EXHBIT 2
PLAN OF MERGER
THIS AGREEMENT made and entered into as of this 11th day of October
2000, by and between National Residential Properties, Inc, a Nevada corporation
("NRPI"), with offices at 0000 Xxxxxxxxx 0xx Xxxxxx, Xxxxx, Xxxxxxx 00000 and
2217 Acquisition Inc., a Nevada corporation ("2217 Acquisition"), with offices
at 0000 Xxxxxxxxx 0xx Xxxxxx, Xxxxx, Xxxxxxx 00000.
WHEREAS, all the authorized and issued capital stock of 2217
Acquisition is owned by NRPI; and
WHEREAS, the Parties agree that it would be in their respective best
interests to merge.
NOW, THEREFORE, in consideration of the provisions and the
representations, warranties and agreements herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
Section 1.
Terms And Conditions of Stock Exchange and Merger.
(a) On the "Effective Date", as hereinafter defined, the following
shall be or shall have been done:
(i) NRPI and 2217 Acquisition shall have obtained approval for
this Agreement and the transactions described herein by their respective Boards
of Directors and Owners, if necessary, pursuant to the applicable provisions of
Nevada law;
(ii) 2217 Acquisition shall merge into NRPI and cease to
exist;
(iii) NRPI shall thereupon and thereafter possess, and be the
owner of, all the rights, privileges, powers, franchises, patents, trademarks,
licenses, and other assets and accounts receivable of every kind and description
of 2217 Acquisition, and NRPI shall be subject to all the restrictions,
disabilities, and duties of 2217 Acquisition with respect thereto; and all
property, real, personal or mixed, and all debts and obligation due to 2217
Acquisition on whatever account shall be vested in NRPI; and all rights of
creditors and all liens upon any property of 2217 Acquisition shall be preserved
unimpaired; and all debts, liabilities, duties, and obligations of 2217
Acquisition [including obligations of 2217 Acquisition on account of (A) Stock
Subscriptions to which 2217 Acquisition is a Party; (B) Debentures of 2217
Acquisition; and (C) Stock Conversion obligations with respect to Debentures of
2217 Acquisition], shall henceforth attach to NRPI, and may enforced against
NRPI to the same extent as if said debts, liabilities, duties, and obligations
had been incurred or contracted by NRPI.
(iv) If, at any time after the Effective Date, NRPI shall
consider or be advised that any further assignments or assurances and law or any
other acts are necessary or desirable (A) to vest, perfect or confirm, of record
or otherwise, in NRPI, title to and possession of any property or right of 2217
Acquisition acquired or to be acquired by reason of, or in connection with, this
Merger, or (B) otherwise to carry out the purposes of this Merger, 2217
Acquisition and its officers and
directors shall be deemed to have granted to NRPI an irrevocable power of
attorney to execute and deliver all such proper deeds, assignments, and
assurances in law, and to do all acts necessary or proper to vest, perfect or
confirm title to and possession of such property or rights in NRPI addition and
otherwise to carry out the purposes of this Merger; and the proper officers and
directors of NRPI are fully authorized in the name of 2217 Acquisition otherwise
to take any and all such action(s);
(v) 2217 Acquisition's 8% Series A $1,000,000.00 Senior
Subordinated Convertible Redeemable Debenture due October 10, 2002 (the "2217
Acquisition Debenture"), together with authorized but unissued underlying shares
of 2217 Acquisition's common stock, Par Value $0.001 per share (the "2217
Acquisition Common Stock"), into which the 2217 Acquisition Debenture is
convertible from time to time, shall be converted into an identical NRPI
debenture (the "NRPI Debenture"), together with authorized but unissued
underlying shares of common stock, Par Value $0.001 per share, of NRPI into
which the new NRPI Debenture may be converted (the "NRPI Common Stock");
(vi) All of the issued and outstanding shares of the Common
Stock, Par Value $0.01 per share, of 2217 Acquisition held by NRPI prior to this
Merger, may, by virtue of this Merger, and without any further action of NRPI,
be canceled simultaneously with the effectiveness of this Merger.
(vii) Until surrendered and exchanged as herein provided, each
outstanding certificate which, prior to the Effective Date, represented a 2217
Acquisition security, shall be deemed for all corporate purposes to evidence
ownership of the appropriate number of securities of NRPI into which 2217
Acquisition security shall have been so converted;
(viii) Subject to Sub-section (vi), above, each holder of a
certificate representing issued and outstanding securities of 2217 Acquisition
immediately prior to the Effective Date of the Merger, shall, upon surrender of
such certificate to NRPI after the Effective Date, be entitled to receive a
certificate representing the appropriate number of shares of securities of NRPI
as described above;
(ix) If any certificate representing a NRPI security is to be
issued in a name other than that in which the certificate surrendered is
registered, it shall be a condition of such issuance that the certificate so
surrendered shall be properly endorsed or otherwise in proper form for transfer
and that the person requesting such issuance shall either pay to NRPI or its
transfer agent any transfer or other taxes required by reason of the issuance of
certificates representing a NRPI security in a name other than that of the
registered holder of the certificate surrendered, or establish to the
satisfaction of NRPI or its transfer agent that such tax has been paid or is not
applicable; and
(x) The officers and directors of 2217 Acquisition shall
resign their positions.
(b) The right to transfer restricted securities may be permitted if, in
the opinion of counsel satisfactory to NRPI, the securities may be transferred
pursuant to an exemption from registration under the Act.
(c) This merger shall become effective ("Effective Date") on the day
set forth in the Articles of Incorporation to be filed with the Secretary of
State of Nevada by the Parties as soon as practicable after the date this
Agreement is signed.
Section 2.
Representations and Warranties of 2217 Acquisition.
(a) Organization and Authority. 2217 Acquisition is duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own its property and
assets and to conduct its business in the manner and in the places in which it
is now conducted. 2217 Acquisition is qualified to do business as a domestic
corporation in the State of Nevada, and the character of the properties owned or
leased by 2217 Acquisition and the nature of the business conducted by it does
not require such qualification in any other jurisdiction, except where the
failure to so qualify would not have a material adverse affect on 2217
Acquisition or its business.
(b) Corporate Action. All corporate action necessary on the part of
2217 Acquisition to authorize the execution and delivery of this Agreement and
the performance or satisfaction of 2217 Acquisition's obligations hereunder and
thereunder has been or will have been duly taken prior to the Effective Date.
This Agreement and the Articles of Incorporation constitute the valid and
binding obligations of 2217 Acquisition enforceable in accordance with their
respective terms.
(c) Capitalization. As at the Effective Date, 2217 Acquisition's entire
capitalization shall consist of:
(i) 20,000,000 shares of Common Stock, Par Value $.001 per
share, of which 10 shares shall be issued and outstanding; and
(ii) one 8% Series A $1,000,000.00 Senior Subordinated
Convertible Redeemable Debenture due October 10, 2002, convertible, from time to
time, into authorized but unissued shares of Common Stock, Par Value $.001, per
share, upon conversion into which no shares of said underlying shares of Common
Stock shall have been issued.
As of the date of this Agreement and as at Effective Date, all of the
outstanding capital stock of 2217 Acquisition is and will be duly issued in
accordance with all applicable laws, rules and regulations, is and will be fully
paid and non- assessable. As of the date of this Agreement and as at Effective
Date, there are and will be no outstanding subscriptions, rights, options,
warrants or other agreements obligating 2217 Acquisition to issue, sell or
transfer any stock or other securities of 2217 Acquisition, except as otherwise
described in this Agreement.
(d) Articles of Incorporation and Bylaws. The Articles of Incorporation
and bylaws of 2217 Acquisition are true, correct and complete. The minute books
of 2217 Acquisition contain true and complete records of all meetings and
consents in lieu of meetings of its Board of Directors and owners since the date
of incorporation and accurately reflect all transactions referred to therein.
(e) No Material Adverse Changes. As of the date of this Agreement,
there shall be no material adverse change in the assets, operations, conditions
(financial of otherwise) or prospective business of 2217 Acquisition; there
shall be no damage, destruction or loss materially affecting the assets,
prospective business, operations or condition (financial or otherwise) of 2217
Acquisition, whether or not covered by insurance; there shall be no declaration,
setting aside or payment of any dividend or distribution with respect to any
redemption or repurchase of 2217 Acquisition's capital stock; there shall no
sale of an asset (other than in the ordinary course of business or otherwise
approved by NRPI) or mortgage or pledge by 2217 Acquisition of any properties or
assets.
(f) Taxes. 2217 Acquisition has prepared and filed all appropriate
federal, state and local tax returns of every kind and category (including,
without limitation, income taxes, estimated taxes, excise taxes, sales taxes,
inventory taxes, use taxes, gross receipt taxes, franchise taxes and property
taxes) for all periods prior to and through the date hereof for which any such
returns have been required to be filed by it and has paid all taxes shown to be
due by said returns or on any assessments received by it, or has made adequate
provisions for the payment thereof.
(g) Compliance with Laws. 2217 Acquisition and all business conducted
by it has complied with all federal, state, county and local laws, ordinances,
regulation, inspections, orders, judgments, injunctions, awards or decrees
applicable to it or its business which, if not complied with, would materially
and adversely affect its business.
(h) Compliance with Other Instruments. Neither the execution nor
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will result in any violation of or be in conflict with any term of any
contract or other instrument to which 2217 Acquisition is a party or of any
judgment, statute, rule or regulation applicable to 2217 Acquisition, or result
in the creation of any lien, charge or encumbrance on any of its properties or
assets, or result in the acceleration of any obligation of 2217 Acquisition
under any deed of trust, mortgage, lease, or similar instrument to which it is a
party.
(i) No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not:
(i) violate any provisions of the Articles of Incorporation or
Bylaws of Venture Acquisition;
(ii) violate, conflict with or result in the breach of any of
the terms of, result in a material modification of, or otherwise give any other
contracting party the right to terminate, or which constitute a default under,
any contract or other agreement to which 2217 Acquisition is a party or by or to
which it or any of its assets or properties may be bound or subject;
(iii) violate any order, judgment, injunction, award or decree
of any court, arbitrator or governmental or regulatory body against, or binding
upon, Venture Acquisition or upon the properties or business of 2217
Acquisition; or
(iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein.
(j) Litigation. There is no outstanding order, judgment, injunction,
award or decree of any court, government or regulatory body or arbitration
tribunal against or involving 2217 Acquisition. There is no action, suit or
claim or legal, administrative or arbitral proceeding or any investigation
(whether or not the defense thereof or liabilities in respect thereof are
covered by insurance) pending or threatened against or involving 2217
Acquisition or any of its respective properties or assets. There is no fact,
event or circumstances that may give rise to any suit, action, claim,
investigation or proceeding except as disclosed in the letter described above.
There is no action, suit or claim or legal, administrative or arbitral
proceeding pending or threatened that would give rise to any right of
indemnification on the part of any director of 2217 Acquisition or its
respective heirs, executors or administrators of such directors or officers.
(k) Labor Relations. 2217 Acquisition is not a party to any collective
bargaining agreement governing its employees. There is no pending or threatened
election for union representation of 2217 Acquisition's employees.
(l) Leases. All of the leases to which 2217 Acquisition is a party are
in full force and effect and constitutes a legal, valid, and binding obligation
of the respective parties thereto enforceable in accordance with its terms,
subject to bankruptcy, insolvency, reorganization, moratorium, or other similar
laws relating to the enforcement of creditors' rights generally and to the
availability of equitable remedies which are subject to the discretion of the
Court before which any proceeding therefor may be brought.
(m) Assets. The document titled " 2217 Acquisition's ASSETS" which
shall be incorporated by reference and made part of this Agreement contains a
correct and complete list and brief description of all machinery, equipment,
furniture, leasehold improvements fixtures, vehicles, structures, owned or
leased by 2217 Acquisition, any related capitalized items or other tangible
property material to the business of 2217 Acquisition (the "Tangible Assets").
Except as set forth in this document, 2217 Acquisition holds all rights, title
and interest in all the properties, interests and assets, real, personal and
mixed, free and clear of all liens, pledges, mortgage, security interests,
conditional sales contracts or any other encumbrances or liens for current taxes
not yet delinquent.
(n) Accounts Receivable. All of 2217 Acquisition's accounts and other
receivables or thereafter acquired are collectible in full, less any reserves
set up for doubtful receivables on its books.
(o) Inventories. 2217 Acquisition's inventories, as applicable, or
thereafter acquired are valued at cost or market and consist of items which are
of a quality and quantity usable and/or saleable in the ordinary course of 2217
Acquisition's business.
(p) Liabilities. 2217 Acquisition's Liabilities as of the date of this
Agreement are as set forth in the Financial Statements of 2217 Acquisition
attached hereto and made a part hereof,
(q) Conduct of Business. 2217 Acquisition shall conduct its business
only in the ordinary course thereof consistent with prudent business judgment
and past practice and in such a manner that the representations and warranties
contained in this Section 2 shall be true and correct at and as of the Effective
Date (except for changes contemplated, permitted or required by this Agreement)
and so that the conditions to be satisfied by 2217 Acquisition at the Effective
Date shall have been satisfied. 2217 Acquisition shall not incur expenses or
liabilities between the date this Agreement is signed and the Effective Date
other than in the normal course of business.
(r) Unusual Events. Until the Effective Date, 2217 Acquisition shall
supplement or amend all relevant documents incorporated by reference and made
part of this Agreement with respect to any matter thereafter arising or
discovered which, if existing or known at the date of this Agreement, would have
been set forth or described in such documents; provided, however, that for the
purpose of the rights and obligations of the parties hereunder, any such
material supplemental disclosure shall not be deemed to have been disclosed to
NRPI until the date 2217 Acquisition delivers it to NRPI, unless agreed to in
writing by NRPI.
(s) Changes in Business Relationship. 2217 Acquisition is not aware of
any material changes or threatened changes in its business or client
relationships, including any discontinuance of contractual relationships.
(t) Full Disclosure. No representation or warranty of 2217 Acquisition
and no statement contained in any document incorporated by reference and made
part of this Agreement furnished by 2217 Acquisition to NRPI pursuant hereto or
in connection with the transactions contemplated hereby contain or at the
Effective Date will contain any untrue statement of a material fact or omit or
will omit to state a material fact necessary to make such fact not misleading or
necessary to provide NRPI with full information as to 2217 Acquisition and its
affairs.
(u) Status of Representations and Warranties as at Effective Date. The
representations and warranties contained in this Section 2 shall be true and
complete on the Effective Date with the same force and effect as though such
representations and warranties had been made on and as at the Effective Date.
Section 3.
Representations and Warranties Of NRPI.
(a) Reporting Company. NRPI is required to and does file reports with
the Securities and Exchange Commission ("SEC") pursuant to Section 13 (a) or 15
(d) of The Securities Exchange Act of 1934, and NRPI is current with respect to
all reports required to be filed with the SEC.
(b) Capitalization. As at the Effective Date, NRPI's entire
capitalization shall consist of
(i) 250,000,000 shares of Common Stock, Par Value $0.001 per
share, of which 50,161,866 shares shall be issued and outstanding; and
(ii) 2,000,000 shares of Class A Common Stock, Par Value $.001
per share, of which 1,000,000 shares shall be issued and outstanding.
As of the date of this Agreement and as at Effective Date, all of the
outstanding capital stock of NRPI is and will be duly issued in accordance with
all applicable laws, rules and regulations, is and will be fully paid and non-
assessable. As of the date of this Agreement and as at Effective Date, all
outstanding subscriptions, rights, options, warrants or other agreements
obligating NRPI to issue, sell or transfer any stock or other securities of
NRPI, are as is set forth in the Financial Statements of NRPI attached hereto.
(c) Organization and Authority. NRPI is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Nevada,
with full corporate power and authority to own its property and assets and to
conduct its business in the manner and the places in which it is now conducted.
(d) Corporate Action. All corporate action necessary on the part of
NRPI to authorize the execution and delivery to NRPI of this Agreement and the
Certificate and the performance of its obligations thereunder has been or will
have been duly taken prior to the Effective Date. This Agreement and the
Articles of Incorporation constitute the valid and binding obligations of NRPI
enforceable in accordance with their respective terms. The execution and
delivery of and the consummation of the transactions provided for in this
Agreement and the Articles of Incorporation will not violate any provision of
the Certificate of Incorporation, Articles of Incorporation or Bylaws of NRPI,
as applicable, any provision of law, or any judgment, order or decree of any
court or agency or government, applicable to NRPI, or result in a breach of,
default under, or acceleration of any obligation under any indenture or
agreement to which NRPI is a party.
(e) Compliance with Other Instruments. Neither the execution nor
delivery of this Agreement nor the consummation of the transactions contemplated
hereby will result in any violation of or be in conflict with any term or any
contract or other instrument to which NRPI is a party or of any judgment,
decree, order, statute, rule or regulation applicable to NRPI, or result in the
creation of any lien, charge or encumbrance on any of its properties or assets,
or result in the acceleration of any obligation of NRPI under any deed of trust,
mortgage, lease, or similar instrument to which it is a party.
(f) Compliance with Laws. NRPI has complied with all federal, state,
county, local laws, ordinances, regulations, inspections, orders, judgments,
injunctions, awards or decrees applicable to it or its business which, if not
complied with, would materially and adversely affect its status as a public
company.
(g) Articles of Incorporation and Bylaws. NRPI's Articles of
Incorporate and Bylaws and any amendments to each, are true, correct and
complete. The minute books of NRPI contain true and complete records of all
meetings and consents in lieu of meetings of their respective Board of Directors
and owners since the date of incorporation and accurately reflect all
transactions; referred to therein.
(h) Financial Statements and Liabilities. NRPI's Financial Statements
set forth in its Form 10-QSB for the quarter ended June 30, 2000, are true and
correct, and, together with the disclosure made in said Reports, fully disclose
all of NRPI's assets and liabilities.
(i) Disclosures. No representation or warranty of NRPI in this
Agreement, and no statement contained in any document incorporated by reference
and made a part of this Agreement or other document furnished or to be furnished
by NRPI to 2217 Acquisition pursuant hereto or in connection with the
transactions contemplated hereby contains or at the Effective Date will contain
any untrue statement of a material fact or omit or will omit to state a material
fact necessary to make it not misleading or necessary to provide 2217
Acquisition with full information as to NRPI and its affairs.
(j) No Material Adverse Changes. As of the date of this Agreement,
there shall be no material adverse change in the assets, operations, conditions
(financial of otherwise) or prospective business of NRPI; there shall be no
damage, destruction or loss materially affecting the assets, prospective
business, operations or condition (financial or otherwise) of NRPI, whether or
not covered by insurance; there shall be no declaration, setting aside or
payment of any dividend or distribution with respect to any redemption or
repurchase of NRPI's capital stock; there shall no sale of an asset (other than
in the ordinary course of business or otherwise approved by 2217 Acquisition) or
mortgage or pledge by NRPI of any properties or assets.
(k) Taxes. NRPI has prepared and filed all appropriate federal, state
and local tax returns of every kind and category (including, without limitation,
income taxes, estimated taxes, excise taxes, sales taxes, inventory taxes, use
taxes, gross receipt taxes, franchise taxes and property taxes) for all periods
prior to and through the date hereof for which any such returns have been
required to be filed by it and has paid all taxes shown to be due by said
returns or on any assessments received by it, or has made adequate provisions
for the payment thereof.
(l) Agreements. The document titled "NRPI's MATERIAL CONTRACTS" which
shall be incorporated by reference into this Agreement sets forth any material
contract or arrangement to which NRPI is a party or by or to which it or its
assets, properties or business are bound or subject whether oral or written. All
of the agreements set forth in said document are valid, binding enforceable,
subsisting agreements, in full force and effect. NRPI is not in default under
any of them (nor is any other party to any of such agreements, nor does any
condition exist which with notice or lapse of time or both would constitute
default thereunder).
(m) Insurance Policies. The document titled "NRPI's INSURANCE POLICIES"
which shall be incorporated by reference and made part of this Agreement
contains a complete and correct list and summary description of all insurance
policies held by NRPI and in force and effect at the date hereof, including but
not limited to key-man insurance, workers' compensation and employer liability,
automobile insurance, malpractice insurance, product liability and title
insurance.
(n) Labor Relations. NRPI is not a party to any collective bargaining
agreement governing its employees. There is no pending or threatened election
for union representation of NRPI's employees.
(o) Conduct of Business. Between the date of this Agreement and the
Effective Date, NRPI shall conduct its business only in the ordinary course
thereof consistent with prudent business judgment and past practice and in such
a manner that the representations and warranties contained in this Section 3
shall be true and correct at and as of the Effective Date (except for changes
contemplated, permitted or required by this Agreement) and so that the
conditions to be satisfied by NRPI at the Effective Date shall
have been satisfied. NRPI shall not incur expenses or liabilities between the
date this Agreement is signed and the Effective Date other than in the normal
course of business.
(p) Unusual Events. Until the Effective Date, NRPI shall supplement or
amend all relevant documents incorporated by reference and made part of this
Agreement with respect to any matter thereafter arising or discovered which, if
existing or known at the date of this Agreement, would have been set forth or
described in such documents; provided, however, that for the purpose of the
rights and obligations of the parties hereunder, any such material supplemental
disclosure shall not be deemed to have been disclosed to 2217 Acquisition until
the date NRPI delivers it to NRPI, unless agreed to in writing by 2217
Acquisition.
(q) Changes in Business Relationship. NRPI is not aware of any material
changes or threatened changes in its business or client relationships, including
any discontinuance of contractual relationships.
(r) Full Disclosure. No representation or warranty of NRPI and no
statement contained in any document incorporated by reference and made part of
this Agreement furnished by NRPI to 2217 Acquisition pursuant hereto or in
connection with the transactions contemplated hereby contain or at the Effective
Date will contain any untrue statement of a material fact or omit or will omit
to state a material fact necessary to make such fact not misleading or necessary
to provide 2217 Acquisition with full information as to NRPI and its affairs.
(s) Representations and Warranties as at Effective Date. The
representations and warranties contained in this Section 3 shall be true and
complete on the Effective Date with the same force and effect as though such
representations and warranties had been made on and as at the Effective Date.
Section 4.
Covenants of 2217 Acquisition.
(a) Conduct of Business. From the date of this Agreement through the
Effective Date, 2217 Acquisition shall conduct its business in the ordinary
course.
(b) Preservation of Business. From the date hereof through the
Effective Date, 2217 Acquisition shall use its best efforts to preserve its
business organization intact, keep available the services of its present
officers, employees, consultants and agents, maintain its present suppliers and
customers and preserve its goodwill.
(c) Insurance. 2217 Acquisition at all times will have in effect and
maintain insurance now in force on or with respect to its properties and assets
and its business and will at all times have in effect and maintain insurance
coverage against all hazards, casualties, liabilities, and losses in the amount
and of the character and kind normally carried by corporations engaged in a
business similar to that conducted by it.
(d) Litigation. 2217 Acquisition shall promptly notify NRPI of any
lawsuits, claims, proceedings or investigations which after the date hereof are
threatened or commenced against it or any of their respective officers,
directors, employees, consultants, agents, owners or other representatives with
respect to the affairs of NRPI
(e) Compliance with Laws. 2217 Acquisition will comply in all material
respects with federal and state regulations necessary to effectuate the exchange
of all outstanding capital stock of 2217 Acquisition for shares of capital stock
of 2217 Acquisition, as contemplated by this Agreement
(f) Continued Effectiveness of Representations and Warranties. From the
date hereof through the Effective Date, 2217 Acquisition shall conduct its
business in such a manner so that the representations and warranties contained
in Section 2 shall continue to be true and correct on and as of the Effective
Date and as if made on the date of this Agreement, and shall:
(i) promptly give notice to NRPI of any event, condition or
circumstances occurring from the date hereof through the Effective Date which
would render any of the representations or warranties untrue, incomplete,
insufficient or constitute a violation or breach of this Agreement; and
(ii) supplement the information contained herein in order that
such information is kept current, complete and accurate.
Section 5.
Covenants of NRPI.
(a) Conduct of Business. From the date of this Agreement through the
Effective Date, NRPI shall conduct its business in the ordinary course.
(b) Preservation of Business. From the date hereof through the
Effective Date, NRPI shall use its best efforts to preserve its business
organization intact, keep available the services of its present officers,
employees, consultants and agents, maintain its present suppliers and customers
and preserve its goodwill.
(c) Insurance. NRPI at all times will have in effect and maintain
insurance now in force on or with respect to its properties and assets and its
business and will at all times have in effect and maintain insurance coverage
against all hazards, casualties, liabilities, and losses in the amount and of
the character and kind normally carried by corporations engaged in a business
similar to that conducted by it.
(d) Compliance with Laws. NRPI will comply in all material respects
with federal and state regulations necessary to effectuate the exchange of all
outstanding capital stock of 2217 Acquisition for shares of capital stock of
NRPI, as contemplated by this Agreement
(e) Litigation. NRPI shall promptly notify 2217 Acquisition of any
lawsuits, claims, proceedings or investigations which after the date hereof are
threatened or commenced against it or against any of their respective officers,
directors, employees, consultants, agents, owners or other representatives with
respect to the affairs of NRPI.
(f) Continued Effectiveness of Representations and Warranties. From the
date hereof to the Effective Date, NRPI shall conduct its business in such a
manner so that the representations and warranties contained in Section 3 shall
continue to be true and correct on and as of the Effective Date and as if made
on the date of this Agreement, and shall:
(i) promptly give notice to 2217 Acquisition of any event,
condition or circumstances occurring from the date hereof through the Effective
Date which would render any of the representations or warranties untrue,
incomplete, insufficient or constitute a violation or breach of this Agreement;
and
(ii) supplement the information contained herein in order that
such information is kept current, complete and accurate.
(g) Dissenter's Rights. NRPI understands that, as the owner of 2217
Acquisition, it may have Dissenter's Rights under Nevada law. However, as the
sole owner of 2217 Acquisition, NRPI declares that Dissenter's Rights shall not
be demanded prior to or after the Effective Date pursuant to the provisions of
Nevada Law, if any, as to dissenters' rights, and by signing this Agreement,
NRPI waives dissenters' rights, if any, under Nevada law.
Section 6.
Conditions to the Obligations of NRPI.
The obligations of NRPI to consummate this Agreement and the
transactions contemplated hereby are subject to the satisfaction at or before
the Effective Date of every one of the following conditions, any of which NRPI
may in its sole discretion waive:
(a) Representations and Warranties. The representations and warranties
of 2217 Acquisition set forth in Section 2 hereof shall be true and correct at
and as of the Effective Date with the same effect as though such representations
and warranties had been made on and as of the date of this Agreement, and any
letter, statement, list, certificate or other written information furnished by
2217 Acquisition pursuant hereto or in connection on with the transactions
contemplated hereby shall be true and correct in all material respects at and as
of the date or dates stated therein.
(b) Performance of 2217 Acquisition. 2217 Acquisition shall have
performed and complied with all agreements and conditions required by this
Agreement to be performed or complied with by it either prior to or at the
Effective Date.
(c) Governmental Permits and Approvals. Any and all permits and
approvals from any governmental or regulatory body required for the lawful
consummation of the transaction contemplated shall have been obtained.
(d) Third Party Consents. All consents, permits and approvals from
parties to any contracts or other agreements which may be required in connection
with the performance by the Parties hereto of their obligations under such
contacts or other agreements shall have been obtained.
(e) Litigation. No action, suit or proceeding shall have been
instituted before any court or governmental or regulatory body or instituted or
threatened by a governmental or regulatory body to restrain, modify or prevent
the carrying out of the transactions contemplated hereby or to seek damages or a
discovery order in connection with such transactions, or which has or may have,
in the opinion of NRPI, a materially adverse effect on the assets, properties,
business, operations or condition (financial or otherwise) of 2217 Acquisition.
(f) Absence of Adverse Changes. Since the date of this Agreement, there
shall have been no change in the financial condition, business, or properties of
2217 Acquisition which materially and adversely affects the conduct of its
business or its condition, financial or otherwise.
(g) No Restraining Order. There shall not have been any action or
proceeding instituted or threatened before any court or governmental agency to
restrain or prohibit, or obtain substantial damages in respect of, this
Agreement or the consummation of the transactions contemplated hereby, which in
the opinion of NRPI make it inadvisable to consummate such transaction.
(h) Compliance Certificate. NRPI shall have received a Certificate
signed by the President of 2217 Acquisition dated as of the Effective Date and
satisfactory in form and substance to NRPI certifying to the fulfillment of the
conditions specified in Section 6.
Section 7.
Conditions to the Obligations of 2217 Acquisition.
The obligations of 2217 Acquisition to consummate this Agreement and
the transactions contemplated hereby are subject to the satisfaction at or
before the Effective Date of each and every one of the following conditions, any
of which 2217 Acquisition may in its sole discretion waive:
(a) Representations and Warranties. The representations and warranties
of NRPI set forth in Section 3 hereof shall be true and correct at and as of the
Effective Date with the same effect as though such representations and
warranties had been made on and as of the date of this Agreement, and any
letter, statement, list, certificate or other written information furnished by
NRPI pursuant hereto or in connection on with the transactions contemplated
hereby shall be true and correct in all material respects at and as of the date
or dates stated therein.
(b) Performance of NRPI. NRPI shall have performed and complied with
all agreements and conditions required by this Agreement to be performed or
complied with by it either prior to or at the Effective Date.
(c) Governmental Permits and Approvals. Any and all permits and
approvals from any governmental or regulatory body required for the lawful
consummation of the transaction contemplated shall have been obtained.
(d) Third Party Consents. All consents, permits and approvals from
parties to any contracts or other agreements which may be required in connection
with the performance by the Parties hereto of their obligations under such
contacts or other agreements shall have been obtained.
(e) Litigation. No action, Suit or proceeding shall have been
instituted before any court or governmental or regulatory body or instituted or
threatened by a governmental or regulatory body to restrain, modify or prevent
the carrying out of the transactions contemplated hereby or to seek damages or a
discovery order in connection with such transactions, or which has or may have,
in the opinion of 2217 Acquisition, a materially adverse effect on the assets,
properties, business, operations or condition (financial or otherwise) of NRPI.
(f) Absence of Adverse Changes. Since the date of this Agreement, there
shall have been no change in the financial condition, business, or properties of
2217 Acquisition which materially and adversely affects the conduct of its
business or its condition, financial or otherwise.
(g) No Restraining Order. There shall not have been any action or
proceeding instituted or threatened before any court or governmental agency to
restrain or prohibit, or obtain substantial damages in respect of, this
Agreement or the consummation of the transactions contemplated hereby, which in
the opinion of 2217 Acquisition make it inadvisable to consummate such
transaction.
(h) Securities Certificates. At the Effective Date, each owner and
Debenture Holder of 2217 Acquisition shall receive a certificate or certificates
representing the number of shares of common stock and/or Debentures of NRPI to
which they are entitled.
(i) Compliance Certificate. 2217 Acquisition shall have received a
certificate signed by the President of NRPI dated as of the Effective Date and
satisfactory in form and substance to NRPI certifying to the fulfillment of the
conditions specified in Section 7.
Section 8.
Survival of Representations and Warranties.
All representations, warranties, agreements, covenants, and obligations
herein made by or in any of the documents incorporated by reference and made a
part of this Agreement shall be deemed to have been relied upon by each of the
other parties, shall survive the Effective Date for a period of two years
thereafter, and shall not merge in the performance of any obligation by any
party hereto.
Section 9.
Termination.
(a) This Agreement may be terminated at any time prior to the filing of
the Articles of Merger in the office of the Secretary of the State of Nevada by:
(i) Mutual consent of 2217 Acquisition and NRPI;
(ii) NRPI if, at the Effective Date, any of the conditions set
forth in Section 6 shall not have been satisfied;
(iii) 2217 Acquisition if, at the Effective Date, any of the
conditions set forth in Section 7 shall not have been satisfied;
(iv) NRPI, if 2217 Acquisition has breached any material
representation warranty, covenant or agreement contained in this
Agreement;
(v) 2217 Acquisition, if NRPI has breached any material
representation, warranty, covenant or agreement contained in this
Agreement;
(vi) NRPI, if any legal proceeding is commenced or threatened
by any governmental or regulatory agency or other person directed
against the consummation of the transaction or any other transaction
under this Agreement; and
(vi) 2217 Acquisition, if any legal proceeding is commenced or
threatened by any governmental or regulatory agency or other person
directed against the consummation of the transaction or any other
transaction under this Agreement;
(b) If this Agreement shall be terminated as provided in Section 9 (a),
the Articles of Incorporation shall be deemed to have been abandoned and shall
be void and of no further effect, without any liability on the part of any of
the parties thereto or the stockholders, directors, officers, employees or
agents of any of them.
Section 10.
Indemnification.
(a) Obligation of 2217 Acquisition to Indemnify. Subject to the
limitations on the survival of representations and warranties contained in
Section 8, 2217 Acquisition, its respective officers, directors and employees
hereby agree to indemnify, defend and hold NRPI harmless from and against any
losses, liabilities, damages, deficiencies, costs or expenses (including
interest, penalties and reasonable attorney's fees and disbursements) based
upon, arising out of or otherwise due to any material inaccuracy in or any
breach of any representation, warranty, covenant or agreement of 2217
Acquisition contained in this Agreement or in any document or other writing
delivered pursuant to this Agreement.
(b) Obligation of NRPI to Indemnify. Subject to the limitations on the
survival of representations and warranties contained in Section 8, NRPI, its
respective officers, directors and employees, hereby agree to indemnify, defend
and hold 2217 Acquisition harmless from and against any losses, liabilities,
damages, deficiencies, costs or expenses (including interest, penalties and
reasonable attorneys fees and disbursements) based upon, arising out of or
otherwise due to any material inaccuracy in or any breach of any representation,
warranty, covenant or agreement of NRPI contained in this Agreement or in any
document or other writing delivered pursuant to this Agreement.
Section 11.
Miscellaneous.
(a) Notices. All notices or requests, demands and other communications
hereunder shall be deemed to have been duly given if in writing and delivered or
mailed postage prepaid to the parties as follows:
If to NRPI:
Xxxxxxx Xxxxxx, President
National Residential Properties, Inc,
0000 XX 0xx Xxxxxx
Xxxxx, Xxxxxxx 00000
with a copy to:
------------------------------
------------------------------
------------------------------
If to 2217 Acquisition:
J Xxxxxxx Xxxxxx, President
2217 Acquisition Inc,
0000 XX 0xx Xxxxxx
Xxxxx, Xxxxxxx 00000
with a copy to:
------------------------------
------------------------------
------------------------------
The address of any Party for any such notice, request or other
communication may be changed by giving notice of such change to the other
parties as herein above provided.
(b) Fees and Expenses. Each of the Parties will bear its own costs and
expenses in connection with the negotiation and the consummation of this
Agreement.
(c) Amendment. This Agreement may be amended by mutual agreement of the
Parties at any time prior to the Effective Date. All amendments must be in
writing equal in dignity to this Agreement.
(d) Further Assurances. The Parties shall execute such documents and
other papers and take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions contemplated
hereby. Each such Party shall use it best efforts to fulfill or obtain the
fulfillment of the conditions.
(e) Law Governing. This Agreement shall be deemed to have been entered
into under the Laws of the State of Florida and the rights and obligations of
the parties hereunder shall be governed and determined according to the Laws of
Florida without regard to applicable conflicts of laws.
(f) Resolution of Disputes - Arbitration. All disputes concerning this
Agreement or any claim or issue of any nature (whether brought by the Parties
hereto or by any other person whatsoever) arising from or relating to this
Agreement or to the corporate steps taken to enter into it (including, without
limitation, claims for alleged fraud, breach of fiduciary duty, breach of
contract, tort, etc.) which cannot be resolved within reasonable time through
discussions between the opposing entities, shall be resolved solely and
exclusively by means of arbitration to be conducted in Dade County, Florida,
which arbitration will proceed in accordance with the rules of the American
Arbitration Association (or any successor organization thereto) then in force
for resolution of commercial disputes.
The Arbitrators themselves shall have the right to determine and to
arbitrate the threshold issue of arbitrability itself, the decision of the
Arbitrators shall be final, conclusive, and binding upon the opposing entities,
and a judgment upon the award may be obtained and entered in any federal or
state court of competent jurisdiction.
Each entity or Party involved in litigation or arbitration shall be
responsible for its own costs and expenses of any litigation or arbitration
proceeding, including its own attorney's fees (for any litigation, arbitration,
and any appeals).
(g) Entire Agreement and Counterparts. This Agreement and the documents
incorporated by reference and made a part of it and any other instruments and
agreements to be delivered in conjunction herewith constitute the entire
agreement between the parties with respect to the transactions contemplated
herein and supersede all prior agreements and understandings, whether written or
oral, of the Parties with respect thereto. This Agreement may be executed in one
or more counterparts, all of which taken together shall constitute one
instrument.
(h) Construction. This Agreement shall be construed within the fair
meaning of each of its terms and not against the party drafting the document.
(i) Waiver of Notice and Mailing. Pursuant to Section 92A.180.3. NRS,
NRPI as the sole owner of its subsidiary, 2217 Acquisition, has, and does hereby
waive, the Plan Summary notice and mailing requirements set forth in Section
92A.180. NRS.
IN WITNESS WHEREOF, this Agreement has been executed by the Parties
hereto under their respective seals, as of the day and year first above written.
NATIONAL RESIDENTIAL PROPERTIES, INC
By: _____________________________ ATTEST: __________________
Xxxxxxx Xxxxxx, President
By: ______________________________ ATTEST: __________________
Xxxxxxxxxxx Xxxxxx, Secretary
2217 ACQUISITION INC.
By: _____________________________ ATTEST: __________________
Xxxxxxx Xxxxxx, President
By: ______________________________ ATTEST: __________________
Xxxxxxxxxxx Xxxxxx, Secretary
