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AGREEMENT
AND
PLAN OF REORGANIZATION
OF
MAMMOTH RESOURCES, INC.
AND
SYMPHONY TELECOM INTERNATIONAL, INC.
(STOCK FOR STOCK EXCHANGE)
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5
TABLE OF CONTENTS
Page
Table of Contents..................................................... 2
Agreement............................................................. 3
1. Recitals..................................................... 3
2. Plan of Reorganization (Exchange of Shares).................. 3
3. Delivery of Shares........................................... 4
4. Representations of SYMPHONY.................................. 4
5. Representations of MAMMOTH................................... 7
6. Closing Date................................................. 12
7. Conditions Precedent to the Obligations of
MAMMOTH...................................................... 12
8. Conditions Precedent to the Obligations
of SYMPHONY.................................................. 13
9. Indemnification.............................................. 14
10. Nature and Survival of Representations...................... 14
11. Documents at Closing........................................ 15
12. Miscellaneous Provisions.................................... 15
SIGNATURE PAGE..................................................
EXHIBITS........................................................ Attached
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THIS AGREEMENT is entered into as of the 9th day of March, 2000 by, and between
MAMMOTH RESOURCES, INC., a Utah corporation (hereinafter "MAMMOTH"); and
SYMPHONY TELECOM INTERNATIONAL, INC., a Delaware corporation (hereinafter
"SYMPHONY").
R E C I T A L S:
MAMMOTH desires to acquire all of the issued and outstanding common stock of
SYMPHONY, making SYMPHONY a subsidiary of MAMMOTH, and owners of SYMPHONY intend
to exchange all of their shares in SYMPHONY for shares of MAMMOTH'S Common
Stock, and the parties wish to agree to certain related terms and conditions,
all as set forth herein;
NOW, THEREFORE, in consideration of the premises, mutual promises,
covenants, terms and conditions contained herein and other good and valuable
considerations, the receipt and sufficiency of which are acknowledged by the
parties hereto, the parties agree, warrant, represent and covenant to one
another as follows:
1. Recitals. The above recitals are true, correct and complete.
2. Plan of Reorganization (Exchange of Shares). It shall be the
responsibility of SYMPHONY to deliver, on the closing of this Agreement (the
"Closing") or within 15 days following the "Closing Date" (defined herein), all
of the issued and outstanding Common Stock in SYMPHONY, hereinafter the
"SYMPHONY SHARES," to be deemed, in exchange, effective the Closing Date, solely
for 7,924,375 Shares of MAMMOTH's Common Stock, hereinafter the "MAMMOTH SHARES"
(on the basis of an exchange of shares) with this transaction intended to
qualify as a tax-free reorganization under the current Internal Revenue Code, of
the United States of America, and related sections thereunder, including any
amendments.
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3. Delivery of Shares. On or within 10 days following the Closing, MAMMOTH
shall deliver a Certificate to SYMPHONY, as to the MAMMOTH SHARES, to
distribute, following the Closing, to the stockholders of SYMPHONY (as
determined by SYMPHONY). The certificate will initially be placed in the name of
Gilles A. Trahan.
4. Representations of SYMPHONY. SYMPHONY hereby represents that, effective
as of the date first written above and the Closing, the following
representations in this Section are and will be true and correct, except as
otherwise provided in any EXHIBIT:
a. the SYMPHONY SHARES, to be delivered by the stockholders of SYMPHONY,
will constitute valid and legally issued shares of SYMPHONY, be 100% of SYMPHONY
and such shares shall be fully paid, and non-assessable;
b. the SYMPHONY SHARES are free of claims, liens or other encumbrances and
the owners have the unqualified right to transfer such shares pursuant to the
terms and conditions of this Agreement;
c. the stockholders of SYMPHONY (as listed on the attached EXHIBIT herein
and incorporated herein by reference), are owners of the issued and outstanding
shares of common stock of SYMPHONY, being the SYMPHONY SHARES, and are
"accredited investors," as such term is defined in Regulation D of the SEC;
d. the SYMPHONY SHARES represent 100% ownership interest in SYMPHONY;
e. SYMPHONY will, no later than 60 days from the Closing Date, deliver to
MAMMOTH its most recent available financial statements (the financial statements
are true, complete and accurate), audited, for a period ending not exceeding 12
months prior, and as of the Closing there shall be no liabilities, either fixed,
contingent, liquidated or unliquidated, not reflected in the attached financial
statements. All financial statements:
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(I) fairly and accurately reflect the financial condition of SYMPHONY as of the
dates thereof and the results of operations for the periods reflected therein,
and
(II) were prepared in accordance with generally accepted accounting
principles, consistently applied. f. As of this date and Closing there is no
pledge, lien, or security interest upon any of the assets of SYMPHONY, and
SYMPHONY has no accrued liabilities, whether or not contingent, fixed or
liquidated, except as disclosed herein or in its financial statements , and
there will not be any negative material changes in the conditions of SYMPHONY
from this date, except changes arising in the ordinary course of business;
g. SYMPHONY is not involved in any litigation (except for lawsuits by an
ex-consultant and by an ex-customer, both involving a SYMPHONY subsidiary which
management believes shall be disposed of satisfactorily) or governmental
investigation or proceeding not reflected herein, and no written litigation,
claims, assessments, or governmental investigation or proceeding is threatened
in writing against SYMPHONY;
h. SYMPHONY is in good standing in the jurisdiction identified for
SYMPHONY above;
i. SYMPHONY has filed all governmental, tax or related returns and reports
due or required to be filed;
j. except as may be disclosed herein or in any EXHIBIT hereto, SYMPHONY
has not been advised in writing of any material breach of any agreement to which
it is a party;
k. SYMPHONY's representations apply to any subsidiary corporations;
l. the corporate financial records, minutes book, and other corporate
documents and records of SYMPHONY are available for review by Management of
MAMMOTH
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prior to the Closing, but, in any event, do not contain anything whatsoever
contrary to this Agreement or that would be deemed by MAMMOTH as material ;
m. the execution of this Agreement will not materially violate or breach
any agreement, contract, or commitment to which SYMPHONY, or its stockholders
is/are a party, and this Agreement has been, or will be prior to the Closing,
duly authorized by appropriate corporate action of SYMPHONY;
n. SYMPHONY shall not change the number of shares of any class authorized,
issued or outstanding. All outstanding shares in SYMPHONY have been duly
authorized, validly issued, and are fully paid and non-assessable and there are
no outstanding or presently authorized securities, warrants, options or other
similar commitments of any nature not described herein;
o. attached hereto is a true complete and correct list of all record
stockholders of SYMPHONY, and (I) said list shall remain true, correct and
complete up to the Closing;
p. as to the SYMPHONY SHARES, MAMMOTH will have good and marketable title
to such shares, free and clear of all liens, claims, and encumbrances
whatsoever, and such shares shall be validly issued, fully paid and
non-assessable shares of common stock under law, except such shares will be
unregistered and will be transferred in a non-public offering, or isolated,
private transaction, in compliance with applicable Federal securities laws, and
shall contain the standard U. S. Securities and Exchange Commission, Rule 144
restricted legend; and
n. as of the date of this Agreement, SYMPHONY has, and at the Closing will
have, disclosed all material events, conditions and facts materially affecting
SYMPHONY, and MAMMOTH has not, and will not have as of the Closing Date,
withheld disclosure of any material event, condition, matter, fact, or other
information which has or may have a material adverse affect on SYMPHONY or any
subsidiary.
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5. Representations of MAMMOTH . MAMMOTH hereby represents that, effective
as of the date first written above and the Closing, the following
representations in this Section are and will be true and correct:
a. as of the Closing, the MAMMOTH SHARES, to be delivered for the
stockholders of SYMPHONY, will constitute valid and legally issued, restricted
(as described herein) shares of MAMMOTH, and such shares shall be fully paid and
non-assessable;
b. the MAMMOTH SHARES represent approximately 35% ownership interest in
MAMMOTH, as to issued and outstanding shares, and MAMMOTH has no obligations to
issue any of its shares or options or warrants or similar rights not reflected
herein or in any EXHIBIT hereto;
c. the President of MAMMOTH is duly authorized to execute this Agreement,
the Board of Directors of MAMMOTH has, as of this date or by the Closing Date,
approved this Agreement, and the execution hereof will not constitute a material
breach of any agreement to which MAMMOTH or any stockholder is a party or is
otherwise bound;
d. MAMMOTH has, or will no later than the Closing, delivered to SYMPHONY
its most recent available financial statements and shall deliver all of its
financial and other books and records on the Closing (the financial statements
are true, complete and accurate), and as of the Closing there shall be no
liabilities, either fixed, contingent, liquidated or unliquidated, not reflected
in the financial statements and the financial statements: (I) fairly and
accurately reflect the financial condition of MAMMOTH as of the dates thereof
and the results of operations for the periods reflected therein, and (II) were
prepared in accordance with generally accepted accounting principles,
consistently applied. As of this date and Closing there is no pledge, lien, or
security interest upon any of the assets of MAMMOTH. At Closing, MAMMOTH shall
have no accrued
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liabilities, whether or not contingent, fixed or liquidated, except as disclosed
herein or in its financial statements;
e. since the date of MAMMOTH's financial statements, there shall have not
been, and as of the Closing there shall not be, any material adverse changes in
the financial condition , or any change in the capitalization of MAMMOTH and
MAMMOTH, for all intent and purposes, will have no material assets or
liabilities on the Closing. In no event shall legal costs of MAMMOTH in respect
of this Agreement be reflected as liabilities of MAMMOTH on, or following, the
Closing, with all MAMMOTH expenses pertaining to this Agreement, and the
transactions to be consummated hereby, including all legal fees, accounting
expenses, and franchise taxes, to be borne by the party incurring same;
f. MAMMOTH is not involved in any pending litigation, claims or
governmental investigations or proceedings, and there are no lawsuits, claims
assessments, investigations, proceedings or similar matters threatened or
contemplated against MAMMOTH to the best knowledge of the Management of MAMMOTH;
g. MAMMOTH is duly organized, validly existing and in good standing under
the laws of the jurisdiction identified above and is qualified to do business in
every jurisdiction where such qualification is necessary and it has the
corporate power to own its property and to carry on its business as now being
conducted;
h. MAMMOTH has filed all material Federal, state, county and local income,
excise, property and other tax returns, forms, and reports, which are due or
required to be filed by MAMMOTH;
i. MAMMOTH has not breached, nor is there any pending or threatened claim
that MAMMOTH has breached to the best knowledge of Management, the terms or
conditions of any agreements, contracts or commitments to which it is a party or
is bound;
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j. the capitalization of MAMMOTH is 50,000,000 shares of authorized Common
Stock, no par value per share, of which such number of said shares are issued
and outstanding as of the date hereof, as reflected on the EXHIBIT hereto.
MAMMOTH shall not change the number of shares of any class authorized, issued or
outstanding, except as of the Closing for the issuance of the SYMPHONY SHARES
pursuant to this Agreement. All outstanding shares in MAMMOTH have been duly
authorized, validly issued, and are fully paid and non-assessable and there are
no outstanding or presently authorized securities, warrants, options or other
similar commitments of any nature not described herein;
k. attached hereto is a true complete and correct list of all record
stockholders of MAMMOTH, and (I) said list shall remain true, correct and
complete up to the Closing, prior to the issuance of stock to SYMPHONY
contemplated herein, and (II) shall be certified by MAMMOTH'S stock transfer
agent;
l. MAMMOTH has no subsidiary corporations and does not own shares of stock
or other securities in any entity;
m. the stockholders of SYMPHONY will have, upon issuance of the SYMPHONY
SHARES by MAMMOTH contemplated herein on the Closing, good and marketable title
to such shares, free and clear of all liens, claims, and encumbrances
whatsoever, and such shares shall be validly issued, fully paid and
non-assessable shares of common stock under Colorado law, except such shares
will be unregistered and will be issued in a non-public offering, or isolated,
private transaction, in compliance with applicable Federal securities laws, and
shall contain the standard U. S. Securities and Exchange Commission, Rule 144
restricted legend (except, notwithstanding anything herein, it is the obligation
of SYMPHONY to comply with its own state or jurisdictional laws for its
stockholders to receive the shares hereunder);
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n. as of the date of this Agreement, MAMMOTH has, and at the Closing will
have, disclosed all material events, conditions and facts materially affecting
MAMMOTH, and MAMMOTH has not, and will not have as of the Closing Date, withheld
disclosure of any material event, condition, matter, fact, or other information
which has or may have a material adverse affect on MAMMOTH;
o. the corporate business and financial records, minutes book, stock
transfer records, and other documents and records of MAMMOTH shall be delivered
to SYMPHONY on the Closing or thereafter as the parties agree, with the
exception of the stock transfer records held by the MAMMOTH'S stock transfer
agent; and
p. MAMMOTH is authorized for trading and is trading on the Bulletin Board
of "NASDAQ" under the symbol "MMMR" without any current known unusual
restrictions or limitations in trading of its Common Stock; and MAMMOTH has, or
will by the Closing, filed all necessary and applicable registration statements
and other financial statement reports required by law.
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6. Closing Date and Situs. The "Closing" of this Agreement shall occur on
the "Closing Date," which shall be the date of this Agreement or such date as
the parties shall agree to in writing. The Closing shall take place by fax or at
such place as the parties agree to in writing, with the applicable law relating
to the Closing, to be that of the State of Nevada (if for any reason a court in
Nevada shall not enforce this provision, then Utah shall apply) for all purposes
without reference to conflict of law principles, with no party or related person
or associated person or professional to be subject to the law of any other
jurisdiction or service of process as to any other jurisdiction.
7. Conditions Precedent to the Obligations of MAMMOTH. All obligations of
MAMMOTH under this Agreement are subject to the fulfillment, prior to or as of
the Closing, or such other date as the parties have agreed to in writing, of
each of the following conditions precedent:
a. the representations by SYMPHONY contained in this Agreement, or in any
certificate or document delivered by SYMPHONY pursuant to the provisions hereof,
shall be true, correct and complete when made, and as of the Closing;
b. SYMPHONY shall have performed and complied with all covenants,
agreements and conditions required by this Agreement to be performed or complied
with by SYMPHONY on or before the Closing;
d. all instruments and documents, including EXHIBITS, attached hereto, and
delivered to MAMMOTH pursuant to the provisions hereof, will be true, correct
and complete;
e. SYMPHONY is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
f. SYMPHONY has the corporate power to carry on its business, as now being
conducted, and is duly qualified to do business in any jurisdiction where so
required;
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g. this Agreement has been duly authorized, executed and delivered by
SYMPHONY and is a valid and binding obligation of SYMPHONY enforceable in
accordance with its terms;
h. SYMPHONY, through its Board of Directors, has taken all corporate
action necessary for the performance of all of its obligations under this
Agreement; and
i. the documents executed and delivered to MAMMOTH are valid and binding
in accordance with their terms and, in respect of stock certificates, as to the
SYMPHONY SHARES to be transferred to MAMMOTH, and vest in MAMMOTH all rights,
title and interest in and to the shares.
8. Conditions Precedent to the Obligations of SYMPHONY. All obligations of
SYMPHONY under this Agreement are subject to the fulfillment, prior to or on the
Closing, or such other date as the parties have agreed to in writing, of each of
the following conditions precedent:
a. the representations by MAMMOTH contained in this Agreement or in any
certificate or document delivered by MAMMOTH pursuant to the provisions hereof,
shall be true, correct and complete when made, and at and as of the time of
Closing as though such representations and warranties were made at and as of
such time;
b. MAMMOTH shall have performed and complied with its covenants,
agreements, and conditions required by this Agreement to be performed or
complied with by it prior to, following or at the Closing, including the
delivery of the MAMMOTH STOCK when required hereunder;
c. SYMPHONY is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
d. this Agreement has been duly executed and delivered by MAMMOTH;
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e. the share certificates to be executed and delivered (MAMMOTH SHARES) to
the SYMPHONY stockholders hereunder vest in them all of the right, title and
interest in the stock and said stock is duly and validly issued, fully paid and
non-assessable;
f. MAMMOTH shall have executed and delivered to SYMPHONY the documents
under EXHIBITS to be executed and delivered by MAMMOTH; and
g. on the Closing, the present "Directors" of MAMMOTH shall appoint
nominees, designated in writing by SYMPHONY, to fill the vacant seats on the
Board, and the MAMMOTH shares shall not be subject to any stock split within the
next 30 days.
9. Indemnification. As to each of MAMMOTH and SYMPHONY, each party to this
Agreement shall indemnify and hold harmless each other party at all times after
the date of this Agreement against and in respect of any liability, damage,
deficiency, action, suit, proceeding, demand, assessment, judgment, cost and
expense, including attorney's fees, resulting from any misrepresentation, breach
of promise or nonfulfillment of any agreement on the part of any such party
under this Agreement.
10. Nature and Survival Representations. All representations made by the
parties in this Agreement shall survive the Closing, and the parties are
carrying out the provisions of this Agreement in reliance solely on the
representations, covenants and agreements contained in this Agreement, or made
in writing at the Closing of the transaction herein provided for, and not upon
any investigation which any such party may have made, or any representation,
warranty, agreement, promise or information, written or oral, made by another
person or firm other than as specifically set forth herein or in the EXHIBITS
delivered in connection with this Agreement.
11. Documents at Closing. At Closing, in addition to what is required
elsewhere herein, all EXHIBITS attached hereto, and the signature page hereto,
shall be executed and or initialed, delivered by all appropriate parties, except
the parties shall have such
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additional days as identified herein to perform as expressly provided herein, in
which case such provision herein providing additional time beyond the Closing
Date shall control notwithstanding anything to the contrary (provided, however,
it shall be deemed that the Closing of this Agreement occurred on the Closing
Date).
12. Miscellaneous Provisions.
A. Gender. Wherever the context shall require, all words herein in the
masculine gender shall be deemed to include the feminine or neuter gender, all
singular words shall include the plural, and all plural shall include the
singular.
B. Severability. If any provision hereof is deemed unenforceable by a
court of competent jurisdiction, the remainder of this Agreement, and the
application of such provision in other circumstances shall not be affected
thereby.
C. Further Cooperation. From and after the date of this Agreement, each of
the parties hereto agrees to execute whatever additional reasonable
documentation or instruments as are necessary to carry out the intent and
purposes of this Agreement or to comply with any law.
D. Waiver. No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the waiving party. The failure of any party at
any time to insist upon strict performance of any condition, promise, agreement
or understanding set forth herein, shall not be construed as a waiver or
relinquishment of any other condition, promise, agreement or understanding set
forth herein or of the right to insist upon strict performance of such waived
condition, promise, agreement or understanding at any other time.
E. Expenses. Except as otherwise provided herein, each party hereto shall
bear all expenses incurred by each such party in connection with this Agreement
and in the consummation of the transactions contemplated hereby and in
preparation thereof.
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F. Amendment. This Agreement may only be amended or modified at any time,
and from time to time, in writing, executed by the parties hereto. .
G. Captions. Captions herein are for the convenience of the parties and
shall not affect the interpretation of this Agreement.
H. Counterpart Execution and Fax. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and may be executed by
fax.
I. Assignment. This Agreement is not assignable.
J. Parties in Interest. Provisions of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and, their
heirs, executors, administrators, other permitted successors and assigns, if
any. Nothing contained in this Agreement, whether express or implied, is
intended to confer any rights or remedies under or by reason of this Agreement
on any persons other than the parties to it and their respective successors and
assigns, nor is anything in this Agreement intended to relieve or discharge the
obligation or liability of any third persons to any party to this Agreement, nor
shall any provision give any third persons any right of subrogation or action
against, any party to this Agreement.
K. Entire Agreement. This Agreement and the EXHIBITS attached hereto
constitute the entire agreement and understanding of the parties on the subject
matter hereof and supersede all prior agreements and understandings.
L. Construction. This Agreement shall be governed by the laws of the State
of Utah without reference to conflict of laws and the venue for any action,
claim or dispute in respect of this Agreement shall be such court of competent
jurisdiction as is located in Nevada, U.S.A. (if, for any reason a court fails
to accept jurisdiction in Nevada, then Utah shall apply). The parties agree and
acknowledge that each has reviewed this
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Agreement and the normal rule of construction that agreements are to be
construed against the drafting party shall not apply in respect of this
Agreement given the parties have mutually negotiated and drafted this Agreement.
M. Cooperation. The parties hereto agree to cooperate with one another in
respect of this Agreement, including reviewing and executing any document
necessary for the performance of this Agreement, to comply with law or as
reasonably requested by any party hereto, or legal counsel to any party hereto.
N. Independent Legal Counsel. The parties hereto agree that (I) each has
retained independent legal counsel as confirmed in writing in connection with
the negotiation, preparation and execution of this Agreement, (II) each has been
advised of the importance of retaining legal counsel, and (III) by the execution
of this Agreement, each party who has not retained independent legal counsel
acknowledges having waived such right.
The parties have executed this Agreement as of the date first written
above.
MAMMOTH RESOURCES, INC.
By: /s/ Leonard Rice
Its: President
SYMPHONY TELECOM INTERNATIONAL, INC.
By: /s/ Gilles Trahan
Its: Chief Executive Officer
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