AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization ("the
Agreement"), dated as of August 25, 1998 by and among C/Grip:
Inc., an Oklahoma corporation ("C/GRIP"); Green. River Coal,
Inc., a. Nevada Corporation ("Green River"); and the shareholders
of Green River ("Shareholders"), who execute this Agreement and
the Purchase Agreement set forth as Exhibit A of this Agreement,
with reference to the following:
A. C/GRIP is an Oklahoma corporation organized on April
7, 1987. C/GRIP has authorized common stock of 40 million shares,
$0.001 par value, of which 1,841,583 shares are outstanding, and
10 million shares of preferred stock, $0.001 par value, of which
no shares are outstanding.
▇. ▇▇▇▇▇ River is a Nevada Corporation organized on
October 22, 1990. Green River has authorized common stock of
100,000 shares, no par value, of which 100,000 shares are
outstanding.
C. The respective Boards of Directors of' C/GRIP and Green
River have deemed. it advisable and in the best interests of
C/GRJP and Green River that Green River be acquired by C/GRIP
pursuant to the terms and conditions set forth in this Agreement.
D. C/GRIP and Green River propose to enter into this
Agreement which provides, among other things, that 100% of the
outstanding shares of Green River be acquired by C/GRIP, in
exchange for shares of C/GRIP and such additional items, all as
more fully described in the Agreement.
E. The parties desire the transaction to qualify as a
tax-free reorganization under Section 368 (a)(1)(13) of the
Internal Revenue Code of 1986, as amended,
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
THE ACQUISITION
1.01 At the Closing, a total of 100,000 common shares, which
represents 100% of the outstanding shares of Green River, shall
be acquired by C/GRIP in exchange for 1.3,21.6,448 investment
shares of C/GRIP, which shall be issued to Green River
shareholders as set forth on the signature page of this
Agreement.
1.02 At the Closing, the Green River shareholders will
deliver certificates for the outstanding shares of Green River,
duly endorsed so as to make C/GRIP the sole holder thereof, free
and clear of all claims and encumbrances and C/GRIP shall deliver
a transmittal letter directed to the transfer agent of C/GRIP
directing tile issuance of shares to the shareholders of Green
River as set forth on the signature page of this Agreement,
1.03Following the reorganization, there will be a total of
15,058,031 shares of common stock, $0,001 par value, issued and
outstanding in C/GRIP,
ARTICLE 2
THE CLOSING
2.01The consummation of the transactions contemplated by
this Agreement (the "Closing") shall take place in the offices of
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ at 11:00 a.m., on
September 15, 1998 or at such other place or date and time as may
be agreed to in writing by the parties hereto.
ARTICLE 3
REPRESENTATION AND WARRANTIES OF C/GRIP
C/GRIP mid its officers and directors hereby represent and
warrant to Green River as follows:
3.01C/GRIP shall deliver to Green River, on or before
Closing, each of the following:
(a) Financial Statement Audited financial statements
of C/GRIP including, but not limited to, balance sheets and
profit and loss statements as of July 31, 1998. (Schedule A).
(b) Property. An accurate list and description of all
property, real or personal, owned by C/G1UP of a value equal to
or greater than $10,000. (Schedule B),
(c) Liens and Liabilities. A complete and accurate
list of all material liens, encumbrances, easements, security
interests or similar interests in or on any of the assets listed
oil Schedule A. (Schedule C), A complete and accurate list of all
debts, liabilities and obligations of C/GRIP incurred or owing as
of the date of this Agreement. (Schedule C. 1).
(d) Leases and Contracts A complete and accurate list
describing all material terms of each lease (whether of real or
personal property) and each contract, promissory note, mortgage,
license, franchise, or other written agreement to which C/GRIP is
a party which involves or can reasonably be expected to involve
aggregate future payments or receipts by C/GRIP (whether by the
terms of such lease, contract, promissory note, license,
franchise or other written agreement or as a result of a
guarantee of the payment of or indemnity against the failure to
pay same) of $1,000.00 or more annually during the twelve-month
period ended July 31, 1998, or any consecutive twelve-month
period thereafter, except any of said instruments which terminate
Or are cancelable without penalty during such twelve-month
period. (Schedule D).
(e) Loan Agreements. Complete and accurate Copies Of
all loan agreements and other documents with, respect to
obligations of C/GRIP for the repayment of borrowed money.
(Schedule E).
(f) Consents Required.. A complete list of all
agreements wherein consent to the transaction herein contemplated
is required to avoid a default hereunder; or where notice of such
transaction is required at or subsequent to closing, or where
consent to an acquisition., consolidation, or sale of all or
substantially all of the assets is required to avoid a default
thereunder. (Schedule F).
(g) Articles and Bylaws. Complete and accurate copies
of the Certificate and Articles of Incorporation and Bylaws of
C/GRIP together with all amendments thereto to the date hereof.
(Schedule G).
(h) Shareholders. A complete list of all persons or
entities holding capital stock of C/GRIP or any rights to
subscribe for, acquire, or receive shares of the capital stock
of C/GRIP (whether warrants, calls, options, or conversion
rights), including copies of all stock option plans whether
qualified or non qualified, and other similar agreements.
(Schedule H).
(i). Officers and Directors. A complete and current
list of all officers and Directors of C/GRIP. (Schedule 1).
(j). Salary Schedule. A complete and accurate list
(in all material respects) of the names and the current salary
rate for each present employee of C/GRIP who received $10,000 or
more in aggregate compensation from C/GRIP whether in salary,
bonus or otherwise, during the year 1997, or who is presently
scheduled to receive from C/GRIP a salary in excess of $10,000
during the year December 31, 1998, including in each case the
amount of compensation received or scheduled to be received, and
a schedule of the hourly rates of all other employees listed
according to departments. (Schedule 3).
(k) Litigation. A complete and accurate list (in all
material respects) of all material civil, criminal,
administrative, arbitration or other such proceedings or
investigations (including without limitations unfair labor
practice matters, labor organization activities, environmental
matters and civil rights violations) pending or, to the knowledge
of C/GRIP threatened, which may materially and adversely affect
C/GRIP. (Schedule K).
(1) Tax Returns. Accurate copies of all Federal and
State tax returns for C/GRIP for the last fiscal year. (Schedule
1").
(m) Agency Reports. Copies of all material reports or
filings (and a list of the categories of reports or filings made
on a regular basis) made by C/GRIP under ERISA, EEOC, FDA and all
other governmental agencies (federal, state or local) during the
last fiscal year. (Schedule M).
(n) Ranks. A true and complete list (in all material
respects), as of the date of this Agreement, showing (1) the name
of each bank in which C/GRIP has an account or safe deposit box,
and (2.) the names and addresses of all signatories. (Schedule
N).
(o) Jurisdiction Where Qualified. A. list of all
jurisdictions wherein C/GRIP is qualified to do business and is
in good standing. (Schedule 0).
(p) Subsidiaries. A complete list of all subsidiaries
of C/GRIP, (Schedule P). The term "Subsidiary" or "Subsidiaries"
shall include corporations, unincorporated associations,
partnerships, joint ventures, or similar entities in which C/GRIP
has an interest, direct. or indirect.
(q) Union Matters. An accurate list and description
(in all material respects) of all, union contracts and collective
bargaining agreements of C/GRIP, if any. (Schedule Q).
(r) Employee and Consultant Contract. A complete and
accurate list of all employee and consultant contracts which
C/GRIP may have, other than those listed in the schedule on Union
Matters. (Schedule R).
(s) Employee Benefit Plans. Complete and accurate
copies of all salary, stock option, bonus, incentive
compensation, deferred compensation, profit sharing, retirement,
pension, group insurance, disability, death benefit or other
benefit plans, trust agreements or arrangements of C/GRIP in
effect on the date hereof or to become effective after the date
thereof, together with Copies of any determination letters issued
by the Internal Revenue Service with respect thereto, (Schedule
S).
3.02 Organization, Standing and Power. C/GRIP is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Oklahoma with all requisite
corporate power to own or lease its properties and carry on its
businesses as are now being conducted.
3.03 Qualification. C/GRIP is not qualified and is not
licensed as a foreign corporation.
3.04 Capitalization of C/GRIP. The authorized capital stock
of' C/GRJP consists of 40 million shares of Common Stock, $0.001
par value, of which the, only shares issued and outstanding are
1,841,583 issued to shareholders listed on Schedule H as of the
date thereof, which shares were duly authorized, validly issued
and fully paid and, non assessable. There are no preferred shares
currently outstanding. There are no preemptive rights with
respect to the C/GRIP stock.
3.05 Authority. The execution and delivery of this
Agreement and consummation of the transactions contemplated
herein have been duly authorized by all necessary corporate
action, including but not limited to duly and validly authorized
action and approval by the Board of Directors, on the part of
C/GRI.P. This Agreement constitutes the valid and binding
obligation of C/Cj]RJP enforceable against it in accordance with
its terms, subject to the principles of equity applicable to the
availability of the remedy of specific performance. This
Agreement has been duly executed by C/GRIP and the execution and
transactions contemplated by this Agreement shall not result in
any breach of any terms or provisions of C/GRIP's Certificate and
Articles of Incorporation or Bylaws or of any other agreement,
court order or instrument to which C/GRIP is a party or bound by.
3.06 Absence of Undisclosed Liabilities. C/GRIP has no
material liabilities of any nature, whether fixed, absolute,
contingent or accrued, which were not reflected on the financial
statements set forth in Schedule A nor otherwise disclosed in
this Agreement or any of the Schedules or Exhibits attached
hereto.
3.07 Absence of Changes. Since July 31, 1998, there has not
been any material adverse change in the condition (financial or
otherwise), assets, liabilities, earnings or business of C/GRIP,
except for changes resulting from completion of those
transactions described in. Section. 5.01.
3.08 Tax Matters. All taxes and other assessments and
levies which C/GRIP is required by law to withhold or to collect
have been duly withheld and collected, and have been paid over to
the proper government authorities or are held by C/GRIP in
separate bank accounts for such payment or are represented by
depository receipts, and all such withholdings and collections
and all other payments due in connection therewith (including,
without. limitation, employment taxes, both the employees' and
employees share) have been paid over to the government or placed
in a separate and segregated bank account for such purpose. There
are no known deficiencies in income taxes for any periods and
further, the representations and warranties as to the absence of
undisclosed liabilities contained in Section 3,06 includes any
and all tax liabilities of whatsoever kind or nature (including,
without limitation, all federal, state, local and foreign income,
profit, franchise, sales, use and property taxes) due or to
become due, incurred in respect of' or measured by C/GRIP income
or business prior to the Closing Date.
3.09 Options, Warrants, ect. Except as otherwise described
in Schedule H, there are no outstanding options, warrants, calls,
commitments or agreements of any character to which C/GRIP or its
shareholders are a party or by which C/GRIP or its shareholders
are bound, or are a party, calling for the issuance of shares of
capital stock of C/GRIP or any securities representing the right
to purchase or otherwise receive any such. capital. stock of
C/GRIP.
3.10 Title to Assets. Except for liens set forth in
Schedule C, C/GRIP is the sole and unconditional owner of, with
good and marketable title to, all the assets listed in the
schedules as owned by them and all other property and assets are
free and clear of all mortgages, liens, pledges, charges or
encumbrances of any nature whatsoever; provided, however, that
C/GRIP has authorized the distribution to its shareholders of
record as of September 1.5, 1998 of the 1,841,583 shares of
common stock of Advanced Concept Technologies, Inc. listed on
Schedule P.
3.11 Agreements in Force and Effect. Except as set forth in
Schedules D and E, all material contracts, agreements., plans,
promissory notes, mortgages, leases, policies, licenses, valid
and in full force and effect on the date hereof, and C/GRIP has
not breached any material provision of, and is not in default in
any material respect under the terms of, any such contract,
agreement, plan, promissory note, mortgage, lease, policy,
license, franchise or similar instrument which breach or default
would have a material adverse effect upon the business.,
operations or financial condition of C/GRIP.
3.12 Legal Proceedings, Ect. Except as set forth in
Schedule K, there are no civil, criminal, administrative,
arbitration or other such proceedings or investigations pending
or, to the knowledge of either C/GRIP or the shareholders
thereof, threatened, in which., individually or in the aggregate,
an adverse determination would materially and adversely affect
the assets, properties, business or income of C/GRIP, C/GRIP has
substantially complied with, and is not in default in any
material respect under, any laws, ordinances, requirements,
regulations or orders applicable to its businesses.
3.13Governmental Regulation. To the knowledge of c/GRIP
and except as set forth in Schedule K, C/GRIP is not in violation
of or in default with respect to any applicable law or ally
applicable rule, regulation, order, writ or decree of any court
or any governmental commission, board, bureau, agency or
instrumentality, or delinquent with respect to any report
required to be filed with any governmental commission, board,
bureau, agency or instrumentality which violation or default
could have a material adverse effect upon the business,
operations or financial condition of C/GRIP.
3.14Brokers and Finders. C/GRIP shall be solely
responsible for payment to any broker or finder retained by
C/GRIP for any brokerage fees, commissions or finders' fees in
connection with the transactions contemplated herein.
3.15 Accuracy of Information. 'No representation or warranty by
C/GRIP contained in this Agreement and no statement contained in
any certificate or other instrument delivered or to be delivered
to Green River pursuant hereto or in connection with the
transactions contemplated hereby (including without limitation
all Schedules and exhibits hereto) contains or will contain any
untrue statement of material fact or omits or will omit to state
any material fact necessary in order to make the statements
contained herein or therein not misleading.
3.16 Subsidiaries. C/GRIP does not have any other subsidiaries
or own capital stock representing ten percent (10%) or more of
the issued and outstanding stock of any other corporation.
3.17 Consents. Except as listed in Schedule F, no consent or
approval of, or registration, qualification or filing with, any
governmental authority or other person is required to be obtained
or accomplished by C/GRIP or any shareholder thereof in
connection with the consummation of the transactions contemplated
hereby.
3.18Improper Payments. Neither C/GRIP, nor any person
acting on behalf of C/GRIP has made any payment or otherwise
transmitted anything of value, directly or indirectly, to (a) any
official or any government or agency or political subdivision
thereof for the purpose of influencing any decision affecting the
business of C/GRIP (b) any customer, supplier of competitor of
C/GRIP or employee of such customer, supplier or competitor, for
the purpose of obtaining, retaining C/GRIP's existing business
for C/GRIP or (c) any political party or any candidate for
elective political office nor has any fund or other asset of
C/GRIP been maintained that -was not fully and accurately
recorded on the books of account of C/GRIP,
3.19Copies of Documents. C/GRIP has made available for
inspection and copying by Green. River and its duly authorized
representatives, and will continue to do so at. all times, true
and correct copies of all documents which it has filed with the
Securities and Exchange Commission and all other governmental
agencies which are material to the terms and conditions contained
in. this Agreement. Furthermore, all filings by C/GRIP with the
Securities and Exchange Commission, and all other governmental
agencies, including but not limited to the Internal Revenue
Service, have contained information which is true and correct, to
the best knowledge of the Board of Directors of C/GRIP, in all
material respects and did not contain any untrue statement of any
material fact or omit to state any material fact necessary to
make the statements made therein not misleading or which could
have any material adverse effect upon the financial condition or
operations of C/GRIP or adversely effect the objectives of this
Agreement with respect to Green River including, but not limited
to, the issuance and subsequent trading of the shares of common
stock of C/GRIP to be received hereby, subject to compliance by
the shareholders of Green River with applicable law. C/GYRIP has
filed with the Securities and Exchange Commission and each state
securities regulator, or a timely basis, all statements,
applications, reports and filings required under the Securities
Act of '1933 and the Exchange Act of 1934, as amended.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
GREEN RIVER COAL,INC.,
Green River and its president hereby represent and warrant
to C/GRIP as follows:
4.01 Green River shall deliver to C/GRIP, on or before
Closing, the following:
(a) Financial Statements. Audited financial statements
of Green River as of May 1., 1.998. (Schedule AA).
(b) Property. An accurate list and description of all
property, real or personal., owned by Green River of a value
equal to or greater than $1,000.00. (Schedule BB).
(c) Liens and Liabilities. A complete and accurate
list of all material liens, encumbrances, easements, security
interests or similar interests in or on any of the assets listed
on Schedule AA. (Schedule CC). A complete and accurate list of
all debts, liabilities and obligations of Green. River incurred
or owing as of the date of this Agreement. (Schedule CC. 1).
(d) Leases and Contracts. A complete and accurate
list describing all material terms of each lease (whether of real
or personal property) and each contract, promissory note,
mortgage, license, franchise, or other written agreement to which
Green River is a party which involves or can reasonably be
expected to involve aggregate future payments or receipts by
Green. River (whether by the terms of such lease, contract,
promissory note, license, franchise or other written agreement or
as a result of a guarantee of the payment of or indemnity against
the failure to pay same) of $1,000,00 or more annually during the
twelve-month period ended December 31, 1997, or any consecutive
twelve-month period thereafter, except any of said instruments
which terminate or are cancelable without penalty during such
twelve-month period. (Schedule DD).
(e) Loan Agreements. Complete and accurate copies of
all loan agreements and other documents with respect to
obligations of Green River for the repayment of borrowed money.
(Schedule EE).
(f) Consents Required A complete list of all
agreements wherein consent to the transaction herein contemplated
is required to avoid a default hereunder; or where notice of such
transaction is required at or subsequent to closing, or where
consent to an acquisition, consolidation, or sale of all or
substantially all of the assets is required to avoid a default
thereunder. (Schedule FF).
(g) Articles and Bylaws. Complete and accurate copies
of the Certificate and Articles of Incorporation and Bylaws of
Green River together with all amendments thereto to the date
hereof (Schedule GG).
(h) Shareholders. A complete list of all. persons or
entities holding capital stock of Green River or any rights to
subscribe for, acquire, Or receive shares of the capital stock of
Green River (whether warrants, calls, options, or conversion
rights), including copies of all stock option plans whether
qualified or non qualified, and other similar agreements.
(Schedule HH).
(i). Officers and Directors. A complete and current
list of all officers and Directors of Green River, (Schedule 11).
(j) Salary Schedule A complete and accurate list (in
all material respects) of the names and the current salary rate
for each present employee of Green River who received $10,000 or
more in aggregate compensation from Green River whether in
salary, bonus or otherwise, during the year 1997, or who is
presently scheduled to receive from Green River a salary in
excess of $10,000 during the year ending December 31, 1998,
including in each case the amount of compensation received or
scheduled to be received, and a schedule of the hourly rates of
all other employees listed according to departments. (Schedule
JJ).
(k) Litigation. A complete and accurate list (in all
material respects) of all material civil, criminal,
administrative, arbitration or other such proceedings or
investigations (including without limitations unfair labor
practice matters, labor organization activities, environmental
matters and civil rights violations) pending or, to the knowledge
of Green River threatened, which may materially and adversely
affect Green River. (Schedule KK).
(1) Tax Returns. Accurate copies of all Federal and
State tax returns for Green River, if any. (Schedule LL).
(m) Agency Reports. Copies of all material reports or
filings (and a list of the categories of reports or filings made
on a regular basis) made by Green River under ERISA, EEOC, FDA
and all other governmental agencies (federal, state or
local).(Schedule MM).
(n) Banks. A true and complete list (in all material
respects), as of the (late of this Agreement, showing (1) the
name of each bank in which Green River has an account or safe
deposit box, and (2) the names and addresses of all signatories.
(Schedule NN).
(o) Jurisdictions where qualified. A list of all
jurisdictions wherein Green River is qualified to do business
and is in good standing. (Schedule 00).
(p) Subsidiaries. A complete list of all subsidiaries
of Green River (Schedule PP). The term "Subsidiary" or
"Subsidiaries" shall include corporations, unincorporated
associations, partnerships, joint ventures, or similar entities
in which Green River has an interest, direct or indirect.
(q) Union Matters. An accurate list and description
(in all material respects) of all union contracts and collective
bargaining agreements of Green River, if any. (Schedule QQ).
(r) Employee and Consultant Contracts. A complete and
accurate list of all employee and consultant contracts which
Green River may have, other than those listed in the schedule on
Union Matters. (Schedule RR).
(s) Employee Benefit Plans. Complete and accurate
copies of all salary, stock option, bonus, incentive
compensation, deferred compensation, profit sharing, retirement,
pension, group insurance, disability, death benefit or other
benefit plans, trust agreements or arrangements of Green River in
effect on the date hereof or to become effective after the date
thereof, together with copies of any determination letters issued
by the internal Revenue Service with respect thereto. (Schedule
SS).
(t) Insurance Policies. A complete and accurate list
(in all material respects) and description of all material
insurance policies naming Green River as an insured or
beneficiary or as a loss payable payee or for which Green River
has paid all. or part. of the premium in force on the date
hereof, specifying any notice or other information possessed by
Green River regarding possible claims thereunder, cancellation
thereof or premium increases thereon, including any policies now
in effect naming Green, River as beneficiary covering the
business activities. Of Green River. (Schedule TT),
(u) Licenses and Permits. A complete list of all
licenses, permits and other authorizations of Green River.
(Schedule VV)
4.02 Organization, Standing and Power. Green River is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada with all requisite
corporate power to own or lease its properties and. carry on its
businesses as is now being conducted.
4.03 Qualification Green River is qualified and is licensed
as a foreign corporation in the State of Utah.
4.04 Capitalization of Green River. The authorized
capital stock of Green River consists of 1.00,000 shares of
Common Stock, no par value, which shares are issued to
shareholders listed on Schedule 111-1, which shares were duly
authorized, validly issued and fully paid and non assessable.
There are no preemptive rights with respect to the Green. River
stock.
4.05 Authority. The execution and delivery of the Agreement
and consummation of the transactions contemplated herein have
been duly authorized by all necessary corporate action, including
but not limited to duly and validly authorized action and
approval by the board of Directors, on the part of Green River.
This Agreement constitutes the valid and binding obligations of
Green River enforceable against it in availability of the remedy
of specific performance. This Agreement has been duly executed
by Green River and the execution and transactions contemplated by
this Agreement shall not result in any breach of any terms or
provisions of Green River's Certificate and Articles of
Incorporation or Bylaws or of any other agreement, court order or
instrument to which Green River is a party or bound by.
4.06 Absence of Undisclosed Liabilities. Green River has no
material liabilities of any nature, whether fixed, absolute,
contingent or accrued, which not reflected on the financial
statements set forth in Schedule AA nor otherwise disclosed in
this Agreement or any of the Schedules or Exhibits attached
hereto.
4.07 Absence of Changes. Since May 1, 1998, there has not
been any material adverse change in the condition (financial or
other wise), assets, liabilities, earnings or business of Green
River, except for changes resulting from completion of those
transactions described in Section 5.01.
4.08 Tax Matters. All taxes and other assessments and
levies which Green River is required by taw to withhold or to
collect have been duly withheld and collected, and have been paid
over to the proper government authorities or are held by Green
River in. separate bank accounts for such payment or are
represented by depository receipts, and all such withholdings and
collections and all other payments due in connection therewith
(including, without limitation, employment taxes, both the
employees, and employees share) have been paid over to the
government or placed in a separate and segregated bank account
for such purpose, There are no known deficiencies in. income
taxes for any periods and further, the representations and
warranties as to the absence of undisclosed liabilities contained
in Section 4.06 includes any and all tax liabilities of
whatsoever kind or nature (including, without limitation, all
federal, state, local and foreign income, profit, franchise,
sales, use and property taxes) due or to become due, incurred in
respect of or measured by Green River income or business prior to
the Closing Date.
4.09 Options, Warrants, ect. Except as otherwise described
in Schedule HH, there are no outstanding options, warrants,
calls, commitments or agreements of any character to which Green.
River or its shareholders are a party or by which Green River or
its shareholders are bound, or are a party, calling for the
issuance of shares of capital stock of Green River or any
securities representing the right to purchase or otherwise
receive any such capital stock of Green River.
4.10 Title to Assets. Except for liens set forth in
Schedule CC, Green River is the sole and unconditional owner of',
with good and marketable title to, all the assets listed in the
schedules as owned by them and all other Property and assets are
free and clear of all mortgages, liens, pledges, charges or
encumbrances of any nature whatsoever.
4.11 Agreements in Force and Effect. Except as set forth in
Schedules DD and EE, all material contracts, agreements, plans,
Promissory notes, mortgages, leases, policies, licenses,
franchises or similar instruments to which Green River is a party
are valid and. in full force and effect on the date hereof, and
Green River has not breached any material provision of, and. is
not in default in any material respect under the terms of, any
such. contract, agreement, plan, promissory note, mortgage,
lease, policy, license franchise or similar instrument which
breach or default would have a material adverse effect upon the
business operations or financial condition of Green River.
4.12 Legal Proceedings,
Etc. Except as set forth in Schedule KK, there are no civil,
criminal, administrative, arbitration or other such proceedings
or investigations pending or, to the knowledge of either Green
River or the shareholders thereof, threatened, in which,
individually or in the aggregate, an adverse determination would
materially and adversely affect the Green River, properties,
business or income of Green River. Green River has substantially
complied with, and is not in default in any material respect
under, any laws, ordinances, requirements, regulations or orders
applicable to its businesses.
4.13 Governmental Regulations. To the knowledge of Green
River and except as set forth in Schedule KK, Green River is not
in violation of or in default with respect to any applicable law
or any applicable rule, regulation, order, writ or decree of any
court or any governmental commission, board, bureau, agency or
instrumentality, or delinquent with respect to any report
required to be filed with any governmental commission, board,
bureau, agency or instrumentality which violation or default
could have a material adverse effect upon the business,
operations or financial condition of Green River.
4.14 Brokers and Finders. Green River shall be solely
responsible for payment to any broker or finder retained by
Green. River for any brokerage fees, commissions or finders' fees
in connection with the transactions contemplated herein.
4.15 Accuracy of information. No representation or warranty
by Green River contained in this Agreement and no statement
contained in any certificate or other instrument delivered or to
be delivered to C/GRIP pursuant hereto or in connection with the
transactions contemplated hereby (including without limitation
all Schedules and exhibits hereto) contains or will contain any
untrue statement of material fact or omits or will omit to state
any material fact necessary in order to make the statements
contained herein or therein not misleading, Green River and its
officers and directors make no representation or warranty as to
the quantity or quality or value of the coal contained in the
leases held by Green River and is relying exclusively on the
reports of ▇▇. ▇▇▇ ▇▇▇▇▇ and others, which. have been furnished
to CIGRIP.
4.16 Subsidiaries. Except as listed in Schedule PP, Green
River does not have any other subsidiaries or own capital stock
representing ten percent (10%) or more of the issued and
outstanding stock of any other corporation.
4.17Consents. Except as listed in Schedule FF, no consent
or approval of, or registration, qualification or filing with,
any governmental authority or other person is required to be
obtained or accomplished by Green River or any shareholder
thereof in. connection with the consummation of the transactions
contemplated hereby.
4.18 Improper Payments. No person acting on behalf of Green
River has made any payment or otherwise transmitted anything of
value, directly or indirectly, to (a) any official or any
government or agency or political subdivision thereof for the
purpose of influencing any decision affecting the business of
Green River (b) any customer, supplier of competitor of Green
River, or employee of such customer, supplier or competitor, for
the purposes of obtaining or retaining business for Green River,
or (c) any political party or any candidate for elective
political office nor has any fund or other asset of Green River
been 1-naintained that was not fully and accurately recorded on
the books of account of Green River.
4.19 Copies of Documents. Green River has made available
for inspection and copying by C/GRIP and its duly authorized
representatives, and will continue to do so at all. times, true
and correct copies of all documents which it has filed with
governmental agencies which are material to the terms and
conditions contained in this Agreement. Furthermore, all filings
by Green River with governmental agencies, including but not
limited to the Internal Revenue Service, have contained
information which is true and correct in all material respects
and did not contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
made therein not misleading or which could have any material
adverse effect upon the financial condition or operations of
Green River or adversely effect the objectives of this Agreement.
4.20 Investment Intent of Shareholders. Each shareholder of
Green River represents and warrants to C/GRlP that the shares of
C/GRIP being acquired pursuant to this Agreement are being
acquired for his or her own account and for investment and not
with a view to the public resale or distribution of such shares
and further, acknowledges that the shares being issued have not
been registered under the Securities Act and are "restricted
securities" as that term is defined in Rule 144 promulgated under
the Securities Act and must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption
from such registration is available.
ARTICLE 5
CONDUCT AND TRANSACTIONS PRIOR TO THE
EFFECTIVE TIME OF THE ACQUISITION
5.01 Conduct and Transaction of C/Grip. During the period
from the date hereof to the date of Closing, C/GRIP shall:
(a) Conduct its operations in the ordinary course of
business, including but not limited to, paying all obligations as
they mature, complying with all applicable tax laws, filing all
tax returns required to be filed and paying all taxes due;
(b) Maintain its records and books of account in a
manner that fairly and correctly reflect its income, expenses,
assets and liabilities.
C/GRIP shall not during such period, except in the ordinary
course of business, without the prior written consent of Green
River:
(a) Sell, dispose of or encumber any of its properties
or assets except for payment of brokers or finders fees;
(b) Declare or pay any dividends on shares of its
capital stock or make any other distribution of assets to the
holders thereof other than the distribution to its shareholders
of record as of September 15, 1998 of the 1,841,583 shares of
common stock of Advanced Concept Technologies, Inc. as described
in schedule P;
(c) Issue, reissue or sell, or issue options or rights
to subscribe to, or enter into any contract or commitment to
issue, reissue or sell, any shares of its capital stock or
acquire or agree to acquire any shares of its capital stock;
(d) Except as otherwise contemplated and required by
this Agreement, amend its Articles of Incorporation or merge or
consolidate with or into any other corporation or sell all or
substantially all of its assets or change in any manner the
rights of its capital stock or other securities;
(e) Pay or incur any obligation or liability, direct
or contingent, of more than $ 1,000;
(f) Incur any indebtedness for borrowed money, assume,
guarantee, endorse or otherwise become responsible for
obligations of any other party, or make loans or advances to any
other party;
(g) Make any material change in its insurance
coverage;
(h) Increase in any manner the compensation, direct or
indirect, of any of its officers or executive employees; except
in accordance with existing employment contracts;
(i) Enter into any agreement or make any commitment to
any labor union or organization.;
(j) Make any capital expenditures,
5.02 Conduct and Transactions of Green River. During the
period from the date hereof to the date of' Closing, Green River
shall:
(a.) Obtain an investment letter from each shareholder
of Green River in a form substantially as that attached hereto as
Exhibit A.
(b) Conduct the operations of Green River in the
ordinary course of business.
Green River shall not during such period, except in the
ordinary course of business, without the prior written consent
of C/GRIP:
(a) Sell, dispose of or encumber any of the properties
or assets of Green River;
(b) Declare or pay any dividends on shares of its
capital stock or make any other distribution of assets to the
holders thereof,
(c) Issue, reissued or sell, or issue options or
rights to subscribe to, or enter into any contract or commitment
to issue, reissue or sell, any shares of its capital stock or
acquire or agree to acquire any shares of its capital stock:
(d) Except as otherwise contemplated and required by
this Agreement, amend its Articles of Incorporation or merge or
consolidate with or into any other corporation or sell all or
substantially all of its assets or change in any manner the
rights of its capital stock or other securities;
(e) Pay or incur any obligation or liability, direct
or contingent other on its financial statements provided hereto;
(f) Incur any indebtedness for borrowed money, assume,
guarantee, endorse or otherwise become responsible for
obligations of any other party, or make loans or advances to any
other party;
(g) Make any material change in its insurance
coverage;
(h) Increase in any manner the compensation, direct or
indirect, of any of its officers or executive employees, except
in accordance with existing employment contracts;
(i) Enter into any agreement or make any commitment to
any labor union or organization;
(j) Make any material capital expenditures.
(k) Allow any of the foregoing actions to be taken by
any subsidiary of Green River,
ARTICLE 6
RIGHTS OF INSPECTION
6.01 During the period from the date of this Agreement to
the date of Closing of the acquisition, C/GRIP and Green River
agree to use their best efforts to give the other party,
including its representatives and agents, full access to the
premises, books and records of each of the entities, and to
furnish the other with such financial and operating data and
other information including, but not limited to, copies of all
legal documents and instruments referred to on any schedule or
exhibit hereto, with respect to the business and properties of
C/GRIP or Green River, as the case may be, as the other shall
from time to time request; provided, however, if there are any
such investigations: (1) they shall be conducted in. such manner
as not to unreasonably interfere with the operation of the
business of the other parties and (2) such right of inspection
shall not affect in any way whatsoever any of the representations
or warranties given by the respective parties hereunder. In the
event of termination of this Agreement, C/GRIP and Green River
will each return. to the other all documents, work papers and
other materials obtained from the other party in connection with
the transactions contemplated hereby, and. will take such other
steps necessary to protect the confidentiality of such material.
ARTICLE 7
CONDITIONS TO CLOSING
7.01 Conditions to Obligations of Green River The
obligation of Green River to perform this Agreement is subject to
C/GRIP's performing its Closing obligations, unless waived in
writing by Green River,
(a) Representations and Warranties. There shall be no
information disclosed in the schedules delivered by C/GRIP which
in the opinion of Green River, expressed in writing to C/GRIP
within two weeks after delivery of the schedules, would
materially adversely affect the proposed transaction and intent
of the parties as set forth in this Agreement. The
representations and warranties of C/GRIP set forth in Article 3
hereof shall be true and correct in all material respects as of
the date of this Agreement and as of the Closing as though made
on and as of the Closing, except as otherwise permitted by this
Agreement.
(b) Performance of Obligations. C/GRIP shall have in
all material respects performed all agreements required to be
performed by it under this Agreement and shall have performed in
all material respects any actions contemplated by this Agreement
prior to or on the Closing and C/GRIP shall have complied in all
material respects with tile course of conduct required by this
Agreement.
(c) Corporate Action. There are minutes, certified
copies of corporate resolutions and/or other documentary evidence
satisfactory to counsel for Green River that C/GIZIP has
submitted this Agreement and any other documents required hereby
to such parties for approval as provided by applicable law.
(d) Consents. Execution of this Agreement by the
shareholders of Green River and any consents necessary for or
approval of any party listed on any Schedule delivered by C/GRIP
whose consent or approval is required pursuant thereto shall have
been obtained.
(e) Financial Statements. Green River shall have been
furnished audited financial statements of C/GRIP including, but
not limited to, balance sheets and profit and loss statements as
of July 1, 1998. Such financial statements shall have been
prepared in conformity with generally accepted accounting
principles on a basis consistent with those prior periods and
fairly present the financial position of C/GRIP as of July 31,
1998.
(f) Statutory Requirements. All statutory
requirements for the valid consummation by C/GRIP of the
transactions contemplated by this Agreement shall have been
fulfilled.
(g) Governmental Approval. All authorizations,
consents, approvals, permits and orders of all federal and state
governmental agencies required to be obtained by C/GRIP for
consummation of the transactions contemplated by this Agreement
shall have been obtained.
(h) Employment Agreements. Existing C/GRIP employment
agreements will have been delivered to Counsel for Green River.
(i) Changes in Financial Condition of C/Grip There
shall not have occurred any material adverse change in the
financial condition or in the operations of the business of
C/GRIP, except expenditures in furtherance of this Agreement.
(j) Absence of Pending Litigation. C/GRIP is not
engaged in or threatened with any suit,, action, or legal,
administrative or other proceedings or governmental
investigations pertaining to this Agreement or the consummation
of the transactions contemplated hereunder.
(k) Authorization for Issuance of Stock. Green River
shall have received in form and substance satisfactory to Counsel
for Green River a letter instructing and authorizing the
Registrar and Transfer Agent for the shares of common stock of
C/GRIP to issue stock certificates representing ownership of
C/CYRIP common stock to Green River in. accordance with the terms
of this Agreement and a letter from said Registrar and Transfer
Agent acknowledging receipt of the letter of instruction and
stating to the effect that the Registrar and Transfer Agent holds
adequate supplies of stock certificates necessary to comply with
the letter of instruction and the terms and conditions of this
Agreement.
7.02 Conditions to Obligations of C/Grip. The obligation of
C/GRIP to perform this Agreement is subject to the satisfaction
of the following conditions on or before the Closing unless
waived in writing by C/GRIP.
(a) Representations and Warranties. There shall be no
information disclosed in. the schedules delivered by Green River,
which in the opinion of C/GRIP, would materially adversely affect
the proposed transaction and intent of the parties as set forth
in this Agreement. The representations and warranties of Green
River set forth in Article 4 hereof shall be true and correct in.
all material respects as of the date of this Agreement and as of
the Closing as though made on and as of the Closing, except as
otherwise permitted by this Agreement.
(b) Performance and Obligations. Green River shall
have in all material respects performed all agreements required
to be performed by it under this Agreement and shall have
performed in. all material respects any actions contemplated by
this Agreement prior to or on the Closing and Green River shall
have complied in all respects with the course of conduct required
by this Agreement.
(c) Corporate Action. There has been delivered to
C/GRIP minutes, certified copies of corporate resolutions and/or
other documentary evidence satisfactory to counsel for C/GRIP
that Green River has submitted this Agreement and any other
documents required hereby to such parties for approval as
provided by applicable law.
(d) Consents. Any consents necessary for or approval
of any party listed on any Schedule delivered by Green River,
whose consent or approval is required pursuant thereto, shall
have been obtained.
(e) Financial Statements. C/GRIP shall have been
furnished with an interim unaudited financial Statement of Green
River for the period from the date of its last audited financial
statements to the day of the month preceding the Closing. Such
financial statements shall. fairly present the financial position
of Green River as of its date.
(f) Statutory Requirements. All statutory
requirements for the valid consummation by Green River of the
transactions contemplated by this Agreement shall have been
fulfilled.
(g) Governmental Approval. All authorizations,
consents, approvals, permits and orders of all federal and state
governmental agencies required to be obtained by Green River for
consummation of the transactions contemplated by this Agreement
shall have been obtained.
(h) Employment Agreement. Existing Green River
employment agreements will have been delivered to counsel for
C/GRIP.
(i) Changes in Financial Condition of Green River.
There shall not have occurred any material adverse change in the
financial condition or in the operations of the business of Green
River, except expenditures in furtherance of this Agreement.
(j) Absence of Pending Litigation. Green River is
not engaged in or threatened with any suit, action, or legal,
administrative or other proceedings or governmental
investigations pertaining to this Agreement or the consummation
of the transactions contemplated hereunder.
ARTICLE 8
MATTERS SUBSEQUENT TO CLOSING
8.01 Covenant of Further Assurance. The parties covenant
and agree that they shall, from time to time, execute and
deliver or cause to be executed and delivered all. such further
instruments Of conveyance, transfer, assignments, receipts and
other instruments, and shall take or cause to be taken such
further or other actions as the other party or parties to this
Agreement may reasonably deem necessary in order to carry out
the purposes and intent of this Agreement.
ARTICLE 9
NATURE AND SURVIVAL OF RE PRESENTATIONS
9.01 All statements contained in any written certificate,
schedule, exhibit or other written instrument delivered by
C/GR1.P or Green River pursuant hereto, or otherwise adopted by
C/GRIP, by its written approval, or by Green River by its written
approval, or in connection with the transactions contemplated
hereby, shall be deemed representations and warranties by C/GRIP
or Green River as the case may be. All representations,
warranties and agreements made by either party shall survive for
the period of the applicable statute of limitations and until the
discovery of any claim, loss, liability or other matter based on
fraud, if longer.
ARTICLE 10
TERMINATION OF AGREEMENT AND ABANDONMENT OF
REORGANIZATION
10. 1 Termination. Anything herein to the contrary
notwithstanding, this Agreement and any agreement executed as
required hereunder and the acquisition contemplated hereby may be
terminated at any time before the closing date as follows:
(a.)By mutual written consent of the Boards of
Directors of C/GRIP and Green River.
(b) By the Board of Directors of C/GRIP if any of the
conditions set forth in Section 7.02 shall not have been
satisfied.
(c) By the Board of Directors of Green River if any of
the conditions set forth in Section 7.01 shall not have been
satisfied.
10.02 Termination of Obligations and Waiver of
Conditions; Payment of Expenses. In the event this Agreement and
the acquisition are terminated and abandoned pursuant to this
Article 10 hereof, this Agreement shall become void and of no
force and effect and there shall be no liability to the part of
any of the parties hereto, or their respective directors,
officers, shareholders or controlling persons to each other..
Each party hereto will pay all costs and expenses incident to its
negotiation and preparation of this Agreement and any of the
documents evidencing the transactions contemplated hereby,
including -fees, expenses and disbursements of counsel.
ARTICLE 11
THE CLOSING
11.01 Exchanges of Shares. At the Closing, (1) C/GRIP
shall issue a letter to the transfer agent of C/GRIP with a copy
of the resolution of the Board of Directors of C/GRIP authorizing
the issuance of C/GRIP shares as set forth on the signature page
of this Agreement, and (2) Green River shall deliver to C/CRIP
stock certificates, properly endorsed and with signatures
guaranteed by a bank, assigning to C/GRIP the shares of capital
stock of Green River of each person who executes Exhibit A
attached hereto.
11.02 Restrictions on Shares Issued to Green River.
Due to the fact Green River will receive shares of C/GRIP common
stock in connection with the acquisition which have not beer)
registered under the 1933 Act by virtue of the exemption provided
in Section 4(2) of such Act, those shares of C/GRIP will contain
the following legend:
The shares represented by this
certificate have not been registered
under 1he Securities Act of 1933. The
shares have been acquired for investment
and may not be sold or offered for sale
U.-i the absence of an effective
Registration Statement for the shares
under the Securities Act of 1933 or an
Opinion Of Counsel to the Corporation
that such registration is not required.
ARTICLE 12
MISCELLANEOUS
12.01 Construction. This Agreement shall be construed
and enforced in accordance with the laws of the State of Oklahoma
excluding the conflicts of laws.
12.02 Notices. All notices necessary or appropriate
under this Agreement shall be effective when personally delivered
or deposited in the United States mail, postage prepaid,
certified or registered, return receipt requested, and addressed
to the parties last known address which addresses are currently
as follows:
If to "C/GRIP"
C/GRIP Inc.
▇▇▇▇ ▇. ▇▇"' ▇▇▇▇▇, No. 1. 17
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to "Green River"
Green River Coal, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ Country Club
Las Vegas, NV 891,09
With copies to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
12.03 Amendment and Waiver. The parties hereby may, by
mutual agreement in writing signed by each party, amend this
Agreement in any respect. Any term or provision of this Agreement
may be waived in writing at any time by the party which is
entitled to the benefits thereof, such waiver right shall
include, but not be limited to, the right of either party to:
(a) Extend the (line for the performance of any of the
obligations of the other;
(b) Waive any inaccuracies of representations by the
other contained in this Agreement or in any document delivered
pursuant hereto;
(c) Waive compliance by the other with any of the
covenants contained in this Agreement and performance of any
obligations by the other; and
(d) Waive the fulfillment of any condition that is
precedent to the performance by the other party of any of its
obligations under this Agreement. Any writing on the part of a
party relating to such amendment, extension or waiver as provided
in this Section 12.03 shall be valid it" authorized or ratified
by the Board of Directors of such party.
1.2.04 Remedies not Exclusive. No remedy conferred by
any of the specific provisions of this Agreement is intended to
be exclusive of any other remedy, and each and every remedy shall
be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity
or by statute or otherwise. the election of any one or more
remedies by C/GR1P or Green River shall not constitute a waiver
of the right to pursue other available remedies.
12.05 Counterparts. This Agreement may be executed in
one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument,
12.06 Benefit. This Agreement shall be binding upon,
and inure to the benefit of, the respective successors and
assigns of C/GRIP and Green River.
12.07 Entire Agreement. This Agreement and the
Schedules and Exhibits attached hereto, represent the entire
agreement of the undersigned regarding the subject matter hereof,
and supersedes all prior written. or oral understandings or
agreements between the parties.
12.08 Each Party to Bear its Own Expense. C/GRIP and
Green River shall each bear their own. respective expenses
incurred in connection with the negotiation, execution, closing,
and performance of This Agreement, including counsel fees and
accountant fees.
12.09 Captions and Section Headings. Captions and
section headings used herein are for convenience only and shall
not control or affect the meaning or construction of any
provisions of this Agreement.
Executed as of the date first written above.
Green River Coal, Inc. C/Grip: Inc.
By:/S/▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. /S/▇▇▇▇▇▇▇ ▇▇▇▇▇
Sr. President President
Schedules to Agreement and Plan of Reorganization
Among C/Grip: Inc., Green River Coal, Inc. and
Shareholders of Green River Coal, Inc.
Dated August 10, 1998
Schedule A
Attached hereto are audited financial statements of C/Grip:
Inc. as of July 31., 1998.
Schedule B
1, 841, 583 shares of Common Stock of Advanced Concept
Technologies, Inc., an Oklahoma corporation.
Schedule C and C.1
None
Schedule D
None
Schedule E
None
Schedule G
Attached hereto are copies of the Certificate of
incorporation and all amendments thereto and the Bylaws of
C/Grip: Inc.