AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization ("the Agreement"), dated
as of the 14th day of March, 1997, by and between Wild Wings, Inc., a
Nevada corporation ("Wild Wings") and Red Oak Farms, Inc. an Iowa
corporation ("Red Oak") and the shareholders of Red Oak ("Shareholders"),
with reference to the following:
A. Wild Wings is a Nevada corporation organized on July 7,
1989. Wild Wings has authorized capital stock of 55,000,000 shares,
$.001 par value, of which 12,960,000 shares are issued and
outstanding. Wild Wings currently has an authorized warrant
dividend distribution outstanding which consists of three warrants
for each share outstanding, excluding the outstanding shares owned
by Komatsu Investments Limited.
B. Red Oak Farms, Inc. is a privately held corporation
organized under the laws of the State of Iowa on February 24, 1997.
C. The respective Boards of Directors of Wild Wings and Red
Oak have deemed it advisable and in the best interests of Wild Wings
and Red Oak that Red Oak be acquired by Wild Wings, pursuant to the
terms and conditions set forth in this Agreement.
D. Wild Wings and Red Oak propose to enter into this
Agreement which provides among other things that all of the
outstanding shares of Red Oak be acquired by Wild Wings, in exchange
for shares of Wild Wings and such additional items as more fully
described in this Agreement.
E. The parties desire the transaction to qualify as a
tax-free reorganization under Section 368 (a)(1)(B) of the Internal
Revenue Code of 1986, as amended.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
THE ACQUISITION
1.01 At the Closing, a total of 10,000,000 common shares, which
represents all of the outstanding shares of Red Oak shall be acquired by
Wild Wings in exchange for 10,000,000 restricted common shares of Wild
Wings and the option to acquire an additional 3,000,000 common shares.
The shares of Wild Wings to be issued in this transaction shall be issued
as set forth in Exhibit A to this Agreement.
1.02 At the Closing, the Red Oak shareholders will deliver
certificates for the outstanding shares of Red Oak, duly endorsed so as to
make Wild Wings the sole holder thereof, free and clear of all claims and
encumbrances and Wild Wings shall deliver a transmittal letter directed to
the transfer agent of Wild Wings directing the issuance of shares to the
shareholders of Red Oak as set forth on Exhibit A of this Agreement.
1.03 Following the reorganization there will be a total of
10,960,000 shares, $.001 par value, issued and outstanding in Wild Wings
and outstanding options and warrants to purchase an additional 6,280,000
common shares.
1.04 Following the reorganization, Red Oak will be a wholly owned
subsidiary of Wild Wings.
ARTICLE 2
THE CLOSING
2.01 The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Interwest
Transfer Company, Inc. 1981 East Murray-Holladay Road, Salt Lake City,
Utah 84117 on March 14, 1997, (the "Closing Date") at 11:00 o'clock a.m.
or at such other place or date and time as may be agreed to in writing
by the parties hereto.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF WILD WINGS
Wild Wings hereby represents and warrants to Red Oak as follows:
3.01 Wild Wings shall deliver to Red Oak, on or before Closing,
each of the following:
(a) Financial Statements. Audited financial statements of
Wild Wings including, but not limited to, balance sheets and profit
and loss statements from fiscal year end 1994, 1995 and 1996,
prepared in accordance with generally accepted accounting principles
and which fairly present the financial condition of Wild Wings at
the dates thereof and a current interim statement showing $0
liabilities and $0 assets as of the Closing date. (Schedule A)
(b) Property. An accurate list and description of all
property, real or personal, owned by Wild Wings of a value equal to
or greater than $1,000.00. (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 on Schedule A.
(Schedule C.) A complete and accurate list of all debts,
liabilities and obligations of Wild Wings 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 Wild Wings
is a party which involves or can reasonably be expected to involve
aggregate future payments or receipts by Wild Wings (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, 1996, 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
Wild Wings 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 thereunder; 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 Wild Wings
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 Wild Wings or any rights to subscribe for,
acquire, or receive shares of the capital stock of Wild Wings
(whether warrants, calls, options, or conversion rights), including
copies of all stock option plans whether qualified or nonqualified,
and other similar agreements. (Schedule H.)
(i) Officers and Directors. A complete and current list of
all Officers and Directors of Wild Wings. (Schedule I.)
(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 Wild Wings who received $1,000.00 or more in
aggregate compensation from Wild Wings whether in salary, bonus or
otherwise, during the year 1996, or who is presently scheduled to
receive from Wild Wings a salary in excess of $1,000.00 during the
year ending December 31, 1997, 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 J.)
(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 Wild Wings threatened,
which may materially and adversely affect Wild Wings. (Schedule K.)
(l) Tax Returns. Accurate copies of all Federal and State
tax returns for Wild Wings for the last fiscal year. (Schedule L.)
(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 Wild Wings under ERISA, EEOC, FDA and all
other governmental agencies (federal, state or local) during the
last fiscal year. (Schedule M.)
(n) Banks. 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 Wild Wings has an account or safe deposit box,
and (2) the names and addresses of all signatories. (Schedule N.)
(o) Jurisdictions Where Qualified. A list of all
jurisdictions wherein Wild Wings is qualified to do business and is
in good standing. (Schedule O.)
(p) Subsidiaries. A complete list of all subsidiaries of
Wild Wings. (Schedule P.) The term "Subsidiary" or "Subsidiaries"
shall include corporations, unincorporated associations,
partnerships, joint ventures, or similar entities in which Wild
Wings 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 Wild Wings, if any. (Schedule Q.)
(r) Employee and Consultant Contracts. A complete and
accurate list of all employee and consultant contracts which Wild
Wings 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 options, bonus, incentive compensation, deferred
compensation, profit sharing, retirement, pension, group insurance,
disability, death benefit or other benefit plans, trust agreements
or arrangements of Wild Wings 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.)
(t) Insurance Policies. A complete and accurate list (in all
material respects) and a description of all material insurance
policies naming Wild Wings as an insured or beneficiary or as a
loss payable payee or for which Wild Wings has paid all or part of
the premium in force on the date hereof, specifying any notice or
other information possessed by Wild Wings regarding possible claims
thereunder, cancellation thereof or premium increases thereon,
including any policies now in effect naming Wild Wings as
beneficiary covering the business activities of Wild Wings.
(Schedule T.)
(u) Customers. A complete and accurate list (in all material
respects) of the customers of Wild Wings, including presently
effective contracts of Wild Wings to be assigned to Wild Wings,
accounting for the principle revenues of Wild Wings, indicating the
dollar amounts of gross income of each such customer for the period
ended January 31, 1997. (Schedule U.)
(v) Licenses and Permits. A complete list of all licenses,
permits and other authorizations of Wild Wings. (Schedule V.)
3.02 Organization, Standing and Power. Wild Wings 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 are now being conducted.
3.03 Qualification. Wild Wings is duly qualified and is licensed as a
foreign corporation authorized to do business in each jurisdiction wherein
it conducts its business operations. Such jurisdictions, which are
the only jurisdictions in which Wild Wings is duly qualified and licensed
as a foreign corporation, are shown in Schedule O.
3.04 Capitalization of Wild Wings. The authorized capital stock of Wild
Wings consists of 50,000,000 shares of Common Stock, $.001 par value, of
which the only shares issued and outstanding are 12,960,000 issued to
shareholders listed on Schedule H, which shares were duly authorized,
validly issued and fully paid and nonassessable and 5,000,000 Preferred
shares $.001 par value of which no shares are issued and outstanding.
There are no preemptive rights with respect to the Wild Wings 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 actions, including but not limited
to duly and validly authorized action and approval by the Board of
Directors, on the part of Wild Wings. This Agreement constitutes the
valid and binding obligation of Wild Wings 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 Wild Wings and the execution and delivery of
this Agreement and the consummation of the transactions contemplated by
this Agreement shall not result in any breach of any terms or provisions
of Wild Wings's Certificate and Articles of Incorporation or Bylaws or of
any other agreement, court order or instrument to which Wild Wings is a
party or bound by.
3.06 Absence of Undisclosed Liabilities. Wild Wings 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 or otherwise disclosed in this Agreement or any of the Schedules or
Exhibits attached hereto. As of the Closing, Wild Wings shall have no
assets or liabilities other than those resulting from the acquisition of
Red Oak.
3.07 Absence of Changes. Since December 31, 1996 there has not been any
material adverse change in the condition (financial or otherwise), assets,
liabilities, earnings or business of Wild Wings, 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 Wild
Wings 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 Wild Wings 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
employee's and employer's 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 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 Wild Wings income or business prior to the Closing Date.
3.09 Options, Warrants, etc. Except as otherwise described in Schedule
H, there are no outstanding options, warrants, calls, commitments or
agreements of any character to which Wild Wings or its shareholders are
a party or by which Wild Wings or its shareholders are bound, or are a
party, calling for the issuance of shares of capital stock of Wild
Wings or any securities representing the right to purchase or otherwise
receive any such capital stock of Wild Wings.
3.10 Title to Assets. Except for liens set forth in Schedule C, Wild
Wings is the sole unconditional owner of, with good and marketable title
to, all assets listed in the schedules as owned by it and all other
property and assets are free and clear of all mortgages, liens, pledges,
charges or encumbrances of any nature whatsoever.
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, franchises or similar instruments
to which Wild Wings is a party are valid and in full force and effect on
the date hereof, and Wild Wings 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 Wild Wings.
3.12 Legal Proceedings, Etc. 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 Wild Wings 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 Wild Wings. Wild Wings
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.
3.13 Governmental Regulation. To the knowledge of Wild Wings and except
as set forth in Schedule K, Wild Wings 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 Wild Wings.
3.14 Brokers and Finders. Wild Wings shall be solely responsible for
payment to any broker or finder retained by Wild Wings 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 Wild
Wings contained in this Agreement and no statement contained in any
certificate or other instrument delivered or to be delivered to Red Oak
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. Except as listed in Schedule P, Wild Wings 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
Wild Wings or any shareholder thereof in connection with the consummation
of the transactions contemplated hereby.
3.18 Improper Payments. Neither Wild Wings, nor any person acting on
behalf of Wild Wings 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 Wild Wings (b) any
customer, supplier or competitor of Wild Wings or employee of such
customer, supplier or competitor, for the purpose of obtaining, retaining
or directing business for Wild Wings or (c) any political party or any
candidate for elective political office nor has any fund or other asset of
Wild Wings been maintained that was not fully and accurately recorded on
the books of account of Wild Wings.
3.19 Copies of Documents. Wild Wings has made available for inspection
and copying by Red Oak 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 Wild
Wings 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 Wild Wings, 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 Wild Wings or adversely
effect the objectives of this Agreement with respect to Red Oak including,
but not limited to, the issuance and subsequent trading of the shares of
common stock of Wild Wings to be received hereby, subject to compliance by
the shareholders of Red Oak with applicable law.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF
RED OAK FARMS, INC.
Red Oak hereby represents and warrants to Wild Wings as follows:
4.01 Red Oak shall deliver to Wild Wings, on or before Closing, the
following:
(a) Financial Statements. Consolidated audited financial
statements of Red Oak as of its inception, February 24, 1997 and
audited financial statements of its predecessor, Mid-Ag, L.L.C.,
including but not limited to balance sheets and profit and loss
statements from fiscal year end 1994, 1995, and 1996, prepared in
accordance with generally accepted accounting principles and which
fairly represent the financial condition of Mid-Ag and Red Oak at
the dates thereof. (Schedule AA)
(b) Property. An accurate list and description of all
property, real or personal owned by Red Oak 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 Red Oak 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 material leases (whether of real or
personal property) and each contract, promissory note, mortgage,
license, franchise, or other written agreement to which Red Oak is
a party which involves or can reasonably be expected to involve
aggregate future payments or receipts by Red Oak (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 3,1 1996 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
Red Oak 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 thereunder; 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
Articles of Incorporation and Bylaws of Red Oak, 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 Red Oak or any rights to
subscribe for, acquire, or receive shares of the capital stock
of Red Oak (whether warrants, calls, options, or conversion
rights), including copies of all stock option plans whether
qualified or nonqualified, and other similar agreements.
(Schedule HH.)
(i) Officers and Directors. A complete and current list
of all Officers and Directors of Red Oak. (Schedule II.)
(j) Salary Schedule. A complete and accurate list (in all
material respects) of the names and the current salary rate or
each present employee of Red Oak who received $1,000 or more in
aggregate compensation from Red Oak whether in salary, bonus
or otherwise, during the year 1996, or who is presently scheduled to
receive from Red Oak a salary in excess of $1,000.00 during the year
ending December 31, 1997, 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
Red Oak threatened, which may materially and adversely affect Red
Oak. (Schedule KK.)
(l) Tax Returns. Accurate copies of all Federal and State
tax returns for Red Oak, 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 Red Oak under ERISA, EEOC, FDA and all
other governmental agencies (federal, state or local). (Schedule
MM.)
(n) 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 Red Oak 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 Red Oak is qualified to do business and is in
good standing or has applied for qualification. (Schedule OO.)
(p) Subsidiaries. A complete list of all subsidiaries of Red
Oak. (Schedule PP.) The term "Subsidiary" or "Subsidiaries" shall
include corporations, unincorporated associations, partnerships,
joint ventures, or similar entities in which Red Oak has an
interest, direct or indirect.
(q) Union Matters. An accurate list and description (in all
material respects of union contracts and collective bargaining
agreements of Wild Wings, if any. (Schedule QQ.)
(r) Employee and Consultant Contracts. A complete and
accurate list of all employee and consultant contracts which Red
Oak 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 Red Oak 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 Red Oak as an insured or beneficiary or
as a loss payable payee or for which Red Oak has paid all or part
of the premium in force on the date hereof, specifying any notice
or other information possessed by Red Oak regarding possible
claims thereunder, cancellation thereof or premium increases
thereon, including any policies now in effect naming Red Oak as
beneficiary covering the business activities of Red Oak. (Schedule
TT.)
(u) Customers. A complete and accurate list (in all
material respects) of the customers of Red Oak, including
all presently effective contracts of Red Oak to be assigned to
Red Oak, accounting for the principle revenues of Red Oak,
indicating the dollar amounts of gross revenues of each such
customer for the period ended December 31, 1996. (Schedule UU.)
(v) Licenses and Permits. A complete list of all
licenses, permits and other authorizations of Red Oak.
(Schedule VV.)
4.02 Organization, Standing and Power. Red Oak is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Iowa with all requisite corporate power to own or lease its
properties and carry on its business as is now being conducted.
4.03 Qualification. Red Oak is duly qualified and licensed as a foreign
corporation authorized to do business in each jurisdiction wherein it
conducts business operations. Such jurisdictions, which are the only
jurisdictions in which Red Oak is duly qualified and licensed as a foreign
corporation, or has applied for qualification, is shown in Schedule OO.
4.04 Capitalization of Red Oak. The authorized capital stock of Red Oak
consists of 20,000,000 shares of Common Stock, of which the only shares
issued and outstanding are 10,000,000 shares issued to the shareholders
listed on Schedule HH, which shares were duly authorized, validly issued
and fully paid and nonassessable. There are no preemptive rights with
respect to the Red Oak stock.
4.05 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 Red Oak. This Agreement constitutes the valid
and binding obligation of Red Oak , 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 Red Oak and the execution and delivery of this
Agreement and the consummation of the transactions contemplated by this
Agreement shall not result in any breach of any terms or provisions of Red
Oak 's Articles of Incorporation or Bylaws or of any other agreement,
court order or instrument to which Red Oak is a party or bound.
4.06 Absence of Undisclosed Liabilities. Red Oak 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 AA or otherwise disclosed in this Agreement or any of the
Schedules or Exhibits attached hereto.
4.07 Absence of Changes. Since December 31, 1996, there has not been
any material adverse change in the condition (financial or otherwise),
assets, liabilities, earnings or business of Red Oak, except for changes
resulting from completion of those transactions described in Section
5.02.
4.08 Tax Matters. All taxes and other assessments and levies which
Red Oak 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 Red Oak 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
employee's and employer's 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 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 Red Oak income or business prior
to the Closing Date.
4.09 Options, Warrants, etc. Except as otherwise described in Schedule
HH, there are no outstanding options, warrants, calls, commitments or
agreements of any character to which Red Oak or its shareholders are a
party or by which Red Oak or its shareholders are bound, or are a party,
calling for the issuance of shares of capital stock of Red Oak or any
securities representing the right to purchase or otherwise receive any
such capital stock of Red Oak .
4.10 Title to Assets. Except for liens set forth in Schedule CC,
Red Oak is the sole and unconditional owner of, with good and
marketable title to, all the assets and patents 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 Red Oak is a party are valid and in full force
and effect on the date hereof, and Red Oak 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 Red
Oak.
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
Red Oak , threatened, in which, individually or in the aggregate,
an adverse determination would materially and adversely affect the
assets, properties, business or income of Red Oak . Red Oak 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 Regulation. To the knowledge of Red Oak and except as
set forth in Schedule KK, Red Oak 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 Red Oak. .
4.14 Broker and Finders. Red Oak shall be solely responsible for payment
to any broker or finder retained by Red Oak 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 Red
Oak contained in this Agreement and no statement contained in any
certificate or other instrument delivered or to be delivered to Wild
Wings 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 a 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.
4.16 Subsidiaries. Except as listed in Schedule PP, Red Oak 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.
4.17 Consents. Except as listed in Schedule FF, no consent or approval
of, or registration, qualification or filing with, any other
governmental authority or other person is required to be obtained or
accomplished by Red Oak or any shareholder thereof, in connection with the
consummation of the transactions contemplated hereby.
4.18 Improper Payments. No person acting on behalf of Red Oak 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 Red Oak , or (b) any political party
or any candidate for elective political office, nor has any fund or other
asset of Red Oak been maintained that was not fully and accurately
recorded on the books of account of Red Oak.
4.19 Copies of Documents. Red Oak has made available for
inspection and copying by Wild Wings 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 any governmental
agencies which are material to the terms and conditions contained
in this Agreement. Furthermore, all filings by Red Oak 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 Red Oak or
adversely affect the objectives of this Agreement.
4.20 Investment Intent of Shareholders. Each shareholder of Red Oak
represents and warrants to Wild Wings that the shares of Wild Wings
being acquired pursuant to this Agreement are being acquired for his 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 Transactions of Wild Wings. During the period from
the date hereof to the date of Closing, Wild Wings 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 reflects its income, expenses,
assets and liabilities.
(c) Call and hold a special meeting of Wild Wings
shareholders to approve this Agreement and Plan of Reorganization;
approve the name change of the corporation from Wild Wings, Inc. to
Red Oak Hereford Farms, Inc.; elect Gordon Reisinger, John Derner,
Charles Kolbe and Leo DeSpain to the Board of Directors of Wild
Wings; approve the adoption of the Wild Wings 1997 Stock Option
Plan; approve the sale of all of the assets of Wild Wings business
including the rights to the name Wild Wings to Wild Wings Hunting &
Sporting Clays Club, Inc. a Utah corporation for the sum of $51,000
plus the assumption of certain liabilities of the Company associated
with the assets being sold.
(d) Enter contract to repurchase from Komatsu Investments
Limited, 12,000,000 common shares of the Company for $31,000 and
have the shares canceled. Such contract to close concurrent with
this issuance of 10,000,000 to Red Oak.
Wild Wings shall not during such period, except in the
ordinary course of business, or as otherwise contemplated or required by
this Agreement, without the prior written consent of Red Oak :
(a) Sell, dispose of or encumber any of its properties or
assets;
(b) Except as set forth in paragraph 5.01(c) above, declare
or pay any dividends on shares of its capital stock or make any
other distribution of assets to the holders thereof;
(c) Except as set forth in paragraph 5.01(d) above, 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) Except as contemplated or required by this
Agreement, 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 Red Oak. During the period from the
date hereof to the date of Closing, Red Oak shall:
(a) Obtain an investment letter from each shareholder of Red
Oak in a form substantially like that attached hereto as Exhibit
B.
(b) Conduct the operations of Red Oak in the ordinary course
of business, except as set forth in 5.02(c) below.
(c) (i) Red Oak will engage a financial public relations firm
by the closing date of this transaction who is mutually satisfactory
of Red Oak and the now existing board of directors of Wild Wings.
Such firm, or an acceptable substitute firm, shall be continuously
engaged for a minimum of eighteen (18) months. Two million shares
of Red Oak, owned by the current shareholders of Red Oak, will be
placed in escrow at closing and released once this provision has
been fulfilled.
(ii) Red Oak will engage a management consulting firm by the
closing date of this transaction who is mutually satisfactory to Red
Oak and the now existing board of directors of Wild Wings. The
management consulting firm will assist the management in evaluating
and revising their current business plan and assisting management in
the development of a marketing and financing plan.
(iii) Red Oak will have a minimum two year binding contract
with a packing plant to slaughter Red Oak cattle that is mutually
satisfactory to Red Oak and the now existing board of directors of
Wild Wings.
(iv) Red Oak will have a binding contract with the American
Hereford Association for the exclusive right to produce and market
"Certified Hereford Beef" that is mutually satisfactory to Red Oak
and the now existing board of directors of Wild Wings.
(v) Red Oak will have a binding agreement pursuant to which
Wild Wings will acquire 100% of the outstanding shares of Midland
Cattle Company.
Red Oak shall not during such period except, as otherwise
contemplated or required by this Agreement, in the ordinary course of
business, without the prior written consent of Wild Wings:
(a) Sell, dispose of or encumber any of the
properties or assets of Red Oak ;
(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, 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) 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 material capital expenditures.
(k) Allow any of the foregoing actions to be taken by any
subsidiary of Red Oak .
ARTICLE 6
RIGHTS OF INSPECTION
6.01 During the period from the date of this Agreement to the date of
Closing of the acquisition, Wild Wings and Red Oak 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 Wild Wings or Red
Oak, 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, Wild Wings
and Red Oak 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 Red Oak. The obligation of Red Oak to
perform this Agreement is subject to the satisfaction of the following
conditions on or before the Closing unless waived in writing by Red Oak.
(a) Representations and Warranties. There shall be no
information disclosed in the schedules delivered by Wild Wings
which in the opinion of Red Oak would materially adversely affect
the proposed transaction and intent of the parties as set forth
in this Agreement. The representations and warranties of Wild Wings
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. Wild Wings 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 Wild Wings shall have complied in all material
respects with the course of conduct required by this Agreement.
(c) Corporate Action. Wild Wings shall have furnished
minutes, certified copies of corporate resolutions and/or other
documentary evidence satisfactory to counsel for Red Oak that
Wild Wings has submitted with 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 Red Oak and any consents necessary for or approval
of any party listed on any Schedule delivered by Wild Wings
whose consent or approval is required pursuant thereto shall have
been obtained.
(e) Financial Statements. Red Oak shall have been
furnished with audited financial statements of Wild Wings
including, but not limited to, balance sheets and profit and loss
statements from fiscal year 1994, 1995 and 1996. Such financial
statements shall have been prepared in conformity with generally
accepted accounting principles on a basis consistent with those of
prior periods and fairly present the financial position of Wild
Wings as of December 31, 1996. Red Oak also shall have been
furnished with a current interim Wild Wings statement showing $0
liabilities and $0 assets as of the Closing Date.
(f) Statutory Requirements. All statutory requirements for
the valid consummation by Wild Wings 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 Wild Wings for consummation of
the transactions contemplated by this Agreement shall have been
obtained.
(h) Changes in Financial Condition of Wild Wings. There
shall not have occurred any material adverse change in the
financial condition or in the operations of the business of
Wild Wings, except expenditures in furtherance of this Agreement.
(i) Absence of Pending Litigation. Wild Wings 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.
(j) Authorization for Issuance of Stock. Red Oak shall
have received in form and substance, a letter instructing and
authorizing the Registrar and Transfer Agent for the shares of
common stock of Wild Wings to issue stock certificates
representing ownership of Wild Wings common stock to Red Oak
shareholders 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.
(k) Shareholder Approval. The Wild Wings shareholders
shall have Wild Wings shareholders shall have (i) approved a change
of the name of Wild Wings to Red Oak Hereford Farms, Inc.; (ii)
elected the following persons to the Board of Directors of Wild
Wings: Gordon Reisinger, John Derner, Charles Kolbe and Leo
DeSpain; (iii) approved the adoption of the Wild Wings 1997 Stock
Option Plan, (iv) approved the sale of all of the assets of the
Company's business including the rights to the name Wild Wings to
Wild Wings Hunting & Sporting Clays Club, Inc., a Utah corporation
for the sum of $51,000 plus the assumption of certain liabilities of
the Company associated with the assets being sold; (v) approved the
Agreement and Plan of Reorganization.
7.02 Conditions to Obligations of Wild Wings. The obligation of Wild
Wings to perform this Agreement is subject to the satisfaction of the
following conditions on or before the Closing unless waived in writing
by Wild Wings.
(a) Representations and Warranties. There shall be no
information disclosed in the schedules delivered by Red Oak, which
in the opinion of Wild Wings, would materially adversely affect the
proposed transaction and intent of the parties as set forth in
this Agreement. The representations and warranties of Red Oak 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 of Obligations. Red Oak 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 Red Oak shall have complied in all
respects with the course of conduct required by this Agreement.
(c) Corporate Action. Red Oak shall have furnished
minutes, certified copies of corporate resolutions and/or
other documentary evidence satisfactory to Counsel for Wild
Wings that Red Oak has submitted with 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 Red Oak, whose
consent or approval is required pursuant thereto, shall have been
obtained.
(e) Financial Statements. Wild Wings shall have been
furnished with consolidated audited financial statements of Red Oak
as of its inception, February 24, 1997 and audited financial
statements of its predecessor, Mid-Ag, L.L.C., including but not
limited to balance sheets and profit and loss statements from fiscal
year end 1994, 1995, and 1996, prepared in accordance with generally
accepted accounting principles and which fairly represent the
financial condition of Mid-Ag and Red Oak at the dates thereof.
(f) Statutory Requirements. All statutory requirements for
the valid consummation by Red Oak 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 Red Oak
for consummation of the transactions contemplated by this
Agreement shall have been obtained.
(h) Employment Agreements. Existing Red Oak employment
agreements will have been delivered to counsel for Wild Wings.
(i) Changes in Financial Condition of Red Oak . There
shall not have occurred any material adverse change in the
financial condition or in the operations of the business of
Red Oak, except expenditures in furtherance of this Agreement.
(j) Absence of Pending Litigation. Red Oak 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.
8.02 Red Oak shall hire additional management to serve in senior
management levels. Specifically, Red Oak will hire management with senior
level experience in marketing and promotion. Such management will be
hired within a reasonable time period after closing not to exceed 120 days
from the date of closing.
8.03 Immediately following the closing of this Agreement, Red Oak shall
initiate a private offering to sell 1,500,000 shares of common stock to
raise up to $4,500,000, together with 1,500,000 warrants to raise up to an
additional $7,500,000. The parties agree that McKinley Capital and its
associates shall be granted a first right of refusal on one-third of the
$4,500,000 private placement to be sold in the private offering.
8.04 Wild Wings and Red Oak shall upon completion of the private offering
described in 8.04 above, immediately cause to be filed a registration
statement to register the outstanding Wild Wings warrants as of the date
of the Closing, on a registration form available to Wild Wings and shall
use their best efforts to cause the registration statement to become
effective.
8.05 Wild Wings and Red Oak shall file a registration statement within 90
days of the closing of this Agreement with the Securities and Exchange
Commission on Form SB-2 or other form available for registration of the
shares underlying the warrants issued to the shareholders of Wild Wings
pursuant to the Warrant Agency Agreement, a copy of which is included
within Schedule H of this Agreement.
ARTICLE 9
NATURE AND SURVIVAL OF REPRESENTATIONS
9.01 All statements contained in any written certificate, schedule,
exhibit or other written instrument delivered by Wild Wings or Red
Oak pursuant hereto, or otherwise adopted by Wild Wings, by its
written approval, or by Red Oak by its written approval, or in
connection with the transactions contemplated hereby, shall be deemed
representations and warranties by Wild Wings or Red Oak 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
10.01 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 as follows:
(a) By mutual written consent of the Boards of
Directors of Wild Wings and Red Oak.
(b) By the Board of Directors of Wild Wings if any of the
conditions set forth in Section 7.02 shall not have been
satisfied by the Closing Date.
(c) By the Board of Directors of Red Oak if any of the
conditions set forth in Section 7.01 shall not have been
satisfied by the Closing Date.
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 on 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
EXCHANGE OF SHARES; FRACTIONAL SHARES
11.01 Exchange of Shares. At the Closing, Wild Wings shall issue a
letter to the transfer agent of Wild Wings with a copy of the resolution
of the Board of Directors of Wild Wings authorizing and directing the
issuance of Wild Wings shares as set forth on Exhibit A to this
Agreement.
11.02 Restrictions on Shares Issued to Red Oak . Due to the fact that
Red Oak will receive shares of Wild Wings common stock in connection
with the acquisition which have not been registered under the 1933 Act
by virtue of the exemption provided in Section 4(2) of such Act, those
shares of Wild Wings will contain the following legend:
The shares represented by this
certificate have not been registered under the
Securities Act of 1933. The shares have been
acquired for investment and may not be sold or
offered for sale in 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 Nevada 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 "Wild Wings" If to "Red Oak "
Wild Wings, Inc. Red Oak Farms, Inc.
899 South Artistic Circle 2010 Commerce Drive
Springville, Utah 84663 Red Oak, Iowa 51566
With copies to:
Cletha A. Walstrand, Esq. Doug Gross, Esq.
Poulton & Yordan Brown, Winick, Graves, Gross,
4 Triad Center, Suite 500-A Baskerville and Schoenebaum,
P.L.C.
Salt Lake City, Utah 84180 Two Ruan Center, Suite 1100
601 Locust Street
Des Moines, Iowa 50309-3765
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 time for the performance of any of the
obligations of the other;
(b) Waive any inaccuracies in 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 party so waiving 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 if authorized or
ratified by the Board of Directors of such party.
12.04 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 Wild Wings or Red Oak 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 Wild Wings and Red
Oak and its shareholders.
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. Wild Wings and Red Oak
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 provision of this Agreement.
Executed as of the date first written above.
"Wild Wings" "Red Oak "
Wild Wings, Inc. Red Oak Farms,
a Nevada corporation an Iowa corporation
By: __________________________ By: __________________________
The undersigned hereby approves the Agreement and Plan of
Reorganization with Wild Wings, Inc. The undersigned hereby represents
and warrants that the undersigned has read the Agreement and Plan of
Reorganization with Wild Wings, Inc. and understands its terms and
conditions.
___________________________ ____________________________
___________________________ ____________________________
___________________________ ____________________________
EXHIBIT A
Name of Number of
Shareholder Shares
____________________________________ ____________
____________________________________ ____________
____________________________________ ____________
____________________________________ ____________
____________________________________ ____________
____________________________________ ____________