Exhibit 2.3
AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION dated as of December 26, 1996, among
Atlantic Pacific Trust (hereinafter called "Trust") and Atlantic Pacific Trust,
LLC, a Nevada Limited Liability Company (hereinafter called "LLC"), and Xplorer,
S.A., Stonehill Investments, Ltd., and Compana Commercial Atlantis, S.A.
(hereinafter called the "Beneficiaries").
1. PLAN OF REORGANIZATION. The Beneficiaries are the owners of all of the
issued and outstanding Units of Beneficial Interest ("UBI's") of the
Trust, which consist of 2,121,260 UBI's. It is the intention of the
parties hereto that all of the issued and outstanding UBI's of the
Trust shall be acquired by LLC in exchange solely for its units of
Interests ("Interests").
2. EXCHANGE OF UBI'S FOR INTERESTS. The Trust and the Beneficiaries agree
that all of the 2,121,260 UBI's of the Trust shall be exchanged with
LLC for 2,121,260 Interests of the LLC. The following numbers of LLC
Interests will, on the closing date, as hereinafter defined, be
delivered to the individual Beneficiaries in exchange for their Trust
UBI's as hereinafter set forth:
No of LLC
No. of UBI's Interests to
Beneficiary of the Trust be Issued
----------- ------------ ------------
Xplorer, S.A 1,254,960 1,254,960
Stonehill Investments, Ltd. 20,000 20,000
Compana Commercial
Atlantis, S.A 846,300 846,300
--------- ---------
2,121,260 2,121,260
Such Interests shall be issued in certificates of such denominations, amounts,
and names as may be requested by the respective Beneficiaries. The Beneficiaries
represent and warrant that they will hold such Interests of LLC for investment.
3. DELIVERY OF UBI'S AND INTERESTS. On the closing date, the
Beneficiaries will deliver Certificates for the UBI's of the Trust
duly endorsed with signatures so as to make LLC the sole owner
thereof, free and clear of all claims and encumbrances; and on such
closing date delivery of the LLC Interests will be made to the
Beneficiaries as above set forth. Delivery will be made at such place
in or about Weldon, California, as may be determined by the parties.
Time is of essence.
4. REPRESENTATIONS OF BENEFICIARIES. The Beneficiaries represent and
warrant as follows:
a) As of the closing date they will be the sole owners of the UBI's
Exhibit 2.3
appearing of record in their names; such UBI's will be free from
claims, liens, or other encumbrances; and they will have the
unqualified right to transfer such UBI's.
b) The UBI's constitute validly issued UBI's of the Trust, fully
paid and nonassessable.
c) The Beneficiaries, by the signing of this Agreement, hereby
waive notice of a special meeting of the Trustees and Beneficiaries of
the Trust regarding this reorganization with LLC and hereby approve
such reorganization with LLC.
d) The unaudited financial statements of the Trust, as of September
30, 1996, which will be delivered to LLC prior to the closing date,
are true and complete statements of the financial condition of the
Trust as of that date; there are no substantial liabilities, either
fixed or contingent, not reflected in such financial statements other
than contracts or obligations in the usual course of business; and no
such contracts or obligations in the usual course of business are
liens or other liabilities which, if disclosed, would alter
substantially the financial condition of the Trust as reflected in
such financial statements.
e) Since September 30, 1996, there have not been, and prior to the
closing date there will not be, any material changes in the financial
position of the Trust, except changes arising in the ordinary course
of business.
f) The Trust is not involved in any pending litigation or
governmental investigation or proceeding not reflected in such
financial statements or otherwise disclosed in writing to LLC and, to
the knowledge of the Trust or the Beneficiaries, no litigation or
governmental investigation or proceeding is threatened against the
Trust.
g) As of the closing date, the Trust will be in good standing as a
bona fide Trust Organization.
5. REPRESENTATION OF ACQUIRING LLC. LLC represents and warrants as
follows:
a) As of the closing date, the LLC Interests to be delivered to the
Beneficiaries will constitute the valid and legally issued Interests
of LLC, fully paid and nonassessable, and will be legally equivalent
in all respects to the Interests of LLC issued and outstanding as of
the date hereof.
b) the managers of LLC are duly authorized to execute this
Agreement pursuant to authorization of its Interest holders.
c) Since November 5, 1996, there have not been, and prior to the
closing date there will not be, any material changes in the financial
position of LLC, except changes arising in the ordinary course of
business.
Exhibit 2.3
d) LCC is not involved in any pending litigation or governmental
investigations or proceeding not reflected in such financial
statements or otherwise disclosed in writing to the Beneficiaries.
e) As of the closing date, LLC will be in good standing as a Nevada
Limited Liability Company.
6. CONDITIONS OF CLOSING. The closing date herein referred to shall be
December 27, 1996, or such other date as the parties hereto may
mutually agree upon. All representations and covenants herein made
shall survive the closing. At the closing the Beneficiaries hereby
designate, nominate, constitute, and appoint Xxxxxxx X. Xxxxxxxx and
Xxxxxx X. Xxxxxxxxx, and each of them, as their agents and attorneys
in fact to accept delivery to the certificates of LLC Interests to be
issued in their respective names, and to give a good and sufficient
receipt and acquittance for the same, and in connection therewith to
make delivery of their UBI's in the Trust to LLC.
7. PROHIBITED ACTS. The Trust agrees not to don any of the following
things prior to the closing date, and the Beneficiaries agree that
prior to the closing date they will not request or permit the Trust to
do any of the following things:
a) Declare or pay any dividends, interest or other distributions on
its UBI's or purchase or redeem any of its UBI's;
b) Issue any UBI's or other securities, including any right or
option to purchase or otherwise acquire any of its UBI's, or issue any
notes or other evidences of indebtedness not in the usual course of
business;
c) Make capital expenditures in excess of an aggregate of $25,000
except with the consent of LLC.
8. DELIVERY OF RECORDS. The Beneficiaries agree that on or before the
closing date they will cause to be delivered to LLC such Trust records
or other documents of the Trust as LLC may request.
9. NOTICES. Any notice which any of the parties hereto may desire to
serve upon any of the other parties hereto shall be in writing and
shall be conclusively deemed to have been received by the party to
whom addressed, if mailed, postage prepaid, United States Registered
Mail, to the following addresses:
Atlantic Pacific Trust, LLC
0000 Xxxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Manager
Beneficiaries, c/o Xxxxxxx X. Xxxxxxxx
Atlantic Pacific Trust
0000 Xxxxx Xxxxx Xxxx
Xxxxxx, Xxxxxxxxxx 00000
Exhibit 2.3
10. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the heirs, personal representatives, successors, and
assigns of the parties.
Executed in multiple counterparts, each of which shall be deemed a
duplicate original, as of the date first above written.
LLC Atlantic Pacific Trust, LCC
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------
Manager
Trust Atlantic Pacific Trust
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Trustee
Beneficiaries /s/ Xxxxxx X. Xxxxx
--------------------------
Xplorer, S.A.
--------------------------
Stonehill Investments, Ltd.
---------------------------
Compana Commercial Atlantis, S.A.
Exhibit 2.3
Executed in multiple counterparts, each of which shall be deemed a
duplicate original, as of the date first above written.
LLC Atlantic Pacific Trust, LCC
By:
-------------------------
Manager
Trust Atlantic Pacific Trust
By:
-----------------------
Trustee
Beneficiaries
---------------------------
Xplorer, S.A.
/s/
---------------------------
Stonehill Investments, Ltd.
---------------------------
Compana Commercial Atlantis, S.A.
Exhibit 2.3
