PLAN OF REORGANIZATION
AND
AGREEMENT AND PLAN OF MERGER
THIS PLAN OF REORGANIZATION AND AGREEMENT AND PLAN OF MERGER (this
"Plan") is made and entered into as of this___________ day of _____, 1997, by
and among XXXX'X CIGAR HOLDINGS, INC., a Delaware corporation (formerly known as
Ashton Holdings, Inc.) ("Parent"), XXXX'X CIGAR COMPANY, INC., a Pennsylvania
corporation ("Xxxx'x"), NEW XXXX'X CIGAR COMPANY, INC., a newly formed
Pennsylvania corporation ("New Xxxx'x"), ASHTON DISTRIBUTORS, INC., a
Pennsylvania corporation ("Distributors"), and NEW ASHTON DISTRIBUTORS, INC., a
newly formed Pennsylvania corporation ("New Distributors"). (The parties hereto
may sometimes be separately referred to as the "Entity" and collectively as the
"Entities".)
BACKGROUND
Parent is a Delaware corporation authorized to issue 15,000 shares of
Class A common stock, par value $0.01 per share (the "Class A Common Stock"),
and 5,000 shares of Class B common stock, par value $0.01 per share (the "Class
B Common Stock"), of which an aggregate of 11,429 shares are currently issued
and outstanding. Sixty percent (60%) of such shares are currently owned by
Xxxxxx X. Xxxxx ("Xxxxx").
Xxxx'x is a Pennsylvania corporation authorized to issue 100,000
shares of common stock, no par value (the "Xxxx'x Common Stock"), of which
10,000 shares are currently issued and outstanding and owned by Xxxxx.
Distributors is a Pennsylvania corporation authorized to issue 1,000
shares of common stock, no par value (the "Distributors Common Stock"), of which
500 shares are currently issued and outstanding and owned by Xxxxx.
There are currently outstanding options (held by persons other than
Xxxxx) entitling the holders thereof to purchase an aggregate of twelve percent
(12%) of the issued and outstanding shares of the capital stock of Xxxx'x and of
Distributors and/or of any entity with or into which Xxxx'x and/or Distributors
are merged (the "Options").
New Xxxx'x and New Distributors are corporations newly formed in
Pennsylvania for the purposes of entering into this Plan, with all of the issued
and outstanding capital stock of each such corporation being owned by Parent.
The Entities desire to reorganize their respective corporate
structures and relationships so as to accomplish the following objectives:
1. To amend the Certificate of Incorporation of Parent to change
its authorized common stock from 15,000 shares of Class A Common Stock and 5,000
shares of
Class B Common Stock to 25,000,000 shares of common stock, par value $0.001 per
share (the "Parent Common Stock"), and 1,000,000 shares of preferred stock, no
par value (the "Parent Preferred Stock"), and to effect certain other changes
thereto;
2. To exchange each share of Class A Common Stock and Class B
Common Stock of Parent issued and outstanding for 307.7394167 shares of Parent
Common Stock;
3. To cause Xxxx'x and Distributors to become wholly-owned
subsidiaries of Parent, such transactions to be effected by a merger of New
Xxxx'x with and into Xxxx'x and New Distributors with and into Distributors,
pursuant to which mergers Xxxxx, as the sole shareholder of each of Xxxx'x and
Distributors, shall receive shares of Parent Common Stock in exchange for his
shares in such corporations; and
4. To exchange the Options for substantially similar options to
be issued by Parent, entitling the holders thereof to purchase shares of Parent
Common Stock.
It is the intention and desire of the Entities to effect the
reorganization described above upon the terms and subject to the conditions set
forth in this Plan.
It is the further intention and desire of the Entities to provide in
this Plan the terms and conditions of the mergers described above, the mode of
carrying such mergers into effect, such amendments or changes as may be desired
to the articles of incorporation of the corporations surviving such mergers and
the manner and basis of converting or exchanging the shares of each Entity into
or for shares or other securities of the Entity surviving the merger or of
another Entity, as the case may be.
NOW, THEREFORE, in consideration of the promises and mutual
representations, warranties and covenants herein contained, the parties hereby
agree as follows:
1. Parent.
(a) Amendment of Certificate of Incorporation: Exchange of Stock.
On the Effective Date (as hereinafter defined), Parent will amend its
Certificate of Incorporation to: (i) change its authorized capitalization from
15,000 shares of Class A Common Stock and 5,000 shares of Class B Common Stock
to 25,000,000 shares of Parent Common Stock; and (ii) contain such additional
terms as are set forth in Exhibit A hereto (the "Amendment"). Upon the Effective
Date of the Amendment, Parent will exchange each share of Class A Common Stock
and Class B Common Stock then issued and outstanding for 307.7394167 shares of
Parent Common Stock. Immediately thereafter, there will be an aggregate of
4,020,000 shares of Parent Common Stock issued and outstanding.
(b) Organizational Matters. From and after the Effective Date of
the Amendment:
(i) The Board of Directors and the officers of Parent shall
be and remain the Board of Directors and officers of Parent until
their respective successors are elected in accordance with the Certificate of
Incorporation and By-Laws of Parent and shall have duly qualified; and
(ii) The Certificate of Incorporation and By-Laws of Parent,
each as amended, shall be and remain the Certificate of Incorporation and
By-Laws of Parent until further changed or amended as provided by law.
2. The Mergers.
(a) The Mergers. New Xxxx'x shall be merged with and into Xxxx'x
and New Distributors shall be merged with and into Distributors, with Xxxx'x and
Distributors, respectively, to be the surviving corporations (hereinafter, each
individually, a "Merger" and, collectively, the "Mergers"). On the Effective
Date of the Mergers: (i) the shares of Xxxx'x Common Stock and the shares of
Distributors Common Stock then issued and outstanding shall, by action of the
Mergers and without any action on the part of the holder thereof, automatically
be exchanged for an aggregate of 502,803 shares of Parent Common Stock; (ii) the
shares of the common stock of New Xxxx'x (the "New Xxxx'x Common Stock") then
issued and outstanding shall, by action of the Mergers and without any action on
the part of the holder thereof, automatically be exchanged for an aggregate of
100 shares of Xxxx'x Common Stock, based upon 100 shares of New Xxxx'x Common
Stock outstanding immediately prior to the Effective Date; and (iii) the shares
of the common stock of New Distributors (the "New Distributors Common Stock")
then issued and outstanding shall, by action of the Mergers and without any
action on the part of the holder thereof, automatically be exchanged for an
aggregate of 100 shares of Distributors Common Stock, based upon 100 shares of
New Distributors Common Stock outstanding immediately prior to the Effective
Date.
(b) Organizational Matters. On the Effective Date of the Mergers:
(i) The name of the corporation which shall survive the
merger of New Xxxx'x with and into Xxxx'x is, and after the Effective Date shall
be, "Xxxx'x Cigar Company, Inc.,'
(ii) The name of the corporation which shall survive the
merger of New Distributors with and into Distributors is, and after the
Effective Date shall be, "Ashton Distributors, Inc."
(iii) The Board of Directors of each of Xxxx'x and
Distributors shall consist of Xxxxx, Xxxxxxx Xxxxxx and Xxxxxx X. Xxxxxxxxxxx,
until their respective successors are elected in accordance with the Articles of
Incorporation and By-Laws of Xxxx'x and Distributors, respectively, and shall
have duly qualified.
(iv) The officers of each of Xxxx'x and Distributors shall
consist of the following individuals: Xxxxx as President, Xxxxxxx Xxxxxx as Vice
President and Secretary, and Xxxxxx X. Xxxxxx as Treasurer, with such
individuals holding such offices until their respective
successors are elected or appointed in accordance with the By-Laws of Xxxx'x and
Distributors, respectively, and shall have duly qualified.
(v) The Articles of Incorporation and By-Laws of each of
Xxxx'x and Distributors from and after the Effective Date shall be their
respective Articles of Incorporation and By-Laws, as amended through the
Effective Date, until changed or amended as provided by law.
(c) Certain Effects of Merger of New Xxxx'x and Xxxx'x. On the
Effective Date, the separate existence of New Xxxx'x, except as specifically
otherwise provided by law, shall cease, whereupon Xxxx'x and New Xxxx'x shall
become a single corporation. Thereafter, Xxxx'x shall possess all of the rights,
privileges, powers and franchises of a public as well as a private nature, and
be subject to all of the restrictions, disabilities and duties of each of Xxxx'x
and New Xxxx'x. All of the property, real, personal and mixed, and the
franchises of each of Xxxx'x and New Xxxx'x and all debts due on whatever
account to either of them, and all other choses in action belonging to either of
them, shall be deemed to be transferred to and vested in Xxxx'x without further
act or deed. Xxxx'x shall thenceforth be responsible for all the liabilities and
obligations of each of such corporations. No liens upon the property of either
of such corporations shall be impaired by such merger and any claim existing or
action or proceeding pending by or against either of such corporations may be
prosecuted to judgment as if such merger had not taken place, or Xxxx'x may be
proceeded against or substituted in place of New Xxxx'x.
(d) Certain Effects of Merger of New Distributors and
Distributors. On the Effective Date, the separate existence of New Distributors,
except as specifically otherwise provided by law, shall cease, whereupon
Distributors and New Distributors shall become a single corporation. Thereafter,
Distributors shall possess all of the rights, privileges, powers and franchises
of a public as well as a private nature, and be subject to all of the
restrictions, disabilities and duties of each of Distributors and New
Distributors. All of the property, real, personal and mixed, and the franchises
of each of Distributors and New Distributors and all debts due on whatever
account to either of them, and all other chose s in action belonging to either
of them, shall be deemed to be transferred to and vested in Distributors without
further act or deed. Distributors shall thenceforth be responsible for all the
liabilities and obligations of each of such corporations. No liens upon the
property of either of such corporations shall be impaired by such merger and any
claim existing or action or proceeding pending by or against either of such
corporations may be prosecuted to judgment as if such merger had not taken
place, or Distributors may be proceeded against or substituted in place of New
Distributors.
3. Exchange of Options.
(a) Pursuant to certain Stock Option Agreements, each dated
January 1, 1996 (the "1996 Stock Option Agreements"), Xxxx'x and Distributors
granted options to Xxxxxx Xxxx, Xxxxxxx Xxxxxx and Xxxxxx X. Xxxxxxxxxxx (the
"Option Holders") entitling the Option Holders to purchase an aggregate of
twelve percent (12%) of the issued and outstanding shares of the capital stock
of Xxxx'x and of Distributors and/or of any entity with or into which Xxxx'x
and/or Distributors is merged ("Options").
(b) The Option Holders and the Entities have agreed that,
simultaneously with the closing of the sale of shares of Parent Common Stock
being offered to the public under an initial public offering under a
Registration Statement under the Securities Act of 1933, as amended, as filed
with the Securities and Exchange Commission on September 24, 1997, as the same
may be amended from time to time (the "IPO"), the Options will be exchanged for
new options (the "New Options"), subject to the execution of new stock option
agreements by the Option Holders (the "New Stock Option Agreements"), on terms
substantially similar to the terms of the 1996 Stock Option Agreements, to be
issued by Parent, entitling the Option Holders to purchase an aggregate of
482,400 shares of Parent Common Stock, which shares will represent twelve
percent (12%) of the shares of Parent Common Stock issued and outstanding prior
to the closing under the IPO. The New Stock Option Agreements granting the New
Options shall provide for: (i) "demand" registration rights, and (ii)
"piggyback" registration rights, in each case under the Securities Act of 1933,
as amended (collectively, the "Registration Rights") relating to the shares of
Parent Common Stock issuable upon the exercise of the New Options; provided,
however, that the Registration Rights will not be effective until the date that
is nine months after the closing of the IPO; and, provided, further, that the
Registration Rights will expire and/or terminate on the date on which the New
Options expire and/or terminate in accordance with their terms.
4. Contribution of Shares of Parent Common Stock by Xxxxx.
(a) If any or all of the Option Holders should elect to exercise
any or all of the New Options in accordance with the terms thereof, then Xxxxx
shall contribute to the capital of Parent one share of Parent Common Stock then
owned by him for each share of Parent Common Stock issued to the Option Holders
upon such exercise, up to a maximum of 482,400 shares of Parent Common Stock.
(b) If and when an Option Holder elects to exercise some of his
or her New Options, Parent shall send written notice thereof to Xxxxx and Xxxxx
shall have a period of 30 days in which to deliver stock certificates
representing at least the number of shares of Parent Common Stock being issued
to such Option Holder at that time. Parent shall issue and cause to be delivered
with all reasonable dispatch to Xxxxx a new stock certificate representing the
portion of the stock certificate so delivered to Parent that is not being
contributed to the capital of Parent in accordance with this Section.
5. Closing. The closing of this Plan and the transactions contemplated
hereby (the "Closing") shall take place simultaneously with the closing of the
IPO, at a time and place mutually agreed upon by all of the Entities, or at such
earlier or later time and place as may be agreed upon by all of the Entities, in
which event the Closing shall occur as such earlier or later time and place.
(The date of such Closing will be referred to herein as the "Closing Date".)
6. Effective Date. Subject to the satisfaction of the terms and
conditions of this Plan, if this Plan is approved and adopted by the Boards of
Directors and shareholders of each of the Entities, and if the Mergers and other
transactions contemplated hereby are not thereafter
abandoned as permitted by the provisions of this Plan, then a duly executed
Certificate of Amendment shall be filed with the appropriate offices of the
State of Delaware with respect to the Amendment, and duly executed Articles of
Merger shall be filed with the appropriate offices of the Commonwealth of
Pennsylvania with respect to the Mergers, such filings to be made effective as
of the Closing Date or upon such earlier date as the officers of the Entities
shall determine. This Plan shall become effective, with respect to the
Amendment, on the date when such documents have been filed with the State of
Delaware, and with respect to each of the Mergers, on the date when such
documents have been filed with the Commonwealth of Pennsylvania. The date of
such effectiveness with respect to the transactions contemplated hereby is
referred to herein as the "Effective Date." At such time, Parent's Certificate
of Incorporation shall be amended as provided herein, New Xxxx'x shall be merged
with and into Xxxx'x, and New Distributors shall be merged with and into
Distributors, and the separate existence of New Xxxx'x and New Distributors
shall cease.
7. Representations and Warranties.
(a) General Representations. Each Entity represents and warrants
to each other Entity as follows:
(i) Organization. Such Entity is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation and has all requisite corporate power and authority to own, lease
and operate its assets and properties and to carry on its business as it is
presently being conducted.
(ii) Authorization. Such Entity has all requisite corporate
power and authority to execute and deliver this Plan, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery by such Entity of this Plan, the performance by such Entity of its
obligations hereunder and the consummation by such Entity of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of such Entity. This Plan has been duly executed
and delivered by such Entity and constitutes the legal, valid and binding
obligation of such Entity, enforceable against such Entity in accordance with
its terms.
(iii) Conflict with Documents. The execution, delivery and
performance of, and compliance with, this Plan will not (with or without the
giving of notice or lapse of time, or both) result in any violation of, or be in
conflict with, or constitute a default under, any contract, bond, note,
indenture or other agreement or any restriction on such Entity, or any judgment,
decree, order, statute, rule or regulation to which such Entity is subject or by
which it may be bound.
(iv) Consents. No consent or approval of any third party or
governmental agency or authority is required in connection with the consummation
by such Entity of the transactions contemplated by this Plan.
(v) Litigation. Such Entity is not a party to or, to such
Entity
knowledge, threatened with any suit, action, administrative charge, arbitration
or other legal or governmental proceeding which, if adversely determined, would
materially and adversely affect the performance by such Entity of its
obligations under this Plan. There is no judgment, decree, award or order
outstanding against such Entity which would materially and adversely affect the
performance by such Entity of its obligations under this Plan, nor, to such
Entity knowledge, is there any basis for any such suit, action, administrative
charge, arbitration or other legal or governmental proceeding.
(vi) Full Disclosure. No representation or warranty made by
such Entity in this Plan, and no exhibit, schedule, document, statement or
certificate furnished or to be furnished to any other Entity in connection with
the transactions contemplated hereby, contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material fact
required to be stated in order to make the statement, in light of the
circumstances in which it is made and when taken together with all other
disclosures made by such Entity to any other Entity, not misleading.
(b) Specific Representations.
(i) Parent's Capitalization. Parent represents and warrants
to the other Entities that, as of the date hereof, Parent's authorized capital
stock consists of fifteen thousand (15,000) shares of Class A common stock, par
value $0.01 per share, and five thousand (5,000) shares of Class B common stock,
par value $0.01 per share, of which an aggregate of eleven thousand four hundred
twenty-nine (11,429) shares are currently issued and outstanding. There are no
treasury shares held by Parent. There are no subscriptions, warrants, options or
other rights or commitments to purchase or acquire from Parent any shares of any
class or series of the capital stock of Parent. The shares of Parent Common
Stock to be issued hereunder, when issued in accordance with the terms of this
Plan, shall be duly authorized, issued and fully paid and non-assessable.
(ii) Xxxx'x' Capitalization. Xxxx'x further represents and
warrants to the other Entities that, as of the date hereof, Xxxx'x authorized
capital stock consists of one hundred thousand (100,000) shares of common stock,
no par value, of which ten thousand (10,000) shares are currently issued and
outstanding. There are no treasury shares held by Xxxx'x. Except for the
Options, there are no subscriptions, warrants, options or other rights or
commitments to purchase or acquire from Xxxx'x any shares of any class or series
of the capital stock of Xxxx'x. The shares of Xxxx'x Common Stock to be issued
hereunder, when issued in accordance with the terms of this Plan, shall be duly
authorized, issued and fully paid and non-assessable.
(iii) New Xxxx'x Capitalization. New Xxxx'x represents and
warrants to the other Entities that, as of the date hereof, New Xxxx'x'
authorized capital stock consists of one thousand (1,000) shares of common
stock, of which one hundred (100) shares are currently issued and outstanding,
all of which are owned by Parent. There are no treasury shares held by New
Xxxx'x. There are no subscriptions, warrants, options or other rights or
commitments to purchase or acquire from New Xxxx'x any shares of any class or
series of the capital stock of New Xxxx'x.
(iv) Distributors' Capitalization. Distributors represents
and warrants to the other Entities that, as of the date hereof, Distributors'
authorized capital stock consists of one thousand (1,000) shares of common
stock, no par value, of which five hundred (500) shares are currently issued and
outstanding. There are no treasury shares held by Distributors. Except for the
Options, there are no subscriptions, warrants, options or other rights or
commitments to purchase or acquire from Distributors any shares of any class or
series of the capital stock of Distributors. The shares of Distributors Common
Stock to be issued hereunder, when issued in accordance with the terms of this
Plan, shall be duly authorized, issued and fully paid and non-assessable.
(v) New Distributors' Capitalization. New Distributors
represents and warrants to the other Entities that, as of the date hereof, New
Distributors' authorized capital stock consists of one thousand (1,000) shares
of common stock, of which one hundred (100) shares are currently issued and
outstanding, all of which are owned by Parent. There are no treasury shares held
by New Distributors. There are no subscriptions, warrants, options or other
rights or commitments to purchase or acquire from New Distributors any shares of
any class or series of the capital stock of New Distributors.
8. Covenants and Agreements. The Entities covenant and agree as
follows:
(a) Interim Operation of Business. Between the date hereof and
the Effective Date, each of the Entities shall continue to operate its
respective business in the ordinary course, consistent with past practice, and
will preserve, protect and maintain its assets and properties in the same
condition and state of repair as exists on the date of this Plan, reasonable
wear and tear excepted.
(b) Conduct of Business. Between the date hereof and the
Effective Date, none of the Entities shall: (i) issue any shares of its common
stock or any other securities of any kind, whether convertible into or
exchangeable for shares of common stock or otherwise; (ii) merge or consolidate
with or into any other corporation or any other entity or entities, (iii)
reorganize, dissolve, liquidate or adopt any plan of reorganization, dissolution
or liquidation; (iv) sell, assign or otherwise dispose of all or substantially
all of its assets; (v) pay any dividends or distributions on any of the
securities of such corporation currently outstanding; (vi) amend its Articles of
Incorporation or Certificate of Incorporation, as the case may be, or its
By-Laws; or (vii) enter into any agreement or otherwise agree to undertake any
of the foregoing.
(c) S Corporation Dividend. Subject to the closing of the IPO,
Distributors will declare a dividend payable to Xxxxx in an amount equal to
Distributors' accumulated undistributed taxable income as of such date
(estimated to be $2,700,000), as determined by Distributors' independent
accountants based on the best available information as of the date of payment.
Such dividend will be paid by Distributors to Xxxxx at the closing of the IPO
following a contribution to Distributors by Parent of such amount.
9. Deliveries at Closing. At the Closing, each Entity shall execute
and/or deliver, and/or arrange for the execution and/or delivery, to the other
Entities such instruments, documents and stock certificates as may be reasonably
necessary to effect the consummation of the transactions contemplated by this
Plan, in form and substance reasonably satisfactory to the other Entities, as
such other Entities may reasonably request.
10. Conditions to Closing. The obligation of each Entity to close on
the transactions contemplated by this Plan shall be subject to the satisfaction
and fulfillment of each of the following conditions precedent, any or all of
which may be waived in whole or in part by such Entity: (a) that the
representations and warranties of the other Entities made in or pursuant to this
Plan are true and correct at and as of the Closing Date; (b) that all
obligations and conditions required to be performed or observed by each other
Entity have been performed or observed by such other Entity on or prior to the
Closing Date; (c) that all items required to be delivered pursuant to Section 9
have been delivered; (d) that all consents and approvals required to be obtained
in connection with the performance by the other Entities to the consummation of
this Plan, if any, have been obtained; (e) that no action or proceeding by or
before any court or other governmental or regulatory agency shall have been
instituted or threatened which seeks to restrain, prohibit or invalidate the
transactions contemplated by this Plan; and (f) that all of the 1996 Stock
Option Agreements have been cancelled or terminated by mutual agreement of the
parties thereto and all of the Option Holders have executed the New Stock Option
Agreements.
11. Termination and Abandonment.
(a) Termination. Anything in this Plan to the contrary
notwithstanding, this Plan may be terminated and the Mergers described herein
may be abandoned at any time prior to the Effective Date:
(i) By the mutual consent of all of the Entities;
(ii) By any Entity if any of the conditions to such Entity's
consummation of the terms of this Plan, as set forth in Section 10, has not been
met or waived on the Closing Date; or
(iii) By any Entity if the Mergers have not become effective
on or before December 31, 1997, unless such date is extended by the mutual
consent of the Boards of Directors of all of the Entities.
(b) Election. An election by any Entity to terminate this Plan
and abandon the Mergers shall be exercised on behalf of such Entity by its Board
of Directors.
(c) Effect of Termination. In the event of the termination of
this Plan and the abandonment of the Mergers described herein in accordance with
the terms of this Section 11, this Plan shall become void in its entirety and be
of no effect whatsoever, without any liability on the part of any of the
Entities, or on any of their respective directors, officers, shareholders or
employees.
12. Agreement to Consummate; Further Assurances. Subject to the terms
and conditions of this Plan, each of the Entities agrees to use commercially
reasonable efforts to do all things necessary, proper or advisable under this
Plan, applicable laws and regulations to consummate and make effective the
transactions contemplated hereby. If, at any time after the date hereof, any
further action is necessary, proper or advisable to carry out the purposes of
this Plan, then, as soon as is reasonably practicable, each Entity to this Plan
shall take, or cause its proper officers to take, such action.
13. Amendments. This Plan may be amended, altered or changed by mutual
agreement of each of the Entities at any time prior to the Effective Date,
except that any amendment made subsequent to the adoption of this Plan by the
shareholders of any Entity shall not alter or change: (a) the amount or kind of
shares, obligations, securities, cash, property and/or rights to be received in
exchange for or on conversion of all or any of the shares of any Entity; (b) any
term of the articles of incorporation of any Entity surviving the Mergers; or
(c) any of the terms and conditions of this Plan if such change would adversely
affect the holder of any shares of any Entity. A decision by any Entity to amend
this Plan shall be made on behalf of such Entity by its Board of Directors. No
such amendment, alteration or change will be effective unless it is in writing
signed by all of the Entities.
14. Miscellaneous.
(a) Reorganization. It is the intention of the Entities and of
their respective shareholders and Boards of Directors that the Mergers shall
together constitute a "reorganization" as such term is used and defined in
Section 368(a)(2)(E) of the Internal Revenue Code of 1986, as amended.
(b) Waivers. No waiver of any right under this Plan will be
deemed effective unless contained in writing signed by the Entity charged by
such waiver, and no waiver of any right arising from any breach or failure to
perform will be deemed to be a waiver of any future such right or of any right
arising under this Plan.
(c) Successors and Assigns. None of the Entities hereto may
assign or transfer any of its rights or obligations under this Plan without the
prior written consent of the other Entity hereto. Except as otherwise expressly
provided herein, this Plan shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, representatives, successors and
permitted assigns.
(d) Titles. The titles of the Sections and subsections of this
Plan are for convenience of reference only and are not to be considered in
construing the terms and provisions hereof.
(e) Provisions Separable. The provisions of this Plan are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or
unenforceable in whole or in part
(f) No Third Party Beneficiaries. The parties specifically intend
and agree that no one other than the parties to this Plan is or shall be deemed
to be a third party beneficiary of any of the rights or obligations set forth in
this Plan.
(g) Execution; Counterparts. This Plan may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any Entity whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Plan shall become binding
when one or more counterparts hereof, individually or taken together, shall bear
the signatures of all of the parties reflected hereon as the signatories hereto.
(h) Exhibits. All exhibits and schedules to this Agreement, if
any, are incorporated by reference into, and made a part of, this Agreement.
(i) Entire Agreement. This Plan, together with the other
documents executed in connection herewith, shall constitute the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof and thereof, and supersede all prior agreements, understandings,
inducements or conditions, express or implied, oral or written, except as
contained herein or therein The express terms hereof shall control and supersede
any course of performance and/or usage of trade inconsistent with any of the
terms hereof.
IN WITNESS WHEREOF, the parties have caused this Plan of
Reorganization and Agreement and Plan of Merger to be executed by their duly
authorized officers on the day-and year first above written.
XXXX'X CIGAR HOLDINGS, INC.
By:
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Title:
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XXXX'X CIGAR COMPANY. INC.
By:
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Title:
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NEW XXXX'X CIGAR COMPANY. INC.
By:
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Title:
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ASHTON DISTRIBUTORS, INC.
By:
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Title:
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NEW ASHTON DISTRIBUTORS, INC.
By:
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Title:
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JOINDER
The undersigned, intending to be legally bound hereby, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, does hereby agree, on behalf of himself and on behalf of his
heirs, executors, administrators, executors, successors and assigns, to be bound
by the terms of Section 4 of this Plan of Reorganization and Agreement and Plan
of Merger.
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Xxxxxx X. Xxxxx
