Exhibit 2.2
SHARE EXCHANGE AGREEMENT
AND
PLAN OF REORGANIZATION
DATED: September 24, 1999
BETWEEN: Casino Pirata.com Ltd., a Nevada corporation
9498 SW Barbur Blvd., Suite 305.
Portland, OR 97219 "Casino"
AND: Advantage Systems, Inc. a California corporation,
doing business as American Computer
1324 S. Mary Ave.
Sunnyvale, CA 94087 "American"
AND: Those persons whose names appear on the
attached Exhibit A as American Shareholders "American Shareholders" or
"American Shareholder"
RECITALS
A. Casino desires to acquire One Hundred Percent (100%) of the issued
and outstanding common stock of American.
B. The American Shareholders are willing to exchange their shares of
common stock in American ( "American Securities") for shares common stock of
Casino ("Casino Securities") pursuant to the terms and conditions of this
Agreement and with the understanding and intention that the exchange of shares
will qualify as a tax-free reorganization under Section 368(a)(1)(B) of the
Internal Revenue Code of 1986, as amended.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. The Exchange.
(a) Common Share Exchange. Each American Shareholder will
exchange one (1) share of the issued and outstanding common stock of American
for 3.208 shares of common stock of Casino. A total of 3,200,000 shares of
Casino shares of common stock will be issued to the American Shareholders based
on a price of $.625 per share of Casino common stock. A schedule of all American
Shareholders executing this Agreement and their respective
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holdings of American Securities and the number of shares of Casino Securities
each will receive under this Agreement is attached hereto as Exhibit A and
incorporated herein by this reference.
(b) Procedure. The American Shareholders, by executing this
Agreement, agree to surrender all their respective American Securities for
exchange pursuant to this Agreement.
2. Intention of the Parties. It is the intention of Casino and American
that upon the Closing of this Agreement, as defined in Section 6 herein, Casino
shall acquire control not only of the physical assets of American, but also
American's relationships with its vendors and customers and American's
management expertise in computer systems integration and networking. In
addition, it is the further intention and understanding of Casino and American
that Casino shall exercise its good faith efforts to provide financing to
American in the amount of $500,000 for the purpose of implementing American's
business plans. Casino and American acknowledge that the ability of Casino to
provide the financing to American referred to above may be dependent on a number
of factors which may be beyond the control of Casino, such as general market
conditions, investors' decisions with regard to the investment of their funds,
securities law compliance requirements, and the like.
3. Representations and Warranties of American Shareholders.
(a) By executing this Agreement, the American Shareholders
represent and warrant that they own all of the American Securities listed
opposite their names on Schedule A free and clear of any lien, encumbrance or
claim of others and may freely transfer, assign and exchange the same.
(b) The American Shareholders represent and warrant that they
are exchanging their American Securities for the Casino Securities for
investment purposes only, and not with a view to distribute and acknowledge that
the Casino Securities will not be registered and only may be sold or transferred
pursuant to a registration statement or an exemption from registration under the
Securities Act of 1933. The American Shareholders acknowledge that the Casino
Securities may be issued to them with a legend setting forth this restriction on
transfer.
4. Representations and Warranties of Casino.
(a) Casino is a corporation duly organized under the laws of
the State of Nevada, validly existing, and authorized to exercise all its
corporate powers, rights and privileges;
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(b) Casino has the corporate power and authority to own and
operate its properties and to carry on its businesses now conducted;
(c) Casino has all requisite legal and corporate power to
execute and deliver this Agreement;
(d) Casino will have at Closing all required legal and
corporate power to issue the Casino Securities called for by this Agreement.
(e) All corporate actions on the part of Casino necessary for
the authorization, execution, delivery and performance of all obligations under
this Agreement and for the issuance and delivery of the Casino Securities has
been taken, and this Agreement constitutes a valid obligation of Casino.
(f) The Casino Securities, when sold and delivered in
accordance with the terms of this Agreement and for the consideration expressed
herein, shall be duly and validly issued, fully paid and non-assessable;
(g) Casino is a non-reporting public corporation within the
meaning of the Securities Exchange Act of 1934;
(h) There is no action, proceeding, or investigation pending
or threatening, or any basis therefor known to Casino to question the validity
of this Agreement or the accuracy of the representations and warranties
contained herein
(i) The authorized capital stock of Casino consists of
95,000,000 shares of common stock, of which 7,250,179 shares are issued and
outstanding as of the date of this Agreement and 5,000,000 shares of preferred
stock, none of which shares are issued and outstanding as of the date of this
Agreement. Except as described in the attached Exhibit "B", there are no other
securities, options, warrants, or other rights to purchase any securities of
Casino outstanding. All outstanding securities of Casino are duly and validly
issued, fully paid and non-assessable;
5. Representations and Warranties of American.
(a) American is a corporation duly organized under the laws
the State of California, validly existing and authorized to exercise all its
corporate powers, rights and privileges;
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(b) American has the corporate power and authority to own and
operate its properties and to carry on its business as now conducted;
(c) American has all requisite legal and corporate power to
execute and deliver this Agreement;
(d) All corporate actions on the part of American necessary
for the authorization, execution, delivery and performance of all obligations
under this Agreement have been taken and this Agreement constitutes a valid
obligation of American.
(e) American is a non-reporting corporation within the meaning
of the Securities Exchange Act of 1934.
(f) There is no action, proceeding or investigation pending or
threatening or any basis thereof known to American to question the validity of
this Agreement or the accuracy of the representations and warranties contained
herein.
(g) The authorized capital stock of American consists of
10,000,000 shares of common stock, of which 997,500 shares are issued and
outstanding as of the date of this Agreement. Except as contemplated in this
Agreement, there are no other securities, options, warrants, or other rights to
purchase any securities of American outstanding. All outstanding securities of
American are duly and validly issued, fully paid and non-assessable.
6. Closing.
Closing shall take place on or about September 24, 1999 at the offices
of Casino or at another place, or by any other means, agreed to by the parties
("Closing"). Upon receipt of the Agreement executed by all parties or in
counterparts and when in possession of not less than one hundred percent (100%)
of American Securities, Casino may complete the transaction by transferring the
Casino Securities to the American Shareholders.
7. Opinion of Counsel for American.
At Closing, American shall deliver to Casino the opinion of legal
counsel, dated as of Closing, in form and substance reasonably satisfactory to
Casino, as to Sections 4.a.,4.b., 4.c.,4.d., 4.e.,4.f., and 4.g.
8. Appointment of Officers / Agreements with Key Employees
(a) As soon practicable after Closing, the Board of Directors
of Casino shall appoint George Bentley ("Bentley") as President of Casino and
Paul J. Stringer shall be appointed
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Chief Executive Officer. Each shall serve at the pleasure of the Board of
Directors until their respective successors have been duly qualified and
appointed. Bentley and Casino shall enter into an Employment Agreement which,
among other things, shall provide for a term of twenty-four (24) months; an
annual salary to Bentley of $100,000; and a payment of $20,000 to be paid to
Bentley upon the signing of this Agreement. The Employment Agreement shall
provide further that all management decisions involving the business of Casino,
including but not limited to, merger and acquisitions and the hiring or
termination of management personnel, shall require the prior approval of
Bentley.
(b) Except as Section 7 (a) above shall apply to Bentley, the
current executive officers and key employees of American shall continue in their
respective capacities with American for a minimum of twenty-four (24) months
after Closing. At Closing, American shall deliver to Casino employment
agreements with each of American's executive officers and key employees.
9. Consent of Casino's Shareholders.
Casino shall submit this Agreement to its shareholders for their
consent and approval in accordance with the requirements of the Nevada Business
Corporation Act. Casino shall notify American in writing that the consent of the
shareholders has been obtained.
10. Publicity.
The initial press release relating to this Agreement shall be a joint
press release, subject to the prior written approval of Bentley. Thereafter
Casino and American shall, subject to their respective legal obligations,
including requirements of the OTC Bulletin Board, NASDAQ National Market, stock
exchanges and similar regulatory bodies, consult with each other, and use
reasonable efforts to agree upon the text of any press release, before issuing
any such press release or otherwise making public statements with respect to the
transactions contemplated by this Agreement and in making any filings with any
federal or state governmental or regulatory agency or any securities exchange
with respect thereto. Any such press release shall be subject also to the prior
written approval of Bentley.
11. Miscellaneous.
(a) This Agreement may be signed in any number of
counterparts, each of which will be considered an original. Execution and
delivery of this Agreement by exchange of
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facsimile copies bearing the facsimile signature of each party shall constitute
a valid and binding execution and delivery of this Agreement by each party. Such
facsimile copies shall constitute enforceable original documents.
(b) The representations and warranties herein contained will
survive Closing.
(c) This Agreement constitutes the entire agreement between
the parties and supersedes any previous agreement between the parties concerning
its subject matter.
(d) This Agreement will be governed by the laws of the state
of Nevada.
(e) Any controversy or claim arising out of, or related to
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the rules of the America Arbitration Association and judgement
upon the award rendered by the arbitrator(s) may be entered in any court have
jurisdiction thereof. American hereby submits to the jurisdiction of any local,
state or federal court in the United States for purposes of enforcing any
judgement described in this section.
(f) In any arbitration proceeding initiated under this
Agreement, the prevailing party shall be entitled to an award of its reasonable
attorneys fees and costs.
THIS AGREEMENT IS EFFECTIVE AS OF THE DATE FIRST ABOVE WRITTEN.
CASINO PIRATA.COM LTD. ADVANTAGE SYSTEMS, INC.
By: /s/Paul Stringer By:
--------------------------------- ---------------------------------
Name: Paul Stringer Name:
------------------------------- -------------------------------
Title: President Title:
------------------------------ ------------------------------
AMERICAN SHAREHOLDERS:
- -------------------------- ----------------------------
Kenney Noel Vijay Marathe
- -------------------------------- ----------------------------------
Keith Avinger George Bentley
- -------------------------------- -----------------------------------
Al Reyes Loc Doung
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facsimile copies bearing the facsimile signature of each party shall constitute
a valid and binding execution and delivery of this Agreement by each party. Such
facsimile copies shall constitute enforceable original documents.
(b) The representations and warranties herein contained will
survive Closing.
(c) This Agreement constitutes the entire agreement between
the parties and supersedes any previous agreement between the parties concerning
its subject matter.
(d) This Agreement will be governed by the laws of the state
of Nevada.
(e) Any controversy or claim arising out of, or related to
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the rules of the America Arbitration Association and judgement
upon the award rendered by the arbitrator(s) may be entered in any court have
jurisdiction thereof. American hereby submits to the jurisdiction of any local,
state or federal court in the United States for purposes of enforcing any
judgement described in this section.
(f) In any arbitration proceeding initiated under this
Agreement, the prevailing party shall be entitled to an award of its reasonable
attorneys fees and costs.
THIS AGREEMENT IS EFFECTIVE AS OF THE DATE FIRST ABOVE WRITTEN.
CASINO PIRATA.COM LTD. ADVANTAGE SYSTEMS, INC.
By: By: /s/Keith Avinger
--------------------------------- ---------------------------------
Name: Name: Keith Avinger
------------------------------- -------------------------------
Title: Title: President
------------------------------ ------------------------------
AMERICAN SHAREHOLDERS:
/s/Kenney Noel /s/Vijay Marathe
- -------------------------- ----------------------------
Kenney Noel Vijay Marathe
/s/Keith Avinger /s/George Bentley
- -------------------------------- ----------------------------------
Keith Avinger George Bentley
/s/Al Reyes /s/Loc Doung
- -------------------------------- -----------------------------------
Al Reyes Loc Doung
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AMERICAN SHAREHOLDERS
Name American Securities Owned Casino Securities Received
Kenney Noel 200,000 641,604
Vijay Marathe 200,000 641,604
Keith Avinger 200,000 641,604
George Bentley 199,500 640,000
Al Reyes 180,000 577,444
Loc Doung 18,000 57,744
TOTAL 997,500 3,200,000
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Exhibit A
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Outstanding Options, Warrants or Other Rights to Purchase Securities
of
Casino Pirata. com Ltd.
Name Securities
Exhibit B
Page 8 - SHARE EXCHANGE AGREEMENT AND PLAN OF REORGANIZATION
Amendment to
Share Exchange Agreement and Plan of Reorganization
dated September 24, 1999
between Casino Pirata.com Ltd. and Advantage Systems, Inc.
and the shareholders of Advantage Systems, Inc.
The Share Exchange Agreement and Plan of Reorganization dated September
24, 1999 is hereby amended to provide that the number of shares of common stock
of Casino Pirata. com Ltd to be issued to the shareholders of Advantage Systems,
Inc is increased by 4,100,000, so that the aggregate number of shares of common
stock issued to the shareholders of Advantage Systems, Inc shall be 7,300,000.
Dated November 5, 1999
CASINO PIRATA.COM LTD. ADVANTAGE SYSTEMS, INC.
By:/s/George J. Bentley By: /s/Keith E. Avinger
-------------------------- --------------------------
Name: George J. Bentley Name: Keith E. Avinger
Title: President Title: President
AMERICAN SHAREHOLDERS:
/s/Kenny Noel /s/Vijay Marathe
-------------------------- --------------------------
Kenny Noel Vijay Marathe
/s/Keith E. Avinger /s/George J. Bentley
-------------------------- --------------------------
Keith E. Avinger George J. Bentley
/s/Al Reyes /s/Loc D. Doung
-------------------------- --------------------------
Al Reyes Loc D. Doung