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Exhibit 10.1
SHARE EXCHANGE AGREEMENT
AND
PLAN OF REORGANIZATION
This
SHARE EXCHANGE AGREEMENT AND PLAN OF REORGANIZATION is made
and entered into as of October 15, 2007, by and among Rhino
Outdoor International, Inc., a Nevada corporation
(“RHINO”) ; Yama Buggy Sales and
Distribution, Inc., a Nevada corporation
(“YAMABUGGY” ); and Yamabuggy, LLC, a
Delaware limited liability company, which is executing this
Agreement as Shareholder of Yamabuggy, sometimes collectively
referred to as the “Shareholder.
”
R E C I T A L S
A. Yama
Buggy and Shareholder have entered into a Sales and
Distribution Agreement executed as of
October 3, 2007 pursuant to which Yama Buggy has the
exclusive right to solicit and obtain orders for the products
of Shareholder.
B. Rhino
desires to acquire all of the outstanding shares of capital
stock of Yama Buggy in exchange for shares of capital stock of
Rhino (“Exchange ”).
C. The
Shareholder owns 100% of the issued and outstanding shares of
Yama Buggy and desire to exchange those shares for shares of
common stock of Rhino.
D. Rhino,
YamaBuggy and the Shareholder desire to make certain
representations and warranties and other agreements in
connection with the Exchange.
E. The
parties intend, by executing this Agreement, to adopt a plan
of reorganization within the meaning of Section 368 of
the Internal Revenue Code of 1986, as amended
(“Code” ), and to cause the Exchange to
qualify as a reorganization under the provisions of
Section 368 of the Code.
NOW,
THEREFORE, in consideration of the covenants and
representations set forth herein, and for other good and
valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
THE EXCHANGE
1.1.
Exchange of Shares/Common Stock Purchase
Warrants .
(a) Concurrently
with the execution of this Agreement, the Shareholder is
assigning, transferring contributing and delivering to Rhino
100% of the issued and outstanding shares of capital stock of
Yama Buggy ( “Yama Buggy Shares
”).
Share Exchange Agreement and Plan of Reorganization- Page
1
Concurrently
with the execution of this Agreement, Rhino is issuing to the
Shareholder Ten Million (10,000,000) shares of Rhino Common
Stock (“Rhino Shares”) .
(b) Upon
the consummation of the exchange of shares described in this
Section 1.1, the Rhino and Rhino shall execute and file
Articles of Exchange with Nevada Secretary of State. It is
intended by the parties hereto that the Exchange shall
constitute a reorganization within the meaning of
Section 368 of the Code.
(c) In
addition to the issuance of the Rhino Shares, Rhino shall
issue to Shareholder the Rhino Common Stock Purchase Warrant
in the form attached hereto as Exhibit 1.1(c)
(“Warrant”) .
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF YAMA
BUGGY
In
this Agreement, any reference to any event, change, condition
or effect being “material” with respect to any
person means any material event, change, condition or effect
related to the condition, financial or otherwise, properties,
assets, including intangible assets, liabilities, business,
operations or results of operations of such person and its
subsidiaries, taken as a whole. In this Agreement, any
reference to a “Material Adverse Effect”
with respect to any person means any event, change or effect
that is materially adverse to the condition, financial or
otherwise, properties, assets, liabilities, business,
operations or results of operations of such
person.
In
this Agreement, any reference to a party’s
“knowledge” means such party’s actual
knowledge after reasonable inquiry of executive officers and
directors.
Except
as disclosed in the Disclosure Schedule delivered by Yama
Buggy to Rhino prior to the execution and delivery of this
Agreement (“Yama Buggy Disclosure
Schedule”) corresponding to the Section of this
Agreement to which any of the following representations and
warranties specifically relate or as disclosed in another
section of the Yama Buggy Disclosure Schedule if it is
reasonably apparent from the nature of the disclosure that it
is applicable to another Section of this Agreement, Yama Buggy
represents and warrants to Rhino as follows:
2.1
Organization, Standing and Power .
Yama Buggy is a corporation duly organized, validly existing
and in good standing under the laws of Nevada. Yama Buggy has
the power to own its properties and to carry on its business
as now being conducted and as presently proposed to be
conducted and is duly authorized and qualified to do business
and is in good standing in each jurisdiction in which the
failure to be so qualified and in good standing would have a
Material Adverse Effect on Yama Buggy. Yama Buggy
has delivered or made available to Rhino a true and correct
copy of the Articles of Incorporation (“Articles of
Incorporation”) , and the Bylaws, or other charter
documents, as applicable, of Yama Buggy, as amended to
date.
Share Exchange Agreement and Plan of Reorganization- Page
2
Yama
Buggy is not in violation of any of the provisions of its
bylaws or equivalent organization documents.
2.2
Capital Structure . The authorized
capital stock of Yama Buggy consists of 1,000,000 shares of
common stock. There are no other outstanding shares of capital
stock or voting securities and no outstanding commitments to
issue any shares of capital stock or voting securities after
the date hereof. All outstanding shares of Yama Buggy Common
Stock are duly authorized, validly issued, fully paid and
non-assessable and are free of any liens or encumbrances other
than any liens or encumbrances created by or imposed upon the
holders thereof, and are not subject to preemptive rights or
rights of first refusal created by statute, the Articles of
Incorporation or Bylaws of Yama Buggy or any agreement to
which Yama Buggy is a party or by which it is bound. Except as
described above, there are no other options, warrants, calls,
rights, commitments or agreements of any character to which
Yama Buggy is a party or by which it is bound obligating Yama
Buggy to issue, deliver, sell, repurchase or redeem, or cause
to be issued, delivered, sold, repurchased or redeemed, any
shares of capital stock of Yama Buggy or obligating Yama Buggy
to grant, extend, accelerate the vesting and/or repurchase
rights of, change the price of, or otherwise amend or enter
into any such option, warrant, call, right, commitment or
agreement. There are no contracts, commitments or agreements
relating to voting, purchase or sale of Yama Buggy capital
stock (i) between or among Yama Buggy and any of
Shareholder and (ii) to the best knowledge of Yama
Buggy between or among any of the Shareholder. There are no
dividends or other amounts due or payable with respect to any
of the shares of capital stock of Yama Buggy..
2.3
Authority . Yama Buggy has all
requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated
hereby, subject to the execution and delivery of this
Agreement by each of the Shareholder. The execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of Yama Buggy. This
Agreement has been duly executed and delivered by Yama Buggy
and constitutes the valid and binding obligation of Yama Buggy
enforceable against Yama Buggy in accordance with its terms,
except as enforceability may be limited by bankruptcy and
other laws affecting the rights and remedies of creditors
generally and general principles of equity. The execution and
delivery of this Agreement by Yama Buggy does not, and the
consummation of the transactions contemplated hereby will not,
conflict with, or result in any violation of, or default
under, with or without notice or lapse of time, or both, or
give rise to a right of termination, cancellation or
acceleration of any obligation or loss of any benefit under
(i) any provision of the Articles of Incorporation or Bylaws
of Yama Buggy, as amended, or (ii) any material mortgage,
indenture, lease, contract or other agreement or instrument,
permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable
to Yama Buggy or any of its properties or assets, except where
such conflict, violation, default, termination, cancellation
or acceleration with respect to the foregoing provisions of
(ii) could not have had and could not reasonably be expected
to have a Material Adverse Effect on Yama Buggy.
Share Exchange Agreement and Plan of Reorganization- Page
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No
consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency
or commission or other governmental authority or
instrumentality (“Governmental Entity”)
is required by or with respect to Yama Buggy in connection
with the execution and delivery of this Agreement, or the
consummation of the transactions contemplated hereby and
thereby, except for (i) the filing of the Articles of Exchange
as provided in Section 1.1 of this Agreement;
(ii) such consents, approvals, orders, authorizations,
registrations, declarations and filings as may be required
under applicable state securities laws and the securities laws
of any foreign country; and (iii) such other consents,
authorizations, filings, approvals and registrations which, if
not obtained or made, would not have a Material Adverse Effect
on Yama Buggy and would not prevent, or materially alter or
delay any of the transactions contemplated by this
Agreement.
2.4
Litigation . There is no private or
governmental action, suit, proceeding, claim, arbitration,
audit or investigation pending before any agency, court or
tribunal, foreign or domestic, or, to the knowledge of Yama
Buggy, threatened against Yama Buggy or any of its properties
or any of its officers or directors, in their capacities as
such, that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect on
Yama Buggy. There is no injunction, judgment, decree, order
or regulatory restriction imposed upon Yama Buggy or any of
its assets or business, or, to the knowledge of Yama Buggy,
any of its directors or officers, in their capacities as
such, that would prevent, enjoin, alter or materially delay
any of the transactions contemplated by this Agreement, or
that could reasonably be expected to have a Material Adverse
Effect on Yama Buggy.
2.5
Restrictions on Business Activities .
There is no agreement, judgment, injunction, order or decree
binding upon Yama Buggy to which has or reasonably could be
expected to have the effect of prohibiting or materially
impairing any business practice of Yama Buggy, any acquisition
of property by Yama Buggy or the conduct of business by Yama
Buggy.
2.6
Governmental Authorization . To the
knowledge of Yama Buggy, it has obtained each federal, state,
county, local or foreign governmental consent, license,
permit, grant, or other authorization of a Governmental Entity
(i) pursuant to which Yama Buggy currently operates or holds
any interest in any of its properties or (ii) that is required
for the operation of its business or the holding of any such
interest, (“Yama Buggy Authorizations”) ,
and all of such Yama Buggy Authorizations are in full force
and effect, except where the failure to obtain or have any of
such Yama Buggy Authorizations or where the failure of such
Yama Buggy Authorizations to be in full force and effect could
not reasonably be expected to have a Material Adverse Effect
on Yama Buggy.
Share Exchange Agreement and Plan of Reorganization- Page
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2.7
Title to Property . Yama
Buggy has good and valid title to all of its properties,
interests in properties and assets, real and personal,
except leased properties and assets, valid
leasehold interests in, free and clear of all mortgages,
liens, pledges, charges or encumbrances of any kind or
character, except (i) the lien of current taxes not yet due
and payable, (ii) such imperfections of title, liens and
easements as do not and will not materially detract from or
interfere with the use of the properties subject thereto or
affected thereby, or otherwise materially impair business
operations involving such properties, (iii) liens securing
debt, and (iv) liens that in the aggregate would not have a
Material Adverse Effect on Yama Buggy. To the knowledge of
Yama Buggy, the plants, property and equipment of Yama Buggy
that are used in the operations of its business are in good
operating condition and repair, except where the failure to be
in good operating condition or repair would not have a
Material Adverse Effect.
2.8
Compliance With Laws . To its
knowledge, Yama Buggy has complied with, is not in violation
of, and Yama Buggy has not received any notices of violation
with respect to, any federal, state, local or foreign statute,
law or regulation with respect to the conduct of its business,
or the ownership or operation of its business, except for such
violations or failures to comply as could not be reasonably
expected to have a Material Adverse Effect on Yama
Buggy.
2.9
Minute Books . The minute books of
Yama Buggy have been made available to Rhino contain in all
material respects a complete and accurate summary of all
meetings of directors and stockholders or actions by written
consent of Yama Buggy from the date if inception through the
date of this Agreement, and reflect all transactions referred
to in such minutes accurately in all material
respects.
2.10
Brokers’ and Finders’ Fees
. Yama Buggy has not incurred, nor will it incur, directly or
indirectly, any liability for brokerage or finders’ fees
or agents’ commissions or investment bankers’ fees
or any similar charges in connection with this Agreement or
any transaction contemplated hereby.
2.11
Information . The information
concerning Yama Buggy set forth in Section 2 of this
Agreement is complete and accurate in all material respects
and does not contain any untrue statement of a material fact
or omit to state a material fact required to make the
statements made, in light of the circumstances under which
they were made, not misleading.
Share Exchange Agreement and Plan of Reorganization- Page
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
RHINO
Except
as disclosed in the Disclosure Schedule delivered by Rhino to
Yama Buggy and Shareholder prior to the execution and delivery
of this Agreement (“Rhino Disclosure
Schedule” ) corresponding to the Section of this
Agreement to which any of the following representations and
warranties specifically relate or as disclosed in another
section of the Rhino Disclosure Schedule if it is reasonably
apparent on the face of the disclosure that it is applicable
to another Section of this Agreement, Rhino represents and
warrants to Yama Buggy as follows:
3.1
Organization, Standing and Power .
Rhino is a corporation duly organized, validly existing and in
good standing under the laws of Nevada. Rhino has the
corporate power to own its properties and to carry on its
business as now being conducted and as proposed to be
conducted and is duly qualified to do business and is in good
standing in each jurisdiction in which the failure to be so
qualified and in good standing would have a Material Adverse
Effect on Rhino. Rhino has delivered or made available to
Rhino a true and correct copy of the Certificate of
Incorporation, and the Bylaws, or other charter documents, as
applicable, of Rhino, each as amended to date. Rhino is not in
violation of any of the provisions of its Certificate of
Incorporation or Bylaws or equivalent organizational
documents. Rhino does not directly or indirectly own any
equity or similar interest in, or any interest convertible or
exchangeable or exercisable for, any equity or similar
interest in, any corporation, partnership, joint venture or
other business association or entity. Rhino has no committees
of its Board of Directors, charters, codes of conduct or
ethics, or similar policies.
3.2
Capital Structure . The authorized
capital stock of Rhino consists of 500,000,000 shares of Rhino
Common Stock, and 5,000,000 shares of preferred stock, $0.001
par value (“Rhino Preferred ”). There are
issued and outstanding, as of the date hereof, 86,455,000
shares of Rhino Series A Common Stock, no shares of Rhino
Series B Common Stock, 950,000 shares of Series A Rhino
Preferred, 1,000,000 shares of Series B Rhino Preferred and
2,650,000 shares of Series C Rhino Preferred. The shares of
Rhino Stock to be issued pursuant to the provisions of this
Agreement will be duly authorized, validly issued, fully paid,
and non-assessable, free of any liens or encumbrances, and
will be issued in full compliance with all applicable federal
and state securities laws. There are no other outstanding
shares of capital stock or voting securities and no
outstanding commitments to issue any shares of capital stock
or voting securities after the date hereof. All outstanding
shares of Rhino Common Stock and Rhino Preferred Stock are
duly authorized, validly issued, fully paid and non-assessable
and are free of any liens or encumbra
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