EXHIBIT 2.1
PLAN OF MERGER
THIS PLAN OF MERGER (the "Agreement"), entered into this 30th day of
October, 2003, by and among Xxxxxxxx.xxx, Inc., a corporation organized pursuant
to the laws of the State of Nevada ("Elgrande") and Biscayne Bay Trading
Corporation, a corporation organized pursuant to the laws of the State of
Florida ("Biscayne")..
W I T N E S S E T H :
WHEREAS, all the authorized and issued capital stock of Biscayne is
owned by Elgrande; and
WHEREAS, the Parties agree that it would be in their respective best
interests to merge.
N O W T H E R E F O R E ,
In consideration of the representations, warranties, covenants, and
agreements herein contained, which are given by each Party to the other Parties
in order to induce them to enter into this Agreement, and for other good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties hereto, each intending to be legally bound hereby,
agree as follows:
ARTICLE I
MERGER OF BISCAYNE INTO ELGRANDE
Section 1.1 Effective Date.
This merger shall become effective ("Effective Date") on the day set
forth in the Certificates of Merger to be filed with the Secretaries of the
States of Nevada and Florida by the Parties as soon as practicable after the
date this Agreement is signed.
Section 1.1 Merger; Terms and Conditions Thereof.
(a) On or before or as of or as at the Effective Date, the following
shall have been done:
(i) Elgrande and Biscayne shall have obtained approval for
this Agreement and the transactions described herein by their
respective Boards of Directors and Shareholders, if necessary, pursuant
to the applicable provisions of the Laws of the States of Nevada and
Florida;
(ii) Biscayne shall merge into Elgrande, and Biscayne shall
cease to exist;
(iii) Elgrande shall thereupon and thereafter possess, and be
the owner of, all the rights, privileges, powers, franchises, patents,
trademarks, licenses, and other assets and accounts receivable of every
kind and description of Biscayne, and Elgrande shall be subject to all
the restrictions, disabilities, and duties of Biscayne with respect
thereto; and all property, real, personal or mixed, and all debts and
obligation due to Biscayne on whatever account shall be vested in
Elgrande; and all rights of creditors and all liens upon any property
of Biscayne shall be preserved unimpaired; and all debts, liabilities,
duties, and obligations of Biscayne [including obligations of Biscayne
on account of (A) Stock Subscriptions to which Biscayne is a Party; (B)
Debentures of Biscayne; and (C) Stock Conversion obligations with
respect to Debentures of Biscayne], shall henceforth attach to
Elgrande, and may enforced against Elgrande to the same extent as if
said debts, liabilities, duties, and obligations had been incurred or
contracted by Elgrande;
(iv) If, at any time after the Effective Date, Elgrande shall
consider or be advised that any further assignments or assurances and
law or any other acts are necessary or desirable (A) to vest, perfect
or confirm, of record or otherwise, in Elgrande, title to and
possession of any property or right of Biscayne acquired or to be
acquired by reason of, or in connection with, this Merger, or (B)
otherwise to carry out the purposes of this Merger, Biscayne and its
officers and directors shall be deemed to have granted to Elgrande an
irrevocable power of attorney to execute and deliver all such proper
deeds, assignments, and assurances in law, and to do all acts necessary
or proper to vest, perfect or confirm title to and possession of such
property or rights in Elgrande addition and otherwise to carry out the
purposes of this Merger; and the proper officers and directors of
Elgrande are fully authorized in the name of Biscayne otherwise to take
any and all such action(s);
(v) Biscayne's $1,000,000.00 Senior Subordinated Convertible
Redeemable Debentures (the "Biscayne Debentures"), together with
authorized but unissued underlying shares of Biscayne's Common stock,
Par Value $0.001 per share (the "Biscayne Common Stock"), into which
the Biscayne Debentures are convertible from time to time, shall be
converted into identical Elgrande debentures (the "Elgrande
Debentures"), together with authorized but unissued underlying shares
of Common Stock, Par Value $0.001 per share, of Elgrande into which the
new Elgrande Debentures may be converted (the "Elgrande Common Stock");
(vi) All of the issued and outstanding shares of the Common
Stock, Par Value $0.001 per share, of Biscayne held by Elgrande prior
to this Merger, may, by virtue of this Merger, and without any further
action of Elgrande, be canceled simultaneously with the effectiveness
of this Merger;
(vii) Until surrendered and exchanged as herein provided, each
outstanding certificate which, prior to the Effective Date, represented
a Biscayne security, shall be deemed for all corporate purposes to
evidence ownership of the appropriate number of securities of Elgrande
into which Biscayne security shall have been so converted;
(viii) Subject to Sub-section (vi), above, each holder of a
certificate representing issued and outstanding securities of Biscayne
immediately prior to the Effective Date of the Merger, shall, upon
surrender of such certificate to Elgrande after the Effective Date, be
entitled to receive a certificate representing the appropriate number
of shares of securities of Elgrande as described above;
(ix) If any certificate representing a Elgrande security is to
be issued in a name other than that in which the certificate
surrendered is registered, it shall be a condition of such issuance
that the certificate so surrendered shall be properly endorsed or
otherwise in proper form for transfer and that the person requesting
such issuance shall either pay to Elgrande or its transfer agent any
transfer or other taxes required by reason of the issuance of
certificates representing a Elgrande security in a name other than that
of the registered holder of the certificate surrendered, or establish
to the satisfaction of Elgrande or its transfer agent that such tax has
been paid or is not applicable; and
(x) The officers and directors of Biscayne shall resign their
positions.
ARTICLE II
JOINT & COLLECTIVE REPRESENTATIONS AND WARRANTIES
OF THE PARTIES
In order to induce the other Party to enter into this Agreement, each
Party makes the following representations and warranties to the other Party.
Section 2.1. Authority.
(a) Each Party
(i) has full power and authority to enter into, deliver and
perform this Agreement; and
(ii) neither the execution, delivery, consummation or
performance of this Agreement
(A) requires the approval or consent of, or notice to,
any third party;
(B) violates any law, regulation or agreement to which it
is subject; or
(C) violates, conflicts with or would result in the
breach or termination of,
or otherwise give any other contracting party the right to terminate, or
constitute a default (by way of substitution, novation or otherwise) under the
terms of, any mortgage, lease, bond, indenture, agreement, franchise or other
instrument or obligation to which it is a party or by which either of it may be
bound.
Section 2.2. Due Organization.
(a) Each Party is
(i) duly organized, validly existing and in good standing
under the laws of its state of incorporation;
(ii) duly qualified or otherwise authorized as a foreign
corporation to transact business and is in good standing under the laws of each
other jurisdiction in which such qualification is required; and
(iii) has full power and authority to carry on its business as
now conducted, and it is entitled to own, lease or operate all of its properties
and assets wherever located.
Section 2.3. Truth of Statements; Completeness of Documents.
(a) All documents, Schedules, Exhibits and other materials delivered or
to be delivered by or on behalf of each Party to the others in connection with
this Agreement and the transactions contemplated hereby are to the best of its
knowledge true and complete;
(b) The information furnished by or on behalf of each Party to the
others in connection with this Agreement and the transactions contemplated
hereby does not, to the best of its knowledge, contain any untrue statement of a
material fact and does not omit to state any material fact required to be stated
therein or necessary to make the statements therein not false or misleading.
(c) There is no fact known to any of the Parties which has not been
disclosed to the other Parties in writing which has, or insofar as any such
Party can foresee, which will have a Material Adverse Effect on any of the other
Parties ( The term "Material Adverse Effect" means a fact, event or circumstance
which, taken as a whole, has had or could reasonably be expected to have a
material adverse effect on the assets (including intangible assets), business,
liabilities, operations or conditions, financial or otherwise, of a Party.)
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BISCAYNE
In order to induce Elgrande to enter into this Agreement, Biscayne
makes the following representations and warranties to Elgrande.
Section 3.1. Capitalization.
(a) The authorized capital of Biscayne consists of:
(i) the Biscayne Shares;
(ii) certain Senior Subordinated Convertible Redeemable
Debentures (the "Biscayne Debentures"), convertible, from time to time, into
authorized but unissued shares of Biscayne Common Stock, of which no underlying
shares of Biscayne Common Stock have been issued pursuant thereto; and of
(iii) no other Securities.
(b) All of the outstanding Securities of Biscayne have been duly
authorized, validly issued, and are fully paid and nonassessable.
(c) Other than the Subscription Agreement for the Biscayne Convertible
Debentures, there are no rights, subscriptions, warrants, calls, unsatisfied
preemptive rights, options or other agreements of any kind to purchase or
otherwise to receive from Biscayne any of the outstanding or authorized but
unissued or treasury shares of the Securities of Biscayne, and no Securities or
obligations of any kind convertible into such Securities exist in favor of any
person, firm or corporation.
(d) Biscayne does not directly or indirectly own nor has it made any
investment in any of the capital stock of, or any other proprietary interest in,
any other person including but not limited to joint ventures and partnerships.
Section 3.2 Basic Corporate Documents.
The copies of the Articles of Incorporation of Biscayne and of the
By-Laws of Biscayne, and the stock records of Biscayne which will be delivered
by
the Biscayne Stockholders at or prior to the Closing Date shall be true and
complete.
Section 3.3 Financial Statements; No Undisclosed Liabilities.
(a) The Financial Statements of Biscayne present fairly the financial
position, assets, liabilities and retained earnings of Biscayne as at the dates
thereof and the revenues, expenses, results of operations, changes in financial
position and cash flows of Biscayne for the periods covered thereby.
(b) The Financial Statements are in accordance with the books and
records of Biscayne, do not reflect any transactions which are not bona fide
transactions, and do not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements contained therein,
in light of the circumstances in which they were made, not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ELGRANDE
In order to induce the other Parties to enter into this Agreement,
Elgrande makes the following representations and warranties to the other
Parties.
Section 4.1 Reporting Company.
Elgrande is required to and does file reports with the SEC pursuant to
Section 14 (a) or 15 (d) of The Securities Exchange Act of 1944, as amended, and
Elgrande is current with respect to all reports required to be filed with the
SEC.
Section 4.2 Capitalization
(a) The authorized capital of Biscayne is as set forth in the Latest
Financial Statements of Elgrande required to be filed with the SEC.
(b) All of the outstanding Securities of Elgrande have been duly
authorized, validly issued and are fully paid and nonassessable.
Section 4.4 Due Incorporation.
The copies of the Articles of Incorporation of Elgrande and of the
By-Laws of Elgrande, and the stock records of Elgrande which will be delivered
by the Biscayne Stockholders at or prior to the Closing Date shall be true and
complete.
Section 4.4 Financial Statements; No Undisclosed Liabilities.
(a) The Financial Statements of Elgrande present fairly the financial
position, assets, liabilities and retained earnings of Elgrande as at the
dates thereof and the revenues, expenses, results of operations, changes in
financial position and cash flows of Elgrande for the periods covered thereby.
(b) The Financial Statements are in accordance with the books and
records of Elgrande, do not reflect any transactions which are not bona fide
transactions, and do not contain any untrue statement of a material fact or omit
to state any material fact necessary to make the statements contained therein,
in light of the circumstances in which they were made, not misleading.
ARTICLE V
ADDITIONAL COVENANTS
In order to induce the other to enter into this Agreement, the Parties
covenant with each other as follows.
Section 5.1 Conduct of Business.
From the date of this Agreement through the Effective Date, the Parties
shall conduct their business in the ordinary course.
Section 5.2 Dissenter's Rights.
Elgrande understands that, as a shareholder of Biscayne, it may have
Dissenter's Rights under Florida law. However, as the sole shareholder of
Biscayne, Elgrande declares that Dissenter's Rights shall not be demanded prior
to or after the Effective Date pursuant to the provisions of Florida Law, if
any, as to dissenters' rights, and by signing this Agreement, Elgrande waives
dissenters' rights, if any, under Florida law.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS
OF THE PARTIES; TERMINATION
Section 6.1 Conditions Precedent to Obligations of Elgrande.
The obligations of Elgrande under this Agreement are, at its option,
subject to the satisfaction at the Effective Date of the following conditions
precedent:
(a) The representations and warranties of Biscayne contained in this
Agreement shall have been true when made and shall continue to be true at all
times after the date hereof and as of the Effective Date with the same force and
effect as though such representations and warranties had been made at and as of
the Effective Date, subject only to changes permitted by the provisions of this
Agreement, and, further provided, that such changes will not, together with all
other events prior to the Closing, result in there being a Material Adverse
Effect in or to the condition, financial or otherwise, and in the results of
operations of Biscayne; and
(b) No litigation, proceeding, investigation or inquiry shall be
pending or threatened to set aside the authorization of this Agreement, or to
enjoin or prevent the consummation of the transactions contemplated hereby,
or to enjoin or prevent the consummation of the transactions contemplated
hereby,
or involving any of the assets of Biscayne, which might materially and adversely
affect the business or prospects of Biscayne.
Section 6.2 Conditions Precedent to Obligations of Elgrande.
The obligations of Elgrande under this Agreement are, at its option,
subject to the satisfaction at the Effective Date of the following conditions
precedent:
(a) The representations and warranties of Biscayne contained in this
Agreement shall have been true when made and shall continue to be true at all
times after the date hereof and as of the Effective Date with the same force and
effect as though such representations and warranties had been made at and as of
the Effective Date, subject only to changes permitted by the provisions of this
Agreement, and, further provided, that such changes will not, together with all
other events prior to the Closing, result in there being a Material Adverse
Effect in or to the condition, financial or otherwise, and in the results of
operations of Biscayne; and
(b) No litigation, proceeding, investigation or inquiry shall be
pending or threatened to set aside the authorization of this Agreement, or to
enjoin or prevent the consummation of the transactions contemplated hereby, or
to enjoin or prevent the consummation of the transactions contemplated hereby,
or involving any of the assets of Industries, which might materially and
adversely affect the business or prospects of Biscayne.
Section 6.3 Securities Certificates.
At the Effective Date, each owner and Debenture Holder of Biscayne
shall receive a certificate or certificates representing the number of shares of
common stock and/or Debentures of Elgrande to which is entitled.
ARTICLE VII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
In order to induce the other to enter into this Agreement, each Party
states and undertakes as follows:
Section 7.1 Continuous Truth of Representations and Warranties.
The representations and warranties of the Parties contained in this
Agreement were true when made and, in addition, they shall also be true as of
the Effective Date with the same force and effect as though they had been made
at and as of the Effective Date.
Section 7.2 Survival of Representations and Warranties.
The representations and warranties contained in this Agreement and in
any Schedules, certificates or other documents delivered pursuant hereto shall
survive the execution and delivery hereof and the Effective Date for a period of
three (3) years.
Section 7.2 Entire Agreement.
This Agreement sets forth the entire understanding and agreement
between the Parties and supersedes and replaces any prior understanding,
agreement or statement (written or oral) of intent. No provision of this
Agreement shall be construed to confer any rights or remedies on any person
other than the Parties hereto.
ARTICLE VIII
TERMINATION
Section 8.1 Events of Termination.
This Agreement may be terminated at any time prior to the filing of the
Certificate of Ownership in the office of the Secretaries of the States of
Nevada and Florida by:
(a) Mutual consent of Biscayne and Elgrande;
(b) Elgrande, if Biscayne has breached any material representation
warranty, covenant or agreement contained in this Agreement;
(c) Biscayne, if Elgrande has breached any material representation,
warranty, covenant or agreement contained in this Agreement;
(d) Elgrande, if any legal proceeding is commenced or threatened by any
governmental or regulatory agency or other person directed against the
consummation of the transaction or any other transaction under this Agreement;
and
(e) Biscayne, if any legal proceeding is commenced or threatened by any
governmental or regulatory agency or other person directed against the
consummation of the transaction or any other transaction under this Agreement.
Section 8.2 Effect of Termination.
If this Agreement shall be terminated as provided in this Article, the
Articles of Merger shall be deemed to have been abandoned and shall be void and
of no further effect, without any liability on the part of any of the parties
thereto or the stockholders, directors, officers, employees or agents of any of
them.
ARTICLE IX
INDEMNIFICATION
In order to induce the other to enter into this Agreement, each Party
agrees to indemnify the other as follows. follows:
Section 9.1 Obligation of Biscayne to Indemnify.
Subject to the limitations on the survival of representations and
warranties contained in Article VII, Biscayne, its respective officers,
directors and employees shall indemnify, defend and hold Elgrande harmless from
and against any losses, liabilities, damages, deficiencies, costs or expenses
(including interest, penalties and reasonable attorney's fees and disbursements)
based upon, arising out of or otherwise due to any material
inaccuracy in or any breach of any representation, warranty, covenant or
agreement of Biscayne contained in this Agreement or in any document or other
writing delivered pursuant to this Agreement.
Section 9.2 Obligation of Elgrande to Indemnify.
Subject to the limitations on the survival of representations and
warranties contained in Article VII, Elgrande, its respective officers,
directors and employees, shall indemnify, defend and hold Biscayne harmless from
and against any losses, liabilities, damages, deficiencies, costs or expenses
(including interest, penalties and reasonable attorneys fees and disbursements)
based upon, arising out of or otherwise due to any material inaccuracy in or any
breach of any representation, warranty, covenant or agreement of Elgrande
contained in this Agreement or in any document or other writing delivered
pursuant to this Agreement.
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices.
(a) Any notice, request, instruction or other document required by the
terms of this Agreement to be given to any other Party hereto shall be in
writing and shall be given either
(i) by telephonic facsimile, in which case notice shall be
presumptively deemed to have been given at the date and time displayed
on the sender's transmission confirmation receipt showing the
successful receipt thereof by the recipient;
(ii) by nationally recognized courier or overnight delivery service
in which the date of delivery is recorded by the delivery service, in which case
notice shall be presumptively deemed to have been given at the time that records
of the delivery service indicate the writing was delivered to the addressee;
(iii) by United States Mail sent by registered or certified mail,
postage prepaid, with return receipt requested, in which case notice shall be
presumptively deemed to have been given at the time that records of the United
States Postal Service indicate the writing was delivered to the addressee.
(b) Notice shall be sent:
(i) If to Biscayne, to:
Biscayne Bay Trading Corporation
0000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxxxxx, CEO
Telephone Number: (000) 000-0000
Facsimile Telephone Number: (000) 000-0000
(ii) If to Elgrande, to:
Xxxxxxxx.xxx, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx
Xxxxxxx Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxxxx Xxxxxxxx, CEO
Telephone Number: (000) 000-0000
Facsimile Telephone Number: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxx, Esq.
Xxxxxxx & Xxxxxxxx, P.C.
One Lafayette Center, South Tower
0000 - 00xx Xxxxxx, X.X.
Telephone Number: (000) 000-0000
Facsimile Telephone Number: (000) 000-0000
and
with a copy (which shall not constitute notice) to:
Xxx X. Xxxxxxx, Xx., Esq.
0000 Xxxxx Xxxxxxx Xxxxx
Number 0000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Telephone Number: (000) 000-0000
Facsimile Telephone Number: (000) 000-0000
(iii) or to such other address as a Party may have specified in
writing to the other Parties using the procedures specified above in this
Section.
Section 10.2 Assignment and Amendment.
This Agreement shall not be assignable by any Party, and shall not be
altered or otherwise amended except pursuant to a writing executed by all of the
Parties hereto.
Section 10.3 Severability.
If any provision of this Agreement, or the application of any such
provision to any person or circumstance, shall be held invalid by a court or
tribunal of competent jurisdiction, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those as to
which it is held invalid, shall not be affected thereby.
Section 10.4. Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute a
single instrument. It shall not be necessary that any counterpart be signed by
all of the Parties hereto.
Section 10.5 Variation in Pronouns.
All pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine or neuter, singular or plural, as the identity of the person
or persons or entity or entities may require.
Section 10.6 Indulgences, Etc.
Neither the failure nor any delay on the part of any Party to exercise
any right, remedy, power or privilege under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or of any
other right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in writing and
is signed by the Party asserted to have granted such waiver.
Section 10.7 Exhibits and Schedules.
All Exhibits and Schedules attached hereto are incorporated by
reference into, and made a part of, this Agreement.
Section 10.8 Headings.
The Article and Section headings are for convenience only; they form in
part of this Agreement and shall not affect its interpretation.
Section 10.9 Choice of Law, Venue, Arbitration, Waiver of Jury Trial.
(a) This Agreement and all questions relating to its validity,
interpretation, performance and enforcement (including, without limitation,
provisions concerning limitations of actions), shall be governed by and
construed in accordance with the laws of the Province of British Columbia,
Canada, notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary, and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
(b) The Parties hereby mutually waive trial by jury
IN THAT CONNECTION, EACH OF THE PARTIES WAIVES THE RIGHT TO A
TRIAL BY JURY IN ANY DISPUTE IN CONNECTION WITH OR RELATING TO
THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY MATTERS DESCRIBED
OR CONTEMPLATED HEREIN OR THEREIN, AND AGREES TO TAKE ANY AND
ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER.
(c) The Parties hereto irrevocably agree and consent that all disputes
concerning this Agreement or any claim or issue of any nature whatsoever
(whether brought by the Parties hereto) arising from or relating to this
Agreement or to the corporate steps taken to enter into it (including, without
limitation, claims for alleged fraud, breach of fiduciary duty, breach of
contract, tort, etc.) which cannot be resolved within reasonable time through
discussions between the opposing entities, shall be resolved solely and
exclusively by means of arbitration to be conducted in Vancouver, British
Columbia, which arbitration will proceed in accordance with the rules of the
Arbitration then in force in Vancouver, British Columbia for resolution of
commercial disputes.
In addition, the Parties waive, to the maximum extent permitted by law,
any objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such forum.
(d) The Arbitrators themselves shall have the right to determine and to
arbitrate the threshold issue of arbitrability itself, the decision of the
Arbitrators shall be final, conclusive, and binding upon the opposing entities,
and a judgment upon the award may be obtained and entered in any federal or
state court of competent jurisdiction; and
(e) Attorney's Fees. Each Party involved in litigation or arbitration
shall be responsible for its own costs and expenses of any litigation or
arbitration proceeding, including its own attorney's fees (for any litigation,
arbitration, and any appeals).
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURES APPEARS ON THE FOLLOWING PAGE
SIGNATURE PAGE
In Witness Whereof, the undersigned Parties have executed this
Agreement as of the date first set forth above.
ELGRANDE:
Xxxxxxxx.xxx, Inc.
/s/ Xxxxxxx Xxxxxxxx
-------------------------------
By: Xxxxxxx Xxxxxxxx, CEO
BISCAYNE:
Biscayne Bay Trading Corporation
/s/ Xxxxxxxxxxx Xxxxxxxx
By: ____________________________
Xxxxxxxxxxx Xxxxxxxx, CEO
