EXHIBIT 10.1
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
INVVISION CAPITAL, INC., A NEVADA CORPORATION,
INVVISION MC, INC., A TEXAS CORPORATION
AND
RESTORATION GROUP AMERICA 2003, INC. , A TEXAS CORPORATION
LIST OF EXHIBITS
Exhibit A Agreement of Merger
Exhibit B Investor Representation Statement
LIST OF EXHIBITS - PAGE 2
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of December 30th, 2003 by and among Invvision Capital, Inc., a
Nevada corporation ("Acquiror"), Invvision MC, Inc., a Texas corporation
("Merger Sub") and wholly owned subsidiary of Acquiror, Restoration Group
America 2003, Inc., a Texas corporation ("Target"), and the existing
shareholders of Target ("Target Shareholders")..
RECITALS
A. The Boards of Directors of Target, Acquiror and Merger Sub
believe it is in the best interests of their respective companies and the
shareholders of their respective companies that Target and Merger Sub combine
into a single company through the statutory merger of Merger Sub with and into
Target (the "Merger") and, in furtherance thereof, have approved the Merger.
B. Pursuant to the Merger, among other things, the outstanding
shares of Target common stock, $0.001 par value ("Target Common Stock"), shall
be converted into the right to receive the Merger Consideration (as defined in
Section 2.6(a)) upon the terms and subject to the conditions set forth herein.
C. Target, Acquiror and Merger Sub desire to make certain
representations and warranties and other agreements in connection with the
Merger.
D. The parties intend, by executing this Agreement, to adopt a
plan of reorganization within the meaning of Section 368 of the internal Revenue
Code of 1986 as amended (the "Code"), and to cause the Merger to qualify as a
reorganization under the provisions of Section 368(a of the Code.
NOW, THEREFORE, in consideration of the covenants and representations
set forth herein, and for other good and valuable consideration, the parties
agree as follows:
1. DEFINITIONS.
1.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Acquiror" has the meaning set forth in the introductory
paragraph.
"Acquiror Common Stock" has the meaning set forth in Section
2.6(a).
"Acquiror Disclosure Schedule" has the meaning set forth in
Section 4.
"Acquiror Financial Statements" has the meaning set forth in
Section 4.3.
"Acquiror Indemnified Person" and "Acquiror Indemnified
Persons" have the meanings set forth in Section 9.2(b).
"Acquiror Indemnitee" has the meaning set forth in Section
6.17(f).
"Acquiror SEC Documents" has the meaning set forth in Section
4.3.
"Acquisition Proposal" has the meaning set forth in Section
5.2.
"Agreement of Merger" has the meaning set forth in Section
2.1.
"Average Closing Price" has the meaning set forth in Section
2.6(g).
"CERCLA" has the meaning set forth in Section 3.20(a)(i).
"Certificates" has the meaning set forth in Section 2.7(c).
"Closing" has the meaning set forth in Section 2.2.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 1
"Closing Date" has the meaning set forth in Section 2.2.
"COBRA" has the meaning set forth in Section 3.22(e).
"Code" has the meaning set forth in Recital D.
"Confidential Information" has the meaning set forth in
Section 3.10(i).
"Confidentiality Agreement" has the meaning set forth in
Section 6.5.
"Copyrights" has the meaning set forth in Section 3.
10(a)(iii).
"Damages" has the meaning set forth, in Section 9.2(b).
"Dissenting Shares" has the meaning set forth in Section
2.6(h).
"Dissenting Shareholder" has the meaning set forth in Section
2.6(h).
"Effective Time" has the meaning set forth in Section 2.2.
"Environmental Laws" has the meaning set forth in Section
3.20(a)(i).
"ERISA" has the meaning set forth in Section 3.22(a).
"ERISA Affiliate" has the meaning set forth in Section
3.22(a).
"Exchange Act" has the meaning set forth in Section 4.3.
"Exchange Agent" has the meaning set forth in Section 2.7(a).
"Exchange Ratio" has the meaning set forth in Section 2.6(a).
"Governmental Entity" has the meaning set forth in Section
3.2.
"Hazardous Materials" has the meaning set forth in Section
3.20(a)(ii).
"HIPAA" has the meaning set forth in Section 3.22(e).
"Holder" has the meaning set forth in Section 6.17(a).
"Holder Indemnitee" has the meaning set forth in Section
6.17(e).
"HSR" has the meaning set forth in Section 3.2.
"Indemnified Person" has the meaning set forth in Section
6.17(g).
"Indemnifying Person" has the meaning set forth in Section
6.17(g).
"Individuals" has the meaning set forth in Section
3.27(a)(ii).
"Intellectual Property" has the meaning set forth in Section
3.10(a).
"Issued Patents" has the meaning set forth in Section 3.
10(a)(i).
"JAMS" has the meaning set forth in Section 9.7(a).
"Limitation" has the meaning set forth in Section 9.2(d).
"Material" has the meaning set forth in Section 10.2.
"Material Adverse Effect" has the meaning set forth in Section
10.2.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 2
"Material Contract" has the meaning set forth in Section 3.14.
"Merger" has the meaning set forth in Recital A.
"Merger Consideration" has the meaning set forth in Section
2.6(a).
"Merger Sub" has the meaning set forth in the introductory
paragraph.
"NASD" has the meaning set forth in Section 4.2.
"Officer's Certificate" has the meaning set forth in Section
9.4.
"Patent Applications" has the meaning set forth in Section
3.10(a)(ii).
"Patents" has the meaning set forth in Section 3.10(a)(ii).
"Privacy Statements" has the meaning set forth in Section
3.27(a)(ii).
"Registrable Securities" has the meaning set forth in Section
6.17(a).
"Registration Statement" has the meaning set forth in Section
6.17(a).
"Release Date" has the meaning set forth in Section 9.3(b).
"Requested Confidential Exhibits" has the meaning set forth in
Section 4.3.
"Resumption Notice" has the meaning set forth in Section
6.17(c).
"RCRA" has the meaning set forth in Section 3.20(a)(i).
"Returns" has the meaning set forth in Section 3.21(b).
"SEC" has the meaning set forth in Section 4.2.
"Securities Act" has the meaning set forth in Section 2.6(i).
"Subsidiary" has the meaning set forth in Section 10.2.
"Surviving Corporation" has the meaning set forth in Section
2.1.
"Suspension Notice" has the meaning set forth in Section
6.17(c).
"Suspension Right" has the meaning set forth in Section
6.17(c).
"Target" has the meaning set forth in the introductory
paragraph.
"Target Balance Sheet" has the meaning set forth in Section
3.7.
"Target Balance Sheet Date" has the meaning set forth in
Section 3.6.
"Target Capital Stock" has the meaning set forth in Section
2.6(b).
"Target Common Stock" has the meaning set forth in Recital B.
"Target Disclosure Schedule" has the meaning set forth in
Section 3.
"Target Employee Plans" has the meaning set forth in Section
3.22(a).
"Target Financial Statements" has the meaning set forth in
Section 3.4.
"Target International Employee Plans" has the meaning set
forth in Section 3.22(a).
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 3
"Target Intellectual Property" has the meaning set forth in
Section 3.10(c).
"Target Options" has the meaning set forth in Section 2.6(c).
"Target Products" has the meaning set forth in Section
3.10(c)(ii).
"Target Sites" has the meaning set forth in Section
3.27(a)(i).
"Target Warrants" has the meaning set forth in Section 2.6(d).
"Target Software" has the meaning set forth in Section
3.10(k).
"Target's Current Facilities" has the meaning set forth in
Section 3.20(b).
"Target's Facilities" has the meaning set forth in Section
3.20(b).
Tax" and "Taxes" have the meanings set forth in Section 3.2
1(a).
"Termination Date" has the meaning set forth in Section
9.2(a).
"Terms and Conditions" has the meaning set forth in Section
3.27(a)(iii).
"Texas Law" has the meaning set forth in Section 2.1.
"Third Party Intellectual Property" has the meaning set forth
in Section 3.10(d).
"Trademarks" has the meaning set forth in Section 3.10(a)(iv).
"U.S. Person" has the meaning set forth in Section 7.2(k).
2. THE MERGER.
2.1 The Merger. At the Effective Time and subject to and upon the
terms and conditions of this Agreement, the Agreement of Merger attached hereto
as Exhibit A (the "Agreement of Merger") and the applicable provisions of the
Texas Business Corporations Act ("Texas Law"). Merger Sub shall be merged with
and into Target, the separate corporate existence of Merger Sub shall cease and
Target shall continue as the surviving corporation (the "Surviving
Corporation").
2.2 Closing; Effective Time. The closing of the transactions
contemplated hereby (the "Closing") shall take place as soon as practicable, but
no later than two (2) business days, after the satisfaction or waiver of each of
the conditions set forth in Section 7 hereof, or at such other time as the
parties hereto agree (the "Closing Date"). The Closing shall take place at the
offices of Gardere Xxxxx Xxxxxx, LLP, 3000 Thanksgiving Tower, 0000 Xxx Xxxxxx,
Xxxxxx, Xxxxx 00000, or at such other location as the parties hereto agree. In
connection with the Closing, the parties hereto shall cause the Merger to be
consummated by filing the Agreement of Merger, together with any required
certificates, with the Secretary of State of the State of Texas, in accordance
with the relevant provisions of Texas Law (the time of such filing being the
"Effective Time").
2.3 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in this Agreement, the Agreement of Merger and the
applicable provisions of Texas Law. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, all the property, rights,
privileges, powers and franchises of Target and Merger Sub shall vest in the
Surviving Corporation, and all debts, liabilities and duties of Target and
Merger Sub shall become the debts, liabilities and duties of the Surviving
Corporation.
2.4 Articles of Incorporation; Bylaws.
(a) The Articles of the Target, as in effect immediately
prior the Effective Time, shall be the Bylaws of the Surviving
Corporation until thereafter amended.
(b) The Bylaws of Target, as in effect immediately prior
to the Effective Time, shall be the Bylaws of the Surviving Corporation
until thereafter amended.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 4
2.5 Directors and Officers. At the Effective Time, the directors
and officers of Merger Sub immediately prior to the Effective Time shall be the
directors and officers of the Surviving Corporation, to serve until their
respective successors are duly elected or appointed and qualified.
2.6 Effect on Capital Stock. At the Effective Time, by virtue of
the Merger and without any action on the part of Merger Sub, Target or the
holders of any of the following securities:
(a) Conversion of Target Capital Stock. Each share of
Target Common Stock issued and outstanding immediately prior to the
Effective Time shall be converted and exchanged, without any action on
the part of the holders thereof, into the right to receive the
following (the "Merger Consideration"): 100,000 shares (the "Exchange
Ratio") of validly issued, fully paid and nonassessable shares of the
common stock, par value, of Acquiror ("Acquiror Common Stock") as
follows: i) 60,000 shares upon the Effective Time; and ii) 20,000
shares upon Acquiror's receipt of Audit results of the Target; and iii)
20,000 shares upon Acquiror's receipt of a Fairness Opinion relating to
this transaction. Should either the Audit or the Fairness Opinion
describe a valuation of the Target of less than $1,900,000, then the
Parties shall negotiate a reasonable reduction in the Merger
Consideration.
(b) Cancellation of Target Capital Stock Owned by
Acquiror. At the Effective Time, each share of Target Common Stock and
Target Preferred Stock (collectively, "Target Capital Stock") owned by
Acquiror or any direct or indirect wholly owned subsidiary of Acquiror
immediately prior to the Effective Time shall be cancelled and
extinguished without any conversion thereof.
(c) Capital Stock of Merger Sub. At the Effective Time,
each share of common stock of Merger Sub issued and outstanding
immediately prior to the Effective Time shall be converted into and
exchanged for one validly issued, fully paid and nonassessable share of
common stock of the Surviving Corporation. Each stock certificate of
Merger Sub evidencing ownership of any such shares shall continue to
evidence ownership of such shares of capital stock of the Surviving
Corporation.
(d) Adjustments to Exchange Ratio. The Exchange Ratio
shall be adjusted to reflect fully the effect of any stock split,
reverse split, stock dividend (including any dividend or distribution
of securities convertible into Acquiror Common Stock or Target Common
Stock), reorganization, recapitalization or other like change with
respect to Acquiror Common Stock or Target Common Stock occurring after
the date hereof and prior to the Effective Time.
(e) Certificate Legends. The shares of Acquiror Common
Stock to be issued pursuant to this Section 2.6 shall not have been
registered and shall be characterized as "restricted securities" under
the federal securities laws, and under such laws such shares may be
resold without registration under the Securities Act of 1933, as
amended (the "Securities Act"), only in certain limited circumstances.
Each certificate evidencing shares of Acquiror Common Stock to be
issued pursuant to this Section 2.6 shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933. SUCH SHARES MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
WITHOUT AN EXEMPTION UNDER THE SECURITIES ACT OR AN OPINION OF
LEGAL COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED."
and any legends required by applicable state securities laws.
2.7 Surrender of Certificates.
(a) Exchange Agent. Signature Stock Transfer Company of
Plano, Texas shall act as exchange agent (the "Exchange Agent") in the
Merger.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 5
(b) Acquiror to Provide Common Stock. Promptly after the
Effective Time and as soon as the Acquiror's Amended and Restated
Articles of Incorporation have been declared effective, Acquiror shall
supply or cause to be supplied to the Exchange Agent for exchange in
accordance with this Section 2 through such reasonable procedures as
Acquiror may adopt (i) certificates evidencing the shares of Acquiror
Common Stock in exchange for shares of Target Capital Stock outstanding
immediately prior to the Effective Time.
(c) Exchange Procedures. Promptly after the Effective
Time and as soon as the Acquiror's Amended and Restated Articles of
Incorporation have been declared effective, the Surviving Corporation
shall cause to be mailed to each holder of record of a certificate or
certificates (the "Certificates") that immediately prior to the
Effective Time represented outstanding shares of Target Common Stock,
whose shares were converted into the right to receive shares of
Acquiror Common Stock (i) a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon receipt of the Certificates by the
Exchange Agent, and shall be in such form and have such other
provisions as Acquiror may reasonably specify); (ii) such other
customary documents as may be required pursuant to such instructions;
and (iii) instructions for use in effecting the surrender of the
Certificates in exchange for certificates representing shares of
Acquiror Common Stock. Upon surrender of a Certificate for cancellation
to the Exchange Agent or to such other agent or agents as may be
appointed by Acquiror, together with such letter of transmittal and
other documents, duly completed and validly executed in accordance with
the instructions thereto, the holder of such Certificate shall be
entitled to receive in exchange therefore (i) a certificate
representing the number of whole shares of Acquiror Common Stock and
the Certificate so surrendered shall forthwith be canceled. Until so
surrendered, each outstanding Certificate that prior to the Effective
Time represented shares of Target Common Stock will be deemed from and
after the Effective Time, for all corporate purposes other than the
payment of dividends, to evidence the ownership of the number of full
shares of Acquiror Common Stock into which such shares of Target Common
Stock shall have been so converted.
(d) Transfers of Ownership. At the Effective Time, the
stock transfer books of Target shall be closed, and there shall be no
further registration of transfers of Target Common Stock or Target
Preferred Stock thereafter on the records of Target. If any certificate
for shares of Acquiror Common Stock is to be issued in a name other
than that in which the Certificate surrendered in exchange therefor is
registered, it will be a condition of the issuance thereof that the
Certificate so surrendered will be properly endorsed and otherwise in
proper form for transfer and that the person requesting such exchange
will have paid to Acquiror or any agent designated by it any transfer
or other taxes required by reason of the issuance of a certificate for
shares of Acquiror Common Stock in any name other than that of the
registered holder of the Certificate surrendered, or established to the
satisfaction of Acquiror or any agent designated by it that such tax
has been paid or is not payable.
(e) No Liability. Notwithstanding anything to the
contrary in this Section, none of the Exchange Agent, the Surviving
Corporation or any party hereto shall be liable to any person for any
amount properly paid to a public official pursuant to any applicable
abandoned property, escheat or similar law.
2.8 No Further Ownership Rights in Target Capital Stock. The
Merger Consideration delivered upon the surrender for exchange of shares of
Target Capital Stock in accordance with the terms hereof (including any
dividends, distributions or cash paid in lieu of fractional shares) shall be
deemed to have been issued in full satisfaction of all rights pertaining to such
shares of Target Capital Stock, and there shall be no further registration of
transfers on the records of the Surviving Corporation of shares of Target
Capital Stock which were outstanding immediately prior to the Effective Time.
If, after the Effective Time, Certificates are presented to the Surviving
Corporation for any reason, they shall be canceled and exchanged as provided in
this Section 2.
2.9 Lost, Stolen or Destroyed Certificates. In the event any
Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall
issue in exchange for such lost, stolen or destroyed Certificates, upon the
making of an affidavit of that fact by the holder thereof such Merger
Consideration; provided, however, that Acquiror may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 6
stolen or destroyed Certificates to deliver a bond in such sum as it may
reasonably direct as indemnity against any claim that may be made against
Acquiror, the Surviving Corporation or the Exchange Agent with respect to the
Certificates alleged to have been lost, stolen or destroyed.
2.10 Tax Consequences. It is intended by the parties hereto that
the Merger shall constitute a reorganization within the meaning of Section
368(a) of the Code.
2.11 Taking of Necessary Action; Further Action. Each of Acquiror,
Merger Sub and Target will take all such reasonable and lawful action as may be
necessary or desirable in order to effectuate the Merger in accordance with this
Agreement as promptly as possible. If, at any time after the Effective Time, any
further action is necessary or desirable to carry out the purposes of this
Agreement and to vest the Surviving Corporation with full right, title and
possession to all assets, property, rights, privileges, powers and franchises of
Target and Merger Sub, the officers and directors of Target and Merger Sub are
fully authorized in the name of their respective corporations or otherwise to
take, and will take, all such lawful and necessary action, so long as such
action is not inconsistent with this Agreement..
2.12 Lock-up.
(a) Applicability. In the event of a firmly underwritten
public offering of shares or other equity interest of the Company
registered under the Securities Act by an investment bank resulting in
at least $10 million in net proceeds (after underwriting discount) to
the Company (a "Public Offering"), the Target Shareholders agree that
for a period of 180 days commencing on the effective date of the
registration statement filed with the SEC under the Securities Act
relating to the Public Offering, the Target Shareholders will not
offer, sell, contract to sell, grant any option for the sale of, or
otherwise dispose of, directly or indirectly, any of the Acquiror
Common Stock, any securities which are convertible into the Acquiror
Common Stock, or exercisable or exchangeable for any other securities
of the Acquiror, including, without limitation, any Acquiror Common
Stock or other equity interests issuable pursuant to the terms of any
employee stock options. In order to enable the Company to enforce the
aforesaid restrictions on transfer, the Target Shareholders hereby
agree that the Acquiror may impose stop-transfer instructions with
respect to the securities of the Acquiror owned beneficially or of
record by the Target Shareholders until the end of such six month
period.
(b) Extension of Lock-Up. Furthermore, the National
Association of Securities Dealers (the "NASD"), or its affiliates
thereof, or other state or federal regulatory authorities may require
that such 180 day period be extended in connection with the Public
Offering. Accordingly, the Target Shareholders agree that officers of
the Acquiror may execute all agreements and other documents, in their
sole and absolute discretion, in the name of, and on behalf of, the
Target Shareholders, to increase the term of such restriction on resale
to the minimum term required by the NASD, federal or state securities
authorities, or any of their respective affiliates, without prior
notice to, or further consent by, the Target Shareholder. In addition,
the Target Shareholders agree that officers of the Acquiror may, at
their sole discretion, increase the term of such restriction on resale
should the necessity arise or the managing underwriter of the Public
Offering request such an increase in term. Each of the Target
Shareholders hereby irrevocably constitutes and appoints Xxxxxx X. Xxx,
acting singly, with full power of substitution, the true and lawful
agent and attorney-in-fact of the Target Shareholders, with full power
and authority in the Target Shareholders' name(s), and stead, to
increase the term of such restriction on resale as aforesaid.
3. REPRESENTATIONS AND WARRANTIES OF TARGET.
3.1 Organization, Standing and Power. Target is a corporation duly
organized, validly existing and in good standing under the laws of the state of
Texas. Target has the corporate power to own its properties and to carry on its
business as now being conducted and as proposed to be conducted and is duly
qualified to do business and is in good standing in each jurisdiction in which
the failure to be so qualified and in good standing could reasonably be expected
to have a Material Adverse Effect on Target. Target has delivered a true and
correct copy of the Articles of Incorporation and Bylaws or other charter
documents, as applicable, of Target, each as amended to date, to Acquiror.
Target is not in violation of any of the provisions of its Articles of
Incorporation or Bylaws or equivalent organizational documents.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 7
3.2 Authority. Target has all requisite corporate power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of Target subject only to the
approval of the Merger by Target's shareholders. The affirmative vote of the
holders of a majority of the shares of Target's Common Stock and Preferred
Stock, voting as separate classes, outstanding on the record date for the
Written Consent of Shareholders relating to this Agreement is the only vote of
the holders of any of Target's Capital Stock necessary under Texas Law to
approve this Agreement and the transactions contemplated hereby. The Board of
Directors of Target has unanimously (a) approved this Agreement and the Merger;
(b) determined that in its opinion the Merger is in the best interests of the
shareholders of Target and is on terms that are fair to such shareholders; and
(c) recommended that the shareholders of Target approve this Agreement and the
Merger. This Agreement has been duly executed and delivered by Target and
constitutes the valid and binding obligation of Target enforceable against
Target in accordance with its terms, except that such enforceability may be
limited by bankruptcy, insolvency, moratorium or other similar laws affecting or
relating to creditors' rights generally, and is subject to general principles of
equity. The execution and delivery of this Agreement by Target does not, and the
consummation of the transactions contemplated hereby will not, conflict with, or
result in any violation of, or default under (with or without notice or lapse of
time, or both), or give rise to a right of termination, cancellation or
acceleration of any material obligation or loss of any material benefit under
(a) any provision of the Articles of Incorporation or Bylaws of Target, as
amended; or (b) any mortgage, indenture, lease, contract or other agreement or
instrument, permit, concession, franchise, license, judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to Target or any of their
properties or assets, in the case of clause (b), except for such conflicts,
violations, defaults, rights of termination, cancellation or acceleration as
could not individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect on Target. No consent, approval, order or authorization
of, or registration, declaration or filing with, any court, administrative
agency or commission or other governmental authority or instrumentality
("Governmental Entity") is required by or with respect to Target or its
Subsidiaries in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby, except for (a) the
filing of the Agreement of Merger, together with the required officers'
certificates, and the filing of the Articles of Merger, each as provided in
Section 2.2; (b) filings required under Regulation D of the Securities Act of
1933; (c) such consents, approvals, orders, authorizations, registrations,
declarations and filings as may be required under applicable state securities
laws and the securities laws of any foreign country; (d) such filings as may be
required under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended ("HSR"); and (e) such other consents, authorizations, filings, approvals
and registrations which, if not obtained or made, could not be reasonably
expected to have a Material Adverse Effect on Target and could not reasonably be
expected to prevent, or materially alter or delay, any of the transactions
contemplated by this Agreement.
3.3 Governmental Authorization. Target has obtained each federal,
state, county, local or foreign governmental consent, license, permit, grant, or
other authorization of a Governmental Entity (a) pursuant to which Target
currently operates or holds any interest in any of its properties; or (b) that
is required for the operation of Target's business or the holding of any such
interest and all of such authorizations are in full force and effect except
where the failure to obtain or have any such authorizations could not reasonably
be expected to have a Material Adverse Effect on Target.
3.4 Financial Statements. Target has delivered to Acquiror its
audited financial statements for each of the fiscal years ended December 31,
2002 and December 31, 2001, respectively, and its unaudited financial statements
(balance sheet, statement of operations and statement of cash flows) on a
consolidated basis as at and for the nine-month period ended September 30, 2003
(collectively, the "Target Financial Statements"). The Target Financial
Statements have been prepared in accordance with generally accepted accounting
principles (except as disclosed in the notes thereto and except that the
unaudited financial statements do not contain footnotes and are subject to
normal year-end audit adjustments) applied on a consistent basis throughout the
periods indicated and with each other. The Target Financial Statements fairly
present the consolidated financial condition and operating results of Target as
of the dates, and for the periods, indicated therein, subject to normal year-end
audit adjustments and the absence of footnotes in the case of the unaudited
Target Financial Statements. Target maintains and will continue to maintain a
standard system of accounting established and administered in accordance with
generally accepted accounting principles.
3.5 Capital Structure. The authorized capital stock of Target
consists of 30,000,000 shares of Target Common Stock, of which there were issued
and outstanding as of the close of business on December 29th. 2003, 1,000
shares, and 20,000,000 shares of Target Preferred Stock. All outstanding shares
of Target Common Stock
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 8
and Target Preferred Stock are duly authorized, validly issued, fully paid and
non-assessable and are free of any lien or encumbrances other than any liens or
encumbrances created by or imposed upon the holders thereof, and are not subject
to preemptive rights or rights of first refusal created by statute, the Articles
of Incorporation or Bylaws of Target or any agreement to which Target is a party
or by which it is bound.
3.6 Litigation. There is no private or governmental action, suit,
proceeding, claim, arbitration or investigation pending before any Governmental
Entity, foreign or domestic, or, to the knowledge of Target, threatened against
Target or any of its properties or any of its officers or directors (in their
capacities as such) that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect on Target. There is no judgment,
decree or order against Target, or, to the knowledge of Target, any of its
respective directors or officers (in their capacities as such), that could
prevent, enjoin, or materially alter or delay any of the transactions
contemplated by this Agreement, or that could reasonably be expected to have a
Material Adverse Effect on Target. All litigation to which Target is a party
(or, to the knowledge of Target, threatened to become a party) is described in
Section 3.8 of the Target Disclosure Schedule.
3.7 Restrictions on Business Activities. There is no agreement,
judgment, injunction, order or decree binding upon Target that has or could
reasonably be expected to have the effect of prohibiting or materially impairing
any current or future business practice of Target, any acquisition of property
by Target or the conduct of business by Target as currently conducted or as
proposed to be conducted by Target.
3.8 Intellectual Property.
(a) For purposes of this Agreement, "Intellectual
Property" means:
(i) all issued patents, reissued or reexamined
patents, revivals of patents, utility models, certificates of
invention, registrations of patents and extensions thereof,
regardless of country or formal name (collectively, "Issued
Patents");
(ii) all published or unpublished nonprovisional
and provisional patent applications, reexamination
proceedings, invention disclosures and records of invention
(collectively "Patent Applications" and, with the Issued
Patents, the "Patents");
(iii) all copyrights, copyrightable works,
semiconductor topography and mask work rights, including all
rights of authorship, use, publication, reproduction,
distribution, performance transformation, moral rights and
rights of ownership of copyrightable works, semiconductor
topography works and mask works, and all rights to register
and obtain renewals and extensions of registrations, together
with all other interests accruing by reason of international
copyright, semiconductor topography and mask work conventions
(collectively, "Copyrights");
(iv) trademarks, registered trademarks,
applications for registration of trademarks, service marks,
registered service marks, applications for registration of
service marks, trade names, registered trade names and
applications for registrations of trade names (collectively,
"Trademarks") and domain name registrations;
(v) all technology, ideas, inventions, designs,
proprietary information, manufacturing and operating
specifications, know-how, formulae, trade secrets, technical
data, computer programs, hardware, software and processes; and
(vi) all other intangible assets, properties and
rights (whether or not appropriate steps have been taken to
protect, under applicable law, such other intangible assets,
properties or rights).
(b) Target owns and has good and marketable title to, or
possess legally enforceable rights to use, all Intellectual Property
used or currently proposed to be used in the business of Target as
currently conducted or as proposed to be conducted by Target. The
Intellectual Property owned by and licensed to Target collectively
constitutes all of the Intellectual Property necessary to enable Target
to conduct its business as such business is currently being conducted.
No current or former officer, director, stockholder, employee,
consultant or independent
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 9
contractor has any right, claim or interest in or with respect to any
Target Intellectual Property (as defined in Section 3.10(c) below).
(c) There is no unauthorized use, disclosure,
infringement or misappropriation of any Target Intellectual Property,
including any Third Party Intellectual Property, by any third party,
including any employee or former employee of Target. Target has not
entered into any agreement to indemnify any other person against any
charge of infringement of any Intellectual Property, other than
indemnification provisions contained in standard sales or agreements to
end users arising in the ordinary course of business, the forms of
which have been delivered to Acquiror or its counsel. There are no
royalties, fees or other payments payable by Target to any Person by
reason of the ownership, use, sale or disposition of Intellectual
Property.
(d) Target is not in breach of any license, sublicense or
other agreement relating to the Target Intellectual Property or Third
Party Intellectual Property. Neither the execution, delivery or
performance of this Agreement or any ancillary agreement contemplated
hereby nor the consummation of the Merger or any of the transactions
contemplated by this Agreement will contravene, conflict with or result
in any limitation on the Acquiror's right to own or use any Target
Intellectual Property, including any Third Party Intellectual Property.
(e) All Patents, registered Trademarks and registered
Copyrights held by Target are valid and subsisting. All maintenance and
annual fees have been fully paid and all fees paid during prosecution
and after issuance of any Patent comprising or relating to such item
have been paid in the correct entity status amounts. Target is not
infringing, misappropriating or making unlawful use of, or received any
notice or other communication (in writing or otherwise) of any actual,
alleged, possible or potential infringement, misappropriation or
unlawful use of any proprietary asset owned or used by any third party.
There is no proceeding pending or threatened, nor has any claim or
demand been made that challenges the legality, validity, enforceability
or ownership of any item of Target Intellectual Property or Third Party
Intellectual Property or alleges a claim of infringement of any
Patents, Copyrights or Trademarks, or violation of any trade secret or
other proprietary right of any third party. Target has not brought a
proceeding alleging infringement of Target Intellectual Property or
breach of any license or agreement involving Intellectual Property
against any third party.
(f) No product liability claims have been communicated in
writing to or, to Target's knowledge, threatened against Target.
(g) Target is not subject to any proceeding or
outstanding decree, order, judgment or stipulation restricting in any
manner the use, transfer or licensing of any Target Intellectual
Property by Target, or which may affect the validity, use or
enforceability of such Target Intellectual Property. Target is not
subject to any agreement that restricts in any material respect the
use, transfer, delivery or licensing by Target of the Target
Intellectual Property or Target Products.
3.9 Minute Books. The minute book of Target contains a materially
complete and accurate summary of all meetings of directors and shareholders or
actions by written consent since the time of incorporation of Target through the
date of this Agreement, and reflect all transactions referred to in such minutes
accurately in all material respects.
3.10 Complete Copies of Materials. Target has delivered or made
available true and complete copies of each document that has been requested by
Acquiror or its counsel in connection with their due diligence review of Target.
3.11 Employee Matters. Target is in compliance with all currently
applicable laws and regulations respecting terms and conditions of employment,
including without limitation applicant and employee background checking,
immigration laws, discrimination laws, verification of employment eligibility,
employee leave laws, classification of workers as employees and independent
contractors, wage and hour laws, and occupational safety and health laws, except
for such noncompliance that could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect on Target. There are
no proceedings pending or, to Target's knowledge,
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 10
reasonably expected or threatened, between Target, on the one hand, and any or
all of its current or former employees, on the other hand, which proceedings
could reasonably be expected to have, a Material Adverse Effect on Target,
including without limitation any claims for actual or alleged harassment or
discrimination based on race, national origin, age, sex, sexual orientation,
religion, disability, or similar tortious conduct, breach of contract, wrongful
termination, defamation, intentional or negligent infliction of emotional
distress, interference with contract or interference with actual or prospective
economic disadvantage. There are no claims pending, or, to Target's knowledge,
reasonably expected or threatened, against Target under any workers'
compensation or long- term disability plan or policy. Target has no material
unsatisfied obligations to any employees, former employees, or qualified
beneficiaries pursuant to COBRA, HIPAA, or any state law governing health care
coverage extension or continuation. Target is not a party to any collective
bargaining agreement or other labor union contract, nor does Target know of any
activities or proceedings of any labor union to organize its employees. Target
has provided all employees with all wages, benefits, relocation benefits, stock
options, bonuses and incentives, and all other compensation that became due and
payable through the date of this Agreement.
3.12 Insurance. Target has policies of insurance and bonds of the
type and in amounts customarily carried by persons conducting businesses or
owning assets similar to those of Target. There is no material claim pending
under any of such policies or bonds as to which coverage has been questioned,
denied or disputed by the underwriters of such policies or bonds. All premiums
due and payable under all such policies and bonds have been paid and Target is
otherwise in compliance in all material respects with the terms of such policies
and bonds. Target has no knowledge of any threatened termination of, or material
premium increase with respect to, any of such policies.
3.13 Compliance With Laws. Target has complied with, is not in
violation of and has not received any notices of violation with respect to, any
federal state, local or foreign statute, law or regulation with respect to the
conduct of its business, or the ownership or operation of its business.
3.14 Brokers' and Finders' Fee. No broker, finder or investment
banker is entitled to brokerage or finders' fees or agents' commissions or
investment bankers' fees or any similar charges in connection with the Merger,
this Agreement or any transaction contemplated hereby.
4. REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND MERGER SUB.
4.1 Organization, Standing and Power. Acquiror is a corporation
duly organized, validly existing and in good standing under the laws of the
state of Nevada and Merger Sub is a corporation duly organized, validly existing
and in good standing under the laws of the state of Texas. Each of Acquiror and
Merger Sub has the corporate power to own its properties and to carry on its
business as now being conducted and as proposed to be conducted and is duly
qualified to do business and is in good standing in each jurisdiction in which
the failure to be so qualified and in good standing could reasonably be expected
to have a Material Adverse Effect on Acquiror. Acquiror has delivered a true and
correct copy of the Certificate of Incorporation and Bylaws or other charter
documents, as applicable, of Acquiror and Merger Sub, each as amended to date,
to Target. Neither Acquiror nor Merger Sub is in violation of any of the
provisions of its Certificate of Incorporation or Bylaws.
4.2 Authority. Acquiror and Merger Sub have all requisite
corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been, or will
have been by the Closing, duly authorized by all necessary corporate action on
the part of Acquiror and Merger Sub. This Agreement has been duly executed and
delivered by Acquiror and Merger Sub and constitutes the valid and binding
obligations of Acquiror and Merger Sub enforceable against Acquiror and Merger
Sub in accordance with its terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or
relating to creditors' rights generally, and subject to general principles of
equity. The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, conflict with, or
result in any violation of, or default under (with or without notice or lapse of
time, or both), or give rise to a right of termination, cancellation or
acceleration of any material obligation or loss of a material benefit under (a)
any provision of the Certificate of Incorporation or Bylaws of Acquiror or any
of its Subsidiaries; or (b) any material mortgage, indenture, lease, contract or
other agreement or instrument, permit, concession, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to
Acquiror or any of its Subsidiaries or their properties or assets in the case of
clause (b), except for such conflicts, violations, defaults, rights of
termination, cancellation or acceleration as could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 11
on Acquiror. No consent, approval, order or authorization of or registration,
declaration or filing with any Governmental Entity is required by or with
respect to Acquiror or any of its Subsidiaries in connection with the execution
and delivery of this Agreement by Acquiror and Merger Sub or the consummation by
Acquiror and Merger Sub of the transactions contemplated hereby, except for (a)
the filing of the Agreement of Merger, together with the required officers'
certificates, and the filing of the Articles of Merger, each as provided in
Section 2.2; (b) filings required under Regulation D of the Securities Act
following the Effective Time; (c) the filing of a Form 8-K with the Securities
and Exchange Commission ("SEC") within 15 days after the Closing Date; (d) such
filings as may be required under applicable state securities laws and the
securities laws of any foreign country; (e) such filings as may be required
under HSR and (f) such other consents, authorizations, filings, approvals and
registrations which, if not obtained or made, could not reasonably be expected
to have a Material Adverse Effect on Acquiror and could not prevent, materially
alter or delay any of the transactions contemplated by this Agreement.
4.3 SEC Documents; Financial Statements. Acquiror has filed each
statement, report, and other filings required to be filed with the SEC by
Acquiror between January 1, 2003, and the date hereof, and prior to the
Effective Time, Acquiror will timely file any additional documents required to
be filed with the SEC by Acquiror prior to the Effective Time (collectively, the
"Acquiror SEC Documents"). In addition, Acquiror has made available to Target
all exhibits to the Acquiror SEC Documents filed prior to the date hereof that
are (a) requested by Target; and (b) not available in complete form through
XXXXX ("Requested Confidential Exhibits") and will promptly make available to
Target all Requested Confidential Exhibits to any additional Acquiror SEC
Documents filed prior to the Effective Time. All documents required to be filed
as exhibits to the Target SEC Documents have been so filed. As of their
respective filing dates, the Acquiror SEC Documents complied in all material
respects with the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the Securities Act and none of the Acquiror SEC
Documents contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they were made,
not misleading, except to the extent corrected by a subsequently filed Acquiror
SEC Document prior to the date hereof. The financial statements of Acquiror,
including the notes thereto, included in the Acquiror SEC Documents (the
"Acquiror Financial Statements"), complied as to form in all material respects
with applicable accounting requirements and with the published rules and
regulations of the SEC with respect thereto as of their respective dates, and
have been prepared in accordance with generally accepted accounting principles
applied on a basis consistent throughout the periods indicated and consistent
with each other (except as may be indicated in the notes thereto or, in the case
of unaudited statements included in Quarterly Reports on Form 10-QSB, as
permitted by Form 10-QSB of the SEC). The Acquiror Financial Statements fairly
present the consolidated financial condition and operating results of Acquiror
and its Subsidiaries at the dates and during the periods indicated therein
(subject, in the case of unaudited statements, to normal, recurring year-end
adjustments). There has been no change in Acquiror accounting policies except as
described in the notes to the Acquiror Financial Statements.
4.4 Capital Structure. The authorized capital stock of Acquiror
consists of 300,000,000 shares of common stock, $.001 par value, and 35,000,000
shares of preferred stock, $.001 par value, of which there were issued and
outstanding as of the close of business on the date hereof, 8,440,040 shares of
Common Stock and no shares of Preferred Stock. All outstanding shares of
Acquiror have been duly authorized, validly issued, fully paid and are
nonassessable. Other than this Agreement, and an outstanding warrant to purchase
up to 2,000,000 shares of Common Stock at $0.50 per share held by Mentors Group,
Inc., there are no other options, warrants, calls, rights, commitments or
agreements of any character to which Acquiror is a party or by which either of
them is bound obligating Acquiror to issue, deliver, sell, repurchase or redeem,
or cause to be issued, delivered, sold, repurchased or redeemed, any shares of
the capital stock of Acquiror or obligating Acquiror to grant, extend or enter
into any such option, warrant, call, right, commitment or agreement.
4.5 Issuance of Shares. The issuance and delivery of the Acquiror
Common Stock as Merger Consideration in accordance with this Agreement shall be,
at or prior to the Effective Time, duly authorized by all necessary corporate
action on the part of Acquiror, and, when issued at the Effective Time as
contemplated hereby, such shares of Acquiror Common Stock will be duly and
validly issued, fully paid and nonassessable. Such Acquiror Common Stock, when
so issued and delivered in accordance with the provisions of this Agreement,
shall be free and clear of all liens and encumbrances and adverse claims, other
than restrictions on transfer created by applicable securities laws and will not
have been issued in violation of their respective properties or any preemptive
rights or rights of first refusal or similar rights.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 12
4.6 Interim Operations of Merger Sub. Merger Sub was formed solely
for the purpose of engaging in the transactions contemplated by this Agreement,
has engaged in no other business activities and has conducted its operations
only as contemplated by this Agreement.
4.7 Representations Complete. None of the representations or
warranties made by Acquiror or Merger Sub herein or in any Schedule hereto,
including the Acquiror Disclosure Schedule, or certificate furnished by Acquiror
or Merger Sub pursuant to this Agreement, or the Acquiror SEC Documents, or any
written statement furnished to Target pursuant hereto or in connection with the
transactions contemplated hereby, when all such documents are read together in
their entirety, contains or will contain at the Effective Time any untrue
statement of a material fact or omits or will omit at the Effective Time to
state any material fact necessary in order to make the statements contained
herein or therein, in the light of the circumstances under which made, not
misleading.
5. CONDUCT PRIOR TO THE EFFECTIVE TIME.
5.1 Conduct of Business of Target. During the period from the date
of this Agreement and continuing until the earlier of the termination of this
Agreement or the Effective Time, Target agrees (except to the extent expressly
contemplated by this Agreement or as consented to in writing by Acquiror): (a)
to carry on its business in the usual regular and ordinary course in
substantially the same manner as heretofore conducted; (b) to pay its debts and
Taxes when due subject (i) to good faith disputes over such debts or Taxes; and
(ii) to Acquiror's consent to the filing of material Tax Returns, if applicable;
(c) to pay or perform other obligations when due; and (d) to use all reasonable
efforts to preserve intact its present business organizations, keep available
the services of its present officers and key employees and preserve its
relationships with customers, suppliers, distributors, licensors, licensees, and
others having business dealings with it, to the end that its goodwill and
ongoing businesses shall be unimpaired at the Effective Time. Target agrees to
promptly notify Acquiror of (a) any event or occurrence not in the ordinary
course of Target's business, and of any event which could reasonably be expected
to have a Material Adverse Effect on Target; and (b) any change in its
capitalization as set forth in Section 3.5. Without limiting the foregoing,
except as expressly contemplated by this Agreement or the Target Disclosure
Schedule, Target shall not do, cause or permit any of the following, without the
prior written consent of Acquiror:
(a) Charter Documents. Cause or permit any amendments to
its Articles of Incorporation or Bylaws;
(b) Dividends; Changes in Capital Stock. Declare or pay
any dividends on or make any other distributions (whether in cash,
stock or property) in respect of any of its capital stock, or split,
combine or reclassify any of its capital stock or issue or authorize
the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock, or repurchase or
otherwise acquire, directly or indirectly, any shares of its capital
stock except from former employees, directors and consultants in
accordance with agreements providing for the repurchase of shares in
connection with any termination of service to it;
(c) Stock Option Plans, Etc. Accelerate, amend or change
the period of exercisability or vesting of options or other rights
granted under its stock plans or authorize cash payments in exchange
for any options or other rights granted under any of such plans;
(d) Issuance of Securities. Issue, deliver or sell or
authorize or propose the issuance, delivery or sale of, or purchase or
propose the purchase of, any shares of its capital stock or securities
convertible into, or subscriptions, rights, warrants or options to
acquire, or other agreements or commitments of any character obligating
it to issue any such shares or other convertible securities other than
the issuance of shares of its Common Stock pursuant to the exercise of
stock options, warrants or other rights therefore outstanding as of the
date of this Agreement;
(e) Intellectual Property. Transfer to any person or
entity any rights to its Intellectual Property;
(f) Exclusive Rights. Enter into or amend any agreements
pursuant to which any other party is granted exclusive marketing or
other exclusive rights of any type or scope with respect to any of
Target Products or Target Intellectual Property;
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 13
(g) Dispositions. Sell, lease, license or otherwise
dispose of or encumber any of its properties or assets that are
material, individually or in the aggregate, to its business, taken as a
whole, other than in the ordinary course of business consistent with
past practice;
(h) Indebtedness. Incur any indebtedness for borrowed
money, or guarantee any such indebtedness, or issue or sell any debt
securities or guaranty any debt securities of others, in excess of
$100,000 in the aggregate;
(i) Agreements. Enter into, terminate or amend, in a
manner that will adversely affect the business of Target, (i) any
agreement involving the obligation to pay or the right to receive
$100,000 or more, (ii) any agreement relating to the license, transfer
or other disposition or acquisition of Intellectual Property rights or
rights to market or sell Target Products or (iii) any other agreement
material to the business or prospects of Target or that is or would be
a Material Contract;
(j) Payment of Obligations. Pay, discharge or satisfy, in
an amount in excess of $100,000 in the aggregate, any claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise) arising other than in the ordinary course of
business, other than the payment, discharge or satisfaction of
liabilities reflected or reserved against in the Target Financial
Statements;
(k) Capital Expenditures. Make any capital expenditures,
capital additions or capital improvements, in excess of $50,000 in the
aggregate;
(l) Insurance. Materially reduce the amount of any
material insurance coverage provided by existing insurance policies;
(m) Termination or Waiver. Terminate or waive any right
of substantial value, other than in the ordinary course of business;
(n) Employee Benefit Plans; New Hires; Pay Increases.
Amend any Target Employee Plan or adopt any plan that would constitute
a Target Employee Plan except in order to comply with applicable laws
or regulations, or hire any new officer-level employee, pay any special
bonus, special remuneration or special noncash benefit (except payments
and benefits made pursuant to written agreements outstanding on the
date hereof), or increase the benefits, salaries or wage rates of its
employees;
(o) Severance Arrangements. Grant or pay any severance or
termination pay or benefits (i) to any director or officer or (ii)
except for payments made pursuant to written agreements outstanding on
the date hereof and disclosed on the Target Disclosure Schedule, to any
other employee;
(p) Lawsuits. Commence a lawsuit other than (i) for the
routine collection of bills, (ii) in such cases where Target in good
faith determines that failure to commence suit would result in the
material impairment of a valuable aspect of Target's business, provided
that it consults with Acquiror prior to the filing of such a suit or
(iii) for a breach of this Agreement;
(q) Acquisitions. Acquire or agree to acquire by merging
with, or by purchasing a substantial portion of the stock or assets of,
or by any other manner, any business or any corporation, partnership,
association or other business organization or division thereof or
otherwise acquire or agree to acquire any assets that are material
individually or in the aggregate, to its business, taken as a whole;
(r) Taxes. Other than in the ordinary course of business,
make or change any material election in respect of Taxes, adopt or
change any accounting method in respect of Taxes, file any material tax
Return or any amendment to a material tax Return, enter into any
closing agreement, settle any material claim or assessment in respect
of Taxes, or consent to any extension or waiver of the limitation
period applicable to any material claim or assessment in respect of
Taxes;
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 14
(s) Revaluation. Revalue any of its assets, including
without limitation writing down the value of inventory or writing off
notes or accounts receivable other than in the ordinary course of
business or as required by changes in generally accepted accounting
principles; or
(t) Other. Take or agree in writing or otherwise to take,
any of the actions described in Sections 5.2(a) through (s) above, or
any action that would cause a material breach of its representations or
warranties contained in this Agreement or prevent it from materially
performing or cause it not to materially perform its covenants
hereunder.
5.2 No Solicitation.
(a) From and after the date of this Agreement until the
Effective Time, Target shall not, directly or indirectly through any
officer, director, employee, representative or agent of Target or
otherwise: (i) solicit, initiate, or encourage any inquiries or
proposals that constitute, or could reasonably be expected to lead to,
a proposal or offer for a merger, consolidation, share exchange,
business combination, sale of all or substantially all assets, sale of
shares of capital stock or similar transactions involving Target other
than the transactions contemplated by this Agreement (any of the
foregoing inquiries or proposals an "Acquisition Proposal"); (ii)
engage or participate in negotiations or discussions concerning, or
provide any non-public information to any person or entity relating to,
any Acquisition Proposal; or (iii) agree to, enter into, accept,
approve or recommend any Acquisition Proposal. Target represents and
warrants that it has the legal right to terminate any pending
discussions or negotiations relating to an Acquisition Proposal without
payment of any fee or other penalty.
(b) Target shall notify Acquiror immediately (and no
later than 24 hours) after receipt by Target (or its advisors) of any
Acquisition Proposal or any request for nonpublic information in
connection with an Acquisition Proposal or for access to the
properties, books or records of Target by any person or entity that
informs Target that it is considering making, or has made, an
Acquisition Proposal. Such notice shall be made orally and in writing
and shall indicate in reasonable detail the identity of the offeror and
the terms and conditions of such proposal, inquiry or contact.
6. ADDITIONAL AGREEMENTS.
6.1 Approval of Shareholders. Target shall promptly after the date
hereof take all action necessary in accordance with Texas Law and its Articles
of Incorporation and Bylaws to obtain the written consent of the Target
shareholders approving the Merger as soon as practicable. Target shall use its
efforts to solicit from shareholders of Target written consents in favor of the
Merger and shall take all other action necessary or advisable to secure the vote
or consent of shareholders required to effect the Merger.
6.2 Sale of Shares Pursuant to Regulation D. The parties hereto
acknowledge and agree that the shares of Acquiror Common Stock issuable to the
Target shareholders pursuant to Section 2.6 hereof shall constitute "restricted
securities" within the Securities Act. The certificates of Acquiror Common Stock
shall bear the legends set forth above. Target will use its best efforts to
cause each Target shareholder to execute and deliver to Acquiror an Investor
Representation Statement in the form attached hereto as Exhibit B. It is
acknowledged and understood that Acquiror is relying on the written
representations made by each shareholder of Target in the Investor
Representation Statements.
6.3 Access to Information.
(a) Target shall afford Acquiror and its accountants,
counsel and other representatives, reasonable access during normal
business hours during the period prior to the Effective Time to (i) all
of Target's properties, personnel, books, contracts, commitments and
records and (ii) all other information concerning the business,
properties and personnel of Target as Acquiror may reasonably request.
Acquiror shall afford Target and its accountants, counsel and other
representatives, reasonable access during normal business hours during
the period prior to the Effective Time to (i) all of Acquiror's
properties, books, contracts,
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 15
commitments and records and (ii) all other information concerning the
business, properties and personnel of Acquiror as Target may reasonably
request.
(b) Subject to compliance with applicable law, from the
date hereof until the Effective Time, each of Acquiror and Target shall
confer on a regular and frequent basis with one or more representatives
of the other party to report operational matters of materiality and the
general status of ongoing operations.
6.4 No information or knowledge obtained in any investigation
pursuant to this Section 6.4 shall affect or be deemed to modify any
representation or warranty contained herein or the conditions to the obligations
of the parties to consummate the Merger.
6.5 Public Disclosure. Unless otherwise permitted by this
Agreement, Acquiror and Target shall consult with each other before issuing any
press release or otherwise making any public statement or making any other
public (or non-confidential) disclosure (whether or not in response to an
inquiry) regarding the terms of this Agreement and the transactions contemplated
hereby, and neither shall issue any such press release or make any such
statement or disclosure without the prior approval of the other (which approval
shall not be unreasonably withheld), except as may be required by law or by
obligations pursuant to any listing agreement with any national securities
exchange or with Nasdaq.
6.6 Regulatory Approval; Further Assurances.
(a) Each party shall use all reasonable efforts to file,
as promptly as practicable after the date of this Agreement, all
notices, reports and other documents required to be filed by such party
with any Governmental Entity with respect to the Merger and the other
transactions contemplated by this Agreement, and to submit promptly any
additional information requested by any such Governmental Entity.
Without limiting the generality of the foregoing, Target and Acquiror
shall, promptly after the date of this Agreement, prepare and file the
notifications required under the HSR Act in connection with the Merger.
Target and Acquiror shall respond as promptly as practicable to (i) any
inquiries or requests received from the Federal Trade Commission or the
Department of Justice for additional information or documentations and
(ii) any inquiries or requests received from any state attorney general
or other Governmental Entity in connection with antitrust or related
matters. Each of Target and Acquiror shall (i) give the other party
prompt notice of the commencement of any Legal Proceeding by or before
any Governmental Entity with respect to the Merger or any of the other
transactions contemplated by this Agreement, (ii) keep the other party
informed as to the status of any such Legal Proceeding and (iii)
promptly inform the other party of any communication to or from the
Federal Trade Commission, the Department of Justice or any other
Governmental Entity regarding the Merger. Target and Acquiror will
consult and cooperate with one another, and will consider in good faith
the views of one another, in connection with any analysis, appearance,
presentation, memorandum, brief, argument, opinion or proposal made or
submitted in connection with any legal proceeding under or relating to
HSR or any other federal or state antitrust or fair trade law. In
addition, except as may be prohibited by any Governmental Entity or by
any legal requirement, in connection with any legal proceeding under or
relating to HSR or any other federal or state antitrust or fair trade
law or any other similar legal proceeding, each of Target and Acquiror
will permit authorized representatives of the other party to be present
at each meeting or conference relating to any such legal proceeding and
to have access to and be consulted in connection with any document,
opinion or proposal made or submitted to any Governmental Entity in
connection with any such legal proceeding.
(b) Subject to Section 6.7(c), Acquiror and Target shall
use all reasonable efforts to take, or cause to be taken, all actions
necessary to effectuate the Merger and make effective the other
transactions contemplated by this Agreement. Without limiting the
generality of the foregoing, but subject to Section 6.7(c), each party
to this Agreement shall: (i) make any filings and give any notices
required to be made and given by such party in connection with the
Merger and the other transactions contemplated by this Agreement; (ii)
use all reasonable efforts to obtain any consent required to be
obtained (pursuant to any applicable legal requirement or contract, or
otherwise) by such party in connection with the Merger or any of the
other
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 16
transactions contemplated by this Agreement; and (iii) use all
reasonable efforts to lift any restraint, injunction or other legal bar
to the Merger. Each party shall promptly deliver to the other a copy of
each such filing made, each such notice given and each such consent
obtained by such party during the period prior to the Effective Time.
Each party, at the reasonable request of the other party, shall execute
and deliver such other instruments and do and perform such other acts
and things as may be necessary or desirable for effecting completely
the consummation of this Agreement and the transactions contemplated
hereby.
(c) Notwithstanding anything to the contrary contained in
this Agreement, Acquiror shall not have any obligation under this
Agreement to: (i) dispose or transfer or cause any of its Subsidiaries
to dispose of or transfer any assets, or to commit to cause Target to
dispose of any assets; (ii) discontinue or cause any of its
Subsidiaries to discontinue offering any product or service, or commit
to cause Target to discontinue offering any product or service; (iii)
license or otherwise make available, or cause any of its Subsidiaries
to license or otherwise make available, to any person, any technology,
software or other Intellectual Property, or commit to cause Target to
license or otherwise make available to any person any technology,
software or other Intellectual Property; (iv) hold separate or cause
any of its Subsidiaries to hold separate any assets or operations
(either before or after the Closing Date), or commit to cause Target to
hold separate any assets or operations; or (v) make or cause any of its
Subsidiaries to make any commitment (to any Governmental Entity or
otherwise) regarding its future operations or the future operations of
Target.
6.7 Blue Sky Laws. Acquiror shall take such steps as may be
necessary to comply with the securities and blue sky laws of all jurisdictions
applicable to the issuance of the Acquiror Common Stock in connection with the
Merger. Target shall use its commercially reasonable efforts to assist Acquiror
to comply with the securities and blue sky laws of all jurisdictions applicable
to the issuance of Acquiror Common Stock in connection with the Merger.
6.8 Nonaccredited Stockholders. Prior to the Effective Time,
Target shall not take any action, including the granting of employee stock
options, that would cause the number of Target shareholders who are not
"accredited investors" pursuant to Regulation D promulgated under the Securities
Act to increase to more than 35 during the term of this Agreement.
6.9 Reorganization. Acquiror and Target shall each use its best
efforts to cause the business combination to be effected by the Merger to be
qualified as a "reorganization" described in Section 368 of the Code.
6.10 Expenses. Whether or not the Merger is consummated, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expense.
7. CONDITIONS TO THE MERGER.
7.1 Conditions to Obligations of Each Party to Effect the Merger.
The respective obligations of each party to this Agreement to consummate and
effect this Agreement and the transactions contemplated hereby shall be subject
to the satisfaction at or prior to the Effective Time of each of the following
conditions, any of which may be waived, in writing, by agreement of all the
parties hereto:
(a) Shareholder Approval. This Agreement and the Merger
shall be approved by the shareholders of Target by the requisite vote
under Texas Law and Target's Articles of Incorporation.
(b) No Injunctions or Restraints; Illegality. No
temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other
legal or regulatory restraint or prohibition preventing the
consummation of the Merger shall be and remain in effect, nor shall any
proceeding brought by an administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, seeking
any of the foregoing be pending, which could reasonably be expected to
have a Material Adverse Effect on Acquiror, either individually or
combined with the Surviving Corporation after the Effective Time, nor
shall there be any action taken, or any statute, rule, regulation or
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 17
order enacted, entered, enforced or deemed applicable to the Merger,
which makes the consummation of the Merger illegal.
(c) Governmental Approval. Acquiror, Target and Merger
Sub shall have timely obtained from each Governmental Entity all
approvals, waivers and consents, necessary for consummation of or in
connection with the Merger and the several transactions contemplated
hereby, including such approvals, waivers and consents as may be
required under the Securities Act, under state blue sky laws and under
HSR, other than filings and approvals relating to the Merger or
affecting Acquiror's ownership of Target or any of its properties if
failure to obtain such approval, waiver or consent could not reasonably
be expected to have a Material Adverse Effect on Acquiror after the
Effective Time.
7.2 Additional Conditions to the Obligations of Acquiror and
Merger Sub. The obligations of Acquiror and Merger Sub to consummate and effect
this Agreement and the transactions contemplated hereby shall be subject to the
satisfaction at or prior to the Effective Time of each of the following
conditions, any of which may be waived, in writing, by Acquiror:
(a) Representations, Warranties and Covenants. (i) The
representations and warranties of Target in this Agreement shall be
true and correct in all material respects, without regard to any
qualification as to materiality contained in such representation or
warranty on and as of the date of this Agreement and on and as of the
Closing as though such representations and warranties were made on and
as of such time (except for such representations and warranties that
speak specifically as of the date hereof or as of another date, which
shall be true and correct as of such date).
(b) Performance of Obligations. Target shall have
performed and complied in all material respects with all covenants,
obligations and conditions of this Agreement required to be performed
and complied with by it as of the Closing.
(c) Third Party Consents. All consents or approvals
required to be obtained in connection with the Merger and the other
transactions contemplated by this Agreement shall have been obtained
and shall be in full force and effect.
(d) No Governmental Litigation. There shall not be
pending or threatened any legal proceeding in which a Governmental
Entity is or is threatened to become a party or is otherwise involved,
and neither Acquiror nor Target shall have received any communication
from any Governmental Entity in which such Governmental Entity
indicates the probability of commencing any legal proceeding or taking
any other action: (i) challenging or seeking to restrain or prohibit
the consummation of the Merger; (ii) relating to the Merger and seeking
to obtain from Acquiror or any of its Subsidiaries, or Target, any
damages or other relief that would be material to Acquiror; (iii)
seeking to prohibit or limit in any material respect Acquiror's ability
to vote, receive dividends with respect to or otherwise exercise
ownership rights with respect to the stock of Target; or (iv) that
would materially and adversely affect the right of Acquiror or Target
to own the assets or operate the business of Target.
(e) No Other Litigation. There shall not be pending any
legal proceeding: (i) challenging or seeking to restrain or prohibit
the consummation of the Merger or any of the other transactions
contemplated by this Agreement; (ii) relating to the Merger and seeking
to obtain from Acquiror or any of its Subsidiaries, or Target, any
damages or other relief that would be material to Acquiror; (iii)
seeking to prohibit or limit in any material respect Acquiror's ability
to vote, receive dividends with respect to or otherwise exercise
ownership rights with respect to any of Target Capital Stock; or (iv)
which would affect adversely the right of Acquiror or Target to own the
assets or operate the business of Target.
(f) Employees. As of the Closing, there shall be
sufficient Target employees, in Acquiror's reasonable good faith
determination, to permit Acquiror to continue to operate the business
of Target in the ordinary course of business following the Closing.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 18
(g) No Material Adverse Change. There shall not have
occurred any change in the financial condition, properties, assets
(including intangible assets), liabilities, business, operations,
results of operations or prospects of Target, taken as a whole, that,
individually or in the aggregate, could reasonably be expected to have
a Material Adverse Effect on Target.
(h) Investor Representation Statement; Number of
Shareholders. Each of the Target's shareholders shall have delivered to
Acquiror a signed Investor Representation Statement in substantially
the form attached hereto as Exhibit B and each such Statement shall be
in full force and effect, and there shall be no more than thirty-five
(35) Target shareholders who are both (i) U.S. persons as defined under
Regulation S under the Securities Act (a "U.S. Person"); and (ii) not
"accredited investors" as defined in Rule 501 under the Securities Act.
(i) Purchaser Representative. There shall be a Purchaser
Representative, as defined in Regulation D under the Securities Act,
reasonably satisfactory to Acquiror, representing each holder of Target
Capital Stock who is a U.S. Person and not an "accredited investor" as
defined in Rule 501 under the Securities Act, and such Purchaser
Representative shall have executed and delivered documentation
reasonably satisfactory to Acquiror.
(j) Dissenters' Rights. Not more than five percent (5%)
of the Target Capital Stock outstanding immediately prior to the
Effective Time shall be eligible as Dissenting Shares.
8. TERMINATION, AMENDMENT AND WAIVER.
8.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time (with respect to Section 8.1(b) through Section
8.1(d), by written notice by the terminating party to the other party):
(a) by the mutual written consent of Acquiror and Target;
(b) by either Acquiror or Target if the Merger shall not
have been consummated by January 31st, 2004; provided, however, that
the right to terminate this Agreement under this Section 8.1(b) shall
not be available to any party whose failure to fulfill any obligation
under this Agreement has been the cause of or resulted in the failure
of the Merger to occur on or before such date;
(c) by either Acquiror or Target if a court of competent
jurisdiction or other Governmental Entity shall have issued a
nonappealable final order, decree or ruling or taken any other action,
in each case having the effect of permanently restraining, enjoining or
otherwise prohibiting the Merger, unless the party relying on such
order, decree or ruling or other action has not complied in all
material respects with its obligations under this Agreement; or
(d) by Acquiror or Target, if there has been a breach of
any representation, warranty, covenant or agreement on the part of the
other party set forth in this Agreement, which breach (i) causes the
conditions set forth in Section 7.1 or 7.2 (in the case of termination
by Acquiror) or Section 7.1 or 7.3 (in the case of termination by
Target) not to be satisfied and (ii) shall not have been cured within
ten (10) business days following receipt by the breaching party of
written notice of such breach from the other party.
8.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 8.1, there shall be no liability or obligation
on the part of Acquiror, Target, Merger Sub or their respective officers,
directors, or stockholders, except to the extent that such termination results
from the willful breach by a party of any of its representations, warranties or
covenants set forth in this Agreement; provided, however, that the provisions of
Sections 6.5, 6.6, 6.1, and 9 shall remain in full force and effect and survive
any termination of this Agreement.
8.3 Amendment. This Agreement may be amended by the parties
hereto, by action taken or authorized by their respective Boards of Directors.
This Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 19
8.4 Extension; Waiver. At any time prior to the Effective Time,
the parties hereto, by action taken or authorized by their respective Boards of
Directors, may, to the extent legally allowed: (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto;
(ii) waive any inaccuracies in the representations and warranties contained
herein or in any document delivered pursuant hereto; and (iii) waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in a written instrument signed on behalf of such party.
9. GENERAL PROVISIONS.
9.1 Notices. All notices and other communications hereunder shall
be in writing and shall be deemed duly delivered: (i) upon receipt if delivered
personally; (ii) three (3) business days after being mailed by registered or
certified mail, postage prepaid, return receipt requested; (iii) one (1)
business day after it is sent by commercial overnight courier service; or (iv)
upon transmission if sent via facsimile with confirmation of receipt to the
parties at the following address (or at such other address for a party as shall
be specified upon like notice:
(a) if to Acquiror or Merger Sub, to:
Invvision Capital, Inc.
X.X. Xxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxx, Chairman
(b) if to Target, to:
Restoration Group America 2003, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Attention: Xxxxx Xxx
9.2 Definitions. In this Agreement any reference to any event,
change, condition or effect being "material" with respect to any entity or group
of entities means any material event, change, condition or effect related to the
financial condition, properties, assets (including intangible assets),
liabilities, business, operations or results of operations of such entity or
group of entities. In this Agreement any reference to a "Material Adverse
Effect" with respect to any entity or group of entities means any event, change
or effect that is materially adverse to the financial condition, properties,
assets, liabilities, business, operations, results of operations or prospects of
such entity and its subsidiaries, taken as a whole. In this Agreement any
reference to a party's "knowledge" means such party's actual knowledge after
reasonable inquiry of officers, directors and other employees of such party
reasonably believed to have knowledge of such matters. In this Agreement, an
entity shall be deemed to be a "Subsidiary" of a party if such party directly or
indirectly owns, beneficially or of record, at least 50% of the outstanding
equity or financial interests of such entity.
9.3 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
9.4 Entire Agreement; Nonassignability; Parties in Interest. This
Agreement and the documents and instruments and other agreements specifically
referred to herein or delivered pursuant hereto, including the exhibits and
schedules hereto, including the Target Disclosure Schedule and the Acquiror
Disclosure Schedule: (a) together constitute the entire agreement among the
parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof except for the Confidentiality Agreement,
which shall continue in full force and effect, and shall survive any termination
of this Agreement or the Closing, in accordance with its terms; and (b) are not
intended to confer upon any other person any rights or remedies hereunder and
shall not be assigned by operation of law or otherwise without the written
consent of the other party.
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 20
9.5 Severability. In the event that any provision of this
Agreement, or the application thereof becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
9.6 Remedies Cumulative. Except as otherwise provided herein, any
and all remedies herein expressly conferred upon a party will be deemed
cumulative with and not exclusive of any other remedy conferred hereby, or by
law or equity upon such party, and the exercise by a party of any one remedy
will not preclude the exercise of any other remedy.
9.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of Texas applicable to parties
residing in Texas, without regard applicable principles of conflicts of law.
Each of the parties hereto irrevocably consents to the exclusive jurisdiction of
any court located within Texas, in connection with any matter based upon or
arising out of this Agreement or the matters contemplated hereby and it agrees
that process may be served upon it in any manner authorized by the laws of the
State of Texas for such persons and waives and covenants not to assert or plead
any objection which it might otherwise have to such jurisdiction and such
process.
9.8 Rules of Construction. The parties hereto agree that they have
been represented by counsel during the negotiation, preparation and execution of
this Agreement and, therefore, waive the application of any law, regulation,
holding or rule of construction providing that ambiguities in an agreement or
other document will be construed against the party drafting such agreement or
document.
9.9 Enforcement. Each of the parties hereto agrees that
irreparable damage would occur and that the parties would not have any adequate
remedy at law in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any Federal court located in the
State of Texas or in Texas state court, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each of the
parties hereto (a) consents to submit itself to the personal jurisdiction of any
Federal court located in the State of Texas or any Texas state court in the
event that any dispute arises out of this Agreement or any of the transactions
contemplated by this Agreement, (b) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court, (c) agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this Agreement in any court
other than a Federal court sitting in the State of Texas or a Texas state court
and (d) waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any transaction
contemplated by this Agreement.
9.10 Amendment; Waiver. Any amendment or waiver of any of the terms
or conditions of this Agreement must be in writing and must be duly executed by
or on behalf of the party to be charged with such waiver. The failure of a party
to exercise any of its rights hereunder or to insist upon strict adherence to
any term or condition hereof on any one occasion shall not be construed as a
waiver or deprive that party of the right thereafter to insist upon strict
adherence to the terms and conditions of this Agreement at a later date.
Further, no waiver of any of the terms and conditions of this Agreement shall be
deemed to or shall constitute a waiver of any other term of condition hereof
(whether or not similar).
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 21
IN WITNESS WHEREOF, Target, Acquiror, Merger Sub and Shareholders'
Agent have caused this Agreement to be executed and delivered by each of them or
their respective officers thereunto duly authorized, all as of the date first
written above.
RESTORATION GROUP AMERICA 2003, INC.
By: /s/ XXXXX XXX
---------------------------------
XXXXX XXX, President
INVVISION CAPITAL, INC.
By: /s/ X.X. XXX
---------------------------------
X.X. XXX, CEO
INVVISION MC, INC.
By: /s/ XXXXXX X. XXX
---------------------------------
---------------------------------
its: President
---------------------------------
RESTORATION GROUP AMERICA 2003, INC. Shareholders:
DKWFLP, L.P.., a Texas Limited Partnership
By: DKWFLP, Inc., a Texas Corporation,
its General Partner
By: /s/ XXXXXXX XXXXXXX XXXXXX
----------------------------------------
Xxxxxxx Xxxxxxx Xxxxxx, its President
Owner of 240 Shares
JADES FAMILY, L.P., a Texas Limited Partnership
By: JADESGP, Inc., a Texas Corporation,
Its: General Partner
By: /s/ XXXXX MAYOR
----------------------------------------
Xxxxx Mayor, its President
Owner of 240 Shares
JAAVBR, L.P., a Texas Limited Partnership
By: JAAVBRGP, Inc., a Texas Corporation,
Its: General Partner
By: /s/ XXXXX X. XXX
----------------------------------------
Xxxxx X. Xxx, its President
Owner of 240 Shares
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 22
J2 FAMILY, L.P., a Texas Limited Partnership
By: J2 Holdings, Inc., a Texas Corporation,
its General Partner
By: /s/ XXXX X. XXX
---------------------------------------
Xxxx X. Xxx, its President
Owner of 240 Shares
/s/ XXXXXX X. XXXXX
------------------------------------------
Xxxxxx X. Xxxxx
Owner of 40 Shares
AGREEMENT AND PLAN OF REORGANIZATION - PAGE 23
ARTICLES OF MERGER
Pursuant to the provisions of article 5.04 of the Texas Business Corporation
Act, the undersigned corporations certify the following articles of merger
adopted for the purpose of effecting a merger in accordance with the provisions
of Part Five of the Texas Business Corporation Act.
1. The name of each of the undersigned corporation(s) and other entity or
entities that are a party to the plan of merger or that are to be created by the
plan of merger, the type of such corporation or other entity and the laws under
which such corporation or other entity are organized are:
Name of Corporation Type of Entity State
------------------- -------------- -----
Restoration Group America 2003, Inc. Corporation Texas
Invvision MC, Inc. Corporation Texas
2. A plan of merger was approved and adopted in accordance with the provisions
of article 5.03 of the Texas - Business Corporation Act providing for the
combination of Restoration Group America 2003, Inc., and Invvision MC, Inc.
resulting in Restoration Group America 2003, Inc. being the surviving
corporation in the merger.
3. An executed copy of the plan of merger is on file at the principal place of
business of Restoration Group America 2003, Inc., 0000 Xxxxxx Xxxx Xxxx, Xxxxx
000, Xxxxxx, XX 00000 and a copy of the plan of merger will be furnished by such
entity, on written request and without cost, to any shareholder of each domestic
corporation that is a party to or created by the plan of merger and to any
creditor or obligee of the parties to the merger at the time of the merger if
such obligation is then outstanding.
4. No amendments to the articles of incorporation of any domestic surviving
corporation are to be effected by the merger. -
5. As to each of the undersigned domestic corporations, the approval of whose
shareholders is required, the number of outstanding shares of each class or
series of stock of such corporation entitled to vote, with other shares or as a
class, on the Plan of Merger are as follows:
Number of Number of Shares
Shares Class or Entitled to Vote as
Name of Corporation Outstanding Series a Class or Series
------------------- ----------- -------- -------------------
Restoration Group America 2003, Inc. 1,000 Common 1,000
Invvision MC, Inc. 1,000 Common 1,000
Page 1 of 2
7. As to each of the undersigned domestic corporations, the approval of whose
shareholders is required, the number of shares, not entitled to vote only as a
class, voted for and against the plan of merger, respectively, and, if the
shares of any class or series are entitled to vote as a class, the number of
shares of each such class or series voted for and against the plan of merger,
are as follows:
Number of Shares
Total Total Entitled to Vote as
Name of Voted Voted Class or Class or Series Voted
Corporation For Against Series Voted For Against
----------- ----- ------- -------- ------------------- -------
Restoration Group 1,000 0 Common 1,000 0
America 2003, Inc.
Invvision MC, Inc. 1,000 0 Common 1,000 0
8. The plan of merger and the performance of its terms were duly authorized by
all action required by the laws under which each foreign corporation or other
entity that is a party to the merger was incorporated or organized and by its
constituent documents.
9. The merger will become effective on December 31st, 2003 at 10:00 a.m. in
accordance with the provisions of article 10.03 of the Texas Business
Corporation Act.
[NOTE: The merger will become effective upon the issuance of the certificate of
merger by the secretary of state in accordance with article 5.05 of the Texas
Business Corporation Act, unless the merger's effective date is delayed to a
subsequent date and time or conditioned upon the occurrence of a future event
pursuant to the provisions of article TBCA, 10.03]
Dated December 30th, 2003.
Restoration Group America 2003, Inc. Invvision MC, Inc.
/s/ XXXXX X. XXX /s/ XXXXXX X. XXX
----------------------------- ---------------------------------
By: Xxxxx X. Xxx, its President by: Xxxxxx X. Xxx, its President
And Chairman of the Board And Chairman of the Board
Page 2 of 2
Invvision Capital, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
RE: Investment Representations
Gentlemen:
The undersigned shareholder ("Shareholder") is acquiring shares of
common stock, par value $0.00 1 per share, (the "Shares"), in Invvision Capital,
Inc., a Nevada corporation (the "Corporation") as a result of the Corporation's
acquisition of all of the outstanding shares of Restoration Group America 2003,
Inc., a Texas corporation ("RGAmerica") pursuant to that certain Agreement and
Plan of Reorganization by and among the Corporation, Invvision MC, Inc., a Texas
corporation and RGAmerica (the "Agreement"). In connection with such
acquisition, Shareholder represents and warrants that the following statements
are true and correct.
1. Documentation; Exchange. Shareholder acknowledges receiving and
reviewing the following documents relating to his acquisition of the Shares: (i)
the Annual Report of the Corporation for FYE 12/31/02 filed on Form l0-KSB with
the Securities and Exchange Commission; (ii) the Quarterly Report of the
Corporation for the quarter ended 9/30/03 filed on form l0-QSB with the
Securities and Exchange Commission; (iii) the Agreement; and (iv) this
Subscription Letter. In connection with his acquisition of the Shares,
Shareholder hereby acknowledges that Shareholder has: (a) reviewed this
Subscription Letter and the Agreement, (b) executed this Subscription Letter and
the Agreement and delivered both such executed documents to the Corporation.
2. Investment Intent.
(a) Shareholder is acquiring the Shares for investment and not
with a view to, or for resale in connection with, any distribution of all or any
part of the Shares within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"), and Shareholder has no current intention to sell,
convey, dispose of or otherwise distribute any Shares in or risk related to the
Shares.
(b) Shareholder is acquiring the Shares for Shareholder's own
account and no one else has any beneficial ownership in the Shares.
3. Restrictions on Transfer.
(a) Shareholder understands that the Shares has not been
registered under the Securities Act or any state securities laws or "Blue Sky"
laws ("Blue Sky Laws").
(b) Shareholder understands that he cannot offer for sale,
sell or otherwise dispose of all or any portion of the Shares until it has been
registered under the Securities Act
Page 2 of 5
and any applicable Blue Sky Laws or, in the opinion of counsel in form and
substance satisfactory to the General Partner, an exemption from such
registration is available with respect to any such proposed offer, sale or
disposition. Shareholder understands that no holder of a limited Corporation
Shares, including Shareholder, has any right to require the Corporation or the
General Partner to register any Corporation Shares, including the Shares, under
the Securities Act.
(c) Shareholder cannot be assured that any exemption from the
registration requirement will be available should he desire to transfer the
Shares, and, therefore, Shareholder may not be able to dispose of or otherwise
transfer the Shares, under the circumstances, in the amounts or at the time
proposed by Shareholder.
(d) Shareholder understands that although there is currently a
public market for the Shares, that absent registration of the transfer of the
Shares, it is unlikely that a holder of Shares, will be able to readily dispose
of his securities or pledge such securities as collateral for a loan.
(e) Shareholder understands that he must bear the economic
risk of his investment in the Corporation for an indefinite period of time
because, pursuant to federal and state securities laws, the Shares cannot be
sold or otherwise transferred (except in certain very limited circumstances).
4. Legend. Shareholder understands that the certificates representing
all or any portion of the Shares acquired by Shareholder shall bear a legend
substantially similar to the following, in addition to any other legends
required by federal or state laws:.
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES ACTS TN
RELIANCE UPON EXEMPTIONS UNDER THOSE ACTS. THE SALE OR OTHER
DISPOSITION OF THE SHARES IS PROHIBITED UNLESS SUCH SALE OR DISPOSITION
IS MADE IN COMPLIANCE WITH ALL SUCH APPLICABLE ACTS. ADDITIONAL
RESTRICTIONS ON TRANSFER OF THE CORPORATION SHARES ARE SET FORTH IN
THIS AGREEMENT.
5. Further Representations and Warranties.
(a) Shareholder is acquiring the Shares without being offered
or furnished any formal offering literature or prospectus and acknowledges that
he has had access to all information regarding the Corporation, its present and
prospective business, assets, liabilities and financial condition that
Shareholder considers important in making the decision to invest in the Shares.
Shareholder has had ample opportunity to ask questions of and receive answers
from the Corporation and its representatives concerning this investment and to
obtain any and all documents requested in order to supplement or verify any of
the information supplied. Shareholder is making this investment on the basis of
his own knowledge of the Corporation and not in reliance upon any representation
made by anyone acting on behalf of the Corporation.
Page 3 of 5
(b) Shareholder recognizes that the investment in the Shares
involves special and substantial risks. Shareholder recognizes (1) the highly
speculative nature of the investment, (2) the financial hazards involved, (3)
the lack of liquidity regarding the Shares and the restrictions upon
transferability thereof, (4) the qualifications and backgrounds of the
principals of the Corporation and the General Partner and (5) the tax
consequences of investment in the Shares, among other matters.
(c) Shareholder is an "accredited investor" as defined in Rule
501(a) promulgated under the Securities Act.
(d) Shareholder is capable of evaluating the merits and risks
of an investment in the Shares and is financially capable of bearing a total
loss of this investment.
(e) Shareholder has no reason to anticipate any change in
personal circumstances, financial or otherwise, that may cause or require any
sale or distribution of all of any portion of this Shares, if acquired.
(f) Shareholder either (1) has a preexisting personal or
business relationship with the Corporation or its principals or (2) by reason of
Shareholder's business or financial experience, has the capacity to protect its
own interests in connection with this transaction.
(g) Shareholder is at least 21 years of age and a bona fide
resident and domiciliary (not a temporary or transient resident) of the state or
country set forth as Shareholder's address on the signature page to this
Agreement, and has no present intention of becoming a resident of any other
state or jurisdiction, and Shareholder represents that these statements are now
true and have been true since prior to the first offer to him of an opportunity
to invest in the Corporation.
(h) The offer and sale of the Shares was not accomplished by
the publication of any advertisement.
(i) Shareholder understands that this transaction has not been
reviewed or approved by the Securities and Exchange Commission or any other
governmental agency or department.
6. Other Matters
(a) Shareholder recognizes that the sale and issuance of the
Shares to him, and the admission of Shareholder as a shareholder in the
Corporation, is based upon the representations and warranties contained herein
and Shareholder agrees to indemnify and hold harmless the Corporation and its
officers, directors, employees, agents and representatives against any and all
liabilities, costs and expenses (including reasonable attorneys' fees) arising
by reason of or in connection with any misrepresentation or any breach of such
warranties by Shareholder, or arising as a result of the sale or distribution of
all or any portion of the Shares by Shareholder in violation of the Securities
Act or other applicable law.
Page 4 of 5
(b) This Subscription Letter shall be governed by and
construed in accordance with the laws of the State of Texas without regard to
the conflict of laws principles of any jurisdiction.
(c) This Subscription Letter, together with the Corporation
Agreement, constitute the entire agreement among the parties hereto with respect
to the subject matter hereof.
[THE NEXT FOLLOWING PAGE IS A SIGNATURE PAGE.]
Page 5 of 5
Very truly yours,
/s/ XXXXX XXX, PRESIDENT OF JAAVBRGP, INC.
---------------------------------------------
Signature of Shareholder
General Partner of:
JAAVBR, L.P., A TEXAS LIMITED PARTNERSHIP
---------------------------------------------
Name of Shareholder (Printed)
0000 Xxxxxx Xxxx Xxxx, #000
---------------------------------------------
Shareholder's Street Address
Dallas
---------------------------------------------
Xxxx xx Xxxx
XX 00000
---------------------------------------------
State Zip Code
---------------------------------------------
Shareholder's Social Security Number
12/30/2003
---------------------------------------------
Date
Invvision Capital, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
RE: Investment Representations
Gentlemen:
The undersigned shareholder ("Shareholder") is acquiring shares of
common stock, par value $0.001 per share, (the "Shares"), in Invvision Capital,
Inc., a Nevada corporation (the "Corporation") as a result of the Corporation's
acquisition of all of the outstanding shares of Restoration Group America 2003,
Inc., a Texas corporation ("RGAmerica") pursuant to that certain Agreement and
Plan of Reorganization by and among the Corporation, Invvision MC, Inc., a Texas
corporation and RGAmerica (the "Agreement"). In connection with such
acquisition, Shareholder represents and warrants that the following statements
are true and correct.
1. Documentation; Exchange. Shareholder acknowledges receiving and
reviewing the following documents relating to his acquisition of the Shares: (i)
the Annual Report of the Corporation for FYE 12/31/02 filed on Form l0-KSB with
the Securities and Exchange Commission; (ii) the Quarterly Report of the
Corporation for the quarter ended 9/30/03 filed on form 10-QSB with the
Securities and Exchange Commission; (iii) the Agreement; and (iv) this
Subscription Letter. In connection with his acquisition of the Shares,
Shareholder hereby acknowledges that Shareholder has: (a) reviewed this
Subscription Letter and the Agreement, (b) executed this Subscription Letter and
the Agreement and delivered both such executed documents to the Corporation.
2. Investment Intent.
(a) Shareholder is acquiring the Shares for investment and not
with a view to, or for resale in connection with, any distribution of all or any
part of the Shares within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"), and Shareholder has no current intention to sell,
convey, dispose of or otherwise distribute any Shares in or risk related to the
Shares.
(b) Shareholder is acquiring the Shares for Shareholder's own
account and no one else has any beneficial ownership in the Shares.
3. Restrictions on Transfer.
(a) Shareholder understands that the Shares has not been
registered under the Securities Act or any state securities laws or "Blue Sky"
laws ("Blue Sky Laws").
(b) Shareholder understands that he cannot offer for sale,
sell or otherwise dispose of all or any portion of the Shares until it has been
registered under the Securities Act
Page 2 of 5
and any applicable Blue Sky Laws or, in the opinion of counsel in form and
substance satisfactory to the General Partner, an exemption from such
registration is available with respect to any such proposed offer, sale or
disposition. Shareholder understands that no holder of a limited Corporation
Shares, including Shareholder, has any right to require the Corporation or the
General Partner to register any Corporation Shares, including the Shares, under
the Securities Act.
(c) Shareholder cannot be assured that any exemption from the
registration requirement will be available should he desire to transfer the
Shares, and, therefore, Shareholder may not be able to dispose of or otherwise
transfer the Shares, under the circumstances, in the amounts or at the time
proposed by Shareholder.
(d) Shareholder understands that although there is currently a
public market for the Shares, that absent registration of the transfer of the
Shares, it is unlikely that a holder of Shares, will be able to readily dispose
of his securities or pledge such securities as collateral for a loan.
(e) Shareholder understands that he must bear the economic
risk of his investment in the Corporation for an indefinite period of time
because, pursuant to federal and state securities laws, the Shares cannot be
sold or otherwise transferred (except in certain very limited circumstances).
4. Legend. Shareholder understands that the certificates representing
all or any portion of the Shares acquired by Shareholder shall bear a legend
substantially similar to the following, in addition to any other legends
required by federal or state laws:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES ACTS IN
RELIANCE UPON EXEMPTIONS UNDER THOSE ACTS. THE SALE OR OTHER
DISPOSITION OF THE SHARES IS PROHIBITED UNLESS SUCH SALE OR DISPOSITION
IS MADE IN COMPLIANCE WITH ALL SUCH APPLICABLE ACTS. ADDITIONAL
RESTRICTIONS ON TRANSFER OF THE CORPORATION SHARES ARE SET FORTH IN
THIS AGREEMENT.
5. Further Representations and Warranties.
(a) Shareholder is acquiring the Shares without being offered
or furnished any formal offering literature or prospectus and acknowledges that
he has had access to all information regarding the Corporation, its present and
prospective business, assets, liabilities and financial condition that
Shareholder considers important in making the decision to invest in the Shares.
Shareholder has had ample opportunity to ask questions of and receive answers
from the Corporation and its representatives concerning this investment and to
obtain any and all documents requested in order to supplement or verify any of
the information supplied. Shareholder is making this investment on the basis of
his own knowledge of the Corporation and not in reliance upon any representation
made by anyone acting on behalf of the Corporation.
Page 3 of 5
(b) Shareholder recognizes that the investment in the Shares
involves special and substantial risks. Shareholder recognizes (1) the highly
speculative nature of the investment, (2) the financial hazards involved, (3)
the lack of liquidity regarding the Shares and the restrictions upon
transferability thereof, (4) the qualifications and backgrounds of the
principals of the Corporation and the General Partner and (5) the tax
consequences of investment in the Shares, among other matters.
(c) Shareholder is an "accredited investor" as defined in Rule
501(a) promulgated under the Securities Act.
(d) Shareholder is capable of evaluating the merits and risks
of an investment in the Shares and is financially capable of bearing a total
loss of this investment.
(e) Shareholder has no reason to anticipate any change in
personal circumstances, financial or otherwise, that may cause or require any
sale or distribution of all of any portion of this Shares; if acquired.
(f) Shareholder either (1) has a preexisting personal or
business relationship with the Corporation or its principals or (2) by reason of
Shareholder's business or financial experience, has the capacity to protect its
own interests in connection with this transaction.
(g) Shareholder is at least 21 years of age and a bona fide
resident and domiciliary (not a temporary or transient resident) of the state or
country set forth as Shareholder's address on the signature page to this
Agreement, and has no present intention of becoming a resident of any other
state or jurisdiction, and Shareholder represents that these statements are now
true and have been true since prior to the first offer to him of an opportunity
to invest in the Corporation.
(h) The offer and sale of the Shares was not accomplished by
the publication of any advertisement.
(i) Shareholder understands that this transaction has not been
reviewed or approved by the Securities and Exchange Commission or any other
governmental agency or department.
6. Other Matters.
(a) Shareholder recognizes that the sale and issuance of the
Shares to him, and the admission of Shareholder as a shareholder in the
Corporation, is based upon the representations and warranties contained herein
and Shareholder agrees to indemnify and hold harmless the Corporation and its
officers, directors, employees, agents and representatives against any and all
liabilities, costs and expenses (including reasonable attorneys' fees) arising
by reason of or in connection with any misrepresentation or any breach of such
warranties by Shareholder, or arising as a result of the sale or distribution of
all or any portion of the Shares by Shareholder in violation of the Securities
Act or other applicable law.
Page 4 of 5
(b) This Subscription Letter shall be governed by and
construed in accordance with the laws of the State of Texas without regard to
the conflict of laws principles of any jurisdiction.
(c) This Subscription Letter, together with the Corporation
Agreement, constitute the entire agreement among the parties hereto with respect
to the subject matter hereof.
[THE NEXT FOLLOWING PAGE IS A SIGNATURE PAGE.]
Page 5 of 5
Very truly yours,
/s/ XXXX X. XXX, PRESIDENT OF J2 HOLDINGS, INC.
------------------------------------------------
Signature of Shareholder
the General Partner of:
J2 FAMILY, L.P., a Texas Limited Partnership
------------------------------------------------
Name of Shareholder (Printed)
0000 Xxxxxx Xxxx Xxxx, #000
------------------------------------------------
Shareholder's Street Address
Dallas
------------------------------------------------
Xxxx xx Xxxx
XX 00000
------------------------------------------------
State Zip Code
------------------------------------------------
Shareholder's Social Security Number
12/30/2003
------------------------------------------------
Date
Invvision Capital, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
RE: Investment Representations
Gentlemen:
The undersigned shareholder ("Shareholder") is acquiring shares of
common stock, par value $0.001 per share, (the "Shares"), in Invvision Capital,
Inc., a Nevada corporation (the "Corporation") as a result of the Corporation's
acquisition of all of the outstanding shares of Restoration Group America 2003,
Inc., a Texas corporation ("RGAmerica") pursuant to that certain Agreement and
Plan of Reorganization by and among the Corporation, Invvision MC, Inc., a Texas
corporation and RGAmerica (the "Agreement"). In connection with such
acquisition, Shareholder represents and warrants that the following statements
are true and correct.
1. Documentation; Exchange. Shareholder acknowledges receiving and
reviewing the following documents relating to his acquisition of the Shares: (i)
the Annual Report of the Corporation for FYE 12/31/02 filed on Form l0-KSB with
the Securities and Exchange Commission; (ii) the Quarterly Report of the
Corporation for the quarter ended 9/30/03 filed on form 10-QSB with the
Securities and Exchange Commission; (iii) the Agreement; and (iv) this
Subscription Letter. In connection with his acquisition of the Shares,
Shareholder hereby acknowledges that Shareholder has: (a) reviewed this
Subscription Letter and the Agreement, (b) executed this Subscription Letter and
the Agreement and delivered both such executed documents to the Corporation.
2. Investment Intent.
(a) Shareholder is acquiring the Shares for investment and not
with a view to, or for resale in connection with, any distribution of all or any
part of the Shares within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"), and Shareholder has no current intention to sell,
convey, dispose of or otherwise distribute any Shares in or risk related to the
Shares.
(b) Shareholder is acquiring the Shares for Shareholder's own
account and no one else has any beneficial ownership in the Shares.
3. Restrictions on Transfer.
(a) Shareholder understands that the Shares has not been
registered under the Securities Act or any state securities laws or "Blue Sky"
laws ("Blue Sky Laws").
(b) Shareholder understands that he cannot offer for sale,
sell or otherwise dispose of all or any portion of the Shares until it has been
registered under the Securities Act
Page 2 of 5
and any applicable Blue Sky Laws or, in the opinion of counsel in form and
substance satisfactory to the General Partner, an exemption from such
registration is available with respect to any such proposed offer, sale or
disposition. Shareholder understands that no holder of a limited Corporation
Shares, including Shareholder, has any right to require the Corporation or the
General Partner to register any Corporation Shares, including the Shares, under
the Securities Act.
(c) Shareholder cannot be assured that any exemption from the
registration requirement will be available should he desire to transfer the
Shares, and, therefore, Shareholder may not be able to dispose of or otherwise
transfer the Shares, under the circumstances, in the amounts or at the time
proposed by Shareholder.
(d) Shareholder understands that although there is currently a
public market for the Shares, that absent registration of the transfer of the
Shares, it is unlikely that a holder of Shares, will be able to readily dispose
of his securities or pledge such securities as collateral for a loan.
(e) Shareholder understands that he must bear the economic
risk of his investment in the Corporation for an indefinite period of time
because, pursuant to federal and state securities laws, the Shares cannot be
sold or otherwise transferred (except in certain very limited circumstances).
4. Legend. Shareholder understands that the certificates representing
all or any portion of the Shares acquired by Shareholder shall bear a legend
substantially similar to the following, in addition to any other legends
required by federal or state laws:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES ACTS IN
RELIANCE UPON EXEMPTIONS UNDER THOSE ACTS. THE SALE OR OTHER
DISPOSITION OF THE SHARES IS PROHIBITED UNLESS SUCH SALE OR DISPOSITION
IS MADE IN COMPLIANCE WITH ALL SUCH APPLICABLE ACTS. ADDITIONAL
RESTRICTIONS ON TRANSFER OF THE CORPORATION SHARES ARE SET FORTH IN
THIS AGREEMENT.
5. Further Representations and Warranties.
(a) Shareholder is acquiring the Shares without being offered
or furnished any formal offering literature or prospectus and acknowledges that
he has had access to all information regarding the Corporation, its present and
prospective business, assets, liabilities and financial condition that
Shareholder considers important in making the decision to invest in the Shares.
Shareholder has had ample opportunity to ask questions of and receive answers
from the Corporation and its representatives concerning this investment and to
obtain any and all documents requested in order to supplement or verify any of
the information supplied. Shareholder is making this investment on the basis of
his own knowledge of the Corporation and not in reliance upon any representation
made by anyone acting on behalf of the Corporation.
Page 3 of 5
(b) Shareholder recognizes that the investment in the Shares
involves special and substantial risks. Shareholder recognizes (1) the highly
speculative nature of the investment, (2) the financial hazards involved, (3)
the lack of liquidity regarding the Shares and the restrictions upon
transferability thereof, (4) the qualifications and backgrounds of the
principals of the Corporation and the General Partner and (5) the tax
consequences of investment in the Shares, among other matters.
(c) Shareholder is an "accredited investor" as defined in Rule
501(a) promulgated under the Securities Act.
(d) Shareholder is capable of evaluating the merits and risks
of an investment in the Shares and is financially capable of bearing a total
loss of this investment.
(e) Shareholder has no reason to anticipate any change in
personal circumstances, financial or otherwise, that may cause or require any
sale or distribution of all of any portion of this Shares, if acquired.
(f) Shareholder either (1) has a preexisting personal or
business relationship with the Corporation or its principals or (2) by reason of
Shareholder's business or financial experience, has the capacity to protect its
own interests in connection with this transaction.
(g) Shareholder is at least 21 years of age and a bona fide
resident and domiciliary (not a temporary or transient resident) of the state or
country set forth as Shareholder's address on the signature page to this
Agreement, and has no present intention of becoming a resident of any other
state or jurisdiction, and Shareholder represents that these statements are now
true and have been true since prior to the first offer to him of an opportunity
to invest in the Corporation.
(h) The offer and sale of the Shares was not accomplished by
the publication of any advertisement.
(i) Shareholder understands that this transaction has not been
reviewed or approved by the Securities and Exchange Commission or any other
governmental agency or department.
6. Other Matters
(a) Shareholder recognizes that the sale and issuance of the
Shares to him, and the admission of Shareholder as a shareholder in the
Corporation, is based upon the representations and warranties contained herein
and Shareholder agrees to indemnify and hold harmless the Corporation and its
officers, directors, employees, agents and representatives against any and all
liabilities, costs and expenses (including reasonable attorneys' fees) arising
by reason of or in connection with any misrepresentation or any breach of such
warranties by Shareholder, or arising as a result of the sale or distribution of
all or any portion of the Shares by Shareholder in violation of the Securities
Act or other applicable law.
Page 4 of 5
(b) This Subscription Letter shall be governed by and
construed in accordance with the laws of the State of Texas without regard to
the conflict of laws principles of any jurisdiction.
(c) This Subscription Letter, together with the Corporation
Agreement, constitute the entire agreement among the parties hereto with respect
to the subject matter hereof.
[THE NEXT FOLLOWING PAGE IS A SIGNATURE PAGE.]
Page 5 of 5
Very truly yours,
/s/ XXXXX MAYOR, PRESIDENT OF JADES GP, INC.
---------------------------------------------------
Signature of Shareholder
General Partner of:
JADES FAMILY, L.P., a Texas Limited Partnership
---------------------------------------------------
Name of Shareholder (Printed)
0000 Xxxxxx Xxxx Xxxx, #000
---------------------------------------------------
Shareholder's Street Address
Dallas
---------------------------------------------------
Xxxx xx Xxxx
XX 00000
---------------------------------------------------
State Zip Code
---------------------------------------------------
Shareholder's Social Security Number
12/30/2003
---------------------------------------------------
Date
Invvision Capital, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
RE: Investment Representations
Gentlemen:
The undersigned shareholder ("Shareholder") is acquiring shares of
common stock, par value $0.001 per share, (the "Shares"), in Invvision Capital,
Inc., a Nevada corporation (the "Corporation") as a result of the Corporation's
acquisition of all of the outstanding shares of Restoration Group America 2003,
Inc., a Texas corporation ("RGAmerica") pursuant to that certain Agreement and
Plan of Reorganization by and among the Corporation, Invvision MC, Inc., a Texas
corporation and RGAmerica (the "Agreement"). In connection with such
acquisition, Shareholder represents and warrants that the following statements
are true and correct.
1. Documentation; Exchange. Shareholder acknowledges receiving and
reviewing the following documents relating to his acquisition of the Shares: (i)
the Annual Report of the Corporation for FYE 12/31/02 filed on Form 10-KSB with
the Securities and Exchange Commission; (ii) the Quarterly Report of the
Corporation for the quarter ended 9/30/03 filed on form 10-QSB with the
Securities and Exchange Commission; (iii) the Agreement; and (iv) this
Subscription Letter. In connection with his acquisition of the Shares,
Shareholder hereby acknowledges that Shareholder has: (a) reviewed this
Subscription Letter and the Agreement, (b) executed this Subscription Letter and
the Agreement and delivered both such executed documents to the Corporation.
2. Investment Intent.
(a) Shareholder is acquiring the Shares for investment and not
with a view to, or for resale in connection with, any distribution of all or
any part of the Shares within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), and Shareholder has no current intention to
sell, convey, dispose of or otherwise distribute any Shares in or risk related
to the Shares.
(b) Shareholder is acquiring the Shares for Shareholder's own
account and no one else has any beneficial ownership in the Shares.
3. Restrictions on Transfer.
(a) Shareholder understands that the Shares has not been
registered under the Securities Act or any state securities laws or "Blue Sky"
laws ("Blue Sky Laws").
(b) Shareholder understands that he cannot offer for sale, sell
or otherwise dispose of all or any portion of the Shares until it has been
registered under the Securities Act
Page 2 of 5
and any applicable Blue Sky Laws or, in the opinion of counsel in form and
substance satisfactory to the General Partner, an exemption from such
registration is available with respect to any such proposed offer, sale or
disposition. Shareholder understands that no holder of a limited Corporation
Shares, including Shareholder, has any right to require the Corporation or the
General Partner to register any Corporation Shares, including the Shares, under
the Securities Act.
(c) Shareholder cannot be assured that any exemption from the
registration requirement will be available should he desire to transfer the
Shares, and, therefore, Shareholder may not be able to dispose of or otherwise
transfer the Shares, under the circumstances, in the amounts or at the time
proposed by Shareholder.
(d) Shareholder understands that although there is currently a
public market for the Shares, that absent registration of the transfer of the
Shares, it is unlikely that a holder of Shares, will be able to readily dispose
of his securities or pledge such securities as collateral for a loan.
(e) Shareholder understands that he must bear the economic risk
of his investment in the Corporation for an indefinite period of time because,
pursuant to federal and state securities laws, the Shares cannot be sold or
otherwise transferred (except in certain very limited circumstances).
4. Legend. Shareholder understands that the certificates representing
all or any portion of the Shares acquired by Shareholder shall bear a legend
substantially similar to the following, in addition to any other legends
required by federal or state laws:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES ACTS IN
RELIANCE UPON EXEMPTIONS UNDER THOSE ACTS. THE SALE OR OTHER
DISPOSITION OF THE SHARES IS PROHIBITED UNLESS SUCH SALE OR DISPOSITION
IS MADE IN COMPLIANCE WITH ALL SUCH APPLICABLE ACTS. ADDITIONAL
RESTRICTIONS ON TRANSFER OF THE CORPORATION SHARES ARE SET FORTH IN
THIS AGREEMENT.
5. Further Representations and Warranties.
(a) Shareholder is acquiring the Shares without being offered or
furnished any formal offering literature or prospectus and acknowledges that he
has had access to all information regarding the Corporation, its present and
prospective business, assets, liabilities and financial condition that
Shareholder considers important in making the decision to invest in the Shares.
Shareholder has had ample opportunity to ask questions of and receive answers
from the Corporation and its representatives concerning this investment and to
obtain any and all documents requested in order to supplement or verify any of
the information supplied. Shareholder is making this investment on the basis of
his own knowledge of the Corporation and not in reliance upon any representation
made by anyone acting on behalf of the Corporation.
Page 3 of 5
(b) Shareholder recognizes that the investment in the Shares
involves special and substantial risks. Shareholder recognizes (1) the highly
speculative nature of the investment, (2) the financial hazards involved, (3)
the lack of liquidity regarding the Shares and the restrictions upon
transferability thereof, (4) the qualifications and backgrounds of the
principals of the Corporation and the General Partner and (5) the tax
consequences of investment in the Shares, among other matters.
(c) Shareholder is an "accredited investor" as defined in Rule
501(a) promulgated under the Securities Act.
(d) Shareholder is capable of evaluating the merits and risks of
an investment in the Shares and is financially capable of bearing a total loss
of this investment.
(e) Shareholder has no reason to anticipate any change in
personal circumstances, financial or otherwise, that may cause or require any
sale or distribution of all of any portion of this Shares, if acquired.
(f) Shareholder either (1) has a preexisting personal or business
relationship with the Corporation or its principals or (2) by reason of
Shareholder's business or financial experience, has the capacity to protect its
own interests in connection with this transaction.
(g) Shareholder is at least 21 years of age and a bona fide
resident and domiciliary (not a temporary or transient resident) of the state or
country set forth as Shareholder's address on the signature page to this
Agreement, and has no present intention of becoming a resident of any other
state or jurisdiction, and Shareholder represents that these statements are now
true and have been true since prior to the first offer to him of an opportunity
to invest in the Corporation.
(h) The offer and sale of the Shares was not accomplished by the
publication of any advertisement.
(i) Shareholder understands that this transaction has not been
reviewed or approved by the Securities and Exchange Commission or any other
governmental agency or department.
6. Other Matters.
(a) Shareholder recognizes that the sale and issuance of the
Shares to him, and the admission of Shareholder as a shareholder in the
Corporation, is based upon the representations and warranties contained herein
and Shareholder agrees to indemnify and hold harmless the Corporation and its
officers, directors, employees, agents and representatives against any and all
liabilities, costs and expenses (including reasonable attorneys' fees) arising
by reason of or in connection with any misrepresentation or any breach of such
warranties by Shareholder, or arising as a result of the sale or distribution of
all or any portion of the Shares by Shareholder in violation of the Securities
Act or other applicable law.
Page 4 of 5
(b) This Subscription Letter shall be governed by and construed
in accordance with the laws of the State of Texas without regard to the conflict
of laws principles of any jurisdiction.
(c) This Subscription Letter, together with the Corporation
Agreement, constitute the entire agreement among the parties hereto with respect
to the subject matter hereof.
[THE NEXT FOLLOWING PAGE IS A SIGNATURE PAGE.]
Page 5 of 5
Very truly yours,
/s/ XXXXXXX XXXXXXX XXXXXX, President of
------------------------------------------
Signature of Shareholder
DKWFLP L.P., Inc., general partner of:
DKWFLP, L.P., A Texas Limited Partnership
------------------------------------------
Name of Shareholder (Printed)
0000 Xxxxxx Xxxx Xxxx
------------------------------------------
Shareholder's Street Address
Suite 110
------------------------------------------
City or Town
Xxxxxx, XX 00000
------------------------------------------
State Zip Code
------------------------------------------
Shareholder's Social Security Number
12/30/2003
------------------------------------------
Date
Invvision Capital, Inc.
0000 Xxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
RE: Investment Representations
Gentlemen:
The undersigned shareholder ("Shareholder") is acquiring shares of
common stock, par value $0.001 per share, (the "Shares"), in Invvision Capital,
Inc., a Nevada corporation (the "Corporation") as a result of the Corporation's
acquisition of all of the outstanding shares of Restoration Group America 2003,
Inc., a Texas corporation ("RGAmerica") pursuant to that certain Agreement and
Plan of Reorganization by and among the Corporation, Invvision MC, Inc., a Texas
corporation and RGAmerica (the "Agreement"). In connection with such
acquisition, Shareholder represents and warrants that the following statements
are true and correct.
1. Documentation; Exchange. Shareholder acknowledges receiving and
reviewing the following documents relating to his acquisition of the Shares: (i)
the Annual Report of the Corporation for FYE 12/31/02 filed on Form 10-KSB with
the Securities and Exchange Commission; (ii) the Quarterly Report of the
Corporation for the quarter ended 9/30/03 filed on form 10-QSB with the
Securities and Exchange Commission; (iii) the Agreement; and (iv) this
Subscription Letter. In connection with his acquisition of the Shares,
Shareholder hereby acknowledges that Shareholder has: (a) reviewed this
Subscription Letter and the Agreement, (b) executed this Subscription Letter and
the Agreement and delivered both such executed documents to the Corporation.
2. Investment Intent.
(a) Shareholder is acquiring the Shares for investment and not
with a view to, or for resale in connection with, any distribution of all or any
part of the Shares within the meaning of the Securities Act of 1933, as amended
(the "Securities Act"), and Shareholder has no current intention to sell,
convey, dispose of or otherwise distribute any Shares in or risk related to the
Shares.
(b) Shareholder is acquiring the Shares for Shareholder's own
account and no one else has any beneficial ownership in the Shares.
3. Restrictions on Transfer.
(a) Shareholder understands that the Shares has not been
registered under the Securities Act or any state securities laws or "Blue Sky"
laws ("Blue Sky Laws").
(b) Shareholder understands that he cannot offer for sale, sell
or otherwise dispose of all or any portion of the Shares until it has been
registered under the Securities Act
Page 2 of 5
and any applicable Blue Sky Laws or, in the opinion of counsel in form and
substance satisfactory to the General Partner, an exemption from such
registration is available with respect to any such proposed offer, sale or
disposition. Shareholder understands that no holder of a limited Corporation
Shares, including Shareholder, has any right to require the Corporation or the
General Partner to register any Corporation Shares, including the Shares, under
the Securities Act.
(c) Shareholder cannot be assured that any exemption from the
registration requirement will be available should he desire to transfer the
Shares, and, therefore, Shareholder may not be able to dispose of or otherwise
transfer the Shares, under the circumstances, in the amounts or at the time
proposed by Shareholder.
(d) Shareholder understands that although there is currently a
public market for the Shares, that absent registration of the transfer of the
Shares, it is unlikely that a holder of Shares will be able to readily dispose
of his securities or pledge such securities as collateral for a loan.
(e) Shareholder understands that he must bear the economic risk
of his investment in the Corporation for an indefinite period of time because,
pursuant to federal and state securities laws, the Shares cannot be sold or
otherwise transferred (except in certain very limited circumstances).
4. Legend. Shareholder understands that the certificates representing
all or any portion of the Shares acquired by Shareholder shall bear a legend
substantially similar to the following, in addition to any other legends
required by federal or state laws:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY STATE SECURITIES ACTS IN
RELIANCE UPON EXEMPTIONS UNDER THOSE ACTS. THE SALE OR OTHER
DISPOSITION OF THE SHARES IS PROHIBITED UNLESS SUCH SALE OR DISPOSITION
IS MADE IN COMPLIANCE WITH ALL SUCH APPLICABLE ACTS. ADDITIONAL
RESTRICTIONS ON TRANSFER OF THE CORPORATION SHARES ARE SET FORTH IN
THIS AGREEMENT.
5. Further Representations and Warranties.
(a) Shareholder is acquiring the Shares without being offered or
furnished any formal offering literature or prospectus and acknowledges that he
has had access to all information regarding the Corporation, its present and
prospective business, assets, liabilities and financial condition that
Shareholder considers important in making the decision to invest in the Shares.
Shareholder has had ample opportunity to ask questions of and receive answers
from the Corporation and its representatives concerning this investment and to
obtain any and all documents requested in order to supplement or verify any of
the information supplied. Shareholder is making this investment on the basis of
his own knowledge of the Corporation and not in reliance upon any representation
made by anyone acting on behalf of the Corporation.
Page 3 of 5
(b) Shareholder recognizes that the investment in the Shares
involves special and substantial risks. Shareholder recognizes (1) the highly
speculative nature of the investment, (2) the financial hazards involved, (3)
the lack of liquidity regarding the Shares and the restrictions upon
transferability thereof, (4) the qualifications and backgrounds of the
principals of the Corporation and the General Partner and (5) the tax
consequences of investment in the Shares, among other matters.
(c) Shareholder is an "accredited investor" as defined in Rule
501(a) promulgated under the Securities Act.
(d) Shareholder is capable of evaluating the merits and risks of
an investment in the Shares and is financially capable of bearing a total loss
of this investment.
(e) Shareholder has no reason to anticipate any change in
personal circumstances, financial or otherwise, that may cause or require any
sale or distribution of all of any portion of this Shares, if acquired.
(f) Shareholder either (1) has a preexisting personal or business
relationship with the Corporation or its principals or (2) by reason of
Shareholder's business or financial experience, has the capacity to protect its
own interests in connection with this transaction.
(g) Shareholder is at least 21 years of age and a bona fide
resident and domiciliary (not a temporary or transient resident) of the state or
country set forth as Shareholder's address on the signature page to this
Agreement, and has no present intention of becoming a resident of any other
state or jurisdiction, and Shareholder represents that these statements are now
true and have been true since prior to the first offer to him of an opportunity
to invest in the Corporation.
(h) The offer and sale of the Shares was not accomplished by the
publication of any advertisement.
(i) Shareholder understands that this transaction has not been
reviewed or approved by the Securities and Exchange Commission or any other
governmental agency or department.
6. Other Matters.
(a) Shareholder recognizes that the sale and issuance of the
Shares to him, and the admission of Shareholder as a shareholder in the
Corporation, is based upon the representations and warranties contained herein
and Shareholder agrees to indemnify and hold harmless the Corporation and its
officers, directors, employees, agents and representatives against any and all
liabilities, costs and expenses (including reasonable attorneys' fees) arising
by reason of or in connection with any misrepresentation or any breach of such
warranties by Shareholder, or arising as a result of the sale or distribution of
all or any portion of the Shares by Shareholder in violation of the Securities
Act or other applicable law.
Page 4 of 5
(b) This Subscription Letter shall be governed by and construed
in accordance with the laws of the State of Texas without regard to the conflict
of laws principles of any jurisdiction.
(c) This Subscription Letter, together with the Corporation
Agreement, constitute the entire agreement among the parties hereto with respect
to the subject matter hereof.
[THE NEXT FOLLOWING PAGE IS A SIGNATURE PAGE.]
Page 5 of 5
Very truly yours,
/s/ XXXXXX X. XXXXX
------------------------------------------
Signature of Shareholder
Xxxxxx X. Xxxxx
------------------------------------------
Name of Shareholder (Printed)
0000 Xxxxxx Xxxx Xxxx, #000
------------------------------------------
Shareholder's Street Address
Dallas
------------------------------------------
Xxxx xx Xxxx
XX 00000
------------------------------------------
State Zip Code
------------------------------------------
Shareholder's Social Security Number
12/30/2003
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Date
