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EXHIBIT 10.1
SECURITIES PURCHASE AGREEMENT
AND PLAN OF REORGANIZATION
BY AND AMONG
WYOMING OIL & MINERALS, INC.,
BESTIP DEVELOPMENT INTERNATIONAL LIMITED,
AND
THE SHAREHOLDERS OF BESTIP DEVELOPMENT INTERNATIONAL
LIMITED
May 2, 2005
SECURITIES PURCHASE AGREEMENT
AND PLAN OF REORGANIZATION
THIS SECURITIES
PURCHASE AGREEMENT AND PLAN OF REORGANIZATION (the “
Agreement ”) is entered into on May 2, 2005 by and
among: (i) WYOMING OIL & MINERALS, INC., a Wyoming corporation
(“ WYOI ”); (ii) BESTIP DEVELOPMENT
INTERNATIONAL LIMITED, an International Business Company organized
under the laws of the British Virgin Islands (the “
Company ”); and (iii) all the shareholders of the
Company who have executed this Agreement on the signature page
attached hereto as Exhibit A (the “ Company
Shareholders ”).
R E C I T A L S
A.
The Company has authorized capital consisting of 50,000 ordinary
shares of capital stock, par value US$1.00 each (the
“Ordinary Shares” ), of which 100 Ordinary
Shares are issued and outstanding as of the date of this Agreement
(the “ Company Shares ”).
B.
WYOI has authorized capital stock consisting of 50,000,000 shares
of common stock (“ WYOI Common Stock ”), $.01
par value, of which 1,430,067 shares of WYOI Common Stock are
issued and outstanding as of the date of this Agreement, and
2,000,000 shares of preferred stock (“ WYOI Preferred
Stock ”), no par value, of which no shares of WYOI
Preferred Stock are issued and outstanding as of the date of this
Agreement.
C.
The Company Shareholders wish to sell, and WYOI wishes to acquire,
all of the issued and outstanding Company Shares in exchange for
WYOI’s issuance of a total of 28,000,000 shares of WYOI
Common Stock (“ WYOI Shares ”) to the Company
Shareholders, such that the Company Shareholders shall own 95.1% of
the issued and outstanding share capital of WYOI on a fully diluted
basis, as of the Closing (as defined below), subject to and upon
the terms and conditions hereinafter set forth (the “
Reorganization ”).
A G R E E M E N T
ARTICLE 1
SECURITIES PURCHASE AND REORGANIZATION
It is agreed as
follows:
1.1
Incorporation of Recitals . The provisions and recitals set
forth above are hereby referred to and incorporated herein and made
a part of this Agreement by reference.
1.2
Agreement to Exchange Securities . Subject to the terms and
upon the conditions set forth herein, each Company Shareholder
agrees to sell, assign, transfer and deliver to WYOI, and WYOI
agrees to purchase from each Company Shareholder, at the Closing,
all of the Company Shares owned by the respective Company
Shareholder, in exchange for the issuance by WYOI to each such
Company Shareholder a pro rata share of the WYOI Shares. Each
Company Shareholder’s pro rata share of the WYOI Shares shall
be determined by multiplying the total number of the WYOI Shares (
i.e. , 28,000,000 shares of WYOI Common Stock) by a
fraction, the numerator of which is the total number of Company
Shares owned by the Company
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Shareholder
at the Closing and the denominator of which is the total number of
Company Shares issued and outstanding at the Closing. No fractional
shares of WYOI Common Stock shall be issued upon exchange of any
Company Shares pursuant to this Section 1.2. In lieu thereof, each
recipient of WYOI Common Stock who would otherwise be entitled to a
fraction of a share of WYOI Common Stock (after aggregating all
fractional shares of WYOI Common Stock to be received by such
holder) shall be entitled to receive one whole share of WYOI Common
Stock.
1.3
Closing . The closing ( “Closing” ) of
the exchange of the Company Shares and the WYOI Shares shall take
place at the offices of Preston Gates & Ellis LLP, located at
1900 Main Street, Suite 600, Irvine, CA 92614, at 10:00 a.m.,
local time, on May 16, 2005, or at such other time and place as may
be agreed to by the Company and WYOI ( “Closing
Date” ).
1.4
Instruments of Transfer.
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(a)
Company Shares . Each Company Shareholder shall deliver to
WYOI on the Closing Date evidence of the Company Shares owned by
the Company Shareholder (“ Company Certificates
”), if any, along with duly executed assignments of such
Company Certificates, in order to effectively vest in WYOI all
right, title and interest in and to the Company Shares owned by the
Company Shareholder. From time to time after the Closing Date, and
without further consideration, the Company Shareholder will execute
and deliver such other instruments of transfer and take such other
actions as WYOI may reasonably request in order to more effectively
transfer to WYOI the securities intended to be transferred
hereunder.
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(b)
WYOI Shares . WYOI shall deliver to the Company Shareholders
on the Closing Date original certificates evidencing the WYOI
Shares, in form and substance satisfactory to the Company
Shareholders, in order to effectively vest in each Company
Shareholder its respective right, title and interest in and to the
WYOI Shares. From time to time after the Closing Date, and without
further consideration, WYOI will execute and deliver such other
instruments and take such other actions as the Company Shareholders
may reasonably request in order to more effectively issue to them
the WYOI Shares.
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1.5
Restricted Securities. The WYOI Shares shall be issued
pursuant to exemptions from the registration requirements of the
Securities Act of 1933, as amended ( “Securities
Act”) , and shall accordingly bear a restrictive legend
subject to existing law, as more fully described in Section 3.3
hereof.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company
hereby represents and warrants to WYOI as follows:
2.1
Disclosure Schedule . The
disclosure schedule attached hereto as Exhibit 2.1 (the
“Company Disclosure Schedule” ) is divided into
sections that correspond to the sections of this Article 2. The
Company Disclosure Schedule comprises a list of all exceptions to
the truth and accuracy of, and of all disclosures or descriptions
required by, the representations and warranties set forth in the
remaining sections of this Article 2.
2.2
Corporate Organization,
etc.
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(a)
The Company is an International Business Companies duly organized,
validly existing and in good standing under the laws of the British
Virgin Islands and each of the Company’s subsidiaries is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction, with the requisite corporate
power and authority to carry on its business as it is now being
conducted and to own, operate and lease its properties and assets,
is duly qualified or licensed to do business as a foreign
corporation in good standing in every other jurisdiction in which
the character or location of the properties and assets owned,
leased or operated by it or the conduct of its business requires
such qualification or licensing, except in such jurisdictions in
which the failure to be so qualified or licensed and in good
standing would not, individually or in the aggregate, have a
Material Adverse Effect (as defined below) on the Company and its
subsidiaries taken as whole. Complete and correct copies of the
Company’s articles of association and memorandum of
association, and of the organizational documents for each of the
subsidiaries have previously been made available to
WYOI.
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(b)
Except as set forth on the Company Disclosure Schedule, the Company
does not own or control any capital stock of any corporation or any
interest in any partnership, joint venture or other entity (for
purposes of this Article 2 and the representations set forth
herein, any reference to the Company shall include the Company and
all of its subsidiaries disclosed in the Company Disclosure
Schedule, except where the context otherwise clearly requires). All
capital stock of the subsidiaries is owned by the Company free and
clear of all liens, claims and encumbrances except as set forth in
the Company Disclosure Schedule. Each entity in which the Company
owns an interest is duly organized, validly existing in good
standing, and qualified to do business in each jurisdiction in
which the nature of its business or the ownership or leasing of its
properties makes such qualification necessary other than in such
jurisdictions where the failure so to qualify would not have a
Material Adverse effect on the Company taken as a whole.
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2.3
Capitalization . The
authorized capital of the Company is as set forth in Recital A to
this Agreement. The Company Disclosure Schedule sets forth the
total number of Ordinary Shares issued and outstanding as of the
date of this Agreement. The shares owned by the Company
Shareholders represent all of the capital stock of the Company
outstanding as of the date hereof. All issued and outstanding
Company Shares are duly authorized, validly issued, fully paid and
nonassessable and are without, and were not issued in violation of,
preemptive rights, other restrictions or any securities statute or
regulation. Other than as contemplated by this Agreement, there is
no subscription, option, warrant, call, right, contract, agreement,
commitment, understanding or arrangement to which the Company or
any subsidiary is a party, or by which either is bound, with
respect to the issuance, sale, delivery or transfer of the capital
securities of the Company or such subsidiary, including any right
of conversion or exchange under any security or other
instrument.
2.4
Authorization, etc . The
Company has all requisite corporate power and authority to enter
into, execute, deliver, and perform its obligations under this
Agreement. This Agreement has been duly and validly executed and
delivered by the Company and is the valid and binding legal
obligation of the Company enforceable against the Company in
accordance with its terms, subject to bankruptcy, moratorium,
principles of equity and other limitations limiting the rights of
creditors generally. The execution and delivery of this Agreement
and the
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related
documents and the consummation of the transactions contemplated
hereby and thereby have been duly authorized by the Board of
Directors of the Company, and no other corporate or shareholder
proceedings on the part of the Company are necessary to authorize
the transactions contemplated hereby and thereby.
2.5
Non-Contravention . Except as
set forth in the Company Disclosure Schedule, neither the
execution, delivery and performance of this Agreement, nor the
consummation of the transactions contemplated herein
will:
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(a)
violate, contravene or be in conflict with any provision of the
articles of association or memorandum of association of the Company
or its subsidiaries;
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(b)
be in conflict with, or constitute a default, however defined (or
an event which, with the giving of due notice or lapse of time, or
both, would constitute such a default), under, or cause or permit
the acceleration of the maturity of, or give rise to any right of
termination, cancellation, imposition of fees or penalties under
any debt, note, bond, lease, mortgage, indenture, license,
obligation, contract, commitment, franchise, permit, instrument or
other agreement or obligation to which the Company or any
subsidiary is a party or by which the Company, any subsidiary, or
any of the Company’s or any subsidiary’s properties or
assets is or may be bound;
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(c)
result in the creation or imposition of any pledge, lien, security
interest, restriction, option, claim or charge of any kind
whatsoever (“ Encumbrances ”) upon any property
or assets of the Company or any subsidiary under any debt,
obligation, contract, agreement or commitment to which the Company
or any subsidiary is a party or by which the Company, any
subsidiary, or any of the Company’s or any subsidiary’s
assets or properties are bound; or
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(d)
materially violate any statute, treaty, law, judgment, writ,
injunction, decision, decree, order, regulation, ordinance or other
similar authoritative matters (referred to herein individually as a
“Law” and collectively as
“Laws” ) of any foreign, federal, state or local
governmental or quasi-governmental, administrative, regulatory or
judicial court, department, commission, agency, board, bureau,
instrumentality or other authority (referred to herein individually
as an “Authority” and collectively as
“Authorities” ).
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2.6
Consents and Approvals .
Except as set forth in the Company Disclosure Schedule or those
received or to be received by the Company or its subsidiaries prior
to the Closing, with respect to the Company and/or its
subsidiaries, no consent, approval, order or authorization of or
from, or registration, notification, declaration or filing with (
“Consent” ) any individual or entity, including
without limitation any Authority, is required in connection with
the execution, delivery or performance of this Agreement by the
Company or the consummation by the Company of the transactions
contemplated herein.
2.7
Financial Statements . The
Company has delivered to WYOI (i) a copy of the audited
consolidated balance sheet of the Company as of March 31, 2004 and
audited consolidated statements of income of the Company for the
twelve-month periods ended March 31, 2004, 2003 and 2002 (the
“Income Statements” ), and (ii) a copy of the
unaudited consolidated balance sheet ( “Balance
Sheet” ) of the Company as of December 31, 2004
and
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unaudited
consolidated statement of income of the Company for the nine-months
ended as of December 31, 2004 (collectively, the “Financial
Statements”). Except as disclosed therein or in the Company
Disclosure Schedule, the aforesaid Financial Statements:
(i) have been kept in accordance with the books and records of
the Company and have been prepared in conformity with generally
accepted accounting principles applicable in the United States
(except as stated therein or in the notes thereto); and
(ii) are true, complete and accurate in all material respects
and fairly present the financial position of the Company and its
subsidiaries as of the date thereof, and the income or loss for the
period then ended, except that the unaudited balance sheet and
interim statement of income do not contain all required footnotes
and will be subject to normal year-end adjustments.
2.8
Absence of Undisclosed
Liabilities . Neither the Company nor any of its subsidiaries
have any material liabilities, obligations or claims of any kind
whatsoever, whether secured or unsecured, accrued or unaccrued,
fixed or contingent, matured or unmatured, known or unknown, direct
or indirect, contingent or otherwise and whether due or to become
due (referred to herein individually as a
“Liability” and collectively as
“Liabilities” ), other than:
(a) Liabilities that are fully reflected or reserved for in
the Balance Sheet; (b) Liabilities that are set forth on the
Company Disclosure Schedule; (c) Liabilities incurred by the
Company in the ordinary course of business after the date of the
Balance Sheet and consistent with past practice;
(d) Liabilities for express executory obligations to be
performed after the Closing under the contracts described in
Section 2.16 of the Company Disclosure Schedule; or (e) Liabilities
not included in subparts (a) through (d) that are in an amount not
to exceed US$100,000 individually or in the aggregate.
2.9
Absence of Certain Changes .
Except as set forth in the Company Disclosure Schedule, since the
date of the Balance Sheet, the Company and each subsidiary has
owned and operated its assets, properties and business in the
ordinary course of business and consistent with past practice.
Without limiting the generality of the foregoing, subject to the
aforesaid exceptions:
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(a)
neither the Company nor any of its subsidiaries have experienced
any change that has had or could reasonably be expected to have a
Material Adverse Effect on the Company; and
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(b)
neither the Company nor any of its subsidiaries have suffered (i)
any loss, damage, destruction or other property or casualty
(whether or not covered by insurance) or (ii) any loss of officers,
employees, dealers, distributors, independent contractors,
customers or suppliers, which had or could reasonably be expected
to have a Material Adverse Effect on the Company.
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2.10
Inventory . The values at
which the inventories of the Company and its subsidiaries as shown
on the Financial Statements have been determined in accordance with
the normal valuation policy of the Company, consistently applied.
All inventory of the Company and its subsidiaries, whether
reflected in the Financial Statements or otherwise, consists of a
quality and quantity usable and saleable in the ordinary course of
business except for items of obsolete materials and materials of
below standard quality, all of which have been written down in the
current Financial Statements to realizable market value or for
which reasonably adequate reserves have been provided therein.
Except as specifically indicated in the current
Financial
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Statements,
the present quantities of all inventory of the Company and its
subsidiaries are reasonable and warranted in the present
circumstances of the business of the Company.
2.11
Taxes . The Company has filed
or will file within the time prescribed by law (including extension
of time approved by the appropriate taxing authority) all tax
returns and reports required to be filed with the United States
Internal Revenue Service and with all other jurisdictions where
such filing is required by law; and the Company has paid, or has
made adequate provision in the current Financial Statements for the
payment of all taxes, interest, penalties, assessments or
deficiencies due and payable on, and with respect to all periods
ending prior to December 31, 2004. The Company knows of (i) no
other tax returns or reports which are required to be filed which
have not been so filed and (ii) no unpaid assessment for additional
taxes for any fiscal period or any basis therefor.
2.12
Assets . Except as set forth
in the Company Disclosure Schedule, the Company and each of its
subsidiaries has valid title to all of its respective assets and
properties owned by it, that relate to or are necessary for the
Company or such subsidiary to conduct its business and operations
as currently conducted (collectively, the
“Assets” ), free and clear of any mortgage,
pledge, lien, security interest (a “Lien” ),
other than (i) liens securing specific Liabilities shown on
the Balance Sheet with respect to which no breach, violation or
default exists; (ii) minor imperfections of title that do not
individually or in the aggregate, impair the continued use and
operation of the Assets to which they relate in the operation of
the Company as currently conducted; (iii) liens for current
taxes not yet due and payable or being contested in good faith by
appropriate proceedings ( “Permitted Liens” );
or (iv) liens that do not materially impair the Company’s or
subsidiary’s intended use or ownership of the
Assets.
2.13
Receivables and
Payables.
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(a)
Except as set forth on the Company Disclosure Schedule, all
accounts receivable of the Company and its subsidiaries represent
sales in the ordinary course of business, are current and to the
Company’s knowledge, collectible net of any reserves shown on
the Balance Sheet and none of such receivables is subject to any
Lien other than a Permitted Lien.
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(b)
Except as set forth on the Company Disclosure Schedule, all
payables by the Company and its subsidiaries arose in bona fide
transactions in the ordinary course of business.
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2.14
Intellectual Property Rights
. The Company and/or its subsidiaries, as applicable, owns or has
the unrestricted right to use all patents, patent applications,
patent rights, registered and unregistered trademarks, trademark
applications, trade names, service marks, service mark
applications, copyrights, internet domain names, computer programs
and other computer software, inventions, know-how, trade secrets,
technology, proprietary processes, trade dress, software and
formulae (collectively, “Intellectual Property
Rights” ) used in, or necessary for, the operation of its
business as currently conducted or proposed to be conducted. Except
as set forth on the Company Disclosure Schedule, to the
Company’s knowledge, the use of all Intellectual Property
Rights necessary or required for the conduct of the business of the
Company as presently conducted and as proposed to be conducted does
not infringe or violate the intellectual property rights of any
person or entity.
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2.15
Litigation . Except as set
forth in the Company Disclosure Schedule, there is no legal,
administrative, arbitration, or other proceeding, suit, claim or
action of any nature or investigation, review or audit of any kind,
or any judgment, decree, decision, injunction, writ or order
pending, noticed, scheduled, or, to the knowledge of the Company,
threatened or contemplated by or against or involving the Company
or its subsidiaries, their assets, properties or business, whether
at law or in equity, before or by any person or entity or
Authority, or which questions or challenges the validity of this
Agreement or any action taken or to be taken by the parties hereto
pursuant to this Agreement or in connection with the transactions
contemplated herein.
2.16
Contracts and Commitments; No
Default.
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(a)
The Company Disclosure Schedule contains a list of each material
contract and agreement to which the Company or any of its
subsidiaries is a party, which involves an obligation of more than
US$1,000,000 over its term, including any agreement among the
shareholders of the Company or the shareholders of any subsidiary.
In addition, true and complete copies (or summaries, in the case of
oral items) of the following agreements relating to the Company or
any of its subsidiaries (the “Company Contracts”
) have been made available to WYOI for review:
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(i)
Each form of employment agreements, and, if any, non-competition,
consulting or severance agreement, collective bargaining agreement,
or pension, profit-sharing, incentive compensation, deferred
compensation, stock purchase, stock option, stock appreciation
right, group insurance, severance pay or retirement plan or
agreement;
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(ii)
Each indenture, mortgage, note, installment obligation, agreement
or other instrument relating to the borrowing of money by the
Company;
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(iii)
Each contract, agreement, lease (real or personal property) or
arrangement that (A) is not terminable on less than 30
days’ notice without penalty, (B) is over one year in
length of obligation of the Company, or (C) involves an
obligation of more than US$1,000,000 over its term;
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(iv)
Each contract, agreement, commitment or license relating to
Intellectual Property Rights or contract, agreement or commitment
of any other type, whether or not fully performed, not otherwise
disclosed pursuant to this Section 2.16;
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(v)
Each obligation or requirement to provide funds to or make any
investment (in the form of a loan, capital contribution or
otherwise) in any person or entity; or
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(vi)
Each outstanding sales or purchase contract, commitment or proposal
that will result in any material loss upon completion or
performance thereof after allowance for direct distribution
expenses, or bound by any outstanding contract, bid, sales or
service proposal quoting prices that are not reasonably expected to
result in a normal profit.
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(b)
Except as set forth in the Company Disclosure Schedule, all of the
Company Contracts items are valid and enforceable by and against
the Company or its applicable subsidiary in accordance with their
terms. Except as set forth in the Company Disclosure Schedule,
neither the Company nor any subsidiary, as applicable is in breach,
violation or default, however defined, in the performance of any of
its material obligations under any of the Company Contracts, and no
facts and circumstances exist which, whether with the giving of due
notice, lapse of time, or both, would constitute a breach,
violation or default thereunder or thereof, which, in each case,
had or will have a Material Adverse Effect on the Company, and, to
the knowledge of the Company, no other parties thereto are in a
breach, violation or default, however defined, thereunder or
thereof, and no facts or circumstances exist which, whether with
the giving of due notice, lapse of time, or both, would constitute
such a breach, violation or default thereunder or thereof which
could have a Material Adverse Effect on the Company.
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2.17
Compliance with Law; Permits and
Other Operating Rights . Except as set forth in the Company
Disclosure Schedule, the Assets, properties, business and
operations of the Company and its subsidiaries are and have been in
compliance in all respects with all Laws applicable to the
Company’s or its subsidiary’s assets, properties,
business and operations, except where the failure to comply would
not have a Material Adverse Effect. The Company and each subsidiary
possesses all material permits, licenses and other authorizations
from all Authorities necessary to permit it to operate its business
in the manner in which it presently is conducted and the
consummation of the transactions contemplated by this Agreement
will not prevent the Company or any subsidiary from being able to
continue to use such permits and operating rights. Neither the
Company nor any subsidiary has received notice of any violation of
any such applicable Law, and is not in default with respect to any
order, writ, judgment, award, injunction or decree of any
Authority.
2.18
Books and Records . The books
of account, minute books, stock record books, and other material
records of the Company and each subsidiary, all of which have been
made available to WYOI, are complete and correct in all material
respects and have been maintained in accordance with reasonable
business practices. The minute books of the Company and each
subsidiary contain accurate and complete records of all formal
meetings held of, and corporate action taken by, the members,
shareholders, the managers and committees of the managers of the
Company or such subsidiary as applicable. At the Closing, all of
those books and records will be in the possession of the
Company.
2.19
Business Generally; Accuracy of
Information . No representation or warranty made by the Company
in this Agreement, the Company Disclosure Schedule, or in any
document, agreement or certificate furnished or to be furnished to
WYOI at the Closing by or on behalf of the Company or its
subsidiaries in connection with any of the transactions
contemplated by this Agreement contains or will contain any untrue
statement of material fact or omit or will omit to state any
material fact necessary in order to make the statements herein or
therein not misleading in light of the circumstances in which they
are made, and all of the foregoing completely and correctly present
the information required or purported to be set forth herein or
therein.
2.20
Related Party Transactions. Except
as described in the Company Disclosure Schedule, no director,
officer or affiliate of the Company or any member of his or her
immediate
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family, is a
party to any agreement or contract or other business arrangement or
relationship of any kind with the Company or, except for
compensation as an officer or director of the Company or for the
ownership of not more than 1% of the stock of a company having a
class of securities registered pursuant to the Exchange Act, has an
ownership interest in any business, corporate or otherwise, which
is a party to, or in any property which is the subject of, business
arrangements or relationships of any kind with the
Company.
2.21
Environmental Matters .
Except as set forth in the Company Disclosure Schedule, the Company
and each subsidiary has at all times operated its business in
compliance with, and there presently exists no violation with
respect to the ownership or operation of the business of, any
applicable law relating to pollution or protection of the
environment, except where any such non-compliance or violation
would not have a Material Adverse Effect to the Company.
2.22
Benefit Plans . Except as set
forth in the Company Disclosure Schedule, neither the Company nor
any of its subsidiaries presently maintain any employee retirement
benefit plans or any other welfare or retirement benefit plans for
the Company’s or applicable subsidiary’s
employees.
2.23
Employee Matters. No employee of the
Company or any subsidiary is in violation of any term of any
employment contract, patent disclosure agreement, noncompetition
agreement, or any other contract or written agreement, or any
restrictive covenant contained in any such agreement relating to
the right of any such employee to be employed thereby, or to use
trade secrets or proprietary information of others, and the
employment of such employees does not subject the Company to any
material liability.
2.24
No Brokers or Finders. Except
as set forth in the Disclosure Schedule, no broker, finder or
investment banker is entitled to any brokerage, finder’s or
other fee or commission in connection with any of the transactions
contemplated by this Agreement based upon arrangements made by or
on behalf of the Company.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SHAREHOLDERS
Each Company
Shareholder, severally and not jointly, represents, warrants and
covenants to and with WYOI with respect to himself, as
follows:
3.1
Power and Authority . The
Company Shareholder has all requisite power and authority to enter
into and to carry out all of the terms of this Agreement and all
other documents executed and delivered in connection herewith
(collectively, the “ Documents ”). All action on
the part of the Company Shareholder necessary for the
authorization, execution, delivery and performance of the Documents
by the Company Shareholder has been taken and no further
authorization on the part of the Company Shareholder is required to
consummate the transactions provided for in the Documents. When
executed and delivered by the Company Shareholder, the Documents
shall constitute the valid and legally binding obligation of the
Company Shareholder enforceable in accordance with their respective
terms.
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3.2
Ownership of and Title to
Securities . Exhibit A to this Agreement accurately and
completely sets forth all of the Company Shares owned by the
Company Shareholder as of the date hereof. The Company Shareholder
has good and marketable title to the Company Shares which he owns,
free and clear of all pledges, security interests, mortgages,
liens, claims, charges, restrictions or encumbrances, except for
any restrictions imposed by federal or state securities
laws.
3.3
Investment and Related
Representations.
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(a)
Securities Laws Compliance . The Company Shareholder is
aware that neither the WYOI Shares nor the offer or sale thereof to
the Company Shareholder has been registered under the Securities
Act, or under any state securities law. The Company Shareholder
understands that the WYOI Shares will be characterized as
“restricted” securities under US federal securities
laws inasmuch as they are being acquired in a transaction that has
not been registered under the Securities Act and that under such
laws and applicable regulations such securities may be resold
without registration under the Securities Act only in certain
limited circumstances. The Company Shareholder agrees that the
Company Shareholder will not sell all or any portion of WYOI Shares
except pursuant to registration under the Securities Act or
pursuant to an available exemption from registration under the
Securities Act. The Company Shareholder understands that each
certificate for WYOI Shares issued to the Company Shareholder or to
any subsequent transferee shall be stamped or otherwise imprinted
with the legend set forth below summarizing the restrictions
described in this Section 3.3 and that WYOI shall refuse to
transfer the WYOI Shares except in accordance with such
restrictions:
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “SECURITIES
ACT”). THE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE SOLD, TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF A CURRENT AND EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT WITH RESPECT TO SUCH SHARES, OR AN OPINION OF THE
ISSUER’S COUNSEL TO THE EFFECT THAT REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT. |
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(b)
Investment Representation . This Agreement is made with the
Company Shareholder in reliance upon the Company
Shareholder’s representation, which by the Company
Shareholder’s execution of this Agreement the Company
Shareholder hereby confirms, that the WYOI Shares to be received by
the Company Shareholder are being acquired pursuant to this
Agreement for investment and not with a view to the public resale
or distribution thereof unless pursuant to an effective
registration statement or exemption under the Securities
Act.
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(c)
No Public Solicitation . The Company Shareholder is
acquiring the WYOI Shares after private negotiation and has not
been attracted to the acquisition of the WYOI Shares by any press
release, advertising or publication.
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(d)
Access to Information . The Company Shareholder acknowledges
having received and reviewed WYOI’s Annual Report on Form
10-KSB for the year ended February 29, 2004 (“ 2004
Annual Report ”) and the reports filed by WYOI
with the Securities and Exchange Commission (
“SEC” ) subsequent thereto (collectively the
“ SEC Reports ”).
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(e)
Investor Solicitation and Ability to Bear Risk to Loss . The
Company Shareholder, if a corporation or a partnership, has not
been organized for the purpose of acquiring the WYOI Shares. The
Company Shareholder acknowledges that it is able to protect its
interests in connection with the acquisition of the WYOI Shares and
can bear the economic risk of investment in such securities without
producing a material adverse change in the Company
Shareholder’s financial condition. The Company Shareholder
otherwise has such knowledge and experience in financial or
business matters that the Company Shareholder is capable of
evaluating the merits and risks of the investment in the WYOI
Shares.
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(f)
Accredited Investor Status . The Company Shareholder is an
“accredited investor” as that term is defined in
Regulation D promulgated under the Securities Act.
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3.4
No “Bad Boy”
Disqualificatio n. To the Company Shareholder’s
knowledge, none of the officers or directors of the Company or its
significant subsidiaries would be subject to the disqualification
under Rule 262 of the Securities Act and no individual nominated to
be an officer or director of WYOIwould be subject to such
disqualification if the Company were to rely on the exemption from
registration under Regulation A of the Securities Act.
3.5
US Securities Disclosures.
The Company Shareholders understand that their names, address and
other detailed information must be disclosed to the SEC under
applicable laws and regulations and have discussed these
requirements with their legal counsel.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF WYOI
WYOI represents
and warrants to the Company and the Company Shareholders as
follows:
4.1
Disclosure Schedule . The
disclosure schedule attached hereto as Exhibit 4.1 (the
“WYOI Disclosure Schedule” ) is divided into
sections that correspond to the sections of this Article 4. The
WYOI Disclosure Schedule comprises a list of all exceptions to the
truth and accuracy of, and of all disclosures or descriptions
required by, the representations and warranties set forth in the
remaining sections of this Article 4.
4.2
Corporate Organization, Standing
and Power . WYOI is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Wyoming. WYOI has all corporate power and authority to own its
properties and to carry on its business as now being conducted and
is duly qualified to do business and is in good standing in each
jurisdiction in which the failure to be so qualified would have a
Material Adverse Effect on WYOI. Except as set forth in the WYOI
Disclosure Schedule, WYOI does not own or control any capital stock
of any corporation or any interest in any partnership, joint
venture or other entity (all such
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entities
together with WYOI referred to hereinafter as the
“WYOI Corporations” and each individually
as a “WYOI Corporation”).
4.3
Authorization . WYOI has all
the requisite corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated herein.
The Board of Directors of WYOI has taken all action required by
law, its articles of incorporation and bylaws or otherwise to
authorize the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein. This
Agreement is the valid and binding legal obligation of WYOI
enforceable against WYOI in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws that affect
creditors’ rights generally.
4.4
Capitalization . Recital B
accurately reflects authorized capital of WYOI and the total number
of outstanding shares of WYOI Common Stock and WYOI Preferred
Stock. All issued and outstanding shares of WYOI Common Stock are
duly authorized, validly issued, fully paid and nonassessable and
are without, and were not issued in violation of, preemptive
rights. Except as set forth in the WYOI Disclosure Schedule, there
are no subscriptions, options, warrants, calls, rights, contracts,
agreements, commitments, understandings or arrangements to which
WYOI is a party, or by which it is bound, with respect to the
issuance, sale, delivery or transfer of the capital securities of
WYOI, including any right of conversion or exchange under any
security or other instrument.
4.5
Non-Contravention . Neither
the execution, delivery and performance of this Agreement nor the
consummation of the transactions contemplated herein
will:
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(a)
violate any provision of the articles of incorporation or bylaws of
WYOI;
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(b)
be in conflict with, or constitute a default, however defined (or
an event which, with the giving of due notice or lapse of time, or
both, would constitute such a default), under, or cause or permit
the acceleration of the maturity of, or give rise to, any right of
termination, cancellation, imposition of fees or penalties under,
any debt, note, bond, lease, mortgage, indenture, license,
obligation, contract, commitment, franchise, permit, instrument or
other agreement or obligation to which any WYOI Corporation is a
party or by which any WYOI Corporation or any of their respective
properties or assets is or may be bound;
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(c)
result in the creation or imposition of any Encumbrance upon any
property or assets of any WYOI Corporation under any debt,
obligation, contract, agreement or commitment to which any WYOI
Corporation is a party or by which any WYOI Corporation or any of
their respective assets or properties is or may be bound;
or
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(d)
violate any Law of any Authority.
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4.6
Consents and Approvals . No
Consent is required by any person or entity, including without
limitation any Authority, in connection with the execution,
delivery and performance by WYOI of this Agreement, or the
consummation of the transactions contemplated herein, other than
any Consent which, if not made or obtained, will not, individually
or in the aggregate, have a Material Adverse Effect on the business
of any WYOI Corporation.
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4.7
Valid Issuance . The WYOI
Common Stock to be issued in connection with this Agreement has
been duly autho
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