AGREEMENT AND PLAN OF REORGANIZATION among XXXXXXXXXX.XXX,
INC., a Delaware corporation ("Foodvision"), ECHELON ACQUISITION
CORPORATION, a Delaware corporation ("Echelon") 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
Echelon.
Whereas, Foodvision wishes to acquire and the Shareholders
wish to transfer all of the issued and outstanding securities of
Echelon 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, Foodvision, Echelon, 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
Foodvision at the Closing (defined below) the number of shares of
common stock of Echelon, $0.0001 par value per share, shown opposite
their names in Exhibit A, in exchange for an aggregate of 1,000,000
shares of voting common stock of Foodvision, $.001 par value per share.
1.2. EXCHANGE OF CERTIFICATES. Each holder of an outstanding
certificate or certificates theretofore representing shares of
Echelon common stock shall surrender such certificate(s) for
cancellation to Foodvision, and shall receive in exchange a
certificate or certificates representing the number of full shares
of Foodvision common stock into which the shares of Echelon common
stock represented by the certificate or certificates so surrendered
shall have been converted. The transfer of Echelon shares by the
Shareholders shall be effected by the delivery to Foodvision 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 Foodvision
common stock shall not be issued, but in lieu thereof Foodvision
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 Foodvision may request in
order more effectively to sell, transfer, and assign the transferred
stock to Foodvision and to confirm Foodvision's title thereto.
2. CLOSING.
2.1. DATE AND PLACE. The Closing contemplated herein shall
be held on February 4, 2000 at the offices of the Exchange Agent
provided for herein 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.
2.2. EXECUTION 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.
3. UNEXCHANGED CERTIFICATES. Until surrendered, each
outstanding certificate that prior to the Closing represented
Echelon 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 Foodvision common stock into
which it was converted. No dividend or other distribution shall be
paid to the holders of certificates of Echelon common stock until
presented for exchange at which time any outstanding dividends or
other distributions shall be paid.
4. REPRESENTATIONS AND WARRANTIES OF ECHELON
Echelon represents and warrants as follows:
4.1. CORPORATE ORGANIZATION AND GOOD STANDING. Echelon is a
corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware, and is qualified to do
business as a foreign corporation in each jurisdiction, if any, in
which its property or business requires such qualification.
4.2. REPORTING COMPANY STATUS. Echelon has filed with the
Securities and Exchange Commission a registration statement on Form
10-SB which became effective pursuant to the Securities Exchange Act
of 1934 and is a reporting company pursuant to '12(g) thereunder.
4.3. REPORTING COMPANY FILINGS. Echelon has timely filed and
is current on all reports required to be filed by it pursuant to '13
of the Securities Exchange Act of 1934.
4.4. CAPITALIZATION. Echelon=s authorized capital stock
consists of 120,000,000 shares of Common Stock, $.0001 par value, of
which 5,000,000 shares are issued and outstanding, and 20,000,000
shares of non-designated preferred stock of which no shares are
designated or issued.
4.5. ISSUED STOCK. All the outstanding shares of its Common
Stock are duly authorized and validly issued, fully paid and
non-assessable.
4.6. STOCK RIGHTS. Except as set out by attached schedule,
there are no stock grants, options, rights, warrants or other rights
to purchase or obtain Echelon Common or Preferred Stock issued or
committed to be issued.
4.7. CORPORATE AUTHORITY. Echelon has all requisite
corporate power and authority to own, operate and lease its
properties, to carry on its business as it is now being conducted
and to execute, deliver, perform and conclude the transactions
contemplated by this agreement and all other agreements and
instruments related to this agreement.
4.8. AUTHORIZATION. Execution of this agreement has been
duly authorized and approved by Echelon=s board of directors.
4.9. SUBSIDIARIES. Except as set out by attached schedule,
Echelon has no subsidiaries.
4.10. FINANCIAL STATEMENTS. Echelon=s financial statements
dated October 31, 1999, copies of which will have been delivered by
Echelon to Foodvision prior to the Merger Date (the "Echelon
Financial Statements"), fairly present the financial condition of
Echelon as of the date therein and the results of its operations for
the periods then ended in conformity with generally accepted
accounting principles consistently applied.
4.11. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the
extent reflected or reserved against in the Echelon Financial
Statements, Echelon did not have at that date any liabilities or
obligations (secured, unsecured, contingent, or otherwise) of a
nature customarily reflected in a corporate balance sheet prepared
in accordance with generally accepted accounting principles.
4.12. NO MATERIAL CHANGES. Except as set out by attached
schedule, there has been no material adverse change in the business,
properties, or financial condition of Echelon since the date of the
Echelon Financial Statements.
4.13. LITIGATION. Except as set out by attached schedule,
there is not, to the knowledge of Echelon, any pending, threatened,
or existing litigation, bankruptcy, criminal, civil, or regulatory
proceeding or investigation, threatened or contemplated against
Echelon or against any of its officers.
4.14. CONTRACTS. Except as set out by attached schedule,
Echelon is not a party to any material contract not in the ordinary
course of business that is to be performed in whole or in part at or
after the date of this agreement.
4.15. TITLE. Except as set out by attached schedule, Echelon
has good and marketable title to all the real property and good and
valid title to all other property included in the Echelon Financial
Statements. Except as set out in the balance sheet thereof, the
properties of Echelon are not subject to any mortgage, encumbrance,
or lien of any kind except minor encumbrances that do not materially
interfere with the use of the property in the conduct of the
business of Echelon.
4.16. TAX RETURNS. Except as set out by attached schedule,
all required tax returns for federal, state, county, municipal,
local, foreign and other taxes and assessments have been properly
prepared and filed by Echelon for all years for which such returns
are due unless an extension for filing any such return has been
filed. Any and all federal, state, county, municipal, local,
foreign and other taxes and assessments, including any and all
interest, penalties and additions imposed with respect to such
amounts have been paid or provided for. The provisions for federal
and state taxes reflected in the Echelon Financial Statements are
adequate to cover any such taxes that may be assessed against
Echelon in respect of its business and its operations during the
periods covered by the Echelon Financial Statements and all prior
periods.
4.17. NO VIOLATION. Consummation of the Merger will not
constitute or result in a breach or default under any provision of
any charter, bylaw, indenture, mortgage, lease, or agreement, or any
order, judgment, decree, law, or regulation to which any property of
Echelon is subject or by which Echelon is bound.
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 Echelon 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 each Shareholder=s knowledge threatened, against or
relating shares of Echelon held by the Shareholders.
6. REPRESENTATIONS AND WARRANTIES OF FOODVISION
The Foodvision represents and warrants as follows:
6.1. CORPORATE ORGANIZATION AND GOOD STANDING. Foodvision is
a corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware and is qualified to do
business as a foreign corporation in each jurisdiction, if any, in
which its property or business requires such qualification.
6.2. CAPITALIZATION. Foodvision's authorized capital stock
consists of 50,000,000 shares of Common Stock, $.001 par value, of
which 13,109,984 shares are issued and outstanding, and 1,000,000
shares of preferred stock, of which no shares are issued and
outstanding.
6.3. ISSUED STOCK. All the outstanding shares of its Common
Stock are duly authorized and validly issued, fully paid and
non-assessable.
6.4. STOCK RIGHTS. Except as set out by attached schedule,
there are no stock grants, options, rights, warrants or other rights
to purchase or obtain Foodvision Common or Preferred Stock issued or
committed to be issued.
6.5. CORPORATE AUTHORITY. Foodvision has all requisite
corporate power and authority to own, operate and lease its
properties, to carry on its business as it is now being conducted
and to execute, deliver, perform and conclude the transactions
contemplated by this Agreement and all other agreements and
instruments related to this agreement.
6.6. AUTHORIZATION. Execution of this Agreement has been
duly authorized and approved by Foodvision's board of directors.
6.7. SUBSIDIARIES. Except as set out by attached schedule,
Foodvision has no subsidiaries.
6.8. FINANCIAL STATEMENTS. Foodvision's financial statements
dated as of December 31, 1999, copies of which will have been
delivered by Foodvision to Echelon prior to the Merger Date (the
"Foodvision Financial Statements"), fairly present the financial
condition of Foodvision as of the date therein and the results of
its operations for the periods then ended in conformity with
generally accepted accounting principles consistently applied.
6.9. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the
extent reflected or reserved against in the Foodvision Financial
Statements, Foodvision did not have at that date any liabilities or
obligations (secured, unsecured, contingent, or otherwise) of a
nature customarily reflected in a corporate balance sheet prepared
in accordance with generally accepted accounting principles.
6.10. NO MATERIAL CHANGES. Except as set out by attached
schedule, there has been no material adverse change in the business,
properties, or financial condition of Foodvision since the date of
the Foodvision Financial Statements.
6.11. LITIGATION. Except as set out by attached schedule,
there is not, to the knowledge of Foodvision, any pending,
threatened, or existing litigation, bankruptcy, criminal, civil, or
regulatory proceeding or investigation, threatened or contemplated
against Foodvision or against any of its officers.
6.12. CONTRACTS. Except as set out by attached schedule,
Foodvision is not a party to any material contract not in the
ordinary course of business that is to be performed in whole or in
part at or after the date of this agreement.
6.13. TITLE. Except as set out by attached schedule,
Foodvision has good and marketable title to all the real property
and good and valid title to all other property included in the
Foodvision Financial Statements. Except as set out in the balance
sheet thereof, the properties of Foodvision are not subject to any
mortgage, encumbrance, or lien of any kind except minor encumbrances
that do not materially interfere with the use of the property in the
conduct of the business of Foodvision.
6.14. TAX RETURNS. Except as set out by attached schedule,
all required tax returns for federal, state, county, municipal,
local, foreign and other taxes and assessments have been properly
prepared and filed by Foodvision for all years for which such
returns are due unless an extension for filing any such return has
been filed. Any and all federal, state, county, municipal, local,
foreign and other taxes and assessments, including any and all
interest, penalties and additions imposed with respect to such
amounts have been paid or provided for. The provisions for federal
and state taxes reflected in the Foodvision Financial Statements are
adequate to cover any such taxes that may be assessed against
Foodvision in respect of its business and its operations during the
periods covered by the Foodvision Financial Statements and all prior
periods
6.15. NO VIOLATION. Consummation of the Merger will not
constitute or result in a breach or default under any provision of
any charter, bylaw, indenture, mortgage, lease, or agreement, or any
order, judgment, decree, law, or regulation to which any property of
Foodvision is subject or by which Foodvision is bound.
7. CONDUCT OF ECHELON PENDING THE MERGER DATE. Echelon
covenants that between the date of this Agreement and the Merger Date:
7.1. No change will be made in Echelon's articles of
incorporation or bylaws.
7.2. Echelon will not make any change in its authorized or
issued capital stock, declare or pay any dividend or other
distribution or issue, encumber, purchase, or otherwise acquire any
of its capital stock other than as provided herein.
7.3. Echelon 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.
8. CONDUCT PENDING THE CLOSING
Foodvision, Echelon and the Shareholders covenant that between
the date of this Agreement and the Closing as to each of them:
8.1. No change will be made in the charter documents,
by-laws, or other corporate documents of Foodvision or Echelon.
8.2. Echelon and Foodvision will use their 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.
8.3. None of the Shareholders will sell, transfer, assign,
hypothecate, lien, or otherwise dispose or encumber the Echelon
shares of common stock owned by them.
9. CONDITIONS PRECEDENT TO OBLIGATION OF ECHELON AND THE
SHAREHOLDERS
Echelon=s and 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
Echelon or the Shareholders as appropriate:
9.1. FOODVISION'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Foodvision 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. FOODVISION'S COVENANTS. Foodvision shall have performed
all covenants required by this Agreement to be performed by it on or
before the Closing.
9.3. BOARD OF DIRECTOR APPROVAL. This Agreement shall have
been approved by the Board of Directors of Foodvision.
9.4. SUPPORTING DOCUMENTS OF FOODVISION. Foodvision shall
have delivered to Echelon and the Shareholders supporting documents
in form and substance reasonably satisfactory to Echelon and the
Shareholders, to the effect that:
(a) Foodvision is a corporation duly organized, validly
existing, and in good standing;
(b) Foodvision's authorized capital stock is as set forth
herein;
(c) Certified copies of the resolutions of the board of
directors of Foodvision authorizing the execution of this Agreement
and the consummation hereof;
(d) Secretary's certificate of incumbency of the officers and
directors of Foodvision;
(e) Foodvision=s Financial Statements and unaudited financial
statement from the date of Foodvision's Financial Statements to
close of most recent fiscal quarter; and
(f) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated
elsewhere herein.
10. CONDITIONS PRECEDENT TO OBLIGATION OF FOODVISION
Foodvision'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 Foodvision:
10.1. ECHELON'S AND THE SHAREHOLDER=S REPRESENTATIONS AND
WARRANTIES. The representations and warranties of Echelon and 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.
10.2. ECHELON'S AND THE SHAREHOLDERS' COVENANTS. Echelon and
the Shareholders shall have performed all covenants required by this
Agreement to be performed by them on or before the Closing.
10.3. BOARD OF DIRECTOR APPROVAL. This Agreement shall
have been approved by the Board of Directors of Echelon.
10.4. SHAREHOLDER EXECUTION. This Agreement shall have been
executed by the required number of shareholders of Echelon.
10.5. SUPPORTING DOCUMENTS OF ECHELON. Echelon shall have
delivered to Foodvision supporting documents in form and Substance
reasonably satisfactory to Foodvision to the effect that:
(a) Echelon is a corporation duly organized, validly
existing, and in good standing;
(b) Echelon's capital stock is as set forth herein;
(c) Certified copies of the resolutions of the board of
directors of Echelon authorizing the execution of this Agreement and
the consummation hereof;
(d) Secretary's certificate of incumbency of the officers and
directors of Echelon;
(e) Echelon=s Financial Statements and unaudited financial
statements for the period from the date of the Echelon's Financial
Statements to the close of the most recent fiscal quarter; and
(f) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated
elsewhere herein.
11. SHAREHOLDERS' REPRESENTATIVE. The Shareholders hereby
irrevocably designate and appoint Xxxxxxx & Associates, Washington,
D.C. as their agent and attorney in fact ("Shareholders'
Representative") with full power and authority until the Closing to
execute, deliver, and receive on their behalf all notices, requests,
and other communications hereunder; to fix and alter on their behalf
the date, time, and place of the Closing; to waive, amend, or modify
any provisions of this Agreement, and to take such other action on
their behalf in connection with this Agreement, the Closing, and the
transactions contemplated hereby as such agent or agents deem
appropriate; provided, however, that no such waiver, amendment, or
modification may be made if it would decrease the number of shares
to be issued to the Shareholders hereunder or increase the extent of
their obligation to indemnify Foodvision hereunder.
12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties
of Echelon, the Shareholders and Foodvision set out herein shall
survive the Closing.
13. ARBITRATION
13.1. 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.
13.2. 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.
13.3. 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.
13.4. 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.
13.5. 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.
13.6. 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.
13.7. 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.
13.8. 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.
13.9. 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.
13.10. SURVIVAL. The provisions for arbitration
contained herein shall survive
the termination of this agreement for any reason.
14. GENERAL PROVISIONS.
14.1. 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.
14.2. 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.
14.3. 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.
14.4. 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 Foodvision, to:
Xxxxxxxxxx.xxx, Inc.
0000 XX Xxxxxxx
Xxxxx X
Xxxxxxxx, Xxxxxxx 00000
If to Echelon, to:
0000 X Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
If to the Shareholders, to:
Xxxxxxx & Associates
0000 X Xxxxxx Xxxxxxxxx
Xxxxxxxxxx, X.X. 00000
14.5. GOVERNING LAW. This agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Delaware.
14.6. 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.
14.7. 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.
14.8. EXCHANGE AGENT AND CLOSING DATE. The Exchange Agent
shall be 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.
14.9. 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.
14.10. SCHEDULES. All schedules attached hereto, if any,
shall be acknowledged by each party by signature or initials thereon.
14.11. EFFECTIVE DATE. This effective date of this
agreement shall be February 4, 2000.
SIGNATURE PAGE TO AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN FOODVISION CORPORATION AND
ECHELON ACQUISITION CORPORATION
IN WITNESS WHEREOF, the parties have executed this agreement.
XXXXXXXXXX.XXX, INC.
/s/ __________________
ECHELON ACQUISITION CORPORATION
/s/ ____________________
