AGREEMENT AND PLAN FOR CORPORATE SEPARATION
1 Date of Agreement. The date of this Agreement is the 30th
day of September, 2003.
2 Parties.
2.1 GAVELLA CORP., a Delaware corporation, with address
at 000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx, 00000
("Gavella");
2.2 SPRING VILLAGE HOLDINGS, INC., a New Jersey
corporation, with address at 000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxx,
Xxx Xxxxxx, 00000 ("Spring Village"); and
2.3 XXXXXXX HOLDINGS, INC.., a Delaware corporation, with
address at 000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx, 00000
("Xxxxxxx").
3 Background.
3.1 100% of the outstanding shares of common stock of
Spring Village are owned by Gavella;
3.2 Gavella is engaged in the separate businesses of (i)
owning and operating income producing properties through its
ownership of Spring Village, and (ii) an investment and
consulting business.
3.3 The directors of Gavella have agreed upon a division
of the business of Gavella so that the business of Spring
Village will be owned in a separate corporate form by Xxxxxxx,
and the consulting business will continue to be owned by
Gavella.
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 XXXXXXX HOLDINGS, INC.. Gavella shall
cause to be organized, under the laws of the State of Delaware, a
new corporation known as XXXXXXX HOLDINGS, INC.., with powers and
capitalization as set forth in the certificate of incorporation
attached hereto as Schedule 4.1. Of the 15,000,000 authorized
shares of Xxxxxxx, 6,500,000 shares shall be issued and delivered
to Gavella in fully paid, non-assessable certificates.
4.2 Transfer of Assets to Xxxxxxx. In exchange for the
6,500,000 shares of Xxxxxxx, Gavella shall assign, transfer,
convey and deliver to Xxxxxxx a promissory note dated September
30, 2003 in the amount of $350,000 from SVG Properties, Inc.,
plus 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 Gavella related to Spring Village, including
the terms and conditions of the Stock Pledge Agreement between
ARCA Corp. and Resource Properties XXIII, Inc., as amended, a
copy of which is attached hereto as Exhibit 4.2.
4.3 Indemnification by Xxxxxxx. Xxxxxxx hereby guarantees
payment of all liabilities, obligations, debts and demands of
Gavella related to the current and past activities of Spring
Village.
4.4 Closing. Closing shall take place on October 30, 2003
at 2:00 p.m., and the transactions contemplated by the Plan and
this Agreement shall be consummated at the office of Gavella.
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
Gavella pursuant to a resolution adopted this day at a special
meeting of its directors. This Agreement is also being executed
by Xxxxxxx 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.
1. 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.
2. 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 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.
3. 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.
4. 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.
5. 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.
6. 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.
GAVELLA CORP. XXXXXXX HOLDINGS, INC..
_____________________________ ________________________________
By: Xxxxx X. Xxxxxxx, President By: Xxxxx X. Xxxxxxx, President
_____________________________ ________________________________
Attest: Xxxxxxx X. Xxxxxxxx, Attest: Xxxxxxx X. Xxxxxxxx,
Secretary Secretary
