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AGREEMENT AND PLAN OF REORGANIZATION BY AND AMONG
GOLDONLINE INTERNATIONAL, INC. AND XXXX XXXXXX
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") is entered into
this 11th of April, 2000, by and among GOLDONLINE INTERNATIONAL, INC. , a
Delaware corporation (hereinafter referred to as "Buyer"); and XXXX XXXXXX or
his assigns (hereinafter referred to as "Seller"), being the sole shareholder of
XXXXXX VENTURES, INC., a Delaware corporation (hereafter referred to as
"Company").
WHEREAS, Seller is the owner of record and beneficially owns Five
Million (5,000,000) shares of the issued and outstanding shares of Common Stock
of the Company (the "Shares"); and
WHEREAS, the Shares represent 100% of all the issued and outstanding
shares of the Company; and
WHEREAS, Seller desires to sell all of the Shares to Buyer, and Buyer
desires to purchase the Shares, upon the terms and conditions set forth herein;
WHEREAS, the parties intend that the exchange of Shares for shares of
Buyer's common stock, as contemplated herein, qualify as a tax free transaction
under Section 368 of the Internal Revenue Code;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, and subject to the
accuracy of the representations and warranties of the parties, the parties
hereto agree as follows:
I.
SALE AND PURCHASE OF THE SHARES
1.1 SALE AND PURCHASE. Subject to the terms and conditions hereof, at
the Closing (as defined in paragraph 1.2 below), Seller agrees to sell, assign,
transfer, convey and deliver to Buyer, and Buyer agrees to purchase from Seller,
the Shares listed in Exhibit "A", attached hereto, which together constitute
100% of the issued and outstanding Shares of Common Stock of the Company.
1.2 CLOSING. The purchase shall be consummated at a closing ("Closing")
to take place at 10:00 o'clock a.m., at the offices of Buyer's counsel on April
20, 2000 ("Closing Date").
1.3 PURCHASE PRICE. The aggregate purchase price ("Purchase Price") for
the Shares shall be One Million Two Hundred Thousand (1,200,000) shares of
common stock of the Buyer ("Buyer Shares"). The purchase price shall be paid at
Closing by issuance and delivery of Buyer's Shares to Seller against receipt of
certificates representing the Shares, duly endorsed for transfer to Buyer.
II.
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Each Seller represents
and warrants to Buyer as follows:
(a) TITLE TO THE SHARES. At Closing, Seller shall own of
record and beneficially the number of the Shares listed in Exhibit "A",
of the Company, free and clear of all liens, encumbrances, pledges,
claims, options, charges and assessments of any nature whatsoever, with
full right and lawful authority to transfer the Shares to Buyer. No
person has any preemptive rights or rights of first refusal with
respect to any of the
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Shares. There exists no voting agreement, voting trust, or outstanding
proxy with respect to any of the Shares. There are no outstanding
rights, options, warrants, calls, commitments, or any other agreements
of any character, whether oral or written, with respect to the Shares.
(b) AUTHORITY. Seller has full power and lawful authority to
execute and deliver the Basic Agreements and to consummate and perform
the Transactions contemplated thereby. The Basic Agreements constitute
(or shall, upon execution, constitute) valid and legally binding
obligations upon Seller, enforceable in accordance with their terms.
Neither the execution and delivery of the Basic Agreements by Seller,
nor the consummation and performance of the Transactions contemplated
thereby, conflicts with, requires the consent, waiver or approval of,
results in a breach of or default under, or gives to others any
interest or right of termination, cancellation or acceleration in or
with respect to, any agreement by which Seller is a party or by which
Seller or the Company or any of his respective properties or assets are
bound or affected.
2.2. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller and Company as follows:
(a) ORGANIZATION. The Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of
the state of Delaware. The Buyer has all requisite corporate power and
authority to own, lease and operate its properties and to carry on its
business. The Buyer is duly qualified and in good standing as a foreign
corporation in each jurisdiction where its ownership of property or
operation of its business requires qualification.
(b) AUTHORIZED CAPITALIZATION. The authorized capitalization
of the Buyer on January 25, 2000 will consist of Two Hundred Million
(200,000,000) shares of Common Stock, $.0001 par value, of which
Eighty-Seven Million Three Hundred Seventy-Six Thousand Four Hundred
Eight (87,376,408) shares will be issued and outstanding. All shares
have been duly authorized, validly issued, are fully paid and
nonassessable with no personal liability attaching to the ownership
thereof and were offered, issued, sold and delivered by the Buyer in
compliance with all applicable state and federal laws. Buyer is not a
party to and is not bound by any agreement, contract, arrangement or
understanding, whether oral or written, giving any person or entity any
interest in, or any right to share, participate in or receive any
portion of, the Buyer's income, profits or assets, or obligating the
Buyer to distribute any portion of its income, profits or assets.
(c) AUTHORITY. Buyer has full power and lawful authority to
execute and deliver this Agreement and to consummate and perform the
Transaction contemplated thereby. This Agreement constitutes (or shall,
upon execution, constitute) valid and legally binding obligations upon
Buyer, enforceable in accordance with their terms. Neither the
execution and delivery of this Agreement by Buyer, nor the consummation
and performance of the Transactions contemplated thereby, conflicts
with, requires the consent, waiver or approval of, results in a breach
of or default under, or gives to others any interest or right of
termination, cancellation or acceleration in or with respect to, any
agreement by which Buyer is a party or by which Buyer or any of its
respective properties or assets are bound or affected.
(d) BUYER'S FINANCIAL STATEMENTS. The Buyer's unaudited
Financial Statements are complete, were prepared in accordance with
generally accepted accounting principles applied on a basis consistent
with prior periods and fairly present the financial position of the
Buyer as of July 31, 1999.
(e) NO UNDISCLOSED LIABILITIES. Buyer is not aware of any
material liabilities for which the Buyer is liable or will become
liable in the future which are not reflected in the Buyer's financial
statements.
(f) TAXES. Buyer has filed all federal, state, local tax and
other returns and reports which were required to be filed with respect
to all taxes, levies, imposts, duties, licenses and registration fees,
charges or
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withholdings of every nature whatsoever ("Taxes"), and their exists a
substantial basis in law and fact for all positions taken in such
reports. No waivers of periods of limitation are in effect with respect
to any taxes arising from and attributable to the ownership of
properties or operations of the business of the Company.
(g) PROPERTIES. The Buyer has good and marketable title to all
its personal property, equipment, processes, patents, copyrights,
trademarks, franchises, licenses and other properties and assets
(except for items leased or licensed to the Buyer), including all
property reflected in the Buyer's Financial Statements (except for
assets reflected therein which have been sold in the normal course of
its business where the proceeds from such sale or other disposition
have been properly accounted for in the financial statements of the
Buyer), in each case free and clear of all liens, claims and
encumbrances of every kind and character. The Buyer has no ownership
interest in any real property. The assets and properties owned,
operated or leased by the Buyer and used in its business are in good
operating condition, reasonable wear and tear excepted, and suitable
for the uses for which intended.
(h) BOOKS AND RECORDS. The books and records of the Buyer are
complete and correct in all material respects, have been maintained in
accordance with good business practices and accurately reflect in all
material respects the business, financial condition and results of
operations of the Buyer as set forth in the Buyer's Financial
Statements.
(i) MATERIAL CONTRACTS. The Buyer has no purchase, sale,
commitment, or other contract, the breach or termination of which would
have a materially adverse effect on the business, financial condition,
results of operations, assets, liabilities, or prospects of the Buyer.
(j) COMPLIANCE WITH LAWS. The Buyer is not, and as a result of
the transactions contemplated hereby, will not be, in violation of any
federal, state, local or other law, ordinance, rule or regulation
applicable to its business, and has not received any actual or
threatened complaint, citation or notice of violation or investigation
from any governmental authority, including the Securities and Exchange
Commission.
(k) LITIGATION. There are no material actions, suits, claims,
complaints or proceedings pending or threatened against the Buyer, at
law or in equity, or before or by any governmental department,
commission, court, board, bureau, agency or instrumentality; and there
are no facts which would provide a valid basis for any such action,
suit or proceeding. There are no orders, judgments or decrees of any
governmental authority outstanding which specifically apply to the
Company or any of its assets.
III.
COVENANTS
3.1 COVENANTS OF SELLER. Seller covenants and agrees that from the date
hereof to the Closing without the prior written consent of Buyer:
(a) ORDINARY COURSE OF BUSINESS. Company will operate the
business of the Company only in the ordinary course and will use their
best efforts to preserve the Company's business, organization, goodwill
and relationships with persons having business dealings with them.
(b) COMPENSATION. Company will not (1) enter into or alter any
employment agreements; (2) grant any increase in compensation other
than normal merit increases consistent with the Company's general
prevailing practices to any officer or employee; or (3) enter into or
alter any labor or collective bargaining agreement or any bonus or
other employee fringe benefit.
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(c) NO INDEBTEDNESS. Company will not create, incur, assume,
guarantee or otherwise become liable with respect to any obligation for
borrowed money, indebtedness, capitalized lease or similar obligation,
except in the ordinary course of business consistent with past
practices where the entire net proceeds thereof are deposited with and
used by and in connection with the business of the Company.
(d) NO AMENDMENTS. Company will not amend its corporate
charter or bylaws (or similar documents) without prior consent of Buyer
and Company will maintain their corporate existence, licenses, permits,
powers and rights in full force and effect.
(e) NO SECURITIES ISSUANCES. Company will not issue any shares
of any class of capital stock, or enter into any contract, option,
warrant or right calling for the issuance of any such shares of capital
stock, or create or issue any securities convertible into any
securities of the Company except for the transactions contemplated
herein.
(f) CONTRACTS. Company will not enter into or assume any
contract, agreement, obligation, lease, license, or commitment except
in the ordinary course of business consistent with past practice or as
contemplated by this Agreement.
(g) CONSENTS. Company will use its, best good faith efforts to
obtain the consent or approval of each person or entity whose consent
or approval is required for the consummation of the Transactions
contemplated hereby and to do all things necessary to consummate the
Transactions contemplated by the Basic Agreements.
3.2 COVENANTS OF BUYER. Buyer covenants and agrees that from the date
hereof to the Closing without the prior written consent of Seller:
(a) ORDINARY COURSE OF BUSINESS. Buyer will operate the
business in the ordinary course and will use their best efforts to
preserve the Company's business, organization, goodwill and
relationships with persons having business dealings with them.
(b) MAINTAIN BOOKS. Buyer will maintain its books, accounts
and records in the usual, regular ordinary and sound business manner
and in accordance with generally accepted accounting principles applied
on a basis consistent with past practices.
(c) NO AMENDMENTS. Buyer will not amend its corporate charter
or bylaws (or similar documents) without prior consent of Seller and
will cause the Company to maintain its corporate existence, licenses,
permits, powers and rights in full force and effect.
(d) DUE COMPLIANCE. Buyer will comply with all laws,
regulations, rules and ordinances applicable to it and to the conduct
of its business.
(e) NOTICE OF CHANGE. Buyer will promptly advise Seller in
writing of any material adverse change, or the occurrence of any event
which involves any substantial possibility of a material adverse
change, in the business, financial condition, results of operations,
assets, liabilities or prospects of the Buyer.
(f) CONSENTS. Buyer will use its best good faith efforts to
obtain the consent or approval of each person or entity whose consent
or approval is required for the consummation of the Transactions
contemplated hereby and to do all things necessary to consummate the
Transactions contemplated by the Basic Agreements.
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IV.
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF BUYER TO CLOSE
The obligation of Buyer to close the Transaction contemplated hereby is
subject to the fulfillment by Seller prior to Closing of each of the following
conditions, which may be waived in whole or in part by Buyer:
4.1 COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties of Seller contained in this Agreement shall have
been true and correct when made and shall be true and correct as of the Closing
with the same force and effect as if made at the Closing. Seller shall have
performed all agreements, covenants and conditions required to be performed by
Seller prior to the Closing.
4.2 NO ADVERSE CHANGE. There shall have been no event which has had or
may have a material adverse effect upon the business, financial condition,
results of operation, assets, liabilities or prospects of the Company.
4.3 NO LEGAL PROCEEDINGS. No suit, action or other legal or
administrative proceeding before any court or other governmental agency shall be
pending or threatened seeking to enjoin the consummation of the Transaction
contemplated hereby.
4.4 DOCUMENTS TO BE DELIVERED BY SELLER. Seller shall have delivered
the following documents:
(a) Stock certificates representing all of the Shares, duly
endorsed to Buyer and in blank or accompanied by duly executed stock
powers, copies of which are attached as Exhibit "A".
(b) All corporate and other records of or applicable to the
Company included but not limited to, current and up-to-date minute
books, stock transfer books and registers, books of accounts, leases
and material contracts.
(c) Such other documents or certificates as shall be
reasonably required by Buyer or its counsel in order to close and
consummate this Agreement.
V.
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF SELLER TO CLOSE
The obligation of Seller to close the Transaction is subject to the
fulfillment prior to Closing of each of the following conditions, any of which
may be waived in whole or in part by Seller:
5.1 COMPLIANCE WITH REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations and warranties made by Buyer in this Agreement shall have been
true and correct when made and shall be true and correct in all material
respects at the Closing with the same force and effect as if made at the
Closing, and Buyer shall have performed all agreements, covenants and conditions
required to be performed by Buyer prior to the Closing.
5.2 NO LEGAL PROCEEDINGS. No suit, action or other legal or
administrative proceedings before any court or other governmental agency shall
be pending or threatened seeking to enjoin the consummation of the Transaction
contemplated hereby.
5.3. DOCUMENTS TO BE DELIVERED BY BUYER.
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(a) A copy of (i) the Articles of Incorporation of the Buyer,
certified as correct by the Buyer; and (ii) the Bylaws of the Buyer
certified as correct by the Buyer.
(b) Such other documents or certificates as shall be
reasonably required by Buyer or its counsel in order to close and
consummate this Agreement.
5.4 PAYMENTS. Seller shall have received from Buyer all Common Stock to
be issued at the Closing by Buyer.
VI.
MODIFICATION, WAIVERS, TERMINATION
AND EXPENSES
6.1 MODIFICATION. Buyer and Seller may amend, modify or supplement this
Agreement in any manner as they may mutually agree in writing.
6.2 WAIVERS. Buyer and Seller may in writing extend the time for or
waive compliance by the other with any of the covenants or conditions of the
other contained herein.
6.3 TERMINATION AND ABANDONMENT. This Agreement may be terminated and
the purchase of the Shares may be abandoned before the Closing:
(a) By the mutual consent of Seller and Buyer;
(b) By Buyer, if the representations and warranties of Seller
set forth herein shall not be accurate, or the conditions precedent set
forth in Article IV shall have not have been satisfied, in all material
respects; or
(c) By Seller, if the representations and warranties of Buyer
set forth herein shall not be accurate, or the conditions precedent set
forth in Article V shall not have been satisfied in all material
respects.
Termination shall be effective on the date of receipt of written notice
specifying the reasons therefor.
VII.
MISCELLANEOUS
7.1 REPRESENTATIONS AND WARRANTIES TO SURVIVE. Unless otherwise
provided, all of the representations and warranties contained in this Agreement
and in any certificate, exhibit or other document delivered pursuant to this
Agreement shall survive the Closing for a period of two (2) years. No
investigation made by any party hereto or their representatives shall constitute
a waiver of any representation or warranty, and no such representation or
warranty shall be merged into the Closing.
7.2 BINDING EFFECT OF THE BASIC AGREEMENTS. The Basic Agreements and
the certificates and other instruments delivered by or on behalf of the parties
pursuant thereto, constitute the entire agreement between the parties. The terms
and conditions of the Basic Agreements shall inure to the benefit of and be
binding upon the respective heirs, legal representatives, successor and assigns
of the parties hereto. Nothing in the Basic Agreements,
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expressed or implied, confers any rights or remedies upon any party other than
the parties hereto and their respective heirs, legal representatives and
assigns.
7.3 APPLICABLE LAW. The Basic Agreements are made pursuant to, and will
be construed under, the laws of the State of Delaware.
7.4 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and will be deemed to have been duly given when
delivered or mailed, first class postage prepaid:
(a) If to Seller, to:
Xxxx Xxxxxx
0000 Xxxxx Xxxxxxxx
Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) If to Buyer, to:
Mr. Xxxx Xxxxxx
Goldonline International, Inc.
000 Xxxxxx Xxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Mr. G. Xxxxx Xxxxxx
G. Xxxxx Xxxxxx & Associates, P.C.
One Memorial Place
0000 Xxxx 00xx Xxxxx, Xxxxx 000
Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
These addresses may be changed from time to time by written notice to
the other parties.
7.5 HEADINGS. The headings contained in this Agreement are for
reference only and will not affect in any way the meaning or interpretation of
this Agreement.
7.6 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which will be deemed an original and all of which together will constitute
one instrument.
7.7 SEVERABILITY. If any one or more of the provisions of this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
under applicable law this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. The
remaining provisions of this Agreement shall be given effect to the maximum
extent then permitted by law.
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7.8 FORBEARANCE; WAIVER. Failure to pursue any legal or equitable
remedy or right available to a party shall not constitute a waiver of such
right, nor shall any such forbearance, failure or actual waiver imply or
constitute waiver of subsequent default or breach.
7.9 ATTORNEYS' FEES AND EXPENSES. The prevailing party in any legal
proceeding based upon this Agreement shall be entitled to reasonable attorneys'
fees and expenses and court costs.
7.10 EXPENSES. Each party shall pay all fees and expenses incurred by
it incident to this Agreement and in connection with the consummation of all
transactions contemplated by this Agreement.
7.11 INTEGRATION. This Agreement and all documents and instruments
executed pursuant hereto merge and integrate all prior agreements and
representations respecting the Transactions, whether written or oral, and
constitute the sole agreement of the parties in connection therewith. This
Agreement has been negotiated by and submitted to the scrutiny of both Seller
and Buyer and their counsel and shall be given a fair and reasonable
interpretation in accordance with the words hereof, without consideration or
weight being given to its having been drafted by either party hereto or its
counsel.
IN WITNESS WHEREOF, the undersigned parties hereto have duly executed
this Agreement on the date first written above.
"BUYER"
GOLDONLINE INTERNATIONAL, INC.
BY: /S/ XXXX XXXXXX
XXXX XXXXXX, PRESIDENT
"SELLER"
/S/ XXXX XXXXXX
XXXX XXXXXX
