DRAFT - May 22, 1997
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT OF MERGER made as of the _____ th day of June, 1997
BETWEEN:
SKYWAY HOME, INC., a corporation incorporated pursuant to the laws of the
State of Nevada and having its place of business at Suite 216, 18 Corporate
Plaza, Newport Beach, California (hereinafter called "Skyway")
OF THE FIRST PART
AND:
SKYWAY HOME ACQUISITION CORPORATION, a corporation incorporated pursuant
to the laws of the State of Nevada and having its place of business at Suite
B-169 North Scottsdale Road, Scottsdale, Arizona (hereinafter called
"Acquisition")
OF THE SECOND PART
WHEREAS:
A. Skyway is a corporation duly organized and existing under the laws of the
State of Nevada.
B. Acquisition is a corporation organized duly organized and existing under
the laws of the State of Nevada.
C. Skyway and Acquisition, acting by their respective boards of directors,
have determined that it is advisable and in the best interests of their
shareholders that Skyway and Acquisition merge in a forward triangular merger,
with Acquisition to be the surviving corporation, pursuant to the terms and
conditions of this Agreement and the laws or the State of Nevada (the "Merger").
Upon effectiveness of the Merger, all of the outstanding common stock of Skyway
will be converted into 6,300,000 common shares
D. The boards of directors of each of Skyway and Acquisition have, in each
case by the affirmative vote of a majority of the full board of directors,
authorized and approved this Agreement and the Merger.
E. It is the intent of Skyway and Acquisition that this merger be treated
as a reorganization pursuant to Section 368 (a)(1)(A) of the Internal Revenue
Code of 1986, as amended (the "Code"), by virtue of the provisions of Section
368(a)(2)(D) of the Code.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the mutual
covenants, and subject to the terms and conditions hereinafter set forth, the
parties hereto agree as follows:
1. INTERPRETATION
1.1 Where used herein or in any amendments or Schedules hereto, the
following terms shall have the following meanings:
(a) "Agreement and Plan of Reorganization" means the agreement and plan of
reorganization between the Skyway Shareholders, Skyway and Claire dated as of
the ___ day of May, 1997;
(b) "Skyway Shareholders" means The Curlin Trust, Harry Moll and Logan
Anderson;
(c) "Skyway Shares" means all of the issued and outstanding shares of
Skyway, being 630,000 common shares;
(d) "Constituent Corporations" means Acquisition and Skyway;
(e) "Effective Date" means the date on which the Merger is effective, as
contemplated in Section 2.1;
(f) "Merger" means the merger of Acquisition and Skyway, as contemplated by
Section 2.1 of this Agreement;
(g) "Surviving Corporation" means Acquisition as of and subsequent to the
Effective Date of the Merger;
(h) "Claire" means Claire Corp, a corporation duly incorporated under the
Nevada Act;
(i) "Nevada Act" means the Business Corporations Act of the State of
Nevada.
1.2 All dollar amounts referred to in this agreement are in United States
funds, unless expressly stated otherwise.
1.3 This Agreement shall be interpreted to give effect to the intention of
the parties that this transaction qualify as a tax-free reorganization pursuant
to Internal Revenue Code Sections 368(a)(1)(A) and 368(a)(2)(D), and regulations
promulgated thereunder.
2. THE MERGER
2.1 Skyway will be merged with and into Acquisition on the following basis:
(a) the Merger will be effective on the date when this Merger Agreement is
filed with the Secretary of State of the State of Nevada (the "Effective Date");
(b) the separate existence of Skyway will cease upon effectiveness of the
Merger;
(c) Acquisition will survive as the Surviving Corporation upon
effectiveness of the Merger and will continue to exist by virtue of and will
be governed by the laws of the State of Nevada.
3. FILING OF MERGER AGREEMENT
3.1 Skyway and Acquisition will forthwith upon execution of this Agreement
execute articles of merger in the form required by the Nevada Act, which
articles of merger will include:
(a) the plan of merger set forth in this Merger Agreement;
(b) confirmation of the approval of the shareholders of each of Skyway and
Acquisition of the Merger and this Merger Agreement.
3.2 The Merger shall be completed by submitting the articles of merger to
the Secretary of State of Nevada in accordance with the Nevada Act.
4. CONVERSION OF SHARES
4.1 Upon the Effective Date, by virtue of the Merger and without any action
on the part of the holder thereof, each common share of Acquisition issued and
outstanding immediately prior to the Merger shall after completion of the Merger
continue to constitute one validly issued, fully paid and non-assessable
common share of Acquisition. Each stock certificate of Acquisition evidencing
ownership will continue to evidence ownership of such common shares of
acquisition.
4.2 Upon the Effective Date, by virtue of the Merger and without any action
on the
part of the holder thereof, each Skyway Share issued and outstanding immediately
prior to the Merger shall be changed and converted automatically into 10 common
shares of Claire (the "Exchange Ratio") for an aggregate of 6,300,000 common
shares of Claire. Upon surrender of the certificates representing the Skyway
Shares at the closing of the Agreement and Plan of Reorganization, new
certificates for 6,300,000 common shares of Claire shall be issued in
accordance with the Exchange Ratio calculation. Such certificates shall provide
an appropriate securities law legend, providing, among other things, that the
shares evidenced by the certificates are being acquired for investment purposes
and are restricted securities.
4.3 On and after the Effective Date, all of the outstanding certificates
which prior to the Effective Date represented shares of Skyway shall be deemed
for all purposes to evidence ownership of and to represent the shares of Claire
into which the shares Skyway represented by such certificates have been
converted as herein provided. The registered owner on the books and records
of Skyway or its transfer agents of any such outstanding stock certificates,
shall until such certificates shall have been surrendered for transfer or
conversion or otherwise accounted for to Claire or its transfer agent, have and
be entitled to exercise any voting and other rights with respect to and to
receive any dividend and other distributions upon the shares of Claire
evidenced by such outstanding certificate as provided above.
4.4 In the event any certificates evidencing shares of Skyway shall have
been lost, stolen or destroyed, Claire shall issue in exchange for such lost,
stolen or destroyed certificates, upon the making of any affidavit of that fact
by the holder thereof, such shares of Claire.
4.5 No fraction shares of Claire will be issued.
4.6 All shares of Claire issued upon the surrender for exchange of shares of
Skyway in accordance with the terms of this Merger Agreement shall be deemed to
have been issued in full satisfaction of all rights pertaining to such shares of
Skyway. There shall be no further registration of transfers on the record of
Acquisition of shares of Skyway which were outstanding immediately prior to the
Effective Date. If, after the Effective Date, certificates evidencing shares of
Skyway are presented to Acquisition for any reason such shares of Skyway shall
be deemed void and cancelled.
5. EFFECT OF MERGER
5.1 On the Effective Date, the Surviving Corporation will:
(a) possess all the powers, rights, privileges, goodwill, immunities and
franchises, as well of a public as of a private nature, of each of the
Constituent Corporations;
(b) possess all property, real, personal and mixed, and all debts due on
whatever account and subscriptions to shares and all other thing in action and
every other interest of and belonging to or due to each of the Constituent
Corporations, each of which shall be taken and
deemed to be transferred to and vest in the Surviving Corporation without
further act;
(c) be responsible and liable for all debts, liabilities and obligations
of each of the Constituent Corporations, and all rights of creditors and all
liens upon the property of the Constituent Corporations shall not be impaired
by the Merger, and all debts, liabilities and duties of the Constituent
Corporations shall attach to the Surviving Corporation and may be enforced
against it to the same extent as if said debts, liabilities and duties had
been incurred or contracted by it.
5.2 Any claim existing or action or proceeding pending by or against either
of the Constituent Corporations may be prosecuted to judgment as if the Merger
had not taken place, or the Surviving Corporation may be proceeded against or
substituted in its place.
5.3 The corporate name, entity and separate existence of Skyway, except
insofar as the same shall continue by requirements of statute, shall terminate,
and such corporation shall cease to be a corporation organized and existing
under the laws of the State of Nevada, and the Surviving Corporation shall be a
corporation organized and existing under the laws of the State of Nevada.
6. SURVIVING CORPORATION
6.1 The name of the Surviving Corporation shall upon completion of the merger
be "Skyway Homes, Inc.".
6.2 The Surviving Corporation shall have its principal place of business at
Suite 216, 18 Corporate Plaza, Newport Beach, California.
6.3 The purposes of the Surviving Corporation shall be, without limitation,
to continue and carry on the business of the Constituent Corporations and to do
all things permitted by and in accordance with the by-laws of the Surviving
Corporation.
6.4 The authorized capital stock of the Surviving Corporation shall be
100,000,000 shares of common stock without par value. The rights and
restrictions of the common stock shall be as set forth in the by-laws of the
Surviving Corporation.
6.5 The articles of incorporation of the Surviving Corporation shall
continue in full force as the articles of the Surviving Corporation until
further amended, altered, or repealed, or as provided by law.
6.6 The by-laws of the Surviving Corporation shall continue to be its bylaws
following the effective date of the Merger.
6.7 The directors and officers of the Surviving Corporation on the Effective
Date shall continue as the directors and officers of the Surviving Corporation
for the full unexpired term of their offices and until their successors be
chosen or appointed according to law or according to the By-laws of the
Surviving Corporation.
7. GENERAL PROVISIONS
7.1 Time shall be of the essence of this agreement.
7.2 From time to time, as and when required by the Surviving Corporation or
by its successors and assignees, there shall be executed and delivered on behalf
of such deeds and other instruments, and there shall be taken or caused to be
taken by it such further and other action, as shall be appropriate or necessary
in order to vest or perfect in order to conform of record or otherwise, in the
Surviving Corporation the title to and possession of all the property,
interests, assets, rights, privileges, immunities, powers, franchises, and
authority of and otherwise to carry out the purposes of this Merger Agreement,
and the officers and directors of the Surviving Corporation are fully authorized
in the name and on behalf of or otherwise to take any and all such action and to
execute and deliver any and all such deeds and other instruments.
7.3 At any time before the Effective Date, this Merger Agreement may be
terminated and the merger may be abandoned by the Board of Directors of either
Acquisition of Skyway or all, notwithstanding the approval of the merger
Agreement by the shareholders of the Constituent Corporations.
7.4 This agreement may be executed in one or more counter-parts, each of
which so executed shall constitute an original and all of which together shall
constitute one and the same agreement.
7.5 If any legal action arises with regard to this Agreement or by reason
of any asserted breach of it, the prevailing party shall be entitled to
recover all costs and expenses, including reasonable attorney's fees, incurred
in enforcing or attempting to enforce any of the terms, covenants, or
conditions, including costs incurred prior to commencement of legal action, and
all costs and expenses, including reasonable attorney's fees, incurred in any
appeal from any action brought to enforce any of the terms, covenants, or
conditions.
IN WITNESS WHEREOF the parties hereto have executed this agreement as of the
day and year first above written.
SKYWAY HOMES, INC.
by its authorized signatory:
________________________________
Charles Seven, President
SKYWAY HOMES ACQUISITION CORPORATION
by its authorized signatory:
________________________________
Jan Wallace, President