Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
Dated June 29, 1998
The parties to this agreement and plan of
reorganization are Integrated Transportation Network Group Inc.,
a Delaware corporation ("ITN"), and Xxxxxx Science Corporation, a
Nevada corporation ("Xxxxxx").
The parties wish to provide for (a) the contribution by
Xxxxxx to ITN of all Xxxxxx'x assets, (b) the assumption by ITN
of certain of Xxxxxx'x liabilities and obligations and (c) the
distribution by Xxxxxx to its shareholders of all the outstanding
capital stock of ITN.
Accordingly, the parties agree as follows:
1. Contribution and Assumption. Simultaneously with
the execution and delivery of this agreement, (a) Xxxxxx is
hereby transferring to ITN, and ITN is acquiring from Xxxxxx,
free and clear of all claims, liens, security interests and other
encumbrances, all Xxxxxx'x assets and properties, tangible and
intangible, including, without limitation, all rights under
agreements, and (b) ITN is hereby assuming and agreeing to pay,
perform and discharge, and indemnify and hold Xxxxxx harmless
from and against, all Xxxxxx'x liabilities and obligations,
actual and contingent, including liabilities and obligations
under agreements, in each case that are reflected on, or
expressly referred to in, Xxxxxx'x balance sheet at March 31,
1998 and the notes to that balance sheet (which is attached to
this agreement as schedule 1) (including the notes, the "Balance
Sheet"), and all liabilities, and obligations that have arisen in
the ordinary course of business since the date of the Balance
Sheet (it being understood and agreed that ITN shall have no
liability or obligation, and Xxxxxx shall indemnify and hold ITN
harmless from and against, all Xxxxxx'x liabilities and
obligations that are not reflected on, or expressly referred to
in, the Balance Sheet or that have not arisen in the ordinary
course of business since the date of the Balance Sheet).
2. Distribution and Winding-Up
2.1 Distribution. As promptly as practicable after
the execution and delivery of this agreement, Xxxxxx shall take
all action necessary to distribute to holders of record of shares
of its common stock at the close of business on June 30, 1998 one
share of common stock of ITN for each four shares of common stock
of Xxxxxx held of record by them at that time. Any shares not
distributed to the shareholders shall be contributed by Xxxxxx to
ITN.
2.2 Fractional Shares. In lieu of issuing any
fractional shares of common stock of ITN pursuant to section 2.1,
the number of shares of common stock of ITN to be distributed to
a holder of record of shares of common stock of Xxxxxx pursuant
to section 2.1 shall be rounded to the next higher integral
number of shares of common stock of ITN, or, at ITN's option, ITN
shall pay the holder an amount in cash equal to the product of
that fraction and 400% of the average low bid prices of a share
of common stock of Xxxxxx on the 20 trading days immediately
preceding the date of this agreement.
2.3 Winding-Up. Promptly after carrying out the
provisions of sections 2.1 and 2.2, Xxxxxx shall wind-up its
affairs and seek to be dissolved.
3. Representations and Warranties
3.1 Representations and Warranties of Xxxxxx. Xxxxxx
represents and warrants to ITN as follows:
3.1.1. Existence and Power. Xxxxxx is a corporation
validly existing and in good standing under the law of the state
of Nevada and has the full power and authority to enter into and
perform this agreement.
3.1.2. Authorization. The execution, delivery and
performance of this agreement by Xxxxxx have been duly authorized
by all necessary action, and this agreement constitutes the valid
and binding obligation of Xxxxxx enforceable against it in
accordance with its terms, except to the extent enforceability
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights in general and subject to general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law).
3.1.3. Consents of Third Parties. The execution,
delivery and performance of this agreement by Xxxxxx will not:
(a) violate or conflict with its articles of incorporation or by-
laws; (b) conflict with, or result in the breach, termination or
acceleration of, or constitute a default under, any lease,
agreement, commitment or other instrument to which Xxxxxx is a
party or by which it or its properties are bound; or
(c) constitute a violation of any law, regulation, order, writ,
judgment, injunction or decree applicable to Xxxxxx or any of its
properties or require any governmental consent or approval, other
than those set forth on schedule 3.1.3.
3.1.4. Litigation. There is no judicial or
administrative action or proceeding pending or, to the best of
Xxxxxx'x knowledge, threatened, nor, to the best of Xxxxxx'x
knowledge, is there any governmental investigation pending or
threatened, that questions the validity of this agreement or any
action taken or to be taken by Xxxxxx in connection with this
agreement. Except as set forth on schedule 3.1.4, there is no
litigation or proceeding pending or, to the best of Xxxxxx'x
knowledge, threatened, nor, to the best of Xxxxxx'x knowledge, is
there any governmental investigation pending or threatened nor is
there any order, injunction or decree outstanding against Xxxxxx.
3.2. Representations and Warranties of ITN. ITN
represents and warrants to Xxxxxx as follows:
3.2.1. Existence and Power. ITN is a corporation
validly existing and in good standing under the law of the state
of Delaware and has the full power and authority to enter into
and perform this agreement.
3.2.2. Authorization. The execution, delivery and
performance of this agreement by ITN have been duly authorized by
all necessary action, and this agreement constitutes the valid
and binding obligation of ITN enforceable against ITN in
accordance with its terms, except to the extent enforceability
may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights in general and subject to general principles of
equity (regardless of whether enforceability is considered in a
proceeding in equity or at law).
3.2.3. Consents of Third Parties. The execution,
delivery and performance of this agreement by ITN will not: (a)
violate or conflict with its certificate of incorporation or by-
laws; (b) conflict with, or result in the breach, termination or
acceleration of, or constitute a default under, any lease,
agreement, commitment or other instrument to which ITN is a party
or by which it or its properties are bound; or (c) constitute a
violation of any law, regulation, order, writ, judgment,
injunction or decree applicable to ITN or any of its properties
or require any governmental consent or approval, other than those
set forth on schedule 3.2.3.
3.2.4. Litigation. There is no judicial or
administrative action or proceeding pending or, to the best of
ITN's knowledge, threatened, nor, to the best of ITN's knowledge,
is there any governmental investigation pending or threatened,
that questions the validity of this agreement or any action taken
or to be taken by ITN in connection with this agreement. Except
as set forth on schedule 3.2.4, there is no litigation or
proceeding pending or, to the best of ITN's knowledge,
threatened, nor, to the best of ITN's knowledge, is there any
governmental investigation pending or threatened nor is there any
order, injunction or decree outstanding against ITN.
4. Indemnification
4.1. By ITN. Subject to this section 4, ITN shall
indemnify and hold Xxxxxx harmless from and against all losses,
liabilities, damages and expenses (including reasonable
attorneys' fees) resulting from any breach of warranty or
agreement or any misrepresentation by ITN under this agreement.
4.2. By Xxxxxx. Subject to this section 4, Xxxxxx
shall indemnify and hold ITN harmless from and against all
losses, liabilities, damages and expenses (including reasonable
attorneys' fees) resulting from any breach of warranty or
agreement or any misrepresentation by Xxxxxx under this
agreement.
4.3. No Other Representations. Except as specifically
set forth in this agreement, neither ITN nor Xxxxxx has made, nor
shall either have liability for, any representation or warranty,
express or implied, in connection with the transactions
contemplated by this agreement. The parties agree that the
remedies provided in this section 4 are the exclusive remedies
for breach of warranty and misrepresentation under this
agreement.
4.4. Survival. The representations and warranties in
this agreement shall survive the execution and delivery of this
agreement.
4.5. Defense of Claims by Third Parties. If any claim
is made against any person or entity that, if sustained, would
give rise to a liability of a party for breach of warranty or
misrepresentation under this agreement, ITN and its counsel, at
ITN's sole expense, shall control the defense and settlement of
the claim, and shall do so in a manner intended to minimize each
party's liability.
5. Miscellaneous
5.1 Governing Law. This agreement shall be governed
by and construed in accordance with the law of the state of New
York applicable to agreements made and to be performed wholly in
the state of New York.
5.2. Notices. All notices and other communications
under this agreement shall be in writing and may be given by any
of the following methods: (a) personal delivery; (b) facsimile
transmission; (c) registered or certified mail, postage prepaid,
return receipt requested; or (d) overnight delivery services.
Notices shall be sent to the appropriate party at its address or
facsimile number given below (or at such other address or
facsimile number for that party as shall be specified by notice
given under this section 5.2):
if to either party, to that party at:
c/o Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
All such notices and communications shall be deemed received upon
(a) actual receipt by the addressee, (b) actual delivery to the
appropriate address or (c) in the case of a facsimile
transmission, upon transmission by the sender and issuance by the
transmitting machine of a confirmation slip confirming the number
of pages constituting the notice have been transmitted without
error. In the case of notices sent by facsimile transmission,
the sender shall contemporaneously mail a copy of the notice to
the addressee at the address provided for above. However, such
mailing shall in no way alter the time at which the facsimile
notice is deemed received.
5.3. Further Assurances. From time to time, each party
shall take such action and execute and deliver such documents as
the other may reasonably request to carry out the transactions
contemplated by this agreement.
5.4. Counterparts. This agreement may be executed in
counterparts, each of which shall be considered an original, but
both of which together shall constitute the same instrument.
5.5 Separability. If any provision of this agreement
is invalid or unenforceable, the balance of this agreement shall
remain in effect, and if any provision is inapplicable to any
person or circumstance, it shall nevertheless remain applicable
to all other persons and circumstances.
5.6. Entire Agreement. This agreement contains a
complete statement of all the arrangements between the parties
with respect to its subject matter, supersedes all existing
agreements between them with respect to that subject matter, may
not be changed or terminated orally and any amendment or
modification must be in writing and signed by the party to be
charged.
INTEGRATED TRANSPORTATION NETWORK GROUP
INC.
By: /s/ Xxxxxx Xxx
Xxxxxx Xxx, President
XXXXXX SCIENCE CORPORATION
By: /s/ Xx Xxx Xxxx
Xx Xxx Xxxx, Chief Executive Officer
