Exhibit 10.01
AGREEMENT AND PLAN FOR CORPORATE SEPARATION
1 Date of Agreement. The date of this Agreement is the 21st day of
July, 2000.
2 Parties.
2.1 APTA HOLDINGS, INC., a Delaware corporation, with addresses at 000
Xxxx Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx, 00000 ("Apta");
2.2 SPRING VILLAGE HOLDINGS, INC., a New Jersey corporation, with
addresses at 000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx, 00000 ("Spring
Village"); and
2.3 GAVELLA CORP., a Delaware corporation, with addresses at 000 Xxxx
Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx, 00000 ("Gavella").
3 Background.
3.1 100% of the outstanding shares of common stock of Spring Village are
owned by Apta;
3.2 Apta is engaged in the separate businesses of (i) owning and
operating
income producing properties through its ownership of Spring Village, and (ii)
originating and servicing loans to businesses and individuals through a
subsidiary
corporation known as Xxxxx Corp., a Delaware corporation ("Xxxxx").
3.3 The directors of Apta have agreed upon a division of the business of
Apta so that the business of Spring Village will be owned in a separate
corporate form by Gavella, and the business of Xxxxx will continue to be owned
by Apta.
4 Plan of Corporate Separation. The following Plan of Corporate
Separation,
hereinafter referred to as the "Plan", is hereby approved, adopted and agreed
upon:
4.1 Organization of Gavella Corp. Apta shall cause to be organized,
under
the laws of the State of Delaware, a new corporation known as Gavella Corp.,
with
powers and capitalization as set forth in the certificate of incorporation
attached hereto as Schedule 4.1. Of the 3,000,000 authorized shares of
Gavella, 2,000,000 shares shall be issued and delivered to Apta in fully paid,
non-assessable certificates.
4.2 Transfer of Assets to Gavella. In exchange for the 2,000,000 shares
of Gavella, Apta shall assign, transfer, convey and deliver to Gavella 500,000
shares of the common stock of Spring Village, representing 100% of the
outstanding stock of Spring Village, subject to all of the liabilities of
Spring Village, and all of the obligations of Apta related to Spring Village,
including the terms and conditions of the Stock Pledge Agreement between ARCA
Corp. (Apta's predecessor) and Resource Properties XXIII, Inc., as amended, a
copy of which is attached hereto as Exhibit 4.2.
4.3 Indemnification by Gavella. Gavella hereby guarantees payment of
all liabilities, obligations, debts and demands of Apta related to the current
and past activities of Spring Village.
4.4 Closing. Closing shall take place on August 7, 2000 at 2:00 p.m.,
and the transactions contemplated by the Plan and this Agreement shall be
consummated at the office of Apta. Each of the parties shall execute and
deliver such further instruments as may be reasonably requested by the other
parties in order to carry out the purpose and intent of the Plan and this
Agreement.
4.5 Authorization. This agreement is being executed by Apta pursuant to
a resolution adopted this day at a special meeting of its directors. This
Agreement is also being executed by Gavella pursuant to a resolution adopted
this day at a special meeting of its directors.
5 Notices. All notices, requests, and demands given to or made upon the
parties hereto shall, except as otherwise specified herein, be in writing and
be delivered by fax, express delivery, in person, or mailed to any such party
at the address of such party set forth in Section 2 "Parties" above. Any
party may, by notice hereunder to the other party, designate a changed address
for such party. Any notice, if faxed, shall be deemed received upon
confirmation of the receipt thereof; if sent by express delivery, shall be
deemed received upon delivery as set forth on the express delivery receipt; if
personally delivered, shall be deemed received upon delivery; and if mailed
properly addressed, postage prepaid, certified mail, shall be deemed
dispatched on the date stamped on the certified mail receipt, and shall be
deemed received the fifth business day thereafter, or when it is actually
received, whichever is sooner. Attempted delivery, in person or by express
delivery at the correct address, shall be deemed received on the date of such
attempted delivery. All references to hours of the day shall mean the
official time in effect on the date in question in the State of New Jersey.
6 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns, and
legal representatives.
7 Assignability. Neither party hereto shall have the right to assign or
otherwise transfer (by operation of law or otherwise) its rights or
obligations under this Agreement except with the prior written consent of the
other party.
8 Captions. Captions of the sections of this Agreement are for convenience
and reference only, and the words contained shall not be held to modify,
amplify, or aid in the interpretation of the provisions of this Agreement.
9 Counterparts and/or Facsimile Signature. This Agreement may be
executed in any number of counterparts, including counterparts transmitted by
telecopier or FAX, any one of which shall constitute an original of this
Agreement. When counterparts of facsimile copies have been executed by all
parties, they shall have the same effect as if the signatures to each
counterpart or copy were upon the same document and copies of such documents
shall be deemed valid as originals. The parties agree that all such
signatures may be transferred to a single document upon the request of any
party.
10 Situs. This Agreement shall be governed by and construed in accordance
with the laws of the State of New Jersey, without giving effect to conflict of
laws.
11. Arbitration. Except for obtaining injunctive relief by either party
against actual or threatened conduct that would cause irreparable harm to that
party, and except for controversies, disputes or claims under this Agreement
related to the enforceability of restrictive covenants relating to
non-competition, any dispute arising between the parties shall be submitted
for arbitration to be administered by the Philadelphia office of the American
Arbitration association on demand of either party. All such claims shall be
heard by one arbitrator. Such arbitration proceedings shall be conducted in
Philadelphia or its adjacent suburbs, and, except as otherwise provided in
this agreement, shall be conducted in accordance with the then-current
Commercial Arbitration Rules of the American Arbitration Association. The
arbitrator shall have the right to award or include in its award any relief
which he or she deems proper in the circumstances, including without
limitation, money damages (with interest on unpaid amounts from date due),
specific performance, injunctive relief, reasonable attorneys' fees and costs.
The award and decision of the arbitrator shall be conclusive and binding upon
all parties hereto and judgment upon the award may be entered in any court of
competent jurisdiction, and each waives any right to contest the validity or
enforceability of such award. The arbitrator shall apply the provisions of
any applicable limitation on the period of time in which claims must be
brought. The parties further agree that, in connection with any such
arbitration proceeding, each shall submit or file any claim that would
constitute a compulsory counterclaim (as defined by rule 13 of the federal
rules of civil procedure) within the same proceeding as the claim to which it
relates. Any such claim which is not submitted or filed in such proceeding
shall be barred. This provision shall continue in full force and effect
subsequent to and notwithstanding expiration or termination of this agreement.
The parties agree that arbitration shall be conducted on an individual, not a
class-wide, basis and that none of the parties hereto shall be entitled to
consolidation of arbitration proceedings involving such parties with those of
any third party, nor shall the arbitrator or any court be empowered to order
such consolidation.
12. Venue. With respect to any claim which will be determined by a court of
competent jurisdiction (excluding the arbitration set forth above, but not any
appeal or enforcement of such arbitration), any action, suit, or proceeding
arising out of, based on, or in connection with this Agreement may be brought
only in the Superior Court of New Jersey, Burlington County, or the United
States District Court for the Southern District of New Jersey, and each party
covenants and agrees not to assert, by way of motion, as a defense, or
otherwise in any such action, suit, or proceeding, any claim that it or he is
not subject personally to the jurisdiction of such court, that its or his
property is exempt or immune from attachment or execution, that the action,
suit, or proceeding is brought in an inconvenient forum, that the venue of the
action, suit, or proceeding is improper, or that this Agreement or the subject
matter hereof may not be enforced in or by such court.
13. Non-Waiver. No delay or failure by a party to exercise any right under
this Agreement, and no partial or single exercise of that right, shall
constitute a waiver of that or any other right, unless otherwise expressly
provided herein.
14. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
15. Modification. This Agreement may not be and shall not be deemed or
construed to have been modified, amended, rescinded, canceled, or waived in
whole or in part, except by a written instrument signed by the parties hereto.
16. Entire Agreement. This Agreement constitutes and expresses the entire
agreement and understanding between the parties hereto in reference to all the
matters referred to herein, and any previous discussions, promises,
representations, and understanding relative thereto are merged into the terms
of this Agreement and shall have no further force and effect.
Executed by each party as of the day and year first above written.
APTA HOLDINGS, INC. GAVELLA CORP.
______________________________________ ___________________________________
By: Xxxxx X. Xxxxxxx, President By: Xxxxx X. Xxxxxxx, President
______________________________________ ___________________________________
Attest: Xxxxxxx X. Xxxxxxxx, Secretary Attest: Xxxxxxx X. Xxxxxxxx,
Secretary
