AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") between
Drew Resources, Inc., a Nevada corporation ("DRI") and Buffton,
Inc., a Nevada corporation ("BUF") and the shareholders of BUF
(collectively the "Shareholders"), being the owners of record of
all of the issued and outstanding stock of BUF.
Whereas, DRI wishes to acquire and the Shareholders wish to
transfer all of the issued and outstanding securities of BUF in a
transaction intended to qualify as a reorganization within the
meaning of 368(a)(1)(B) of the Internal Revenue Code of 1986, as
amended.
Now, therefore, DRI and the Shareholders adopt this plan of
reorganization and agree as follows:
1. Exchange of Stock. All stock of BUF for the sum of an
aggregate of the par value of $0.001 per share.
1.1. Number of Shares. The Shareholders agree to transfer
to DRI at the Closing (defined below) all of the shares of common
stock of BUF, $.001 par value per share in exchange for the sum
of the aggregate of the par value.
1.2. Exchange of Certificates. Each holder of an
outstanding certificate or certificates theretofore representing
shares of BUF common stock shall surrender such certificate(s)
for cancellation to DRI. The transfer of BUF shares by the
Shareholders shall be effected by the delivery to DRI at the
Closing.
1.3. Fractional Shares. N/A
1.4. Further Assurances. At the Closing and from time to
time thereafter, the Shareholders of BUF shall execute such
additional instruments and take such other action as DRI may
request in order more effectively to sell, transfer, and assign
the transferred stock to DRI and to confirm DRI's title thereto.
2. Ratio of Exchange. N/A
3. Closing.
3.1. Time and Place. The Closing contemplated herein shall
be held as soon as possible at the offices of Chapman and
Flanagan at 2080 East Flamingo, Las Vegas, Nevada, unless another
place or time is agreed upon in writing by the parties without
requiring the meeting of the parties hereof. All proceedings to
be taken and all documents to be executed at the Closing shall be
deemed to have been taken, delivered and executed simultaneously,
and no proceeding shall be deemed taken nor documents deemed
executed or delivered until all have been taken, delivered and
executed. The date of Closing may be accelerated or extended by
agreement of the parties.
3.2. Form of Documents. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission
required by this Agreement or any signature required thereon may
be used in lieu of an original writing or transmission or
signature for any and all purposes for which the original could
be used, provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire
original writing or transmission or original signature.
4. Unexchanged Certificates. N/A
5. Representations and Warranties of the Shareholders
The Shareholders, individually and separately, represent and
warrant as follows:
5.1. Title to shares. The Shareholders, and each of them, are
the owners, free and clear of any liens and encumbrances, of the
number of BUF shares which are listed in the attached schedule
and which they have contracted to exchange.
5.2. Litigation. There is no litigation or proceeding pending,
or to any Shareholder's knowledge threatened, against or relating
to shares of BUF held by the Shareholders.
6. Representations and Warranties of DRI
DRI represents and warrants as follows:
6.1 Corporate Status. DRI is a corporation duly organized,
validly existing, and in good standing under the laws of the
State of Nevada and is licensed or qualified as a foreign
corporation in all states in which the nature of its business or
the character or ownership of its properties makes such licensing
or qualification necessary.
6.2 Capitalization. The authorized capital stock of DRI
consists of shares of common stock, par value per share, of which
shares are issued and outstanding, all fully paid and
nonassessable and no shares of non-designated preferred stock.
6.3 Subsidiaries. DRI has no subsidiaries.
6.4 Litigation. There is no litigation or proceeding pending,
or to the Company's knowledge threatened, against or relating to
DRI, its properties or business, except as set forth in a list
certified by the president of DRI and delivered to the
Shareholders.
6.5 Contracts. DRI is not a party to any material contract
which would prevent the instant transaction.
6.6 No Violation. Execution of this Agreement and performance
by DRI hereunder has been duly authorized by all requisite
corporate action on the part of DRI, and this Agreement
constitutes a valid and binding obligation of DRI and performance
hereunder will not violate any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order,
judgement, decree, law, or regulation to which any property of
DRI is subject or by which DRI is bound.
6.7 Taxes. DRI has filed in correct form all federal, state,
and other tax returns of every nature required to be filed by it
and has paid all taxes as shown on such returns and all
assessments, fees and charges received by it to the extent that
such taxes, assessments, fees and charges have become due. DRI
has also paid all taxes which do not require the filing of
returns and which are required to be paid by it. To the extent
that tax liabilities have accrued, but have not become payable,
they have been adequately reflected as liabilities on the books
of DRI and are reflected in the financial statements furnished
hereto.
6.8 Title to Property. DRI has good and marketable title to all
properties and assets, real and personal, reflected in DRI's
Financial Statements, except as since sold or otherwise disposed
of in the ordinary course of business, and DRI's properties and
assets are subject to no mortgage, pledge, lien, or encumbrance,
except for liens shown therein, with respect to which no default
exists.
6.9 Corporate Authority. DRI has full corporate power and
authority to enter into this Agreement and to carry out its
obligations hereunder, and will deliver at the Closing a
certified copy of resolutions of its board of directors
authorizing execution of this Agreement by its officers and
performance thereunder.
6.10 Investment Intent. DRI is acquiring the BUF shares to be
transferred to it under this Agreement for investment and not
with a view to the sale or distribution thereof.
6.11 Future Business Combinations/Acquisitions. Further, the
candidate, any of its directors, officers, principal shareholders
or general partners:
(1) will not have been convicted of securities fraud, mail
fraud, tax fraud, embezzlement, bribery, or a similar criminal
offense involving misappropriation or theft of funds, or be the
subject of a pending investigation or indictment involving any of
those offenses;
(2) will not have been subject to a temporary or permanent
injunction or restraining order arising from unlawful
transactions in securities, whether as an issuer, underwriter,
broker, dealer, or investment advisor, may be the subject of any
investigation or a defendant in a pending lawsuit arising from or
based upon the allegations of unlawful transactions in
securities, or
(3) will not have been a defendant in a civil action which
resulted in a final judgment against it or him awarding damages
or rescission based upon unlawful practices or sales of
securities.
DRI's officer and director will make these determinations by
asking pertinent questions of the management of prospective
combination candidates. Such persons will also ask pertinent
question of others who may be involved in the combination
proceedings. However, the officer and director of DRI will not
take other steps to verify independently the information obtained
in this manner. Unless something comes to his attention, which
puts him on notice of a possible disqualification which might be
concealed from him, he will rely on the information received from
the management of the prospective business combination candidate
and from others who may be involved in the combination
proceedings.
7. Conduct Pending the Closing
DRI and the Shareholders covenant that between the date of
this Agreement and the Closing as to each of them:
7.1. No change will be made in the charter documents, by-laws, or
other corporate documents of DRI.
7.2. DRI will use its best efforts to maintain and preserve its
business organization, employee relationships and goodwill
intact, and will not enter into any material commitment except in
the ordinary course of business.
7.3. None of the Shareholders will sell, transfer, assign,
hypothecate, lien, or otherwise dispose or encumber the BUF
shares of common stock owned by them.
8. Conditions Precedent to Obligation of the Shareholders
The Shareholder's obligation to consummate this exchange
shall be subject to fulfillment on or before the Closing of each
of the following conditions, unless waived in writing by the
Shareholders as appropriate:
8.1. DRI Representations and Warranties. The
representations and warranties of DRI set forth herein shall be
true and correct at the Closing as though made at and as of that
date, except as affected by transactions contemplated hereby.
8.2. DRI Covenants. DRI shall have performed all covenants
required by this Agreement to be performed by it on or before the
Closing.
8.3. Board of Director Approval. This Agreement shall have
been approved by the Board of Directors of DRI.
8.4. Supporting Documents of DRI. DRI shall have delivered
to the Shareholders supporting documents in form and substance
reasonably satisfactory to the Shareholders, to the effect that:
(a) DRI is a Nevada corporation duly organized, validly
existing, and in good standing;
(b) DRI's authorized capital stock is as set forth herein:
50,000,000 common stock, $0.001 par value; 1,000,000 preferred
stock, $0.01 par value;
(c) Certified copies of the resolutions of the board of
directors of DRI authorizing the execution of this Agreement and
consummation hereof;
(d) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated
elsewhere herein.
9. Conditions Precedent to Obligation of DRI
DRI obligation to consummate this merger shall be subject to
fulfillment on or before the Closing of each of the following
conditions, unless waived in writing by DRI:
9.1. Shareholder's Representations and Warranties. The
representations and warranties of the Shareholders set forth
herein shall be true and correct at the Closing as though made at
and as of that date, except as affected by transactions
contemplated hereby.
9.2. Shareholder's Covenants. The Shareholders shall have
performed all covenants required by this Agreement to be
performed by them on or before the Closing.
10. Termination. This Agreement may be terminated (1) by
mutual consent in writing; (2) by either the Shareholders or DRI
if there has been a material misrepresentation or material breach
of any warranty or covenant by any other party; or (3) by either
Shareholders or DRI if the Closing shall not have taken place
within 15 days following execution of this Agreement, unless
adjourned to a later date by mutual consent in writing.
11. Survival of Representations and Warranties. The
representation and warranties of the Shareholders and DRI set out
herein shall survive the Closing.
12. Arbitration
12.1. Scope. The parties hereby agree that any and all
claims (except only for requests for injunctive or other
equitable relief) whether existing now, in the past or in the
future as to which the parties or any affiliates may be adverse
parties, and whether arising out of this agreement or from any
other cause, will be resolved by arbitration before the American
Arbitration Association within the State of Nevada
12.2. Consent to Jurisdiction, Situs and Judgement. The
parties hereby irrevocably consent to the jurisdiction of the
American Arbitration Association and the situs of the arbitration
(and any requests for injunctive or other equitable relief)
within the State of Nevada. Any award in arbitration may be
entered in any domestic or foreign court having jurisdiction over
enforcement of such awards.
12.3 Applicable Law. The law applicable to the arbitration
and this agreement shall be that of the State of Nevada,
determined without regard to its provisions which would otherwise
apply to a question of conflict of laws.
12.4. Disclosure and Discovery. The arbitrator may in
its discretion, allow the parties to make reasonable disclosure
and discovery in regard to any matters which are the subject of
the arbitration and to compel compliance with such disclosure and
discovery order. The arbitrator may order the parties to comply
with all or any of the disclosure and discovery provisions of the
Federal Rules of Civil Procedure, as they then exist, as may be
modified by the arbitrator consistent with the desire to simplify
the conduct and minimize the expense of the arbitration.
12.5. Rules of Law. Regardless of any practices of
arbitration to the contrary, the arbitrator will apply the rules
of contract and other law of the jurisdiction whose law applies
to the arbitration so that the decision of the arbitrator will
be, as much a possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
12.6. Finality and Fees. Any award or decision by the
American Arbitration Association shall be final, binding and non-
appealable except as to errors of law or the failure of the
arbitrator to adhere to the arbitration provisions contained in
this agreement. Each party to the arbitration shall pay its own
costs and counsel fees except as specifically provided otherwise
in this agreement.
12.7. Measure of Damages. In any adverse action, the
parties shall restrict themselves to claims for compensatory
damages and/or securities issued or to be issued and no claims
shall be made by any party or affiliate for lost profits,
punitive or multiple damages.
12.8. Covenant Not to Sue. The parties covenant that
under no conditions will any party or any affiliate file any
action against the other (except only requests for injunctive or
other equitable relief) in any forum other than before the
American Arbitration Association, and the parties agree that any
such action, if filed, shall be dismissed upon application and
shall be referred for arbitration hereunder with costs and
attorney's fees to the prevailing party.
12.9. Intention. It is the intention of the parties and
their affiliates that all disputes of any nature between them
whenever arising, whether in regard to this agreement or any
other matter, from whatever the cause based on whatever law, rule
or regulation, whether statutory or common law, and however
characterized, be decided by arbitration as provided herein and
that no party or affiliate be required to litigate in any other
forum any disputes or other matters except for requests for
injunctive or equitable relief. This agreement shall be
interpreted in conformance with this stated intent of the parties
and their affiliates.
12.10. Survival. The provisions for arbitration
contained herein shall survive the termination of this agreement
for any reason.
13. General Provisions
13.1. Further Assurances. From time to time, each party
will execute such additional instruments and take such actions as
may be reasonably required to carry out the intent and purposes
of this agreement.
13.2. Waiver. Any failure on the part of either party
hereto to comply with any of its obligation, agreements, or
conditions hereunder may be waived in writing by the party to
whom such compliance is owed.
13.3. Brokers. Each party agrees to indemnify and hold
harmless the other party against any fee, loss, or expense
arising out of claims by brokers or finders employed or alleged
to have been employed by the indemnifying party.
13.4. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been
given if delivered in person or sent by prepaid first-class
certified mail, return receipt requested or recognized commercial
courier service as follows:
If to DRI, to:
Shane Lowry, corporate secretary
#-1924 Whyte Ave.
Vancouver, B.C. Canada
V6J 1B3
If to the Shareholders, to:
John C. Mueller
7641 E. Grey Rd., Ste G.
Scottsdale, AZ 85260
13.5. Governing Law. This agreement shall be governed
by and construed and enforced in accordance with the laws of the
State of Nevada.
13.6. Assignment. This agreement shall inure to the
benefit of, and be binding upon, the parties hereto and their
successors and assigns; provided. However, that any assignment
by either party of its rights under this agreement without the
written consent of the other party shall be void.
13.7. Counterparts. This agreement may be executed
simultaneously 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. Signatures sent by facsimile
transmission shall be deemed to be evidence of the original
execution thereof.
13.8. Exchange Agent and Closing Date. The Exchange
Agent shall be the law firm of Chapman and Flanagan, Las Vegas,
Nevada. The Closing shall take place upon the fulfillment by
each party of all the conditions of Closing required herein, but
not later than 15 days following execution of this agreement
unless extended by mutual consent of the parties.
13.9. Review of the Agreement. Each party acknowledges
that it has had time to review this agreement and, as desired,
consult with counsel. In the interpretation of this agreement,
no adverse presumption shall be made against any party on the
basis that it has prepared, or participated in the preparation
of, this agreement.
13.10. Schedules. All schedules attached hereto, if any shall
be acknowledged by each party by signature or initials thereon
and shall be dated.
13.11. Effective date. This effective date of this agreement
shall be upon its execution.
Signature Page to Agreement and Plan of Reorganization between
Drew Resources, Inc. and the Shareholders of
Buffton, Inc.
IN WITNESS WHEREOF, the parties have executed this
agreement.
DREW RESOURCES, INC.
By /s/ Shane Lowry
THE SHAREHOLDERS OF
BUFFTON, INC.
By /s/ John Mueller
