Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (hereinafter referred to as the
"Agreement") is entered into as of this 25th day of October, 1998, by and
between INTERFOODS CONSOLIDATED, INC. (hereinafter referred to as "HAIS"),
XXXXXXXXX X. XXXXXXXX, XXXXXX X. XXXXX, XXXXXXXXXX X. XXXXX, XXXXXX XXX,
XXXXXXXX XXXXXX, XXXXXX X. LUTTAUA, ROSE FEJARDO, XXXXXXX X. XXX and XXXX X.
XXXXX (hereinafter individually and collectively referred to as "Shareholder")
and WHITE DOVE SYSTEMS, INC. (hereinafter referred to as "WDVE").
WITNESSETH
WHEREAS, HAIS is a California corporation with 4,000,000 shares of common
stock issued and outstanding (hereinafter "HAIS Shares"); and
WHEREAS, WDVE is a Nevada corporation with authorized capital stock of
25,000,000 shares of Common Stock $.001 par value per share, of which 1,860,000
shares were issued and outstanding as of October 25, 1998, and
WHEREAS, Shareholder owns all of the issued and outstanding shares of stock
in HAIS; and
WHEREAS, WDVE desires to purchase from Shareholder all of the issued and
outstanding shares of HAIS owned by him in exchange for 5,580,000 shares of
common stock ("Stock"), and
WHEREAS, it is the intention of Shareholder to exchange the HAIS Shares
held by him f or Stock of WDVE, on the terms and conditions set forth herein;
and
WHEREAS, it is the intention of WDVE, HAIS and Shareholder that the
transactions contemplated hereby constitute a tax-free "reorganization" as
defined in Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended
("B Reorganization") and that all the terms and provisions of this Agreement be
interpreted, construed and enforced to effectuate this intent.
NOW THEREFORE in consideration of the foregoing and the mutual covenants,
promises, representations and warranties contained herein, the parties hereto
agree as follows:
-1-
Article I
EXCHANGE
1. 1. Exchange of Stock of HAIS. At the Closing Date (as defined in Article
VIII hereof), in accordance with the provisions of this Agreement and applicable
law, Shareholder shall transfer and WDVE shall acquire all of the stock of HAIS
Shares owned by Shareholder.
Article II
CONSIDERATION
2.1. Exchange. Shareholder and WDVE agree that all of the HAIS Shares owned
by Shareholder shall be exchanged with WDVE for 5,580,000 shares of Stock of
WDVE. Such Stocks shall be issued in Certificates of such denominations, amounts
and names as may be requested by Shareholder.
2.2. Investment Intent and Delivery. Shareholder represents and warrants
that he is acquiring said stock for investment purposes only and not with a view
towards resale or redistribution. Shareholder agrees to deliver to WDVE on the
Closing Date, a letter setting forth an agreement that said Stock is being
acquired for investment purposes only and will not be sold except in compliance
with the Securities Act of 1933, as amended, and the Rules and Regulations
promulgated thereunder. At said closing, WDVE shall deliver certificates for the
HAIS Shares, duly endorsed in negotiable form, with signatures guaranteed, free
and clear from all claims and encumbrances.
Article III
REPRESENTATTONS AND WARRANTIES OF WDVE
WDVE represents the warrants to Shareholder as follows:
3.1. Organization. WDVE is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Nevada, has the
corporate power and authority to own or lease its properties and to carry on
business as now being conducted.
3.2. Capitalization. As of the date hereof, the authorized capital stock of
WDVE consists of 25,000,000 shares of capital stock, of which 1,860,000 shares
are presently issued and outstanding. All said Stock is validly issued and
outstanding, fully paid and nonassessable. As of the Closing Date, there will be
no shares of common stock subject to unexpired exercisable options.
-2-
3.3. Financial Statements. WDVE has furnished to Shareholder financial
statements as of July 30, 1998. Said financial statements contain the balance
sheet and income statement of WDVE. All of said financial statements, (i) are in
accordance with WDVE's books and records, (ii) present fairly and financial
position of WDVE as of such dates, and its results of operations and changes in
financial position for the respective periods indicated, (iii) have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis, and (iv) consistent with prior business practice, contain
adequate reserves for all known or contingent liabilities, losses and refunds
with respect to services or products already rendered or sold.
3.4. Contracts. Prior to the Closing Date, WDVE will furnish HAIS with a
true and complete list and description of all contracts by and between WDVE and
with others. Each of the agreements, contracts, commitments, leases, plans and
other instruments, documents and undertakings to be supplied is valid and
enforceable in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting the rights of
creditors generally, and by equitable principles. WDVE is not in default of the
performance, observance or fulfillment of any material obligations, covenant or
condition contained therein; and no event has occurred which with or without the
giving of notice or lapse of time, or both, would constitute a default
thereunder; furthermore, except as may be disclosed in writing at the time of
delivery, no such agreement, contract, commitment, lease, plan or other
instrument, document or undertaking, in the reasonable opinion of WDVE, contains
any contractual requirement with which there is a likelihood WDVE will be unable
to comply.
3.5. Registration Rights. No shareholder of WDVE has any demands or "piggy
back" registration rights with regards to the outstanding shares or options of
WDVE.
3.6. Authorization. WDVE has the power to enter into this Agreement, and
this Agreement, when duly executed and delivered, will constitute the valid and
binding obligation of WDVE.
3.7. Effect of Agreement. The execution and delivery by WDVE of this
Agreement and the consummation of the transactions herein contemplated, (i) will
not conflict with or result in a breach of the terms of, or constitute any
default under or violation of, any law or regulation of any governmental
authority, or the Articles of Incorporation or By-Laws of WDVE, or any material
agreement or instrument to which WDVE is a party or by which it is bound or is
subject; (ii) now will it give to others any interest or rights, including
rights of termination, acceleration or cancellation, in or with respect to any
of the properties, assets, agreements, leases, or business of WDVE.
-3-
Article IV
REPRESENTATIONS AND WARRANTIES OF HAIS AND SHAREHOLDER
HAIS and Shareholder, and each of them, represent and warrant to WDVE as
follows:
4.1. Organization. HAIS is a corporation duly organized, validly existing
and in good standing under the laws of the State of California, has the
corporate power and authority to own or lease its properties and to carry on
business as now being conducted.
4.2. Capitalization. The authorized capital stock of HAIS consists of one
class of common stock, 20,000,000 shares authorized, of which 4,000,000 are
outstanding Shares are validly issued and outstanding, fully paid and
nonassessable. All of the issued and outstanding shares are owned by
Shareholder.
4.3. Authority. HAIS and Shareholder have the full power and authority to
enter into this Agreement and to carry out its obligations hereunder. Other than
approval by the Board of Directors, no proceedings on the part of Shareholder is
necessary to authorize this Agreement or the transactions completed hereby. This
Agreement constitutes the legal, valid and binding obligation of HAIS and
Shareholder enforceable in accordance with its terms.
4.4. Financial Statements. HAIS and Shareholder had furnished to WDVE its
business plan and current financial statements. Said financial statements
contain the balance sheet and income statement of HAIS. All of said financial
statements, (i) are in accordance with HAIS books and records, (ii) present
fairly the financial position of HAIS as of such dates, and its results of
operations and changes in financial position for the respective periods
indicated, (iii) have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and (iv) consistent with
prior business practice, contain adequate reserves for all known or contingent
liabilities, losses and refunds with respect to services or products already
rendered or sold.
4.5. Contracts. Prior to the Closing Date, HAIS will furnish WDVE with a
true and complete list and description of all contracts by and between HAIS and
with others. Each of the agreements, contracts, commitments, leases, plans and
other instruments, documents and undertakings to be supplied is valid and
enforceable in accordance with its terms except as the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting the rights of
creditors generally, and by equitable principles. HAIS is not in default of the
performance, observance or fulfillment of any material obligations, covenant or
condition contained therein; and no event has occurred which with or without the
giving of notice or lapse of time, or both, would constitute a default
thereunder; furthermore, except as
-4-
may be disclosed in writing at the time of delivery, no such agreement,
contract, commitment, lease, plan or other instrument, document or undertaking,
in the reasonable opinion of HAIS, contains any contractual requirement with
which there is a likelihood HAIS will be unable to comply.
4.6. Competition. Except as set forth in the contracts described in 4.5
above, neither HAIS, nor any officer or director or Shareholder of HAIS has any
material direct or indirect financial or economic interest in any related
industry entity or in any competition or customer of HAIS.
4.7. Effect of Agreement. The execution and delivery by HAIS of this
Agreement and the consummation of the transactions herein contemplated, (i) will
not conflict with, or result in a breach of the terms of, or constitute and
default under or violation of, any law or regulation of any governmental
authority, or the Articles of Incorporation or By-Laws of RAIS, or any material
agreement or instrument to which HAIS is a party or by which it is bound or is
subject; (ii) nor will it give to rise to any interests or rights, including
rights of termination, acceleration or cancellation, in or with respect to any
of the properties, assets, agreements, leases, or business of HAIS.
4.8. Properties. All of the property, assets and equipment owned by or used
by HAIS is in good repair, well maintained, and in good and satisfactory
operating condition consistent with their age, free from any known defects,
except such minor defects as do not substantially interfere with the continued
use thereof in the conduct of normal operations and such property, assets, and
equipment which is owned by HAIS is valued on the Balance Sheet at original
purchase price less reasonable depreciation consistently applied in accordance
with generally accepted accounting principles.
4.9. Minutes Book. The records of meetings and other corporate actions of
Shareholder and the Board of Directors (including any committees of the Board)
of HAIS which are contained in the Minute Books of HAIS contain complete and
accurate records of the matters reflected in such minutes.
4.10. Litigation; Claims. HAIS is not a party and there are no claims,
actions, suits, investigations or proceedings pending, threatened against HAIS
or its business, at law or in equity, or before or by any governmental
department, commission, board, bureau, agency, or instrumentality, domestic or
foreign, which if determined adversely would have a material effect on the
business or financial condition of HAIS or the ability of HAIS to carry on its
business. The consummation of the transactions herein contemplated will not
conflict with or result in the breach or violation of any judgement, order,
writ, injunction or decree of any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign.
-5-
4.11. Taxes and Reports. At the Closing Date, HAIS (i) will have filed all
tax returns required to be filed by any jurisdiction, domestic or foreign, to
which it is or has been subject, (ii) has paid in full all taxes due and taxes
claimed to be due by each jurisdiction, and any interest and penalties with
respect thereto, and (iii) has adequately reflected as liabilities on its books,
all taxes that have accrued for any period to and including the Closing Date.
4.12. Compliance with Laws and Regulations. HAIS and Shareholder have
complied with, and is not in violation of any federal, state, local or foreign
statute, law, rule or regulation with respect to the conduct of its businesses,
which violation might have a material adverse effect on the business, financial
condition or earnings of HAIS.
4.13. Finders. HAIS is not obligated, absolutely or contingently, to any
person for financial advice, a finder's fee, brokerage commission, or other
similar payment in connection with the transactions contemplated by this
Agreement.
4.14. Nature of Representations. No representation, warranty or agreement
made by HAIS in this Agreement and no statement or disclosure furnished by
Shareholder in connection with the transactions herein contemplated contains, or
will contain, any untrue statement of a material fact necessary to make any
statement, representation, warranty or agreement not misleading.
Article V
ACCESS TO INFORMATION
5.1. Access to Information. HAIS and Shareholder shall afford
representatives of WDVE reasonable access to officers, personnel, and
professional representatives of HAIS and such of the financial, contractual and
corporate records of HAIS as shall be reasonably necessary for WDVE's
investigations and appraisal of HAIS.
5.2. Effect of Investigations. Any such investigation by WDVE of RAIS shall
not affect any of the representations and warranties hereunder and shall not be
conducted in such manner as to interfere unreasonably with the operation of the
business of HAIS.
Article VI
CONDITIONS TO OBLIGATIONS OF WDVE
The obligations of WDVE under this Agreement are, at the option of WDVE, subject
to the satisfaction, at and prior to the Closing Date, of the following
conditions:
-6-
6.1. Fulfillment of Covenants. All the terms, covenants and conditions of
this Agreement to be complied with and performed by HAIS at or before the
Closing Date shall have been duly complied with and performed.
6.2. Accuracy of Representations and Warranties: Other Documents. All of
the representations and warranties made by all parties to this Agreement shall
be true as of the Closing Date.
6.3. No Litigation. Except for certain claims which may have their genesis
in connection with the rescission of that certain transaction by and between
Shareholder and Glenhills Corporation, there shall be no action, proceeding,
investigation or pending or actual litigation the purpose of which is to enjoin
or may be to enjoin the transactions contemplated by this Agreement or which
would have the effect, if successful, of imposing a material liability upon
WDVE, or any of the officers or directors thereof, because of this consummation
of the transactions contemplated by this Agreement.
Article VII
CONDITIONS TO OBLTGATIONS OF SHAREHOLDER
The obligations of Shareholder under this Agreement are, at the option of
Shareholder, subject to the satisfaction, at and prior to the Closing Date, of
the following conditions:
7.1. Fulfillment of Covenants. All the terms, covenants and conditions of
this Agreement to be complied with and performed by WDVE at or before the
Closing Date shall have been duly complied with and performed.
7.2. Accuracy of Representations and Warranties; Other Documents. All of
the representations and warranties made by all parties to this Agreement shall
be true as of the Closing Date.
7.3. No Litigation. There shall be no action, proceeding, investigation or
pending or actual litigation the purpose of which is to enjoin or may be to
enjoin the transactions contemplated by this Agreement or which would have the
effect, if successful, of imposing a material liability upon HAIS, or any of the
officers or directors thereof, because of the consummation of the transactions
contemplated by this Agreement.
7.4. Additional Conditions. Prior to the Closing Date, the Board of
Directors of WDVE will adopt a resolution to amend the Articles of Incorporation
as follows:
Article FIRST is hereby amended to read as follows:
"FIRST. The name of the corporation is: InterFoods Consolidated, Inc.
-7-
Article FOURTH is hereby amended to read as follows:
"FOURTH. The aggregate number of shares which the corporation shall
have the authority to issue is Twenty-Five Million (25,000,000) shares
of common stock at $.001 par value, and Ten Million (10,000,000)
shares of Serial Preferred Stock at $.001 par value.
A. Each share of Common Stock shall entitle the holder thereof to
one vote on any matter submitted to a vote of or for consent of
holders of Common Stock. Subject to the provisions of applicable law
and this Article Fourth, any dividends paid or distributed on or with
respect to the Common Stock of the corporation shall be paid or
distributed ratably to the holders of its Common Stock. In the event
of any liquidation, dissolution or winding-up of the corporation,
whether voluntary or involuntary, after payment or provision for
payment of the debts and other liabilities of the corporation and any
amounts to which the holders of any Serial Preferred Stock shall be
entitled, as hereinafter provided, the holders of Common Stock shall
be entitled to share ratably in the remaining assets of the
corporation.
B. Subject to the terms and provisions of this Article Fourth,
the Board of Directors is authorized to provide from time to time for
the issuance of shares of Serial Preferred Stock in series and to fix
and determine from time to time before issuance the designation and
relative rights and preferences of the shares of each series of Serial
Preferred Stock and the restrictions or qualifications thereof,
including, without limiting the generality of the foregoing, the
following:
(1) The series designation and Authorized number of shares;
(2) The dividend rate and the date or dates on which such dividends
will be payable;
(3) The amount or amounts to be received by the holders in the event
of voluntary or involuntary dissolution or liquidation of the
corporation;
(4) The price or prices at which shares may be redeemed, if any, and
any terms, conditions, limitations upon such redemptions;
(5) The sinking fund provisions, if any, for redemption or purchase
of shares; and
-8-
(6) The terms and conditions, if any, on which shares may be
converted at the election of the holders thereof into shares of
other capital stock, or of other series of Serial Preferred
Stock, of the corporation.
C. The holders of the shares of Common Stock or Serial Preferred
Stock shall not be entitled to cumulative voting on any matter.
D. Upon the amendment of this Article Fourth to read as
hereinabove set forth, each three (3) outstanding shares of common
stock is reverse split, reconstituted and converted into one (1)
share. No fractional shares shall be issued.
Article VIII
CLOSING
8.1. Closing Date. The consummation of the exchange shall take place at the
offices of White Dove Systems, Inc. 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxx 00000, on November 20, 1998, or such other time or place as shall
be mutually agreed upon by the parties to this Agreement.
8.2. Actions to be Taken by Parties on the Closing Date. On the Closing
Date, each party shall deliver to the other all documents or agreements provided
or herein to be-delivered on the Closing Date.
Article IX
INDEMNIFICATION AND ARBITRATION
9.1. Indemnification. Each of the parties agree to indemnify and hold
harmless the other against any and all damages, claims, losses, expenses,
obligations and liabilities (including reasonable attorney's fees) resulting
from or related to any breach of, or failure by each of the parties to perform
any of their representations, warranties, covenants, conditions or agreements in
this Agreement or in any schedule, certificate, exhibit or other document
furnished, or to be furnished under this Agreement.
9.2. Claims of Indemnification. Any claim for indemnification pursuant to
this Agreement, unless otherwise received by means of direct negotiation among
the parties upon reasonable oral notification by the party seeking
indemnification to all other parties, shall be made by writing of the nature and
amount of the claim to the other.
-9-
Article X
PAYMENT OF EXPENSES
10. 1. Expenses. Each party shall bear its own expenses.
Article XI
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
11.1. Survival. All statements contained in any schedules, any exhibit or
other instrument delivered by or on behalf of any party or in connection with
the transactions contemplated by this Agreement, shall be deemed to be
representations made by or on behalf of the parties to this Agreement, all
representations, warranties and agreements made by the parties to this Agreement
or pursuant hereto shall survive.
Article XII
GENERAL
12.1. Partial Invalidity. If any term or provision of this Agreement or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or the application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby, and each such
term and provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.
12.2. Waiver. No waiver of any breach of any covenant or provision herein
contained shall be deemed a waiver of any pre- ceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed and extension of
the time for performance of any other obligation or act.
12.3. Notices. All notices or other communications required or permitted
hereunder shall be in writing, and shall be sent by registered or certified
mail, postage prepaid, return receipt requested, and shall be deemed received
upon mailing thereof.
To: White Dove Systems, Inc.
Shareholders
c/o InterFoods Consolidated, Inc.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
InterFoods Consolidated, Inc.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
-10-
Notice of change of address shall be given by written notice in the manner
detailed in this subparagraph 12.3.
12.4. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the permitted successors and assigns of the
parties hereto.
12.5. Professional Fees. in the event of the bringing of any action or suit
by a party hereto against another party hereunder by reason of any breach of any
of the covenants, agreements or provisions on the part of the other party
arising out of this Agreement, then in that event the prevailing party shall be
entitled to have and recover of and from the other party all costs and expenses
of the action or suit, including actual attorney's fees, accounting fees, and
other professional fees resulting therefrom.
12.6. Entire Agreement. This Agreement is the final expression of, and
contains the entire agreement between, the parties with respect to the subject
matter hereof and supersedes all prior understandings with respect thereto. This
Agreement may not be modified, changed, supplemented or terminated, nor may any
obligations hereunder be waived, except by written instrument signed by the
party to be charged or by his agent duly authorized in writing or as otherwise
expressly permitted herein. The parties do not intend to confer any benefit
hereunder on any person, firm or corporation other than the parties hereto.
12.7. Time of Essence. The parties hereby acknowledge and agree that time
is strictly of the essence with respect to each and every term, condition,
obligation and provision hereof and that failure to timely perform any of the
terms, conditions, obligations or provisions hereof by either party shall
constitute a material breach of and non-curable (but waivable) default under
this Agreement by the party so failing to perform.
12-8. Construction. Headings at the beginning of each paragraph and
subparagraph are solely for the convenience of the parties and are not a part of
the Agreement. Whenever required by the context of this Agreement, the singular
shall include the plural and the masculine shall include the feminine. This
Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if both parties had prepared the same. Unless otherwise
indicated, all references to paragraphs and subparagraphs are to this Agreement.
In the event the date on which any party is required to take any action under
the terms of this Agreement is not a business day, the action shall be taken on
the next succeeding day.
12.9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which taken together
shall constitute one instrument.
-11-
12.10. Governing Law. The parties hereto expressly agree that this
Agreement shall be governed by, interpreted under, and construed and enforced in
accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof.
INTERFOODS CONSOLIDATED, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-----------------------------------
WHITE DOVE SYSTEMS, INC
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-----------------------------------
XXXXXXXXX X. XXXXXXXX
-----------------------------------
XXXXXX X. XXXXX
-----------------------------------
XXXXXXXXXXX X. XXXXX
-----------------------------------
XXXXXX XXX
-----------------------------------
XXXXXXXX XXXXXX
-----------------------------------
XXXXXX X. XXXXXXX
-12 -
-----------------------------------
XXXX XXXXXXX
-----------------------------------
XXXXXXX X. XXX
-----------------------------------
XXXXX X. XXXXX
INTERFOODS CONSOLIDATED, INC.
By: ____________________________
InterFood:Plan.Reorganization
-13-
