AGREEMENT AND PLAN OF REORGANIZATION among EASTWARD ACQUISITION
CORPORATION, a Delaware corporation ("Eastward"), MILLING SYSTEMS &
CONCEPTS PTE LTD., a Singapore corporation ("Milling Systems") and
the persons listed in Exhibit A hereof (collectively the
"Shareholders"), being the owners of record of all the issued and
outstanding stock of Milling Systems.
Whereas, Eastward wishes to acquire and Shareholders wish to
transfer all of the issued and outstanding securities of Milling
Systems in a transaction intended to qualify as a reorganization
within the meaning of Section368(a)(1)(B) of the Internal Revenue
Code of 1986, as amended (the "Exchange").
Now, therefore, Eastward, Milling Systems, and the Shareholders
adopt this plan of reorganization and agree as follows:
1. EXCHANGE OF STOCK
1.1. NUMBER OF SHARES. The Shareholders agree to
transfer to Eastward at the Closing (defined below) the number of
shares of common stock of Milling Systems, S$0.10 par value per
share, shown opposite their names in Exhibit A, in exchange for an
aggregate of 20,000,000 shares of voting common stock of Eastward,
$0.0001 par value per share.
1.2. EXCHANGE OF CERTIFICATES. Each holder of an
outstanding certificate or certificates theretofore representing
shares of Milling Systems common stock shall surrender such
certificate(s) for cancellation to Eastward, and shall receive in
exchange a certificate or certificates representing the number of
full shares of Eastward common stock into which the shares of
Milling Systems common stock represented by the certificate or
certificates so surrendered shall have been converted. The transfer
of Milling Systems shares by the Shareholders shall be effected by
the delivery to Eastward at the Closing of certificates representing
the transferred shares endorsed in blank or accompanied by stock
powers executed in blank.
1.3. FRACTIONAL SHARES. Fractional shares of Eastward
common stock shall not be issued, but in lieu thereof Eastward shall
round up fractional shares to the next highest whole number.
1.4. FURTHER ASSURANCES. At the Closing and from time to
time thereafter, the Shareholders shall execute such additional
instruments and take such other action as Eastward may request in
order more effectively to sell, transfer, and assign the transferred
stock to Eastward and to confirm Eastward's title thereto.
2. CLOSING
2.1. MANNER. The Closing contemplated herein shall be
held at the offices of the Exchange Agent provided for herein
without requiring the meeting of the parties hereof. All
proceedings to be taken and all documents to be executed at the
Closing shall be deemed to have been taken, delivered and executed
simultaneously, and no proceeding shall be deemed taken nor
documents deemed Agreement and Plan of ReorganizationPage number
executed or delivered until all have been taken, delivered and
executed. The date of Closing may be accelerated or extended by
agreement of the parties.
2.2. EXECUTION OF DOCUMENTS. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or
transmission required by this agreement or any signature required
thereon may be used in lieu of an original writing or transmission
or signature for any and all purposes for which the original could
be used, provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire
original writing or transmission or original signature.
3. UNEXCHANGED CERTIFICATES. Until surrendered, each
outstanding certificate that prior to the Closing represented
Milling Systems common stock shall be deemed for all purposes, other
than the payment of dividends or other distributions, to evidence
ownership of the number of shares of Eastward common stock into
which it was converted. No dividend or other distribution shall be
paid to the holders of certificates of Milling Systems common stock
until presented for exchange at which time any outstanding dividends
or other distributions shall be paid.
4. REPRESENTATIONS AND WARRANTIES OF EASTWARD
Eastward represents and warrants as follows:
4.1. CORPORATE ORGANIZATION AND GOOD STANDING. Eastward is a
corporation duly organized, validly existing, and in good standing
under the laws of the State of Delaware, and is qualified to do
business as a foreign corporation in each jurisdiction, if any, in
which its property or business requires such qualification.
4.2. REPORTING COMPANY STATUS. Eastward has filed with the
Securities and Exchange Commission a registration statement on Form
10-SB which became effective pursuant to the Securities Exchange Act
of 1934 and is a reporting company pursuant to Section12(g) thereunder.
4.3. REPORTING COMPANY FILINGS. Eastward has timely filed and
is current on all reports required to be filed by it pursuant to
Section13 of the Securities Exchange Act of 1934.
4.4. CAPITALIZATION. Eastward's authorized capital stock
consists of 100,000,000 shares of common stock, $.0001 par value, of
which 5,000,000 shares are issued and outstanding, and 20,000,000
shares of non-designated preferred stock of which no shares are
designated or issued.
4.5. ISSUED STOCK. All the outstanding shares of its common
stock are duly authorized and validly issued, fully paid and
non-assessable.
4.6. STOCK RIGHTS. Except as may be set out by attached
schedule, there are no stock grants, options, rights, warrants or
other rights to purchase or obtain Eastward common or preferred
stock issued or committed to be issued.
4.7. CORPORATE AUTHORITY. Eastward has all requisite corporate
power and authority to own, operate and lease its properties, to
carry on its business as it is now being conducted and to execute,
deliver, perform and conclude the transactions contemplated by this
agreement and all other agreements and instruments related to this
agreement.
4.8. AUTHORIZATION. Execution of this agreement has been duly
authorized and approved by Eastward's board of directors.
4.9. SUBSIDIARIES. Except as may be set out by attached
schedule, Eastward has no subsidiaries.
4.10. FINANCIAL STATEMENTS. Eastward's financial statements
dated August 7, 2000, copies of which will have been delivered by
Eastward to Milling Systems prior to the Closing (the "Eastward
Financial Statements"), fairly present the financial condition of
Eastward as of the date therein and the results of its operations
for the periods then ended in conformity with generally accepted
accounting principles consistently applied.
4.11. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent
reflected or reserved against in the Eastward Financial Statements,
Eastward did not have at that date any liabilities or obligations
(secured, unsecured, contingent, or otherwise) of a nature
customarily reflected in a corporate balance sheet prepared in
accordance with generally accepted accounting principles.
4.12. NO MATERIAL CHANGES. Except as may be set out by attached
schedule, there has been no material adverse change in the business,
properties, or financial condition of Eastward since the date of the
Eastward Financial Statements.
4.13. LITIGATION. Except as may be set out by attached schedule,
there is not, to the knowledge of Eastward, any pending, threatened,
or existing litigation, bankruptcy, criminal, civil, or regulatory
proceeding or investigation, threatened or contemplated against
Eastward or against any of its officers.
4.14. CONTRACTS. Except as may be set out by attached schedule,
Eastward is not a party to any material contract not in the ordinary
course of business that is to be performed in whole or in part at or
after the date of this agreement.
4.15. TITLE. Except as may be set out by attached schedule,
Eastward has good and marketable title to all the real property and
good and valid title to all other property included in the Eastward
Financial Statements. Except as set out in the balance sheet
thereof, the properties of Eastward are not subject to any mortgage,
encumbrance, or lien of any kind except minor encumbrances that do
not materially interfere with the use of the property in the conduct
of the business of Eastward.
4.16. TAX RETURNS. Except as may be set out by attached
schedule, all required tax returns for federal, state, county,
municipal, local, foreign and other taxes and assessments have been
properly prepared and filed by Eastward for all years for which such
returns are due unless an extension for filing any such return has
been filed. Any and all federal, state, county, municipal, local,
foreign and other taxes and assessments, including any and all
interest, penalties and additions imposed with respect to such
amounts have been paid or provided for. The provisions for federal
and state taxes reflected in the Eastward Financial Statements are
adequate to cover any such taxes that may be assessed against
Eastward in respect of its business and its operations during the
periods covered by the Eastward Financial Statements and all prior
periods.
4.17. NO VIOLATION. Consummation of the Exchange will not
constitute or result in a breach or default under any provision of
any charter, bylaw, indenture, mortgage, lease, or agreement, or any
order, judgment, decree, law, or regulation to which any property of
Eastward is subject or by which Eastward is bound.
5. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
The Shareholders, individually and separately, represent and
warrant as follows:
5.1. TITLE TO SHARES. The Shareholders, and each of them, are
the owners, free and clear of any liens and encumbrances, of the
number of Milling Systems shares which are listed in the attached
Exhibit A and which they have contracted to exchange.
5.2. STOCK RIGHTS. No Shareholder owns or claims any stock
grants, options,
rights, warrants or other rights to purchase or obtain Milling
Systems's common or preferred stock.
5.3. ALL STOCK. Each Shareholder shall transfer herewith all
common stock of
Milling Systems owned legally or beneficially by such Shareholder.
5.4. LITIGATION. There is no litigation or proceeding pending,
or to each Shareholder's knowledge threatened, against or relating
to shares of Milling Systems held by the Shareholders.
6. REPRESENTATIONS AND WARRANTIES OF MILLING SYSTEMS
Milling Systems represents and warrants as follows:
6.1. CORPORATE ORGANIZATION AND GOOD STANDING. Milling Systems
is a corporation duly organized, validly existing, and in good
standing under the laws of the Republic of Singapore and is
qualified to do business as a foreign corporation in each
jurisdiction, if any, in which its property or business requires
such qualification.
6.2. CAPITALIZATION. Milling Systems's authorized capital stock
consists of 10,000,000 shares of common stock, S$0.10 par value per
share, of which 10,000,000 shares are issued and outstanding, and no
shares of preferred stock.
6.3. ISSUED STOCK. All the outstanding shares of its common
stock are duly authorized and validly issued, fully paid and
non-assessable.
6.4. STOCK RIGHTS. Except as may be set out by attached
schedule, there are no stock grants, options, rights, warrants or
other rights to purchase or obtain Milling Systems common or
preferred stock issued or committed to be issued.
6.5. CORPORATE AUTHORITY. Milling Systems has all requisite
corporate power and authority to own, operate and lease its
properties, to carry on its business as it is now being conducted
and to execute, deliver, perform and conclude the transactions
contemplated by this agreement and all other agreements and
instruments related to this agreement.
6.6. AUTHORIZATION. Execution of this agreement has been duly
authorized and approved by Milling Systems's board of directors.
6.7. SUBSIDIARIES. Except as may be set out by attached
schedule, Milling Systems has no subsidiaries.
6.8. FINANCIAL STATEMENTS. Milling Systems's unaudited
financial statements, copies of which
will have been delivered by Milling Systems to Eastward prior to the
Exchange Date (the "Milling Systems Financial Statements"), fairly
present the financial condition of Milling Systems as of the date
therein and the results of its operations for the periods then ended
in conformity with generally accepted accounting principles
consistently applied.
6.9. ABSENCE OF UNDISCLOSED LIABILITIES. Except to the extent
reflected or reserved against in the Milling Systems Financial
Statements, Milling Systems did not have at that date any
liabilities or obligations (secured, unsecured, contingent, or
otherwise) of a nature customarily reflected in a corporate balance
sheet prepared in accordance with generally accepted accounting
principles.
6.10. NO MATERIAL CHANGES. Except as may be set out by attached
schedule, there has been no material adverse change in the business,
properties, or financial condition of Milling Systems since the date
of the Milling Systems Financial Statements.
6.11. LITIGATION. Except as may be set out by attached schedule,
there is not, to the knowledge of Milling Systems, any pending,
threatened, or existing litigation, bankruptcy, criminal, civil, or
regulatory proceeding or investigation, threatened or contemplated
against Milling Systems or against any of its officers.
6.12. CONTRACTS. Except as may be set out by attached schedule,
Milling Systems is not a party to any material contract not in the
ordinary course of business that is to be performed in whole or in
part at or after the date of this agreement.
6.13. TITLE. Except as may be set out by attached schedule,
Milling Systems has good and marketable title to all the real
property and good and valid title to all other property included in
the Milling Systems Financial Statements. Except as set out in the
balance sheet thereof, the properties of Milling Systems are not
subject to any mortgage, encumbrance, or lien of any kind except
minor encumbrances that do not materially interfere with the use of
the property in the conduct of the business of Milling Systems.
6.14. TAX RETURNS. Except as may be set out by attached
schedule, all required tax returns for federal, state, county,
municipal, local, foreign and other taxes and assessments have been
properly prepared and filed by Milling Systems for all years for
which such returns are due unless an extension for filing any such
return has been filed. Any and all federal, state, county,
municipal, local, foreign and other taxes and assessments, including
any and all interest, penalties and additions imposed with respect
to such amounts have been paid or provided for. The provisions for
federal and state taxes reflected in the Milling Systems Financial
Statements are adequate to cover any such taxes that may be assessed
against Milling Systems in respect of its business and its
operations during the periods covered by the Milling Systems
Financial Statements and all prior periods.
6.15. NO VIOLATION. Consummation of the Exchange will not
constitute or result in a breach or default under any provision of
any charter, bylaw, indenture, mortgage, lease, or agreement, or any
order, judgment, decree, law, or regulation to which any property of
Milling Systems is subject or by which Milling Systems is bound.
7. CONDUCT PENDING THE CLOSING
Eastward, Milling Systems and the Shareholders covenant that
between the date of this agreement and the Closing as to each of them:
7.1. No change will be made in the charter documents, by-laws,
or other corporate documents of Eastward or Milling Systems.
7.2. Milling Systems and Eastward will use their best efforts to
maintain and preserve their business organization, employee
relationships, and goodwill intact, and will not enter into any
material commitment except in the ordinary course of business.
7.3. None of the Shareholders will sell, transfer, assign,
hypothecate, lien, or otherwise dispose or encumber the Milling
Systems shares of common stock owned by them.
8. CONDITIONS PRECEDENT TO OBLIGATION OF MILLING SYSTEMS AND
THE SHAREHOLDERS
Milling Systems's and the Shareholders' obligation to consummate
the Exchange shall be subject to fulfillment on or before the
Closing of each of the following conditions, unless waived in writing:
8.1. EASTWARD'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Eastward set forth herein shall be
true and correct at the Closing as though made at and as of that
date, except as affected by transactions contemplated hereby.
8.2. EASTWARD'S COVENANTS. Eastward shall have performed all
covenants required by this agreement to be performed by it on or
before the Closing.
8.3. BOARD OF DIRECTOR APPROVAL. This Agreement shall have been
approved by the board of directors of Eastward.
8.4. SUPPORTING DOCUMENTS OF EASTWARD. Eastward shall have
delivered to Milling Systems and the Shareholders supporting
documents in form and substance reasonably satisfactory to Milling
Systems and the Shareholders, to the effect that:
(a) Eastward is a corporation duly organized, validly existing,
and in good standing;
(b) Eastward's authorized capital stock is as set forth herein;
(c) Certified copies of the resolutions of the board of
directors of Eastward authorizing the execution of this agreement
and the consummation hereof;
(d) Secretary's certificate of incumbency of the officers and
directors of Eastward;
(e) Eastward's Financial Statements and unaudited financial
statement from the date of Eastward's Financial Statements to close
of most recent fiscal quarter; and
(f) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated
elsewhere herein.
9. CONDITIONS PRECEDENT TO OBLIGATION OF EASTWARD
Eastward's obligation to consummate the Exchange shall be subject
to fulfillment on or before the Closing of each of the following
conditions, unless waived in writing:
9.1. MILLING SYSTEMS'S AND THE SHAREHOLDERS' REPRESENTATIONS AND
WARRANTIES. The representations and warranties of Milling Systems
and the Shareholders set forth herein shall be true and correct at
the Closing as though made at and as of that date, except as
affected by transactions contemplated hereby.
9.2. MILLING SYSTEMS'S AND THE SHAREHOLDERS' COVENANTS. Milling
Systems and the Shareholders shall have performed all covenants
required by this agreement to be performed by them on or before the
Closing.
9.3. BOARD OF DIRECTOR APPROVAL. This Agreement shall
have been approved by the board of directors of Milling Systems.
9.4. SHAREHOLDER EXECUTION. This Agreement shall have been
executed by all the Shareholders.
9.5. SUPPORTING DOCUMENTS OF MILLING SYSTEMS. Milling Systems
shall have delivered to Eastward supporting documents in form and
substance reasonably satisfactory to Eastward to the effect that:
(a) Milling Systems is a corporation duly organized, validly
existing, and in good standing;
(b) Milling Systems's capital stock is as set forth herein;
(c) Certified copies of the resolutions of the board of
directors of Milling Systems authorizing the execution of this
agreement and the consummation hereof;
(d) Secretary's certificate of incumbency of the officers and
directors of Milling Systems;
(e) Milling Systems's Financial Statements and unaudited
financial statements for the period from the date of the Milling
Systems's Financial Statements to the close of the most recent
fiscal quarter; and
(f) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties enumerated
elsewhere herein.
10. SHAREHOLDERS' REPRESENTATIVE. The Shareholders hereby
irrevocably designate and appoint Xxxxxx Xxx Xxxxx Xxxxx as their
agent and attorney in fact ("Shareholders' Representative") with
full power and authority until the Closing to execute, deliver, and
receive on their behalf all notices, requests, and other
communications hereunder; to fix and alter on their behalf the date,
time, and place of the Closing; to waive, amend, or modify any
provisions of this agreement, and to take such other action on their
behalf in connection with this agreement, the Closing, and the
transactions contemplated hereby as such agent or agents deem
appropriate.
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties
of Milling Systems, the Shareholders and Eastward set out herein
shall survive the Closing.
12. ARBITRATION
12.1. SCOPE. The parties hereby agree that any and all claims
(except only for requests for injunctive or other equitable relief)
whether existing now, in the past or in the future as to which the
parties or any affiliates may be adverse parties, and whether
arising out of this agreement or from any other cause, will be
resolved by arbitration before the American Arbitration Association
within the District of Columbia.
12.2. CONSENT TO JURISDICTION, SITUS AND JUDGEMENT. The parties
hereby irrevocably consent to the jurisdiction of the American
Arbitration Association and the situs of the arbitration (and any
requests for injunctive or other equitable relief) within the
District of Columbia. Any award in arbitration may be entered in
any domestic or foreign court having jurisdiction over the
enforcement of such awards.
12.3. APPLICABLE LAW. The law applicable to the arbitration and
this agreement shall be that of the State of Delaware, determined
without regard to its provisions which would otherwise apply to a
question of conflict of laws.
12.4. DISCLOSURE AND DISCOVERY. The arbitrator may, in its
discretion, allow the parties to make reasonable disclosure and
discovery in regard to any matters which are the subject of the
arbitration and to compel compliance with such disclosure and
discovery order. The arbitrator may order the parties to comply
with all or any of the disclosure and discovery provisions of the
Federal Rules of Civil Procedure, as they then exist, as may be
modified by the arbitrator consistent with the desire to simplify
the conduct and minimize the expense of the arbitration.
12.5. RULES OF LAW. Regardless of any practices of arbitration
to the contrary, the arbitrator will apply the rules of contract and
other law of the jurisdiction whose law applies to the arbitration
so that the decision of the arbitrator will be, as much as possible,
the same as if the dispute had been determined by a court of
competent jurisdiction.
12.6. FINALITY AND FEES. Any award or decision by the American
Arbitration Association shall be final, binding and non-appealable
except as to errors of law or the failure of the arbitrator to
adhere to the arbitration provisions contained in this agreement.
Each party to the arbitration shall pay its own costs and counsel
fees except as specifically provided otherwise in this agreement.
12.7. MEASURE OF DAMAGES. In any adverse action, the parties
shall restrict themselves to claims for compensatory damages and\or
securities issued or to be issued and no claims shall be made by any
party or affiliate for lost profits, punitive or multiple damages.
12.8. COVENANT NOT TO XXX. The parties covenant that under no
conditions will any party or any affiliate file any action against
the other (except only requests for injunctive or other equitable
relief) in any forum other than before the American Arbitration
Association, and the parties agree that any such action, if filed,
shall be dismissed upon application and shall be referred for
arbitration hereunder with costs and attorney's fees to the
prevailing party.
12.9. INTENTION. It is the intention of the parties and their
affiliates that all disputes of any nature between them, whenever
arising, whether in regard to this agreement or any other matter,
from whatever cause, based on whatever law, rule or regulation,
whether statutory or common law, and however characterized, be
decided by arbitration as provided herein and that no party or
affiliate be required to litigate in any other forum any disputes or
other matters except for requests for injunctive or equitable
relief. This agreement shall be interpreted in conformance with
this stated intent of the parties and their affiliates.
12.10. SURVIVAL. The provisions for arbitration contained
herein shall survive the termination of this agreement for any reason.
13. GENERAL PROVISIONS.
13.1. FURTHER ASSURANCES. From time to time, each party will
execute such additional instruments and take such actions as may be
reasonably required to carry out the intent and purposes of this
agreement.
13.2. WAIVER. Any failure on the part of either party hereto to
comply with any of its obligations, agreements, or conditions
hereunder may be waived in writing by the party to whom such
compliance is owed.
13.3. BROKERS. Each party agrees to indemnify and hold harmless
the other party against any fee, loss, or expense arising out of
claims by brokers or finders employed or alleged to have been
employed by the indemnifying party.
13.4. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given if
delivered in person or sent by prepaid first-class certified mail,
return receipt requested, or recognized commercial courier service,
as follows:
If to Eastward, to:
Eastward Corporation
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
If to Milling Systems, to:
Milling Concepts & Systems Pte Ltd.
00/00 Xxx Xxxxxx
Xxxxxxxxx 000000
If to the Shareholders, to:
Xxxxxx Xxx
00/00 Xxx Xxxxxx
Xxxxxxxxx 000000
If to the Exchange Agent, to:
Xxxxxx Mill Associates, Inc.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
13.5. GOVERNING LAW. This agreement shall be governed by and
construed and enforced in accordance with the laws of the State of
Delaware.
13.6. ASSIGNMENT. This agreement shall inure to the benefit of,
and be binding upon, the parties hereto and their successors and
assigns; provided, however, that any assignment by any party of its
rights under this agreement without the written consent of each
other party shall be void.
13.7. COUNTERPARTS. This agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one
and the same instrument. Signatures sent by facsimile transmission
shall be deemed to be evidence of the original execution thereof.
13.8. EXCHANGE AGENT AND CLOSING DATE. The Exchange Agent shall
be Xxxxxx Mill Associates, Inc., Washington, D.C. The Closing shall
take place upon the fulfillment by each party of all the conditions
of the Closing required herein, but not later than 15 days following
execution of this agreement unless extended by mutual consent of the
parties.
13.9. REVIEW OF AGREEMENT. Each party acknowledges that it has
had time to review this agreement and, as desired, consult with
counsel. In the interpretation of this agreement, no adverse
presumption shall be made against any party on the basis that it has
prepared, or participated in the preparation of, this agreement.
13.10. EFFECTIVE DATE. This effective date of this
agreement shall be ________________.
SIGNATURE PAGE TO AGREEMENT AND PLAN OF REORGANIZATION
AMONG EASTWARD, MILLING SYSTEMS AND THE SHAREHOLDERS OF MILLING
SYSTEMS
IN WITNESS WHEREOF, the parties have executed this agreement.
EASTWARD ACQUISITION CORPORATION
By___________________________________
MILLING SYSTEMS & CONCEPTS PTE LTD.
By___________________________________
SHAREHOLDER REPRESENTATIVE
By___________________________________
