EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "AGREEMENT") is made this 29th
day of August, 2003, by and among Coach Industries Group, Inc., a Nevada
corporation (the "ISSUER"), CTMC Acquisition Sub, Inc., a Florida corporation
("CTMC SUB") and Commercial Transportation Manufacturing Corporation, a New York
corporation and affiliated entities (collectively "CTMC"), and the persons
executing this Agreement listed on the signature page hereto (referred to
collectively as "SHAREHOLDERS" and individually as "SHAREHOLDER") who own 100%
of the outstanding shares of CTMC.
WHEREAS, Shareholders own 100% of the issued and outstanding shares of
the common stock of CTMC; and
WHEREAS, Issuer desires to acquire 100% of the issued and outstanding
shares of the common stock of CTMC in exchange for certain unissued shares of
the common stock of Issuer (the "COMMON STOCK") so that CTMC will become wholly
owned subsidiary of Issuer; and
WHEREAS, Shareholders desire to exchange all of their CTMC shares of
capital stock solely in exchange for the issuance shares of authorized but
unissued Common Stock, $0.001 par value, of Issuer, as determined below, so that
such exchange will constitute a tax-free share exchange under Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, and for other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE 1
EXCHANGE OF SECURITIES
1.1 Exchange of Stock. Subject to the terms and conditions of this
Agreement, the Issuer shall issue three million shares (3,000,000) of Common
Stock to Elm Street Partners or such other entity as designated by the Issuer
("ELM"), in exchange for 100% of the outstanding shares of CTMC so that CTMC
shall become a wholly owned subsidiary of the Issuer.
1.2 Tax Free Share Exchange. No revenue ruling or opinion of counsel
will be sought as to the tax-free nature of the subject stock exchange and such
tax treatment is not a condition to closing herein.
1.3 CTMC as Subsidiary. Pursuant to the terms and conditions of this
Agreement, immediately after the closing referenced herein, CTMC shall be wholly
owned subsidiary of Issuer.
1.4. 1933 Act The shares of Issuer to be issued to Elm and the shares
of CTMC to be delivered at closing have not been registered under the Securities
Act of 1933 (the "1933 ACT"), nor registered under any state securities law, and
are "restricted securities" as that term is defined in Rule 144 under the 0000
Xxx. The securities may not be offered for sale, sold or otherwise transferred
except pursuant to an effective registration statement under the 1933 Act, or
pursuant to an exemption from registration under the 1933 Act.
1.5 Investment Intent. CTMC acknowledges that it has received
assurances that Elm is acquiring the shares of Common Stock for Elm's own
account for purposes of investment and without expectation, desire, or need for
resale and not with the view toward distribution, resale, subdivision, or
fractionalization of the shares of Common Stock.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Issuer represents and warrants to CTMC the following:
i. Organization. Issuer is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
Nevada and has all necessary corporate powers to own
properties and carry on a business, and is duly qualified to
do business and is in good standing in Nevada. All actions
taken by the directors and shareholders of Issuer have been
valid and in accordance with the laws of the State of Nevada.
Coach Sub is a wholly owned subsidiary of Coach. The
authorized capital stock of Coach Sub consists of 50,000,000
shares of common stock, no par value, which, prior to the
issuance of shares hereunder, and at closing, there will be
1,000,000 shares issued and outstanding. All of the 1,000,000
shares issued and outstanding are owned by Coach.
ii. Capital. The authorized capital stock of Issuer consists of
50,000,000 shares of Common Stock $0.001 par value, which,
prior to the issuance of shares hereunder, and at closing,
there will be 3,183,706 shares issued and outstanding. After
the closing, there will be 6,183,706 shares issued and
outstanding. All such outstanding shares shall be fully paid
and non assessable, free of liens, encumbrances, options,
restrictions and legal or equitable rights of others not a
party to this Agreement. At closing, there will be no
outstanding subscriptions, options, rights, warrants,
convertible securities, or other agreements or commitments
obligating Issuer to issue or to transfer from treasury any
additional shares of its capital stock. None of the
outstanding shares of Issuer are subject to any stock
restriction agreements. All of the shareholders of Issuer have
valid title to such shares and acquired their shares in a
lawful transaction and in accordance with the laws of Nevada.
iii. Stock Listing. The Issuer is subject to the reporting
requirements of the Securities Exchange Act of 1934 and its
common stock is listed or quoted on the OTC Bulletin Board
under the symbol "CIGI".
iv. Ability to Carry Out Obligations. Issuer has the right, power,
and authority to enter into and perform its obligations under
this Agreement. The execution and delivery of this Agreement
by Issuer and the performance by Issuer of its obligations
hereunder will not cause, constitute, or conflict with or
result in (a) any breach or violation or any of the provisions
of or constitute a default under any license, indenture,
mortgage, charter, instrument, articles of incorporation,
bylaw, or other agreement or instrument to which Issuer or its
shareholders are a party, or by which they may be bound, nor
will any consents or authorizations of any party other than
those hereto be required, (b) an event that would cause Issuer
to be liable to any party, or (c) an event that would result
in the creation or imposition or any lien, charge or
encumbrance on any asset of Issuer or upon the securities of
Issuer to be acquired by Elm.
v. Compliance with Laws. To the best of its knowledge, Issuer has
complied with, and is not in violation of any federal, state,
or local statute, law, and/or regulation.
vi. Full Disclosure. None of the representations and warranties
made by the Issuer, or in any certificate or memorandum
furnished or to be furnished by the Issuer, contains or will
contain any untrue statement of a material fact, or omit any
material fact the omission of which would be misleading.
2.2. CTMC and the Shareholders, jointly and severally, represent
and warrant to Issuer the following:
i. Organization. CTMC is a corporation duly organized, validly
existing, and in good standing under the laws of the State of
New York and has all necessary corporate powers to own
properties and carry on a business, and is duly qualified to
do business and is in good standing in New York. All actions
taken by the directors and shareholders of CTMC have been
valid and in accordance with the laws of the State of New
York.
ii. Capital. The Shareholders hold all the issued and outstanding
shares of capital stock of CTMC (the "CTMC COMMON STOCK"). All
such outstanding shares shall be fully paid and non
assessable, free of liens, encumbrances, options, restrictions
and legal or equitable rights of others not a party to this
Agreement. At closing, there will be no outstanding
subscriptions, options, rights, warrants, convertible
securities, or other agreements or commitments obligating
Issuer to issue or to transfer from treasury any additional
shares of its capital stock. None of the outstanding shares of
CTMC are subject to any stock restriction agreements. All of
the Shareholders of CTMC have valid title to such shares and
acquired their shares in a lawful transaction and in
accordance with the laws of New York.
iii. Ability to Carry Out Obligations. CTMC and the Shareholders
have the right, power, and authority to enter into and perform
their respective obligations under this Agreement. The
execution and delivery of this Agreement by CTMC and the
Shareholders and the performance by CTMC and the Shareholders
of their respective obligations hereunder will not cause,
constitute, or conflict with or result in (a) any breach or
violation or any of the provisions of or constitute a default
under any license, indenture, mortgage, charter, instrument,
articles of incorporation, bylaw, or other agreement or
instrument to which CTMC or its Shareholders are a party, or
by which they may be bound, nor will any consents or
authorizations of any party other than those hereto be
required, (b) an event that would cause CTMC or the
Shareholders to be liable to any party, or (c) an event that
would result in the creation or imposition or any lien, charge
or encumbrance on any asset of CTMC or the Shareholders.
iv. Compliance with Laws. To the best of the knowledge of CTMC and
the Shareholders, CTMC has complied with, and is not in
violation of any federal, state, or local statute, law, and/or
regulation.
v. Full Disclosure. None of the representations and warranties
made by CTMC and the Shareholders, or in any certificate or
memorandum furnished or to be furnished by CTMC and the
Shareholders, contains or will contain any untrue statement of
a material fact, or omit any material fact the omission of
which would be misleading.
ARTICLE III
CLOSING
3.1 Closing. The closing of this transaction shall take place at the
offices of International Equities and Finance, LLC, 0000 Xxxx Xxxxxx Xxxx, Xxxxx
Xxxxxxx Xx. 00000. The closing shall occur on September 1, 2003 (the "CLOSING
DATE").
3.2 Documents to Be Delivered At Closing by the Issuer.
i. Board of Directors consents authorizing this transaction and
the issuance of a certificate or certificates for the shares
of Common Stock to be issued pursuant to this Agreement.
ii. Articles of Merger to be filed with the States of New York and
Nevada respectively.
3.3 Documents to Be Delivered At Closing by CTMC.
i. Board of Directors and shareholders consent authorizing this
transaction.
ii. Delivery to the Issuer of certificates representing 100% of
the issued and outstanding stock of CTMC.
iii. Articles of Merger to be filed with the States of New York and
Nevada respectively.
ARTICLE IV
TREATMENT OF SHARES OF CTMC, COACH SUB AND COACH
The terms and conditions of the Merger, the mode of carrying the same
into effect, and the manner and basis of converting the securities of each of
the entities are as follows:
i. All of the outstanding shares of CTMC Common Stock shall be
converted by virtue of the Merger at the Closing Date into an
equal number of shares of Coach SUB common stock (the "Merger
Securities"). On or before the Closing Date, each Shareholder
shall surrender of their outstanding shares of CTMC Common
Stock existing immediately prior to the Closing. Until so
surrendered, any outstanding certificates or other
documentation which, prior to the Closing Date, represented
outstanding shares of CTMC Common Stock, shall be deemed for
all corporate purposes to be surrendered. Upon such surrender,
shares of CTMC Common Stock so surrendered shall no longer be
outstanding and shall automatically be canceled and retired
and shall cease to exist.
ii. All of the Merger Securities shall be converted by virtue of
the Merger immediately after the Closing Date into, in the
aggregate, Coach shares of common stock and shall be retired.
iii. The separate existence and corporate organization of Coach
SUB, except insofar as it may be continued by statute, shall
cease immediately after the Closing Date.
ARTICLE V
RIGHTS AND LIABILITIES OF SURVIVING CORPORATION
On and after the Closing Date, Coach, as the surviving entity of the
Merger, shall succeed to and possess, without further act or deed, all of the
estate, rights, privileges, powers and franchises, both public and private and
all of the property, real, personal and mixed, of CTMC; all debts due to CTMC on
whatever account shall be vested in Coach; all claims, demands, property,
rights, privileges, powers, franchises and every other interest of CTMC shall be
as effectively the property of Coach as they were of CTMC; the title to any real
estate by deed or otherwise in CTMC shall not revert or be in any way impaired
by reason of the Merger, but shall be vested in Coach; all rights of creditors
and all liens upon any property of CTMC shall be preserved unimpaired, limited
in lien to the property affected by such lien at the Closing Date; all debts,
liabilities and duties of CTMC shall thenceforth attach to Coach and may be
enforced against it to the same extent as if such debts, liabilities and duties
had been incurred or contracted by it; and Coach shall indemnify and hold
harmless CTMC and the officers and directors of CTMC against all such debts,
liabilities and duties and against all claims and demands arising out of the
Merger.
ARTICLE VI
FURTHER ASSURANCES OF TITLE.
As and when requested by Coach, or by any of its successors or assigns,
CTMC or the Shareholders shall execute and deliver, or cause to be executed and
delivered, all such deeds and instruments and will take or cause to be taken all
such further action as Coach may deem necessary or desirable in order to vest in
and confirm to Coach title to and possession of the property acquired by Coach
by reason or as a result of the Merger and otherwise to carry out the intent and
purposes hereof, and the officers and directors of Coach and CTMC are fully
authorized in the name of Coach or CTMC or otherwise to take any and all such
action.
ARTICLE VII
MISCELLANEOUS
i. Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference
only, and shall in no way be deemed to define, limit, or add
to the meaning of any provision of this Agreement.
ii. No Oral Change. This Agreement and any provision hereof, may
not be waived, changed, modified, or discharged orally, but
only by an agreement in writing signed by the party against
whom enforcement of any waiver, change, modification, or
discharge is sought.
iii. Jurisdiction. This Agreement shall be exclusively governed by
and construed in accordance with the laws of the State of New
Nevada. If any action is brought among the parties with
respect to this Agreement or otherwise, by way of a claim or
counterclaim, the parties agree that in any such action, and
on all issues, the parties irrevocably waive their right to a
trial by jury. Exclusive jurisdiction and venue for any such
action shall be the State Courts of Nevada. In the event suit
or action is brought by any party under this Agreement to
enforce any of its terms, or in any appeal therefrom, it is
agreed that the prevailing party shall be entitled to
reasonable attorneys fees to be fixed by the arbitrator, trial
court, and/or appellate court.
iv. Notices. All notices requests, demands, and other
communications under this Agreement shall be in writing and
shall be deemed to have been duly given on the date of service
if served personally on the party to whom notice is to be
given, or on the third day after mailing if mailed to the
party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, and properly
addressed, and by fax, as follows:
(a) If to Coach:
c/o International Equities and Finance, LLC
0000 X. Xxxxxx Xxxx, Xxx. 000
Xxxxx Xxxxxxx Xxxxxxx 00000
With a copy to:
Xxxxxx X. Emas
Attorney at Law
0000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
(b) If to the CTMC or the Shareholders:
Commercial Transportation Manufacturing
Corporation
v. Non-Waiver. Except as otherwise expressly provided herein, no
waiver of any covenant, condition, or provision of this
Agreement shall be deemed to have been made unless expressly
in writing and signed by the party against whom such waiver is
charged; and (i) the failure of any party to insist in any one
or more cases upon the performance of any of the provisions,
covenants, or conditions of this Agreement or to exercise any
option herein contained shall not be construed as a waiver or
relinquishment for the future of any such provisions,
covenants, or conditions, (ii) the acceptance of performance
of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition,
or provision hereof shall not be deemed a waiver of such
breach or failure, and (iii) no waiver by any party of one
breach by another party shall be construed as a waiver with
respect to any other or subsequent breach.
vi. Time of Essence. Time is of the essence of this Agreement and
of each and every provision hereof.
vii. Entire Agreement. This Agreement contains the entire Agreement
and understanding between the parties hereto, and supersedes
all prior agreements and understandings.
viii. Counterparts. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the undersigned has executed this Agreement on this
29th day of August, 2003.
COACH INDUSTRIES GROUP, INC. COMMERCIAL TRANSPORTATION
MANUFACTURING CORPORATION
By: _______________________ By: _______________________
Title:______________________ Title:______________________
SHAREHOLDERS
By: _______________________
By: ________________________
