Agreement and Plan of Reorganization Page number 1
Exhibit 2.1
Agreement and Plan of Reorganization | Page number 1 |
AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") among Heyu Leisure Holidays Corporation, a Delaware corporation ("Acquisition"), Heyu Capital Limited, a limited company incorporated under the laws of Hong Kong (“Client”) and the person listed in Exhibit A hereof (the "Shareholder"), being the owner of record of all of the issued and outstanding stock of Client.
Now, therefore, Acquisition, Client, and the Shareholder adopt this plan of reorganization and agree as follows:
1. Exchange of Stock |
2. | Exchange of Other Securities. |
Agreement and Plan of Reorganization | Page number 2 |
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 Client 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 Acquisition common stock into which it was converted. No dividend or other distribution shall be paid to the holders of certificates of Client common stock until presented for exchange at which time any outstanding dividends or other distributions shall be paid.
5. Representations and Warranties of Client
Client represents and warrants as follows:
Agreement and Plan of Reorganization | Page number 3 |
5.4 Financial Statements. The audited financial statements of Client for such periods as acceptable to Acquisition (“Client’s Financial Statements”) furnished to Acquisition are correct and fairly present the financial condition of Client as of the dates and for the periods involved, and such statements were prepared in accordance with generally accepted accounting principles consistently applied.
5.6 Absence of Material Changes. Between the date of Client’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 Client and delivered to Acquisition, (1) any changes in Client's financial condition, assets, liabilities, or business which, in the aggregate, have been materially adverse; (2) any damage, destruction, or loss of or to Client's property, whether or not covered by insurance; (3) any declaration or payment of any dividend or other distribution in respect of Client's capital stock, or any direct or indirect redemption, purchase, or other acquisition of any such stock; or (4) any increase paid or agreed to in the compensation, retirement benefits, or other commitments to employees.
5.9 No Violation. Execution of this Agreement and performance by Client hereunder has been duly authorized by all requisite corporate action on the part of Client, and this Agreement constitutes a valid and binding obligation of Client, 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 Client is subject or by which Client is bound.
Agreement and Plan of Reorganization | Page number 4 |
6. Representations and Warranties of the Shareholder |
The Shareholder represents and warrants as follows:
7. Representations and Warranties of Acquisition
The Acquisition represents and warrants as follows:
7.1 Corporate Status. Acquisition is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware 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.
7.3 Subsidiaries. Acquisition has no subsidiaries.
7.4 Public Company. Acquisition filed with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, a registration statement on Form 10-12G on September 30, 2013
7.5 Public Filings. Acquisition has filed all reports required to be filed by it under Section 13 of the Securities Exchange Act of 1934.
Agreement and Plan of Reorganization | Page number 5 |
7.6 Financial Statements. The audited financial statements of Acquisition from for such periods as acceptable Client (“Acquisition’s Financial Statements”) furnished to Client are correct and fairly present the financial condition of Acquisition as of the dates and for the periods involved, and such statements were prepared in accordance with generally accepted accounting principles consistently applied.
7.8 Absence of Material Changes. Between the date of Acquisition’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 Acquisition and delivered to Client, (1) any changes in Acquisition's financial condition, assets, liabilities, or business which, in the aggregate, have been materially adverse; (2) any damage, destruction, or loss of or to Acquisition's property, whether or not covered by insurance; (3) any declaration or payment of any dividend or other distribution in respect of Acquisition's capital stock, or any direct or indirect redemption, purchase, or other acquisition of any such stock; or (4) any increase paid or agreed to in the compensation, retirement benefits, or other commitments to employees.
Agreement and Plan of Reorganization | Page number 6 |
8. Conduct Pending the Closing
Acquisition, Client and the Shareholder 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 Acquisition or Client.
8.2 This Agreement will be submitted for shareholder approval with a favorable recommendation by the Board of Directors of each of Client and Acquisition and the Board of Directors of each will use its best efforts to obtain the requisite shareholder approval.
8.3 Client and Acquisition 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.
8.4 None of the Shareholders will sell, transfer, assign, hypothecate, lien, or otherwise dispose or encumber the Client shares of common stock owned by them.
9. Conditions Precedent to Obligation of Client and the Shareholder
Client’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 Client or the Shareholder as appropriate:
Agreement and Plan of Reorganization | Page number 7 |
9.4 Supporting Documents of Acquisition. Acquisition shall have delivered to Client and the Shareholder supporting documents in form and substance reasonably satisfactory to Client and the Shareholder, to the effect that:
(a) Acquisition is a corporation duly organized, validly existing, and in good standing; |
(b) Acquisition's authorized capital stock is as set forth herein; |
(c) Certified copies of the resolutions of the board of directors of Acquisition authorizing the execution of this Agreement and the consummation hereof; |
(d) Secretary's certificate of incumbency of the officers and directors of Acquisition;
(e) Acquisition’s Financial Statement; 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 Acquisition
Acquisition'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 Acquisition:
10.1 Client’s and the Shareholder’s Representations and Warranties. The representations and warranties of Client and the Shareholder 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 Client’s and the Shareholder’s Covenants. Client and the Shareholder shall have performed all covenants required by this Agreement to be performed by them on or before the Closing.
(a) Client is a corporation duly organized, validly existing, and in good standing; |
Agreement and Plan of Reorganization | Page number 8 |
(b) Client's capital stock is as set forth herein; |
(c) Certified copies of the resolutions of the board of directors of Client authorizing the execution of this Agreement and the consummation hereof; |
(d) Secretary's certificate of incumbency of the officers and directors of Client;
(e) Client’s Financial Statements; and |
(f) Any document as may be specified herein or required to satisfy the conditions, representations and warranties enumerated elsewhere herein. |
Agreement and Plan of Reorganization | Page number 9 |
13. Shareholder’s Representative. The Shareholder hereby irrevocably designates and appoints Ban Siong Ang as Shareholder’s agent and attorney in fact ("Shareholder’s Representative") with full power and authority until the Closing to execute, deliver, and receive on his 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 his 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 Shareholder hereunder or increase the extent of his obligation to indemnify Acquisition hereunder.
14. Survival of Representations and Warranties. The representations and warranties of Client, the Shareholder and Acquisition set out herein shall survive the Closing.
15. Arbitration |
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.
Situs. The situs of arbitration shall be chosen by the party against whom arbitration is sought, provided only that arbitration shall be held at a place in the reasonable vicinity of such party's place of business or primary residence and shall be within the United States. The situs of counterclaims will be the same as the situs of the original arbitration. Any disputes concerning situs will be decided by the American Arbitration Association.
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. Any dispute as to the applicable law shall be decided by the arbitrator.
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.
Agreement and Plan of Reorganization | Page number 10 |
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. Each party to the arbitration shall pay its own costs and counsel fees.
Measure of Damages. In any adverse action, the parties shall restrict themselves to claims for compensatory damages and no claims shall be made by any party or affiliate for lost profits, punitive or multiple damages.
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.
Intention. It is the intention of the parties and their affiliates that all disputes of any nature between them, whenever arising, 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.
Agreement and Plan of Reorganization | Page number 11 |
If to Acquisition, to:
Heyu Leisure Holidays Corporation
Westwood Business Center
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxx 00000
If to Client, to
Heyu Capital Limited
1986 Permatang Berangan 13300
Tasek Gelugor Pulau Pinang, Malaysia
If to the Shareholder, to
Ban Siong Ang
1986 Permatang Berangan 13300
Tasek Gelugor Pulau Pinang, Malaysia
16.5 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware.
16.8 Effective Date. The effective date of this Agreement shall be February 9, 2015.
HEYU LEISURE HOLIDAYS CORPORATION | ||
By | /s/ Ban Siong Ang | |
HEYU CAPITAL LIMITED | ||
By | /s/ Ban Siong Ang |
Agreement and Plan of Reorganization | Page number 12 |
Exhibit A
Number of | Number of | |||||||||
Client Shares | Acquisition | |||||||||
To Be | Shares To Be | Name of | ||||||||
Transferred | Received | Shareholder | Address | |||||||
40,000,000 | 1,000 | Ban Siong Ang | 1986 Permatang Berangan 13300 | |||||||
Tasek Gelugor Pulau Pinang, Malaysia |