1
[X] EXHIBIT 2.1
[X] REORGANIZATION AND STOCK PURCHASE AGREEMENT
This Reorganization and Stock Purchase Agreement dated as of June 25, 1999,
(this "Agreement") is by and between Boulder Capital Opportunities, Inc., a
Colorado corporation ("BCOI"), shareholders of BCOI who are, or will be, the
owners of or otherwise represent at least Seventy-Five Percent (75%) of all the
issued and outstanding common stock (the "Shareholders"), Xxxx Xxx Media, Inc.,
a Delaware corporation ("SLMI"), and Xxxxxx Xxxxx ("RGB"). BCOI acknowledges and
agrees that the terms and provisions of this Agreement including, without
limitation, the shares of stock transferable hereunder, may be assigned by SLMI
or RGB.
BCOI was incorporated in the State of Colorado on April 22, 1996. Its authorized
capital consist of 100,000,000 shares of common stock, no par value and
10,000,000 shares of preferred stock, no par value. As of the effective date of
this Agreement, BCOI has issued and outstanding 1,010,000 common shares (the
"Outstanding Shares") (BCOI agrees to a 2.5 to 1 forward stock split required
per this Agreement which will result in 2,525,000 issued and outstanding
shares). BCOI has no shares of preferred stock outstanding and will have no
outstanding options, warrants, rights or other contractual agreements relating
to the ability or requirement to issue any additional shares of common or
preferred stock.
The respective board of directors of BCOI, SLMI, RGB and the Shareholders deem
it advisable and in the best interest of their corporations and shareholders of
their corporations that the shareholders of SLMI acquire securities of BCOI in
accordance with the terms and conditions of this Agreement.
1. PLAN OF REORGANIZATION. The Shareholders signing this Agreement are the
owners of or otherwise represent not less than 75% of the outstanding shares of
BCOI which the Shareholders represent is a sufficient majority to carry any vote
for approval of this Agreement under the corporate law of the State of Colorado,
the articles of incorporation of BCOI, and the bylaws of BCOI. At the closing,
the shareholders of SLMI, and or assigns, shall acquire 8,500,000 common shares
(the "New Shares") from treasury and RGB and or assigns shall acquire 165,375
common shares (the "Existing Shares") from shareholders of BCOI.
2. CONSIDERATION. Consideration for the events outlined in paragraph (1) above
shall be:
(a) the exchange of all the issued and outstanding stock of SLMI for the
8,500,000 New Shares of BCOI, thereby making SLMI a wholly owned subsidiary of
BCOI.
(b) items on the due diligence list (Exhibit A) shall be provided to SLMI by
BCOI within 48 hours of signing this Agreement.
(c) On the Closing Date (as hereinafter defined), the board of directors of BCOI
will deliver:
(i) authorized minutes of the board authorizing this transaction;
(ii) attorney opinion letter with respect to the tradability of existing
shareholder free trade shares (the "Free Trade Shares");
(iii) all documentation necessary to reflect approval of a 2.5 to 1
forward split;
(iv) the corporate records of BCOI;
(v) signed Lock Up agreements per (3) below;
(vi) all documentation to reflect a symbol and Cusip number change;
(vii) the preparation and filing of an information statement with the SEC
pursuant to Section 14(f) of the Securities Exchange Act of 1934 and Rule 14f-1
thereunder; and,
(viii) the preparation and filing of Form 8-k with the SEC concerning the
change of control transaction, subject to SLMI's counsel's review and approval;
(d) The BCOI shares shall be issued in certificates in form and substance
satisfactory to SLMI.
3. LOCK UP AGREEMENT. Shareholders and RGB hereby agree to lock up 496,125
and 165,375 of their Free Trade Shares respectively according to the attached
Schedule A which all parties to this Agreement shall approve and sign.
4. CLOSING DATE; PLACE OF CLOSING. The Closing Date shall be July 6, 1999.
The Closing Date can be changed by mutual agreement, but in no event shall the
Closing Date extend beyond 20 days from the date of signing this Agreement.
Place of closing shall be the offices of Artfield Investments, 00000 Xxxxxxx
Xxxx., #000, Xxxxxxx Xxxx, XX 00000.
5. DELIVERY OF BCOI SHARES. On or before the Closing Date, BCOI and Shareholders
will have ready for delivery certificates representing the New Shares of BCOI to
be delivered to SLMI and/or assigns, and the Existing Shares of BCOI to be
delivered to RGB and or assigned duly endorsed, together with appropriate stock
powers, so as to make SLMI and/or assigns, and RGB and or assigns, the sole
owners thereof, free and clear of all liens, claims, and encumbrances. Delivery
to be made at such place as to be determined by the parties.
6. REPRESENTATIONS AND WARRANTIES OF BCOI. BCOI represents and warrants to SLMI
as follows:
2
(a) As of the Closing Date, the 8,500,000 shares of BCOI common stock to be
delivered to SLMI shareholders will constitute duly and validly issued shares of
BCOI, and are fully paid and nonassessable, and will be legally equivalent in
all respects to the common stock issued and outstanding as of the date thereof.
(b) The officers of BCOI have the power and the authority to execute this
Agreement and to perform the obligations contemplated hereby;
(c) Within 48 hours of signing this Agreement, or such other date as agreed,
management of BCOI will deliver to SLMI Audited Financial Statements as of
4/30/99 and the balance sheet of BCOI as of 4/30/99 (the "Year End Financial
Statements") and as of 6/23/99 (unaudited) (the "Interim Financial Statements"
and, together with the Year End Financial Statements, the "Financial
Statements") and the statement of income (loss), stockholders' equity and
changes in financial condition for the periods then ended. All statements shall
be done to GAAP standards.
(d) From and after the date hereof, there will not have been, and prior to
Closing Date there will not be, any material adverse changes in the financial
position of BCOI as set forth in the Financial Statements except changes arising
in the ordinary course of business;
(e) BCOI is not, and as of the Closing Date will not be, involved in any pending
litigation or governmental investigation or proceeding not reflected in the
Financial Statements or otherwise disclosed in writing to SLMI and, to the
knowledge of the Shareholder, no litigation or governmental investigation or
proceeding is threatened against BCOI;
(f) As of the Closing Date, BCOI will be in good standing as a Colorado
corporation;
(g) The authorized capital stock of BCOI consist of 100,000,000 shares of common
stock, no par value and 10,000,000 shares of preferred stock, no par value. As
of the Closing Date, BCOI will have issued and outstanding 11,025,000 common
shares. BCOI has no shares of preferred stock outstanding. No shares have
otherwise been registered under the state or federal securities laws. As of the
Closing Date, all of the issued and outstanding shares of common stock of BCOI
are validly issued, fully paid and non-assessable and there are not, and as of
the Closing Date there will not be, outstanding any other warrants, options or
other agreements on the part of BCOI obligating BCOI to issue any additional
shares of common or preferred stock or any of its securities of any kind;
(h) Opinion letter from legal counsel of BCOI that BCOI counsel has acted as
counsel in this transaction and has examined all appropriate documentation for
the purposes of rendering an opinion that:
(i) All requisite corporate and other authorizations for the execution of
the agreement and performance thereof have been obtained.
(ii) Except as otherwise disclosed, there is no pending threatened
litigation or other legal actions, proceedings or investigations.
(iii) The authorized capital stock is as set forth in this Agreement, and
all outstanding shares are duly authorized, validly issued and fully paid.
(iv) The Company has complied with all filing requirements for the
Securities and Exchange Commission and all NASD filings, and that said filings
conform to the requirements of the respective agencies.
(v) That all prior actions of the corporation in connection with filings,
have conformed to applicable state and federal law.
(vi) That the existing shares represented as free trading on attached
Exhibits B and C are Free Trading.
(i) Neither the execution and delivery of the Agreement, nor the consummation of
the transactions contemplated hereby, will violate any provision of the articles
of incorporation or bylaws of BCOI; will violate, conflict with or result in the
breach or termination of, or otherwise give any contracting party, the right to
terminate or constitute a default under the terms of any agreement or instrument
to which BCOI is a party or by which any of its property or assets may be bound;
will result in the creation of any lien, charge or encumbrance upon the
properties or assets of BCOI, will violate any judgment, order, injunction,
decree or award against or binding upon BCOI or upon its securities, property or
business;
(j) Immediately following the 2.5:1 forward stock split and the purchase and
sale of the New Shares to SLMI, there will be outstanding no more than
11,025,000 shares of common stock of BCOI and no other shares of capital stock.
Attached hereto as Exhibit B is a true and correct list of the shareholders of
BCOI as of the date hereof (excluding SLMI) and the number of shares of the
common stock owned by each (the "Existing Shares"). BCOI has complied with all
federal and state securities and blue sky laws in all offers, sales and
issuances of its securities. The offer, issuance and sale of the Existing Shares
was exempt from registration under the Securities Act pursuant to Section 4(2).
Of the Existing Shares, 545,000 are not "restricted securities" within the
meaning of Rule 144 under the Securities Act; these shares are so designated on
the list attached as Exhibit B. Any notices required to be filed under the
federal and state securities and blue sky laws prior to the date hereof
(including regulation D notices) have been filed. Exhibit C hereto identifies
each issuance of securities by BCOI prior to the date hereof, and accurately
identifies the name of the purchaser, the consideration received, the date of
issuance, and the federal securities law exemption from registration relied upon
by BCOI. Attached as Exhibit D is a true and correct copy of the Articles of
Incorporation and Bylaws of BCOI, as amended and in effect on the date hereof.
(k) BCOI has not had any business or operations of any nature whatsoever, has
not sold any asset, provided any service for compensation, or incurred any
obligations or liability except as otherwise specified in BCOI's Financial
Statements. No shareholder of BCOI has any right to cause BCOI to register
securities of BCOI with the SEC. BCOI has never had any paid employees.
7. REPRESENTATIONS AND WARRANTIES OF SLMI. SLMI represents and warrants
as follows:
3
(a) SLMI has taken all necessary corporate action to authorize the execution of
this Agreement and the transactions contemplated hereunder.
(b) Neither the execution and delivery of this Agreement, nor the consummation
of the transactions contemplated hereby, will violate any provision of the
articles of incorporation or bylaws of SLMI; will violate, conflict with or
result in breach or termination of or otherwise give any contracting party the
right to terminate or constitute a default under the terms of any agreement or
instrument to which SLMI is a party, or by which any of its property or assets
may be bound; will result in the creation of any lien, charge or encumbrance
upon the properties or assets of SLMI or will violate any judgment, order,
injunction, decree or award against or binding upon SLMI, or upon its
securities, property or business.
(c) All information supplied to BCOI in the Corporate Profile, Business Plan,
Financial Statements, and Proforma of SLMI is accurate and reliable information.
None of the information supplied contains any untrue statement of a material
fact or omits to make any statement of material fact necessary to make the
statements therein not misleading.
(d) Within 48 hours of signing this agreement or such other date as agreed,
management of SLMI will deliver to BCOI the balance sheet and financial
statements of SLMI as of 12/31/98, and balance sheet as of 6/23/99. All
financials to be prepared according to GAAP standards.
(e) From and after the date hereof, there will not have been, and prior to the
Closing Date there will not be, any material adverse changes in the financial
position of SLMI assets as set forth in the balance sheet except changes arising
in the ordinary course of business;
(f) SLMI is not, and as of the Closing Date will not be, involved in any pending
litigation not in the ordinary course of business or governmental investigation
or proceeding not disclosed in writing to BCOI and, to the knowledge of the
Shareholders, no litigation or governmental investigation or proceeding beyond
the ordinary course of business is threatened against SLMI;
(g) As of the Closing Date, SLMI will be in good standing as a Delaware
corporation;
(h) Neither the execution and delivery of the Agreement, nor the consummation of
the transactions contemplated hereby, will violate any provision of the articles
of incorporation or bylaws of SLMI; will violate, conflict with or result in the
breach or termination of or otherwise give any contracting party the right to
terminate or constitute a default under the terms of any agreement or instrument
to which SLMI is a party, or by which any of its property or assets may be
bound; will result in the creation of any lien, charge or encumbrance upon the
properties or assets of SLMI; will violate any judgment, order, injunction,
decree or award against or binding upon SLMI or upon its securities, property or
business;
8. REPRESENTATIONS AND WARRANTIES OF RGB AND XXXX XXXXXXX.
Each of RGB and Xxxx XxXxxxx severally represents and warrants to SLMI as
follows:
(a) this Agreement has been duly executed and delivered by such shareholder and
constitutes a valid and binding obligation of such shareholder enforceable
against such shareholder in accordance with its terms, except that such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
and other similar laws now or hereafter in effect relating to creditors' rights
generally; and
(b) none of such shareholders is, or has been, the subject of any investigation,
action, proceeding, order or decree by any securities governmental authority or
any judgment, order or decree issued by any governmental authority relating to
federal or state securities laws or the regulations of any self-regulatory
organization involved in the securities business.
9. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF BCOI: All obligations of BCOI
and BCOI Shareholders under this Agreement are subject to the fulfillment prior
to, or as of, the Closing Date, of each of the following conditions:
(a) The representations and warranties by SLMI contained in this Agreement or in
any certificate or documents delivered to BCOI pursuant to the provisions
hereof, shall be true at and as of the time of closing as though such
representations and warranties were made at and as of such time.
(b) SLMI shall have performed and complied with all covenants, agreements, and
conditions required by this Agreement to be performed or complied with by it
prior to or at closing;
(c) SLMI shall have delivered to BCOI evidence to the effect that:
(i) SLMI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware;
(ii) SLMI has the corporate power to carry on its business as now being
conducted;
(iii) This Agreement has been duly authorized, executed and delivered by
SLMI and is a valid and binding obligation of SLMI and enforceable in accordance
with its terms;
(iv) SLMI through its board of directors has taken all corporate action
necessary to authorize the execution, delivery and performance of this
Agreement;
(v) Except as referred to herein, SLMI knows of (a) no actions suit or
other legal proceedings or investigations pending or threatened against or
relating to or materially adversely affecting SLMI; and (b) no unsatisfied
judgments against SLMI;
4
10. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF SLMI: All obligations of
SLMI under this Agreement are subject to the fulfillment prior to, or as of the
Closing Date of each of the following conditions:
(a) The representations and warranties by BCOI contained in this Agreement, or
in any certificate or document delivered to SLMI pursuant to the provisions
hereof, shall be true at and as of the time of closing as though such
representations and warranties were made at and as of such time.
(b) BCOI and BCOI Shareholders shall have performed and complied with all
covenants, agreements, and conditions required by this Agreement to be performed
or complied with by it prior to or at closing.
(c) BCOI shall have delivered to SLMI an attorney opinion letter and evidence to
the effect that:
(i) BCOI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Colorado;
(ii) BCOI has the corporate power to carry on its business as now being
conducted;
(iii) This Agreement has been duly authorized, executed and delivered by
BCOI and is a valid and binding obligation of BCOI and enforceable in accordance
with its terms;
(iv) BCOI through its board of directors has taken all corporate action
necessary to authorized the execution, delivery and performance of this
Agreement;
(v) The documents executed and delivered to SLMI hereunder are valid and
binding in accordance with the terms and vest in SLMI all right, title and
interest in and to the stock of BCOI and said stock when issued shall be validly
issued, fully paid, and non-assessable;
(vi) Except as referred to herein, BCOI knows of (a) no actions suit or
other legal proceedings or investigations pending or threatened against or
relating to or materially adversely affecting BCOI; and (b) no unsatisfied
judgments against BCOI;
(vii) That the existing shares represented as free trading on attached
Exhibits B and C are Free Trading.
(d) BCOI shall have delivered to SLMI evidence to the effect that:
(i) the preparation and filing of an information statement with the SEC
pursuant to Section 14(f) of the Securities Exchange Act of 1934 and Rule 14f-1
thereunder has been completed; and
(ii) the preparation and filing of Form 8-K with the SEC concerning the
change of control transaction has been completed.
(e) SLMI shall have received approval of and consent to the transaction
contemplated herein by SLMI shareholders owning at least 51% of the outstanding
stock of SLMI.
11. PROHIBITED ACTS. BCOI agrees not to do any of the following acts prior
to the Closing Date, and the BCOI Shareholders agree that prior to the Closing
Date, they will not request or permit BCOI to do any of the following acts: (a)
declare or pay any dividends or other distributions on its stock, or purchase or
redeem any of its stock; or (b) issue any stock or other securities, including
any rights or options to purchase or otherwise acquire any of its stock, and
shall not issue any notes or other evidences of indebtedness.
12. REVERSE SPLIT PROHIBITED. BCOI and SLMI agree that BCOI shall not authorize
or perform any reverse stock splits for 18 months from the Closing Date.
13. INDEMNIFICATION. Within the period in paragraph 13 herein, and in accordance
with the terms of that paragraph, each party to this Agreement, shall indemnify
and hold harmless each other party all times after the date of this Agreement
against and in respect of any liability, damage or deficiency, all actions,
suits, proceedings, demands, assessments, judgments, costs, and expenses,
including attorney's fees, incident to any of the foregoing, resulting from
misrepresentations, breach of covenant of warranty or nonfulfillment of any
agreement on the part of such party under this Agreement, or from any
misrepresentation in or omission from any certificate furnished or to be
furnished to a party hereunder. Subject to the terms of this Agreement, the
defaulting party shall reimburse the other party or parties, on demand, for any
payment made by said parties at any time after the Closing Date, in respect of
any liabilities or claim to which the foregoing indemnity relates.
14. NATURE AND SURVIVAL OF REPRESENTATIONS: All representations, warranties and
covenants made by any party in this Agreement shall survive the closing
hereunder for so long as the applicable statute of limitations shall remain
open. Each of the parties hereto is executing and carrying out the provisions of
this Agreement in reliance solely on the representations, warranties and
covenants and agreements contained in this Agreement, or at the closing of the
transaction herein provided for, and not upon any investigation which it might
have made or any representations, warranty, agreement, promise or information,
written or oral, made by the other party or any other person other than as
specifically set forth herein.
15. RESIGNATIONS AND APPOINTMENT OF OFFICERS AND DIRECTORS.
(a) Upon the Closing Date, the officers and directors of BCOI shall become:
Directors: Xxxx Xxx, Xxxxxxxx Xxxxxx, Gill Champion, Xxxxxx Xxxxxxx
President: Xxxxxxxx Xxxxxx
5
Vice President: Gill Champion
Secretary: Xxxxxx Xxxxxxx
Treasurer: Xxxxxxx Xxxxxx
16. NOTICES. Any notices which any of the parties hereto may desire to serve
upon any of the parties hereto shall be in writing and shall be conclusively
deemed to have been received by the parties at its address, if mailed, postage
prepaid, United States mail, registered, return receipt requested, to the
following addresses:
If to current BCOI management or the BCOI Shareholders:
Xxxx XxXxxxx
000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
If to SLMI management or SLMI:
Xxxx Xxx Media, Inc.
00000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Attention: Chief Operating Officer
If to RGB:
Xxxxxx Xxxxx
0000 Xxxxx Xxxxx
Xxxxxx, XX 00000
17. POST CLOSING COVENANTS. BCOI's counsel (subject to SLMI's counsel's review
and approval) shall prepare and file Form 8- k with the SEC concerning the
change of control transaction.
18. CONDITION SUBSEQUENT. This closing assumes the later closing of a Stock
Purchase Agreement between certain shareholders of BCOI and certain buyers
(including RGB) of BCOI Existing Shares. If the selling shareholders fail to
satisfy their obligations thereunder, SLMI shall have the right to unwind this
entire transaction without imposition of any fee, charge or payment.
19. PUBLICITY. Each party hereto agrees not to issue any press release or make
any public statement (except as required by law) with respect to the
transactions contemplated hereby without the consent of the other party, and in
no event shall any press release be made prior to the Closing Date hereunder.
20. SUCCESSORS. This Agreement shall be binding upon and inure to the benefit of
the heirs, personal representatives, and successors and assigns of the parties.
21. CHOICE OF LAW. This Agreement shall be construed and enforced in accordance
with the laws of the State of California.
22. COUNTERPARTS. This Agreement may be signed in one or more counterparts, all
of which taken together shall constitute the entire Agreement.
23. MISCELLANEOUS
(a) Further Assurance: At any time, and from time to time, after the effective
date, each party will execute such additional instruments and take such action
as may be reasonably requested by the other party to confirm or perfect title to
any property transferred hereunder or otherwise to carry out the intent and
purposes of this Agreement.
(b) Waiver: Any failure on the part of any party hereto to comply with any of
its obligations, agreements or conditions hereunder may be waived in writing by
the party to whom such compliance is owed.
(c) Time: Time is of the essence.
(d) Severability: If any part of this Agreement is deemed to be unenforceable,
the balance of this Agreement shall remain in full force and effect.
6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
BOULDER CAPITAL OPPORTUNITIES, INC., a Colorado Corporation
By: /s/ Xxxx XxXxxxx
Xxxx XxXxxxx, President
/s/ Xxxx XxXxxxx
Xxxx XxXxxxx, Secretary
XXXX XXX MEDIA, INC., a Delaware Corporation
By: /s/ Gill Champion
Xxx Xxxxxxxx, Chief Operating Officer
/s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Secretary
RGB
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx
7
SCHEDULE A
Shareholders and RGB shall agree to a "lock up" of their respective Free Trade
Shares as follows:
Shareholders: 496,125 shares
Free Trade Shares
Date Released Cumulative
Upon Closing 70,000 70,000
30 days after Closing 70,000 140,000
60 days after Closing 70,000 210,000
90 days after Closing 70,000 280,000
120 days after Closing 70,000 350,000
150 days after Closing 70,000 420,000
180 days after Closing 76,125 496,125
RGB: 165,376 Shares
Upon Closing 23,000 23,000
30 days after Closing 23,000 46,000
60 days after Closing 23,000 69,000
90 days after Closing 23,000 92,000
120 days after Closing 23,000 115,000
150 days after Closing 23,000 138,000
180 days after Closing 27,375 165,375
Boulder Capital Opportunities, Inc., a Colorado corporation
By: /s/ Xxxx Xxxxxxx
Xxxx XxXxxxx
By: /s/ Xxxx Xxxxxxx
Xxxx XxXxxxx
Xxxx Xxx Media, Inc., a Delaware corporation
By: /s/ Gill Champion
Gill Champion, Chief Operating Officer
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Secretary
RGB
By: /s/ Xxxxxx Xxxxx
Xxxxxx Xxxxx
8
Exhibit C
Xxxxxx Xxxxxxxx 4/22/96 560,000 1,400(1)
Xxxx X. Xxxxxx 4/22/96 50,000 125(2)
Xxxxx X. Xxxx 4/22/96 50,000 125(2)
Xxxx X. Xxxxxxxx 4/22/96 50,000 125(2)
Xxxxxx Xxxxxxxx 4/23/96 100,000 250
Xxxxxx X. Xxxxxx 4/26/96 50,000 1,500
Dev X. Xxxxxxx 4/26/96 50,000 1,500
Xxxxxx Xxxxxxxx 4/28/96 40,000 1,200
Xxxx X. X'Xxxx 4/29/96 30,000 900
Xxxxxxx X. Xxx 4/29/96 30,000 900
(1) Consideration consisted of pre-incorporation consulting services rendered
to the Company related to investigating and developing the Company's proposed
business plan and capital structure and completing the organization and
incorporation of the Company.
(2) Consideration consisted of pre-incorporation consulting services rendered
to the Company related to investigating and developing the Company's proposed
business plan and capital structure.
Each of the sales listed above was made for cash or services. All of the above
sales were made in reliance upon the exemption from registration offered by
Section 4(2) of the Securities Act of 1933, as amended.
