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Exhibit 2.1
PLAN AND AGREEMENT OF REORGANIZATION
by exchange by
FUSA CAPITAL CORPORATION
of its voting stock for stock of
FUSA TECHNOLOGY INVESTMENTS CORP..
in acquisition of 100 percent
of FUSA TECHNOLOGY INVESTMENTS CORP.'S Outstanding Shares
FUSA Capital Corporation, a Nevada corporation, (hereinafter sometimes
called "FUSA or "Buyer"), and FUSA TECHNOLOGY INVESTMENTS CORP., a Nevada
corporation (hereinafter called "FTIC"), and the shareholder(s) of FTIC who have
executed this Agreement by execution of Schedule A hereto, and who in the
aggregate own 100% of the outstanding shares of FTIC (hereinafter sometimes
collectively called Shareholder(s) and individually called Shareholder), agree
as follows:
ARTICLE 1.
PLAN OF REORGANIZATION
Plan Adopted
Section 1.01. A plan of reorganization of FUSA and FTIC, pursuant to the
provisions of Section 368(a)(1)(B) of the Internal Revenue Code of 1986, is
hereby adopted as follows:
(a) At the Closing, Shareholder(s) will transfer to FUSA, the number of shares
of capital stock of FTIC set forth opposite his/her or its name in Schedule
A attached, which will constitute in the aggregate 100% of the issued and
outstanding shares of capital stock of FTIC (hereinafter the "Shares").
(b) At the Closing, Shareholder(s) will deliver certificates, fully executed
and in form for transfer, to FUSA, evidencing the Shares.
(c) At the Closing, in exchange for the Shares so transferred by
Shareholder(s), FUSA will cause to be delivered to Shareholder(s) the
number of shares of common stock of FUSA set forth opposite the name of
each Shareholder(s) in Schedule A attached hereto.
Shares Outstanding After Acquisition
Section 1.02, Upon consummation of this exchange, there will be a total
of 18,149,188 common shares of FUSA outstanding, of which 9,149,188 shares
(50.41%), will be held by the old shareholders of FUSA, and 9,000,000 shares
(49.59%), will be owned by the exchanging Shareholders of FTIC. FUSA will own
100% of the outstanding shares of FTIC.
Closing Date
Section 1.03. Subject to the conditions precedent set forth herein to
the obligations of the parties to consummate the transaction, the plan of
reorganization shall be consummated at the offices of FUSA on or before March 1,
2005, at 10 a.m., or such other place and time as may be fixed by mutual consent
of the parties. The date of such consummation is the "closing date" referred to
herein.
ARTICLE 2.
COVENANTS, REPRESENTATIONS, AND
WARRANTIES OF FTIC
Legal Status of Corporation
Section 2.01. FTIC is a corporation duly organized, validly existing,
and in good standing under the laws of the state of Nevada, with corporate power
to own property and carry on its business as it is now being conducted, and is
duly qualified to transact business in the state of Nevada, the only state in
which it presently conducts business.
Subsidiaries
Section 2.02. FTIC has no subsidiaries and no interests in any other
corporation.
Capitalization
Section 2.03. FTIC has an authorized capitalization of 9,000,000
Shares, each of $0.001 par value, of which 9,000,000 Shares and no more,
are validly issued and outstanding, fully paid and nonassessable, and, except as
set out in Schedule 3.03 FTIC has no obligation of any kind to issue any
additional capital stock or other securities, and has no other outstanding
securities.
Status of Shares Being Delivered
Section 2.04. The shares of Common Stock of FTIC to be delivered
pursuant to this plan and agreement of reorganization by Shareholders will be
validly issued, fully paid, and nonassessable voting shares.
FTIC Documents
Section 2.05. There are attached hereto as Exhibits, or supplied under
previous cover the corporate Articles of Incorporation and Bylaws, for FTIC. All
such documents are true copies of originals.
Performance Not Violative of any Instrument
Section 2.06. The performance by Shareholders of their respective
obligations under this Agreement will not result in any breach of the terms or
conditions of, or constitute a default under, any agreement or instrument to
which FTIC or any Shareholder is a party, or by the terms of which FTIC or any
Shareholder is bound.
Material Contracts
Section 2.07. Except as listed in Exhibits hereto, FTIC is not a party
to or bound by any material, oral or written:
(a) Contract not made in the ordinary course of business.
(b) Contract for the employment of any officer or employee or commitment
for any special bonus, compensation, or severance pay.
(c) Pension, profit sharing, retirement, or stock purchase plan with its
employees or others.
FTIC is not materially in default under any material contract or other
instrument to which it is a party or by the terms of which it is bound.
Litigation
Section 2.08. Except as set forth in Exhibits hereto, there are no:
(a) Claims made or pending or threatened against or affecting FTIC.
(b) Actions, proceedings, or investigations pending or threatened against
or affecting FTIC in any court or before or by any federal, state, municipal, or
other governmental agency or instrumentality.
(c) Orders, writs, injunctions, or decrees of any court or any governmental
agency or instrumentality against or affecting FTIC which might result in any
material adverse change in its assets, business operations or conditions,
financial or otherwise.
FTIC is in compliance with all laws and regulations and all orders and
decrees applicable to it or Its business or assets.
At Date of Closing
Section 2.09. From the date of this Agreement, through the date of
Closing, FTIC shall not have:
(a) Suffered any change in its financial condition or the operations of its
business, materially and adversely affecting its properties, or the earning
power thereof, nor suffered any damage, destruction or loss, whether covered by
insurance or not, materially and adversely affecting the properties or the
earning power thereof,
(b) Sold, exchanged, or otherwise disposed of any of its properties or any
interest therein.
(c) Except in the ordinary course of business, entered into any agreement
or arrangement selling, exchanging, or otherwise disposing of any of its assets
or granting any preferential or other right to purchase any of its assets or
rights or requiring the consent of any party to the transfer and assignment of
such assets or rights.
(d) Discharged or satisfied any lien or encumbrance or paid any obligation
or liability, absolute or contingent, other than current liabilities shown on
its financial statement.
Approval of Board
Section 2.10. The Board of Directors of FTIC, acting at a special
meeting thereof called for the purpose, has duly approved the transactions
contemplated hereby and has authorized the execution and delivery of this
Agreement by FTIC, and the performance thereof by FTIC. True copies of the
resolution giving such authorization and approval have been given to FUSA, and
such authorization and approval have not since been altered, amended, or
revoked.
Character of Statements
Section 2.11. The information provided in this Agreement by FTIC may be
used in a proxy statement, private placement memorandum or registration
statement prepared by FUSA in the future, and such information does not and will
not contain any statement which, at the time and in the light of the
circumstances under which it is made, is false or misleading withrespect to any
material fact, and does not and will not omit to state any material fact In
order to make the statements therein not false or misleading.
Preservation of and Access to Properties, Information,
and Documents
Section 2.12. From the date of this agreement until the closing date,
FTIC will:
(a) Except for depreciation through ordinary wear and tear, maintain and
keep its properties in as good condition and working order as at
present.
(b) Preserve in full force to the extent consistent with best industry
practices all its leases.
(c) Operate or cause to be operated all of the properties in accordance with
best industry practices.
(d) Use its best efforts to perform all its obligations under contracts
relating to or affecting the properties.
(e) Exercise all due diligence in safeguarding and maintaining secure all
trademarks, copyrights, formulas, trade secrets, confidential reports
and data, and all other confidential data In its possession relating to
its properties and business.
(f) Use its best efforts to cure all title or other defects of any of its
properties or intangible assets.
No Obligated for Broker's Fee
Section 2.13, Except as set out in Exhibits hereto, FTIC has not
incurred any obligation or liability, contingent or otherwise, for a broker's or
finder's fee in respect of the matters provided for in this agreement.
ARTICLE 3.
COVENANTS, REPRESENTATIONS AND WARRANTIES
OF SHAREHOLDERS OF FTIC
Valid and Binding Agreement to Transfer Shares
Section 3.01. This agreement has been duly executed and delivered
by Shareholder(s) and is, (as to each of them), a valid agreement binding
upon them in accordance with its terms, Shareholder(s) have full right and
power to exchange, transfer, and deliver the shares of FTIC to be exchanged
by them for shares of common stock of FUSA, as provided in this Agreement,
and on such exchange, transfer, and delivery, FUSA will acquire good and
marketable title to the shares of FTIC, free and clear of all voting or
other trust arrangements, liens, encumbrances, equities, and claims
whatsoever.
Acquisition for Investment
Section 3,02. The Shares of common stock of FUSA to be delivered
pursuant to this Agreement are being acquired by Shareholders for investment
and not with a view to or for sale in connection with any distribution
thereof. Shareholders do not presently have any reason to anticipate any
change in circumstances or any other particular occasion or event which
would cause them to sell any of said Shares.
Each of the Shareholders represents that he/she or it is an
"Accredited Person", as defined by SEC rules and regulations, is
sophisticated and able to fend for himself, and able and qualified to make
his/her or its own investment Decisions.
Restriction on Sale of Shares
Section 3.03. Unless at the time a registration statement is in
effect under the Securities Act of 1933 covering the Shares of common stock
of FUSA delivered hereunder, or an* exemption from registration available,
Shareholders will not offer for sale, sell, or otherwise dispose of the
Shares under circumstances which would require the registration thereof
under such act.
ARTICLE 4.
COVENANTS, REPRESENTATIONS, AND WARRANTIES
OF FUSA
Legal Status of Corporation
Section 4.01. FUSA is a corporation duly organized, validly, existing, and
in good standing under the laws of the State of Nevada, with corporate power
to own property and carry on its business as it is now being conducted, and
is duly qualified to transact its business and is in good standing under the
laws of the State of Nevada, the only state in which it is presently
conducting its business.
Subsidiaries
Section 4.02 FUSA has no subsidiaries and no interests in any other
corporation.
Capitalization
Section 4.03. FUSA has an authorized capitalization of 20,000,000
Common Shares and 5,000,000 Preferred Shares. At the close of business on
February 28, 2005, there were outstanding 9,149,188 shares of FUSA's Common
Stock. FUSA has no other securities outstanding and FUSA has no obligation of
any kind to issue any additional capital stock warrants, options, stock rights
or other securities.
Status of Shares Being Delivered
Section 4.04. The Shares of Common Stock of FUSA to be delivered
pursuant to this plan and agreement of reorganization to Shareholders will be
validly issued, fully paid, and nonassessable voting shares.
FUSA Documents
Section 4.05. There are attached hereto as Exhibits or supplied under
separate cover, the corporate Articles of Incorporation and Bylaws, for FUSA
All such documents-are true copies of originals.
Performance Not Violative of any instrument
Section 4.06. The performance by FUSA of its obligations under this
agreement will not result in 'any breach of the terms or conditions of, or
constitute a default under, any agreement or instrument to which FUSA is a
party, or by the terms of which FUSA is bound.
FUSA Shareholders
Section 4.07. At the closing FUSA will have 64 shareholders of
record, out of which 49 shareholders will hold in the aggregate 2,532,250
shares of free trading stock, and 15 shareholders will hold 15,616,938 'shares
of restricted stock.
Material Contracts
Section 4.08. Except for this Agreement or as disclosed in Exhibit's
hereto, FUSA is not a party to or bound by any material, oral or written:
(a) Contract not made in the ordinary course of business.
(b) Contract for the employment of any officer or employee or
commitment for any special bonus, compensation, or severance
pay.
(c) Pension, profit sharing, retirement, or stock purchase plan
with its employees or others.
FUSA is not materially in default under any material contract or other
instrument to which it is a party or by the terms of which it is bound.
Litigation
Section 4.09. There are no:
(a) Claims made or pending or threatened against or affecting FUSA.
(b) Actions, proceedings, or investigations pending or threatened
against or affecting FUSA in any court or before or by any
federal, state, municipal, or other governmental agency or
instrumentality.
(c) Orders, writs, injunctions, or decrees of any court or any
governmental agency or instrumentality against or affecting
FUSA which might result in any material adverse change in its
assets, business operations or conditions, financial or
otherwise.
FUSA Is in compliance with all laws and regulations and all orders and
decrees applicable to it or its business or assets.
Acquisition for Investment
Section 4.10. FUSA is acquiring the shares of capital stock of FTIC for
investment, and not with a view to or for sale in connection with any
distribution thereof.
Financial Statements
Section 4-11. FUSA will, if requested, deliver to FTIC an audited
balance sheet of FUSA as of December' 31, 2004, and the related statement of
Stockholder equity and cash flows for the year then ended. All such financial
statements have been prepared In conformity with generally accepted accounting
principles applied in the United States on a consistent basis and present fairly
the financial position of FUSA as of the date indicated, and the results of
operations for the periods then ended subject, however, in the case of the 2005
interim financial statements, to normal changes resulting from yearend closing
of the books.
Activities Since Balance Sheet Date
Section 4-12. Except as previously disclosed to FTIC in writing, since
January 31, 2005, FUSA has not:
(a) Suffered any change in its financial condition or the
operations of its business, materially and adversely affecting
its properties, or the earning power thereof, nor suffered any
damage, destruction or loss, whether covered by insurance or
not, materially and adversely affecting the properties or the
earning power thereof.
(b) Sold, exchanged, or otherwise disposed of any of its properties
or ay interest therein.
(c) Except in the ordinary course of business, entered into any
agreement or arrangement selling, exchanging, or otherwise
disposing of any of Its assets or granting any preferential or
other right to purchase any of its assets or rights or
requiring the consent of any party to the transfer and
assignment of such assets or rights.
(d) Discharged or satisfied any ' lien or encumbrance or paid any
obligation or Iiability, absolute or contingent, other than
current liabilities shown on its balance sheet, including
noncurrent liabilities so shown which have become current by
the passage of time, and current liabilities incurred since
that date in the ordinary course of
business.
(e) Except current liabilities incurred or obligations under
contracts entered into in the ordinary course of business,
incurred or agreed to incur any contractual obligation or
liability, absolute or contingent.
(f) Issued any stock, bonds, or other corporate securities, or any
options with respect thereto.
(g) Except to the extent consistent with past practice, granted any
increase in the compensation of, or paid any bonus to, any
employee.
(h) Except in the ordinary course of business, waived any right or claim
having value.
(i) Declared or paid any dividends, or made, or agreed to make, any other
distribution to any shareholder.
(j) Mortgaged or pledged or, except in the ordinary course of business,
subject to lien, charge, or any other encumbrance any of its assets,
tangible or intangible.
(k) Entered into any transaction or transactions the effect of which,
considered as a whole, would be to cause its net ownership in any of
its- properties to be materially less than it was at such date.
(l) Except with respect to any such property as may have been abandoned, or
quit claimed in the exercise of good business judgment in good faith,
performed or omitted to perform any act or acts the effect of which
consider as a whole would be to cause its net ownership in any of its
interests to be materially less than it was at such date.
(m) Sold, assigned, or transferred any trademarks, patents, copyrights,
proprietary or trade secrets, or other intangible assets.
(n) Had any labor troubles other than routine grievance matters, none of
which is material.
(o) Entered into any transaction other than in the ordinary course of
business.
(p) Made any expenditure for capital items, including construction and
work-in-process, or investment in stock of or advances in any form to
corporations or business firms in excess of $5,000.
Taxes
Section 4.13. The respective amounts set up as provisions for taxes on
FUSA's balance sheet of January 31, 2005 are sufficient for the payment of all
unpaid federal, state, county, and local taxes FUSA accrued for or applicable to
the fiscal period, ended on said date and all fiscal periods prior thereto. FUSA
has filed all federal, state, county, and other local tax returns which are
required to be filed, and has paid, or made provision for the payment of all
taxes which have or may become due pursuant to said returns or pursuant to any
assessment received by FUSA The Internal Revenue Service has completed any known
audit and review of all federal income tax returns of
FUSA for its fiscal year ending December 31, 2004 and any prior years, and all
additional taxes, interest, and penalties resulting from all known differences
between the lnternal Revenue Service and FUSA with respect to said income tax
returns have been paid.
Restriction on Sale of Shares
Section 4_14. Unless at the time a registration statement Is in effect
under the Securities Act of 1933 covering the shares of common stock of FTIC
received by FUSA hereunder, or an exemption from registration available, FUSA
will not offer for sale, sell, or otherwise dispose of the shares under
circumstances which would require the registration thereof under such act.
Approval of Board
Section 4.15. The Board of Directors of FUSA, acting at a special
meeting thereof called for the purpose, has duly approved the transactions
contemplated hereby and has authorized the execution and delivery of this
Agreement by FUSA, and the performance thereof by FUSA True copies of the
resolution giving such authorization and approval have been given to FTIC, and
such authorization and approval have not since been altered, amended, or
revoked.
Negative Covenants
Section 4.16. Except with the prior written consent of FTIC, FUSA shall
not declare or pay any dividend, or stock dividend, or declare or make any other
distribution to its shareholders, between this date and the closing.
Character of Statements
Section 4.17. The information provided and to be provided by FUSA and
its officers and directors to the new officers and directors of FUSA, pursuant
to this Agreement may be used in a proxy statements, private placement
memorandum, and registration statements prepared by FUSA now or in - the future,
and such information does not and will not contain any statement which, at the
time and in the light of the circumstances under which it is made, is false or
misleading with respect to any material fact, and does not and will not omit to
state any material fact in order to make the statements therein not false or
misleading.
34 Act Company; Current Reports
Section 4.18. FUSA is a company whose common stock is validly registered
under the Securities And Exchange Act of 1934. FUSA has filed all reports under
said Act required to be filed with the SEC and is "current" in all such filings.
There are no material misstatements or omissions in the Reports so filed under
sach Act.
Public Market
Section 4.19. FUSA's common stock is registered for trading on the
National Association of Securities Dealers, Inc. ("NASD") Over-the-Counter
Bulletin Board Market ("OTC; BB"), under the symbol, "FUSA". FUSA is in good
standing on the OTCBB and a total of 18 market makers currently make market in
its stock.
No Obligated for Broker's Fee
Section 4.20. Except as set out in Exhibits hereto, FUSA has not
incurred any obligation or liability, contingent or otherwise, for a broker's or
finder's fee in respect of the matters provided for in this agreement.
ARTICLE 5.
CONDITIONS TO CLOSE
Performance of Terms and Conditions
Section 5.01. All terms and conditions of this agreement to be
performed by all parties on or before the closing date shall have been
performed.
Resignations of Directors
Section 5.02. On the closing date, the Board of Directors of FUSA shall
act to appoint the following Individuals as successor directors to the Board of
Directors of FUSA, and shall concurrently resign. Effective as of their date of
resignation, the former officers and directors of FUSA shall have no further
involvement in the affairs of FUSA and shall have no responsibility or liability
for actions or inactions thereafter taken by FUSA.
XXXXXXX XXXXXXXXXXX
XXXXXXXXX XXXXXXXXXX
The successor Board of Directors of FUSA shall thereupon elect the
following officers of FUSA:
XXXXXXX XXXXXXXXXXX President and CEO
XXXXXXX XXXXXXXXXXX Secretary and Treasurer
The successor FUSA Board of Directors, may in addition appoint other
officers and an Advisory Board.
ARTICLE 6.
CONSUMMATION OF TRANSACTION
Consideration of FUSA
Section 6.01. On the Closing Date, the Shares of Common Stock of FUSA to be
delivered pursuant to this plan and agreement of reorganization to Shareholders
will be validly issued, fully paid, and nonassessable voting shares of FUSA As a
result, the FTIC Shareholders upon consummation of this transaction, will own
9,000,000 common shares of the outstanding capital stock of FUSA, and the
original shareholders of FUSA (and/or their successors) will hold 9,149,188
common shares of the outstanding capital stock of FUSA
Consideration of Shareholders
Section 6.02. On the closing date the Shareholders shall deliver to
FUSA, or Its order, certificates for the shares of FTIC, duly endorsed in blank
for transfer or accompanied by stock powers or other appropriate instruments of
transfer duly executed in blank.
ARTICLE 7.
INTERPRETATION AND ENFORCEMENT
Indemnification
Section 7.01
(a) Each party hereto agrees to protect, defend, indemnify, and
hold harmless the other party, its successors and assigns,
against and in respect of all loss, damage, or expense
occasioned by any breach by such indemnifying party of any of
its representations, warranties, covenants, or agreements
contained herein.
(b) Each party hereto will indemnify and hold harmless the other
party against and in respect of any claim for brokerage or
other commission relative to this agreement or to the
transactions contemplated hereby, based in any way on
agreements, arrangements, or understandings claimed to have
been made by such party with any third party.
(c) Each party agrees to indemnify and hold harmless the other
from any loss, damage, or expenses, including reasonable
counsel fees, sustained or incurred by the other by reason of
any claim asserted against the other as a result of the
conduct of the indemnifying party, its officers or directors.
Notices
Section 7.02. Any notice or other communication required or permitted
hereunder shall be properly given when deposited in the Canadian or United
States mail for transmittal by certified or registered mail, postage prepaid, or
when deposited with a public telegraph company for transmittal, charges prepaid,
addressed:
(a) In the case of FTIC, to:
FTIC.
Attention: Xxxxxxx Xxxxxxxxxxx
0000-0000 Xxxxx Xxxxxx Xxxxxxxxx, XX
X0X 1 G3
and to such other person or address as FTIC may from
time to time furnish to FUSA
(b) In the case of FUSA, to: Attention:
Xxxxxxx Xxxxxxxxxxx 0000-0000 Xxxxx
Xxxxxx Xxxxxxxxx, XX X0X 0X0
cc:
and to such other person or address as FUSA may from
time to time furnish to FTIC.
Entire Agreement; Counterparts
Section 7.03. This instrument and the exhibits hereto contain the
entire agreement between the parties with respect to the transaction
contemplated hereby. It may be executed in any number of counterparts, each of
which shall be deemed an original, but such counterparts together constitute
only one and the same instrument.
Executed effective as of February, 2005
FUSA Capital Corporation, FUSA TECHNOLOGY INVESTMENTS CORP.
A Nevada corporation A Nevada corporation
By: /s/ Xxxxxxx Xxxxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxxxx
----------------------------- ----------------------------
Xxxxxxx Xxxxxxxxxxx Xxxxxxx Xxxxxxxxxxx
Title: Chief Executive Officer Title: President and CEO
Schedule A
Undersigned, being the Shareholders who in the aggregate own 100% of
the outstanding capital stock of FTIC, by their signatures below,
hereby execute the attached "Plan and Agreement of Reorganization by
Exchange by FUSA Capital Corporation of its voting stock for stock
of FUSA Technology Investments Corp.. in acquisition of 100% of FTIC
Shares", and concurrently vote "Fob' said transaction as
shareholders of FTIC. Undersigned represent that each is a
Sophisticated Investor able to fend for himself, and that each is an
"Accredited Investor", as defined In SEC rules and regulations.
Xxxxxxx Xxxxxxxxxxx representing by proxy each of the undersigned
shareholders represents and warrants to FUSA and to FTIC that they
have full power and authority to execute this Agreement, and at the
closing they have full power and authority to transfer all of their
shares of FTIC to FUSA, free and clear of all claims and
encumbrances,
FTIC SHAREHOLDERS, # OF SHARES
1. ISLAND HUNTER GROUP, INC., 1,000,000
2. DELIVERY SYSTEMS, INC., 1,000,000
3. INVESTORS LINK VENTURES, 1,000,000
4. XXXXX JO ST XXXX, 2,700,000
5. TOPACE INVESTMENT CAPITAL LIMITED, 1,000,000
6. SIERRA VENTURE CAPITAL CORPORATION LIMITED, 1,000,000
7. PROTEK INVESTORS COMPANY LIMITED, 1,000,000
8. XXXXXXX XXXXXXXXXXX, 250,000
9. XXXXXXX XXXXXXXXXXX, 50,000
TOTAL 9,000,000 SHARES
