Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") between
GOURMET'S CHOICE COFFEE CO., INC., a Nevada corporation ("Gourmet's
Choice") and the persons listed in Exhibit A hereof (collectively
the "Shareholders"), being the owners of record of all of the issued
and outstanding stock of Aterian Corporation, a Delaware corporation
("Aterian").
Whereas, Gourmet's Choice wishes to acquire and the
Shareholders wish to transfer all of the issued and outstanding
securities of Aterian in a transaction intended to qualify as a
reorganization within the meaning of Section368(a)(1)(B) of the
Internal Revenue Code of 1986, as amended.
Now, therefore, Gourmet's Choice and the Shareholders adopt
this plan of reorganization and agree as follows:
1. EXCHANGE OF STOCK
1.1. NUMBER OF SHARES. The Shareholders agree to transfer
to Gourmet's Choice at the Closing (defined below) the number of
shares of common stock of Aterian, $.0001 par value per share, shown
opposite their names in Exhibit A, in exchange pro rata for an
aggregate of 250,000 shares of voting common stock of Gourmet's
Choice, $.01 par value per share.
1.2. EXCHANGE OF CERTIFICATES. Each holder of an
outstanding certificate or certificates theretofore representing
shares of Aterian common stock shall surrender such certificate(s)
for cancellation to Gourmet's Choice, and shall receive in exchange
a certificate or certificates representing the number of full shares
of Gourmet's Choice common stock into which the shares of Aterian
common stock represented by the certificate or certificates so
surrendered shall have been converted. The transfer of Aterian
shares by the Shareholders shall be effected by the delivery to
Gourmet's Choice at the Closing of certificates representing the
transferred shares endorsed in blank or accompanied by stock powers
executed in blank.
1.3. FRACTIONAL SHARES. Fractional shares of Gourmet's
Choice common stock shall not be issued, but in lieu thereof
Gourmet's Choice shall round up fractional shares to the next
highest whole number.
1.4. FURTHER ASSURANCES. At the Closing and from time to
time thereafter, the Shareholders shall execute such additional
instruments and take such other action as Gourmet's Choice may
request in order more effectively to sell, transfer, and assign the
transferred stock to Gourmet's Choice and to confirm Gourmet's
Choice's title thereto.
2. RATIO OF EXCHANGE. The securities of Aterian owned by
the Shareholders, and the relative securities of Gourmet's Choice
for which they will be exchanged, are set out opposite their names
in Exhibit A.
3. CLOSING.
3.1. TIME AND PLACE. The Closing contemplated herein shall
be held as soon as possible at the offices of Xxxxxxx & Associates
at 0000 X Xxxxxx, XX, Xxxxxxxxxx, X.X. 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. Until surrendered, each
outstanding certificate that prior to the Closing represented
Aterian common stock shall be deemed for all purposes, other than
the payment of dividends or other distributions, to evidence
ownership of the number of shares of Gourmet's Choice common stock
into which it was converted. No dividend or other distribution
shall be paid to the holders of certificates of Aterian common stock
until presented for exchange at which time any outstanding dividends
or other distributions shall be paid.
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 Aterian 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 Aterian held by the Shareholders.
6. REPRESENTATIONS AND WARRANTIES OF GOURMET'S CHOICE
Gourmet's Choice represents and warrants as follows:
6.1. CORPORATE STATUS. Gourmet's Choice 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
Gourmet's Choice consists of 200,000,000 shares of common stock,
$.01 par value per share, of which 92,271,128 shares are issued and
outstanding, all fully paid and nonassessable and no shares of
non-designated preferred stock.
6.3. SUBSIDIARIES. Gourmet's Choice has one subsidiary.
6.4. FINANCIAL STATEMENTS. The financial statements of
Gourmet's Choice for the fiscal year ended June 30, 1998 and the
period February 20, 1997 through June 30, 1997, or such other period
as acceptable to Shareholders ("Gourmet's Choice's Financial
Statements") and furnished to the Shareholders are correct and
fairly present the financial condition of Gourmet's Choice as of the
dates and for the periods involved, and such statements were
prepared in accordance with generally accepted accounting principles
consistently applied.
6.5. UNDISCLOSED LIABILITIES. Gourmet's Choice had no
material liabilities of any nature except to the extent reflected or
reserved against in Gourmet's Choice's Financial Statements, whether
accrued, absolute, contingent, or otherwise, including, without
limitation, tax liabilities and interest due or to become due, and
Gourmet's Choice's accounts receivable, if any, are collectible in
accordance with the terms of such accounts, except to the extent of
the reserve therefor in Gourmet's Choice's Financial Statements.
6.6. ABSENCE OF MATERIAL CHANGES. Between the date of
Gourmet's Choice's Financial Statements and the date of this
Agreement, there have not been, except as set forth in a list
certified by the president of Gourmet's Choice and delivered to the
Shareholders (1) any changes in Gourmet's Choice's financial
condition, assets, liabilities, or business which, in the aggregate,
have been materially adverse; (2) any damage, destruction, or loss
of or to Gourmet's Choice's property, whether or not covered by
insurance; (3) any declaration or payment of any dividend or other
distribution in respect of Gourmet's Choice's capital stock, or any
direct or indirect redemption, purchase, or other Gourmet's Choice
of any such stock; or (4) any increase paid or agreed to in the
compensation, retirement benefits, or other commitments to
employees.
6.7. LITIGATION. There is no litigation or proceeding
pending, or to the Company's knowledge threatened, against or
relating to Gourmet's Choice, its properties or business, except as
set forth in a list certified by the president of Gourmet's Choice
and delivered to the Shareholders.
6.8. CONTRACTS. Gourmet's Choice is not a party to any
material contract other than those listed as an attachment hereto.
6.9. NO VIOLATION. Execution of this Agreement and
performance by Gourmet's Choice hereunder has been duly authorized
by all requisite corporate action on the part of Gourmet's Choice,
and this Agreement constitutes a valid and binding obligation of
Gourmet's Choice, and performance hereunder will not violate any
provision of any charter, bylaw, indenture, mortgage, lease, or
agreement, or any order, judgment, decree, law, or regulation to
which any property of Gourmet's Choice is subject or by which
Gourmet's Choice is bound.
6.10. TAXES. Gourmet's Choice 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. Gourmet's
Choice 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 Gourmet's
Choice and are reflected in the financial statements furnished hereto.
6.11. TITLE TO PROPERTY. Gourmet's Choice has good and
marketable title to all properties and assets, real and personal,
reflected in Gourmet's Choice's Financial Statements, except as
since sold or otherwise disposed of in the ordinary course of
business, and Gourmet's Choice'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.
6.12. CORPORATE AUTHORITY. Gourmet's Choice 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.
6.13. INVESTMENT INTENT. Gourmet's Choice is acquiring the
Aterian shares to be transferred to it under this Agreement for
investment and not with a view to the sale or distribution thereof.
7. CONDUCT PENDING THE CLOSING
Gourmet's Choice 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 Gourmet's Choice.
7.2. Gourmet's Choice 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 Aterian
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. GOURMET'S CHOICE'S REPRESENTATIONS AND WARRANTIES.
The representations and warranties of Gourmet's Choice 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. GOURMET'S CHOICE'S COVENANTS. Gourmet's Choice 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 Gourmet's Choice.
8.4. SUPPORTING DOCUMENTS OF GOURMET'S CHOICE. Gourmet's
Choice shall have delivered to the Shareholders supporting documents
in form and substance reasonably satisfactory to the Shareholders,
to the effect that:
(a) Gourmet's Choice is a corporation duly organized,
validly existing, and in good standing;
(b) Gourmet's Choice's authorized capital stock is as set
forth herein;
(c) Certified copies of the resolutions of the board of
directors of Gourmet's Choice authorizing the execution of this
Agreement and the consummation hereof;
(d) Secretary's certificate of incumbency of the officers
and directors of Gourmet's Choice;
(e) Gourmet's Choice's Financial Statements; and
(f) 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 GOURMET'S CHOICE
Gourmet's Choice's 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 Gourmet's Choice:
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. SHAREHOLDERS' 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
Gourmet's Choice if there has been a material misrepresentation or
material breach of any warranty or covenant by any other party; or
(3) by either the Shareholders or Gourmet's Choice 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
representations and warranties
of the Shareholders and Gourmet's Choice 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 District of Columbia.
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 District of Columbia. Any award in arbitration may be entered
in any domestic or foreign court having jurisdiction over the
enforcement of such awards.
12.3. APPLICABLE LAW. The law applicable to the arbitration
and this agreement shall
be that of the State of Delaware, 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
as 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 XXX. 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 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 obligations, 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 Gourmet's Choice, to:
Gourmet's Choice Coffee Co., Inc.
0 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
If to the Shareholders, to:
TPG Capital Corporation
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
13.5. GOVERNING LAW. This agreement shall be governed by
and construed and enforced in accordance with the laws of the State
of Delaware.
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 Xxxxxxx & Associates, Washington, D.C. 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 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 November 29, 1999.
SIGNATURE PAGE TO AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN GOURMET'S CHOICE AND THE SHAREHOLDERS OF ATERIAN
IN WITNESS WHEREOF, the parties have executed this agreement.
GOURMET'S CHOICE COFFEE CO., INC.
By___________________________________
THE SHAREHOLDERS OF
ATERIAN CORPORATION:
TPG CAPITAL CORPORATION:
By
