Exhibit 2.2
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (hereinafter referred to as the
"Agreement") is entered into as of this 27th day of July, 1999, by and between
SITESTAR CORPORATION (hereinafter referred to as "SCOR"), XXXXXXXX XXXXXXXXXXX,
XXXXXXX XXXXXXX, XXXXX XXXXX, XXXXXX XXXXXXXXX and XXXXXXX XxXXXXXXX
(hereinafter individually and collectively referred to as "Shareholder") and
INTERFOODS CONSOLIDATED, INC. (hereinafter referred to as "IFCO").
WITNESSETH
WHEREAS, SCOR is a Delaware corporation with 92,000 shares of common stock
issued and outstanding (hereinafter "SCOR Shares"); and
WHEREAS, IFCO is a Nevada corporation with authorized capital stock of
75,000,000 shares of Common Stock $.001 par value per share, of which 18,600,036
shares shall be issued and outstanding by July 27, 1999, and
WHEREAS, Shareholder owns all of the issued and outstanding shares of stock
in SCOR; and,
WHEREAS, IFCO desires to purchase from Shareholder all of the issued and
outstanding shares of SCOR owned by him in exchange for 3,491,428 shares of
common stock ("Stock"); and
WHEREAS, it is the intention of Shareholder to exchange the SCOR Shares
held by him for stock of IFCO, on the terms and conditions set forth herein; and
WHEREAS, it is the intention of IFCO, SCOR and Shareholder that the
transactions contemplated hereby constitute a tax-free "reorganization" as
defined in Section 268 (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: ARTICLE 1
EXCHANGE
1.1. Exchange of Stock of SCOR. 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 IFCO shall acquire all of the stock of SCOR
shares owned by Shareholder.
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ARTICLE II
CONSIDERATION
2.1. Exchange. Shareholder and IFCO agree that all of the SCOR Shares
owned by Shareholder shall be exchanged with IFCO for 3,491,428 shares of Stock
of IFCO. 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 IFCO 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, IFCO shall deliver certificates for the
SCOR Shares, duly endorsed in negotiable form, with signatures guaranteed, free
and clear from all claims and encumbrances.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF IFCO
IFCO represents the warrants to Shareholder as follows:
3.1. Organization. IFCO 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
IFCO consists of 75,000,000 shares of capital stock, of which 18,600,036 shares
shall be issued and outstanding by July 27, 1999. All said stock shall be
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.
3.3. Financial Statements. IFCO has furnished to Shareholder financial
statements as of June 30, 1999. Said financial statements contain the balance
sheet and income statement of IFCO. All of said financial statements, (I) are in
accordance with IFCO's books and records, (ii) present fairly and financial
position of IFCO 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, IFCO will furnish SCOR with a
true and complete list and description of all contracts by and between IFCO 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. IFCO is not in default of the
performance, observance or fulfillment of any material obligations, covenant or
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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 IFCO, contains
any contractual requirement with which there is a likelihood IFCO will be unable
to comply.
3.5. Registration Rights. No shareholder of IFCO has any demands or "piggy
back" registration rights with regards to the outstanding shares or options of
IFCO.
3.6. Authorization. IFCO has the power to enter into this Agreement, and
this Agreement, when duly executed and delivered, will constitute the valid and
binding obligation of IFCO.
3.7. Effect of Agreement. The execution and delivery by IFCO 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 IFCO, or any material
agreement or instrument to which IFCO 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 IFCO.
3.8. Minute Book. The records of meetings and other corporate actions of
shareholders and the Boards of Directors (including any committees of the Board)
of IFCO which are contained in the Minute Books of IFCO contain complete and
accurate records of all corporate actions are reflected in such minutes.
3.9. Litigation; Claims. IFCO is not a party and there are no claims,
actions, suits, investigations or proceedings pending, threatened against or
affecting IFCO 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 IFCO or the ability of 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.
3.10. Taxes and Reports. Prior to the Closing Date, IFCO (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) have adequately reflected as liabilities on its
books, all taxes that have accrued for any period to and including January 31,
1994.
3.11. Compliance with Laws and Regulations. IFCO has 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 IFCO.
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3.12. Finders. IFCO 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.
3.13. Nature of Representations. No representations, warranty or agreement
made by IFCO in this Agreement and no statement or disclosure furnished by IFCO
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 IV
REPRESENTATIONS AND WARRANTIES OF SCOR AND SHAREHOLDER
SCOR and Shareholder, and each of them, represent and warrant to IFCO as
follows:
4.1. Organization. SCOR is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware, 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 SCOR consists of one
class of common stock, 92,000 shares authorized, of which 92,000 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. SCOR 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 SCOR and
Shareholder enforceable in accordance with its terms.
4.4. Financial Statements. SCOR and Shareholder had furnished to IFCO its
business plan and current financial statements. Said financial statements
contain the balance sheet and income statement of SCOR. All of said financial
statements, (I) are in accordance with SCOR books and records, (ii) present
fairly the financial position of SCOR 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, SCOR will furnish IFCO with a
true and complete list and description of all contracts by and between SCOR 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
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may be limited by bankruptcy, insolvency or similar laws affecting the rights of
creditors generally, and by equitable principles. SCOR 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 SCOR, contains
any contractual requirement with which there is a likelihood SCOR will be unable
to comply.
4.6. Competition. Except as set forth in the contracts described in 4.5
above, neither SCOR, nor any officer or director or Shareholder of SCOR has any
material direct or indirect financial or economic interest in any related
industry entity or in any competition or customer of SCOR.
4.7. Effect of Agreement. The execution and delivery by SCOR 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 SCOR, or any material
agreement or instrument to which SCOR 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 SCOR.
4.8. Properties. All of the property, assets and equipment owned by or used
by SCOR 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 SCOR 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 record of meetings and other corporate actions of
Shareholder and the Board of Directors (including any committees of the Board)
of SCOR which are contained in the Minute Books of SCOR contain complete and
accurate records of the matters reflected in such minutes.
4.10. Litigation; Claims. SCOR is not a party and there are no claims,
actions, suits, investigations or proceedings pending, threatened against SCOR
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 is determined adversely would have a material effect on the
business or financial condition of SCOR or the ability of SCOR 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.
4.11. Taxes and Reports. At the Closing Date, SCOR (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.
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4.12. Compliance with Laws and Regulations. SCOR 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 SCOR.
4.13. Finders. SCOR 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 SCOR 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. SCOR and Shareholder shall afford
representatives of IFCO reasonable access to officers, personnel, and
professional representatives of SCOR and such of the financial, contractual and
corporate records of SCOR as shall be reasonably necessary for IFCO's
investigations and appraisals of SCOR.
5.2. Effect of Investigations. Any such investigation by IFCO of SCOR 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 SCOR.
ARTICLE VI
CONDITIONS TO OBLIGATIONS OF IFCO
The obligations of IFCO under this Agreement are, at the option of IFCO,
subject to the satisfaction, at and prior to the Closing Date, of the following
conditions:
6.1. Fulfillment of Covenants. All the terms, covenants and conditions of
this Agreement to be complied with and performed by SCOR 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. There shall be no action, proceeding, investigation or
pending or actual litigation to 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 IFCO, or any of the
officers or directors thereof, because of this consummation of the transactions
contemplated by this Agreement.
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ARTICLE VII
CONDITIONS TO OBLIGATIONS 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 IFCO 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 SCOR, or any of the
officers or directors thereof, because of the consummation of the transactions
contemplated by this Agreement.
ARTICLE VIII
CLOSING
8.1. Closing Date. The consummation of the exchange shall take place at the
offices of Interfoods Consolidated, Inc. 00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxx 00000 on July 27, 1999, 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 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.
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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
valid 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 preceding 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 de deemed received
upon mailing thereof.
To: Interfoods Consolidated, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Sitestar Corporation
Shareholders
000 Xxxxx Xxxxxx
Xxxxx 00
Xxxxxxxxx, Xxxxxxxx 00000
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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 on 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 of the 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 on or more
counterparts, each of which shall be an original and all of which taken together
shall constitute on instrument.
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 California.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date hereof.
SITESTAR CORPORATION
/s/ Xxxxxxx X. Xxxxxx
By:____________________________
President
INTERFOODS CONSOLIDATED, INC.
/s/ Xxxxxxxxx Manlunus
By:_________________________________
Chief Executive Officer
/s/ Xxxxxxxx Xxxxxxxxxxx
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Xxxxxxxx Xxxxxxxxxxx
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
/s/ Xxxxxxx XxXxxxxxx
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Xxxxxxx XxXxxxxxx
/s/ Xxxxxxx X. Xxxxxx
By:___________________________
Sitestar Corporation
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