confined
to brokerage transactions of limited amounts requiring certain
notification filings with the SEC and such disposition may be available
only if the issuer is current in its filings with the SEC under the
Securities Exchange Act of 1934, as amended, or other public disclosure
requirements.
8.2 NON-DISTRIBUTIVE INTENT. Each of the parties hereto,
severally and not jointly, covenants and warrants that the shares
received are acquired for his, her, or its own account and not with the
present view towards the distribution thereof and he, she, or it will not
dispose of such shares except (i) pursuant to an effective registration
statement under the 1933 Act, or (ii) in any other transaction which, in
the opinion of counsel acceptable to the issuer, is exempt from
registration under the 1933 Act, or the rules and regulations of the SEC
thereunder. In order to effectuate the covenants of this subsection, an
appropriate legend with be placed upon each of the certificates of common
stock issued or transferred pursuant to this Agreement, and stop transfer
instructions shall be placed with the transfer agent for the securities.
8.3 EVIDENCE OF COMPLIANCE WITH PRIVATE OFFERING EXEMPTION.
Each of the parties hereto, severally and not jointly, hereby represents
and warrants that he, she, or it, either individually or together with
his, her, or its representative, has such knowledge and experience in
business and financial matters that he, she, or it is capable of
evaluating the risks of this Agreement and the transactions contemplated
hereby, and that financial capacity of such party is of such proportion
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that the total cost of such person's commitment in the shares would not
be material when compared with his, her, or its total financial capacity.
Each of the Shareholders hereby acknowledges receipt of the following
documents pertaining to the Purchaser and this transaction: Purchaser's
Information Statement dated February 10, 1998. Upon the written request
of the issuer of the securities issued or transferred pursuant to this
Agreement, any party hereto shall provide such issuer with evidence of
compliance with the requirements of any federal or state exemption from
registration. The Purchaser and the Private Company shall each file,
with the assistance of the other and its respective legal counsel, such
notices, applications, reports, or other instruments as may be deemed by
each of them to be necessary or appropriate in an effort to document
reliance on such exemptions, unless an exemption requiring no filing is
available in the particular jurisdiction, all to the extent and in the
manner as may be deemed by such parties to be appropriate.
9. CHANGE OF MANAGEMENT. Upon and as a condition of Closing this
Agreement:
9.1 Prior to Closing the Purchaser will increase the number of
directors to three persons and shall present to its shareholders for
approval the election of Xxxxxxx Xxxxx, Xxxxxxx X. Xxxxx, and Xxxx X.
XxXxxx, Xx. as directors of the Purchaser effective immediately following
the Closing of this Agreement. Prior to Closing the Private Company will
furnish material information of Xxxxxxx Xxxxx, Xxxxxxx X. Xxxxx, and Xxxx
X. XxXxxx, Xx. as nominees to be elected by the shareholders of the
Purchaser. Purchaser reserves the right to refuse to cause the
nomination of any or all such persons as directors of Purchaser if, after
review of the foregoing information concerning said persons, it is the
opinion of Purchaser that the election of such persons would not be in
the best interests of Purchaser.
9.2 The Private Company reserves the right to terminate this
Agreement if nominees selected by it are not elected or appointed as set
forth above.
10. CLOSING.
10.1 TIME AND PLACE. The Closing of this transaction
("Closing") shall take place at 00 Xxxx 000 Xxxxx, Xxxxx 000, Xxxx Xxxx
Xxxx, Xxxx, at 10:00 am, on August 6, 1998, or at such other time and
place as the parties hereto shall agree upon. Such date is referred to
in this Agreement as the "Closing Date."
10.2 DOCUMENTS TO BE DELIVERED BY THE PRIVATE COMPANY AND THE
SHAREHOLDERS. At the Closing the Private Company and the Shareholders
shall deliver to the Purchaser the following documents:
a. Certificates for the number of shares of common stock
of the Private Company in the manner and form required by subsection 1.1 hereof.
b. The certificate required pursuant to subsection 6.3 hereof.
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c. Such other documents of transfer, certificates of
authority, and other documents as the Purchaser may reasonably request.
10.3 DOCUMENTS TO BE DELIVERED BY THE PURCHASER. At the
Closing the Purchaser shall deliver to the Private Company and the
Shareholders the following documents:
a. Certificates for the number of shares of common stock
of the Purchaser as determined in sub-section 1.2 hereof.
b. The certificate required pursuant to subsection 7.3 hereof.
c. Such other documents of transfer, certificates of
authority, and other documents as the Private Company and the
Shareholders may reasonably request.
11. TERMINATION. This Agreement may be terminated by the Purchaser
or the Private Company by notice to the other if, (i) at any time prior
to the Closing Date any event shall have occurred or any state of facts
shall exist that renders any of the conditions to its or their
obligations to consummate the transactions contemplated by this Agreement
incapable of fulfillment, or (ii) on August 15, 1998, if the Closing
shall not have occurred. Following termination of this Agreement no
party shall have liability to another party relating to such termination,
other than any liability resulting from the breach of this Agreement by a
party prior to the date of termination.
12. MISCELLANEOUS.
12.1 NOTICES. All communications provided for herein shall be
in writing and shall be deemed to be given or made when served personally
or when deposited in the United States mail, certified return receipt
requested, addressed as follows, or at such other address as shall be
designated by any party hereto in written notice to the other party
hereto delivered pursuant to this subsection:
Purchaser: Zen Xxxxxxx, President
0000 Xxxxx Xxxxxxxx Xxx.
Xxxxx 0
Xxxxxx, XX 00000
With Copy to: J. Xxxxx XxXxxxxxxx
Attorney at Law
0000 Xxxx Xxxxxxx Xxxxx Xxxxx
Xxxxx, XX 00000
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Private Company
and Shareholders Xxxxxxx Xxxxx, President
0000 Xxxxxxx Xxxx
Xxxxx 0000
Xxxxxx, XX 00000
With Copy to: Xxxxxx X. Xxxxx
Attorney at Law
00 Xxxx 000 Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
12.2 DEFAULT. Should any party to this Agreement default in
any of the covenants, conditions, or promises contained herein, the
defaulting party shall pay all costs and expenses, including a reasonable
attorney's fee, which may arise or accrue from enforcing this Agreement,
or in pursuing any remedy provided hereunder or by the statutes of the
State of Utah.
12.3 ASSIGNMENT. This Agreement may not be assigned in whole
or in part by the parties hereto without the prior written consent of the
other party or parties, which consent shall not be unreasonably withheld.
12.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, their heirs,
executors, administrators, successors and assigns.
12.5 PARTIAL INVALIDITY. If any term, covenant, condition, or
provision of this Agreement or the application thereof to any person or
circumstance shall to any extent be invalid or unenforceable, the
remainder of this Agreement or application of such term or provision to
persons or circumstances other than those as to which it is held to be
invalid or unenforceable shall not be affected thereby and each term,
covenant, condition, or provision of this Agreement shall be valid and
shall be enforceable to the fullest extent permitted by law.
12.6 ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding between the parties hereto with respect to the subject
matter hereof and supersedes all negotiations, representations, prior
discussions, letters of intent, and preliminary agreements between the
parties hereto relating to the subject matter of this Agreement.
12.7 INTERPRETATION OF AGREEMENT. This Agreement shall be
interpreted and construed as if equally drafted by all parties hereto.
12.8 SURVIVAL OF COVENANTS, ETC. All covenants,
representations, and warranties made herein to any party, or in any
statement or document delivered to any party hereto, shall survive the
making of this Agreement and shall remain in full force and effect until
the obligations of such party hereunder have been fully satisfied.
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12.9 FURTHER ACTION. The parties hereto agree to execute and
deliver such additional documents and to take such other and further
action as may be required to carry out fully the transactions
contemplated herein.
12.10 AMENDMENT. This Agreement or any provision hereof may
not be changed, waived, terminated, or discharged except by means of a
written supplemental instrument signed by the party or parties against
whom enforcement of the change, waiver, termination, or discharge is sought.
12.11 FULL KNOWLEDGE. By their signatures, the parties
acknowledge that they have carefully read and fully understand the terms
and conditions of this Agreement, that each party has had the benefit of
counsel, or has been advised to obtain counsel, and that each party has
freely agreed to be bound by the terms and conditions of this Agreement.
12.12 HEADINGS. The descriptive headings of the various
sections or parts of this Agreement are for convenience only and shall
not affect the meaning or construction of any of the provisions hereof.
12.13 COUNTERPARTS. This Agreement may be executed in two or
more partially or fully executed counterparts, each of which shall be
deemed an original and shall bind the signatory, but all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto executed the foregoing
Agreement and Plan of Reorganization as of the day and year first above written.
PURCHASER: Blue Pines, Inc.
By: /s/ XXXX XXXXXXXX
-----------------------------------
Xxxx Xxxxxxxx, President
PRIVATE COMPANY: Net voice Technologies, Inc.
By: /s/ XXXXXXX XXXXX
-----------------------------------
Xxxxxxx Xxxxx, President
SHAREHOLDERS: /s/ XXXXXXX X. XXXXX
--------------------------------------
Xxxxxxx X. Xxxxx, Individually
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/s/ XXXXXXX XXXXX
--------------------------------------
Xxxxxxx Xxxxx, Individually
/s/ XXX XXXXXXX
--------------------------------------
Xxx Xxxxxxx, Individually
/s/ XXX XXXXXX
--------------------------------------
Xxx Xxxxxx, Individually
/s/ XXXXX XXXX
--------------------------------------
Xxxxx Xxxx, Individually
/s/ XXXX XXXXXXX
--------------------------------------
Xxxx Xxxxxxx, Individually
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SCHEDULE "A"
TO THE
AGREEMENT AND PLAN OF REORGANIZATION
NO. OF SHARES OF NO. OF SHARES OF
NAME OF THE PRIVATE COMPANY THE PURCHASER
SHAREHOLDER TO BE TRANSFERRED TO BE ISSUED
----------- ----------------- ------------
Xxxxxxx X. Xxxxx 1,505,000 1,505,000
Xxxxxxx Xxxxx 300,000 300,000
Xxx Xxxxxxx 300,000 450,000
Xxx Xxxxxx 600,000 450,000
Xxxxx Xxxx 145,000 145,000
Xxxx Xxxxxxx 150,000 150,000
------- -------
TOTAL 3,000,000 3,000,000
========= =========
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