AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT ("Plan") is made this 18th day of December, 1998,
among Micro-Hydro Power, Inc., a Delaware corporation ("Micro-Hydro" or the
"Company"); The Xxxxxxxx Coach, L.L.C., a Louisiana limited liability company
("Xxxxxxxx"); and the equity interest holders of Xxxxxxxx who are listed on
Exhibit A hereto (the Xxxxxxxx Stockholders ).
W I T N E S S E T H:
RECITALS
WHEREAS, the respective Boards of Directors of Micro-Hydro and
Xxxxxxxx and the Xxxxxxxx Stockholders have adopted resolutions pursuant to
which Micro-Hydro shall acquire and Xxxxxxxx shall exchange the assets and
liabilities described in Exhibit B hereof (hereinafter, respectively, the
"Assets" or the Liabilities ), which is incorporated herein by reference; and
WHEREAS, the sole consideration for the Assets shall be the
exchange of 7,000,000 "unregistered" and "restricted" shares of $0.00001 par
value common stock of Micro-Hydro, and the assumption of the Liabilities; and
WHEREAS, the Xxxxxxxx Stockholders shall acquire in exchange such
shares of the Company in a reorganization within the meaning of Section
368(a)(1)(C) of the Internal Revenue Code of 1986, as amended;
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein, it is agreed:
Section 1
Purchase and Sale of the Assets
1.1 Purchase and Sale. Micro-Hydro hereby agrees to acquire and
Xxxxxxxx hereby agrees to exchange the Assets owned by Xxxxxxxx as of the
completion of the Plan (the Closing ).
1.2 Consideration for the Assets. The consideration paid for
the Assets shall consist solely of 7,000,000 "unregistered" and "restricted"
shares of $0.00001 par value common stock of Micro-Hydro to be issued in
exchange therefor, and the assumption of the Liabilities..
1.3 Delivery of Shares. Upon the execution and delivery by
Xxxxxxxx of an assignment or assignments and other instruments, to the extent
required or necessary, to transfer the Assets to Micro-Hydro, Micro-Hydro
shall deliver one stock certificate or certificates to each of the Xxxxxxxx
Stockholders in the amount set opposite their respective names as listed on
Exhibit A hereto representing 7,000,000 "unregistered" and "restricted" shares
of common stock of Micro-Hydro in the aggregate.
1.4 Further Assurances. At the Closing and from time to time
thereafter, Xxxxxxxx shall execute such additional instruments and take such
other action as Micro-Hydro may request in order to exchange and transfer
clear title and ownership in the Assets to Micro-Hydro.
1.5 Resignation of Present Directors and Executive Officers and
Designation of New Directors and Executive Officers. On Closing, the present
directors and executive officers of Micro-Hydro shall resign, in seriatim, and
designate the directors and executive officers nominated by Xxxxxxxx to serve
in their place and stead, until the next respective annual meetings of the
stockholders and Board of Directors of Micro-Hydro, and until their respective
successors shall be elected and qualified or until their respective prior
resignations or terminations, who shall be: Xxxxx Xxxxxxxxx, Chairman, CEO and
President; Verdo (Xxxx) Xxxxxxxxx, Vice President and Director; Xxxxxxx
Xxxxxx, Secretary/Treasurer and Director; Xxxxxxx Xxxxxxx, non-voting member
of the Board of Directors; Xxxxxxxxx Xxxxxxxxx, Director; and Xxxxx Xxxxxxxxx,
Director.
1.6 Change of Name and Reverse Split. Subsequent to the
Closing of this Plan, the Company shall adopt such resolutions as necessary
for the preparation and mailing to stockholders of an Information Statement
for the purpose of amending the Company s Articles of Incorporation to change
the name of the Company to "The Xxxxxxxx Coach, Inc. and to effect a reverse
split of its outstanding post-Plan common stock on a basis of one for two
(reducing the post-Plan common outstanding shares [10,100,010 shares] to
5,050,005 shares), while retaining the current par value and authorized
shares, with appropriate adjustments in the additional paid in capital and
stated capital accounts of Micro-Hydro.
1.7 Compensation Agreement. Subject to the Closing of the Plan
and pursuant to a written compensation agreement with certain consultants
engaged by Micro-Hydro and certain executive officers and directors of Micro-
Hydro, Micro-Hydro shall issue 300,000 pre-split shares of its common stock
for non-capital raising services rendered, and which shares shall be
registered with the Securities and Exchange Commission on Form S-8.
1.8 Grant of Credit. Subject to the Closing of the Plan, a
$175,000 credit shall be accorded Xxxxxx Services, Inc., a Utah corporation
and financial consulting firm ( Xxxxxx Services ), toward the purchase of a
Xxxxxxxx Coach, for services rendered in connection with the Plan, and Xxxxxx
Services shall be required to provide the Tractor for the Xxxxxxxx Coach.
1.9 Closing. The Plan will be deemed to be closed on receipt of
the signatures of Xxxxxxxx Stockholders holding 80% of the current outstanding
equity of Xxxxxxxx.
Section 2
Closing
The Closing contemplated by Section 1 shall be held at the offices
of Xxxxxxx X. Xxxxxxxxxx, Esq., Suite 205 Hermes Building, 000 Xxxx 000 Xxxxx,
Xxxx Xxxx Xxxx, Xxxx 00000, on or before ten days following the execution and
delivery of this Plan, unless another place or time is agreed upon in writing
by the parties. The Closing may be accomplished by wire, express mail or
other courier service, conference telephone communications or as otherwise
agreed by the respective parties or their duly authorized representatives.
Section 3
Representations and Warranties of Micro-Hydro
Micro-Hydro represents and warrants to, and covenants with, the
Xxxxxxxx Stockholders and Xxxxxxxx as follows:
3.1 Corporate Status. Micro-Hydro is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware and is licensed or qualified as a foreign corporation in all
states in which the nature of its business or the character or ownership of
its properties makes such licensing or qualification necessary (Delaware
only.) Micro-Hydro is a publicly held Company, having previously and lawfully
offered and sold a portion of its securities in accordance with applicable
federal and state securities laws, rules and regulations. There is presently
no established public market for these or any other securities of Micro-Hydro,
though Micro-Hydro has a Symbol on the OTC Bulletin Board of MPHI.
3.2 Capitalization. The current pre-Plan authorized capital
stock of Micro-Hydro consists of 30,000,000 shares of $0.00001 par value
common voting stock, of which 300,010 shares are issued and outstanding, all
fully paid and non-assessable. Except as otherwise provided herein, there are
no outstanding options, warrants or calls pursuant to which any person has the
right to purchase any authorized and unissued common stock of Micro-Hydro.
3.3 Financial Statements. The financial statements of Micro-
Hydro furnished to the Xxxxxxxx Stockholders and Xxxxxxxx, consisting of
audited financial statements for the years ended December 31, 1997 and 1996,
attached hereto as Exhibit C, and unaudited balance sheet and statement of
operations for the nine months ended September 30, 1998, attached hereto as
Exhibit C-1 and incorporated herein by reference, are correct and fairly
present the financial condition of Micro-Hydro at such dates and for the
periods involved; such statements were prepared in accordance with generally
accepted accounting principles consistently applied, and no material change
has occurred in the matters disclosed therein, except as indicated in Exhibit
D, which is attached hereto and incorporated herein by reference. Such
financial statements do not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements made,
in light of the circumstances under which they were made, not misleading.
3.4 Undisclosed Liabilities. Micro-Hydro has no liabilities of
any nature except to the extent reflected or reserved against in its balance
sheets, whether accrued, absolute, contingent or otherwise, including, without
limitation, tax liabilities and interest due or to become due, except as set
forth in Exhibit D.
3.5 Interim Changes. Since the date of its balance sheets,
except as set forth in Exhibit D, there have been no (1) changes in financial
condition, assets, liabilities or business of Micro-Hydro which, in the
aggregate, have been materially adverse; (2) damages, destruction or losses of
or to property of Micro-Hydro, payments of any dividend or other distribution
in respect of any class of stock of Micro-Hydro, or any direct or indirect
redemption, purchase or other acquisition of any class of any such stock; or
(3) increases paid or agreed to in the compensation, retirement benefits or
other commitments to its employees.
3.6 Title to Property. Micro-Hydro has good and marketable
title to all properties and assets, real and personal, reflected in Micro-
Hydro balance sheets, and the properties and assets of Micro-Hydro are subject
to no mortgage, pledge, lien or encumbrance, except for liens shown therein or
in Exhibit D, with respect to which no default exists.
3.7 Litigation. There is no litigation or proceeding pending,
or to the knowledge of Micro-Hydro, threatened, against or relating to Micro-
Hydro, its properties or business, except as set forth in Exhibit D. Further,
no officer, director or person who may be deemed to be an affiliate of Micro-
Hydro is party to any material legal proceeding which could have an adverse
effect on Micro-Hydro (financial or otherwise), and none is party to any
action or proceeding wherein any has an interest adverse to Micro-Hydro.
3.8 Books and Records. From the date of this Plan to the
Closing, Micro-Hydro will (1) give to the Xxxxxxxx Stockholders and Xxxxxxxx
or their respective representatives full access during normal business hours
to all of Micro-Hydro offices, books, records, contracts and other corporate
documents and properties so that the Xxxxxxxx Stockholders and Xxxxxxxx or
their respective representatives may inspect and audit them; and (2) furnish
such information concerning the properties and affairs of Micro-Hydro as the
Xxxxxxxx Stockholders and Xxxxxxxx or their respective representatives may
reasonably request.
3.9 Tax Returns. Micro-Hydro has filed all federal and state
income or franchise tax returns required to be filed or has received currently
effective extensions of the required filing dates.
3.10 Confidentiality. Until the Closing (and thereafter if there
is no Closing), Micro-Hydro and its representatives will keep confidential any
information which they obtain from the Xxxxxxxx Stockholders or from Xxxxxxxx
concerning the properties, assets and business of Xxxxxxxx. If the
transactions contemplated by this Plan are not consummated by December 31,
1998, Micro-Hydro will return to Xxxxxxxx all written matter with respect to
Xxxxxxxx obtained by Micro-Hydro in connection with the negotiation or
consummation of this Plan.
3.11 Corporate Authority. Micro-Hydro has full corporate power
and authority to enter into this Plan and to carry out its obligations
hereunder and will deliver to the Xxxxxxxx Stockholders and Xxxxxxxx or their
respective representatives at the Closing a certified copy of resolutions of
its Board of Directors authorizing execution of this Plan by Micro-Hydro
officers and performance thereunder, and the directors adopting and delivering
such resolutions are the duly elected and incumbent director of Micro-Hydro.
3.12 Due Authorization. Execution of this Plan and performance
by Micro-Hydro hereunder have been duly authorized by all requisite corporate
action on the part of Micro-Hydro, and this Plan constitutes a valid and
binding obligation of Micro-Hydro and performance hereunder will not violate
any provision of the Articles of Incorporation, Bylaws, agreements, mortgages
or other commitments of Micro-Hydro.
3.13 Environmental Matters. Micro-Hydro has no knowledge of any
assertion by any governmental agency or other regulatory authority of any
environmental lien, action or proceeding, or of any cause for any such lien,
action or proceeding related to the business operations of Micro-Hydro or
Micro-Hydro predecessors. In addition, to the best knowledge of Micro-Hydro,
there are no substances or conditions which may support a claim or cause of
action against Micro-Hydro or any of Micro-Hydro current or former officers,
directors, agents or employees, whether by a governmental agency or body,
private party or individual, under any Hazardous Materials Regulations.
Hazardous Materials means any oil or petrochemical products, PCB s,
asbestos, urea formaldehyde, flammable explosives, radioactive materials,
solid or hazardous wastes, chemicals, toxic substances or related materials,
including, without limitation, any substances defined as or included in the
definition of hazardous substances, hazardous wastes, hazardous
materials, or toxic substances under any applicable federal or state laws
or regulations. Hazardous Materials Regulations means any regulations
governing the use, generation, handling, storage, treatment, disposal or
release of hazardous materials, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act and the Federal Water Pollution Control
Act.
3.14 Access to Information Regarding Xxxxxxxx. Micro-Hydro
acknowledges that it has been delivered copies of what has been represented to
be documentation containing all material information respecting Xxxxxxxx and
Xxxxxxxx s present and contemplated business operations, potential
acquisitions, management and other factors; that it has had a reasonable
opportunity to review such documentation and discuss it, to the extent
desired, with Micro-Hydro s legal counsel, directors and executive officers;
that it has had, to the extent desired, the opportunity to ask questions of
and receive responses from the directors and executive officers of Xxxxxxxx,
and with the legal and accounting firms of Xxxxxxxx, with respect to such
documentation; and that to the extent requested, all questions raised have
been answered to Micro-Hydro s complete satisfaction.
Section 4
Representations, Warranties and Covenants of Xxxxxxxx
and the Xxxxxxxx Stockholders
Xxxxxxxx and the Xxxxxxxx Stockholders represent and warrant to,
and covenant with, Micro-Hydro as follows:
4.1 Ownership. Xxxxxxxx owns the Assets, free and clear of any
liens or encumbrances of any type or nature whatsoever, except the
Liabilities, and Xxxxxxxx has full right, power and authority to convey these
Assets without qualification.
4.2 Condition of the Assets. At the time of Closing, the Assets
shall be in good and marketable condition, suitable for the uses for which
they were intended and, reasonable wear and tear excepted, shall be free of
any material defect.
4.3 Corporate Status. Xxxxxxxx is a limited liability Company
duly organized, validly existing and in good standing under the laws of the
State of Louisiana and is licensed or qualified as a foreign corporation in
all states or foreign countries and provinces in which the nature of
Xxxxxxxx s business or the character or ownership of Xxxxxxxx properties makes
such licensing or qualification necessary.
4.4 Corporate Authority. Xxxxxxxx has full corporate power and
authority to enter into this Plan and to carry out its obligations hereunder
and will deliver to Micro-Hydro or Micro-Hydro representatives at the Closing
a certified copy of resolutions of its Board of Directors authorizing
execution of this Plan by Xxxxxxxx s officers and performance thereunder, and
the directors adopting and delivering such resolutions are the duly elected
and incumbent directors of Xxxxxxxx.
4.5 Due Authorization. Execution of this Plan and performance
by Xxxxxxxx hereunder have been duly authorized by all requisite corporate
action on the part of Xxxxxxxx, and this Plan constitutes a valid and binding
obligation of Xxxxxxxx and performance hereunder will not violate any
provision of the Articles of Incorporation, Bylaws, agreements, mortgages or
other commitments of Xxxxxxxx.
4.6 No Inventory. None of the Assets constitute inventory of
Xxxxxxxx and the principal business of Xxxxxxxx is not the sale of merchandise
from stock.
4.7 Further Assurances of Xxxxxxxx. Xxxxxxxx will execute such
assignment or assignments and will perform such other acts as will enable
Micro-Hydro to take good and marketable title to the Assets.
4.8 Investment Intent. The Xxxxxxxx Stockholders are acquiring
the restricted securities of Micro-Hydro to be exchanged and delivered to
them under this Plan for investment and not with a view to the sale or
distribution thereof, and the Xxxxxxxx Stockholders have no commitment or
present intention to liquidate the Micro-Hydro or to sell or otherwise dispose
of the Micro-Hydro shares. The Xxxxxxxx Stockholders shall execute and
deliver to Micro-Hydro on the Closing an Investment Letter attached hereto as
Exhibit G and incorporated herein by reference, acknowledging the
"unregistered" and "restricted" nature of the shares of Micro-Hydro being
received under the Plan in exchange for the Xxxxxxxx Shares, and receipt of
certain material information regarding Micro-Hydro.
4.9 Financial Statements. The financial statements of Xxxxxxxx
furnished to Micro-Hydro, consisting of a balance sheet dated October 31,
1998, attached hereto as Exhibit E, and incorporated herein by reference, are
correct and fairly present the financial condition of Xxxxxxxx as of the date
and for the period involved, and such statements were prepared in accordance
with generally accepted accounting principles consistently applied, and no
material change has occurred in the matters disclosed therein, except as
indicated in Exhibit F, which is attached hereto and incorporated herein by
reference. These financial statements do not contain any untrue statement of
a material fact or omit to state a material fact necessary in order to make
the statements made, in light of the circumstances under which they were made,
not misleading.
4.10 Confidentiality. Until the Closing (and continuously if
there is no Closing), Xxxxxxxx, the Xxxxxxxx Stockholders and their
representatives will keep confidential any information which they obtain from
Micro-Hydro concerning Micro-Hydro properties, assets and business. If the
transactions contemplated by this Plan are not consummated by December 31,
1998, Xxxxxxxx and the Xxxxxxxx Stockholders will return to Micro-Hydro all
written matter with respect to Micro-Hydro obtained by them in connection with
the negotiation or consummation of this Plan.
4.11 Environmental Matters. Xxxxxxxx has no knowledge of any
assertion by any governmental agency or other regulatory authority of any
environmental lien, action or proceeding, or of any cause for any such lien,
action or proceeding related to the business operations of Xxxxxxxx or
Xxxxxxxx s predecessors. In addition, to the best knowledge of Xxxxxxxx,
there are no substances or conditions which may support a claim or cause of
action against Xxxxxxxx or any of Xxxxxxxx s current or former officers,
directors, agents or employees, whether by a governmental agency or body,
private party or individual, under any Hazardous Materials Regulations.
Hazardous Materials means any oil or petrochemical products, PCB s,
asbestos, urea formaldehyde, flammable explosives, radioactive materials,
solid or hazardous wastes, chemicals, toxic substances or related materials,
including, without limitation, any substances defined as or included in the
definition of hazardous substances, hazardous wastes, hazardous
materials, or toxic substances under any applicable federal or state laws
or regulations. Hazardous Materials Regulations means any regulations
governing the use, generation, handling, storage, treatment, disposal or
release of hazardous materials, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act and the Federal Water Pollution Control
Act.
4.12 Access to Information Regarding Micro-Hydro. Xxxxxxxx and
the Xxxxxxxx Stockholders acknowledge that they have been delivered copies of
what has been represented to be documentation containing all material
information respecting Micro-Hydro and Micro-Hydro present and contemplated
business operations, potential acquisitions, management and other factors;
that they have had a reasonable opportunity to review such documentation and
discuss it, to the extent desired, with their legal counsel, directors and
executive officers; that they have had, to the extent desired, the opportunity
to ask questions of and receive responses from the directors and executive
officers of Micro-Hydro, and with the legal and accounting firms of Micro-
Hydro, with respect to such documentation; and that to the extent requested,
all questions raised have been answered to their complete satisfaction.
Section 5
Conditions Precedent to Obligations of Xxxxxxxx and the Xxxxxxxx Stockholders
All obligations of Xxxxxxxx and the Xxxxxxxx Stockholders under
this Plan are subject, at their option, to the fulfillment, before or at the
Closing, of each of the following conditions:
5.1 Representations and Warranties True at Closing. The
representations and warranties of Micro-Hydro contained in this Plan shall be
deemed to have been made again at and as of the Closing and shall then be true
in all material respects and shall survive the Closing.
5.2 Due Performance. Micro-Hydro shall have performed and
complied with all of the terms and conditions required by this Plan to be
performed or complied with by it before the Closing.
5.3 Officers' Certificate. Xxxxxxxx and the Xxxxxxxx
Stockholders shall have been furnished with a certificate signed by the
President of Micro-Hydro, in such capacity, attached hereto as Exhibit H and
incorporated herein by reference, dated as of the Closing, certifying (1) that
all representations and warranties of Micro-Hydro contained herein are true
and correct; and (2) that since the date of the financial statements (Exhibits
C and C-1 hereto), there has been no material adverse change in the financial
condition, business or properties of Micro-Hydro, taken as a whole.
5.4 Opinion of Counsel of Micro-Hydro. Xxxxxxxx and the
Xxxxxxxx Stockholders shall have received an opinion of counsel for Micro-
Hydro, dated as of the Closing, to the effect that (1) the representations of
Sections 3.1, 3.2 and 3.11 are correct; (2) except as specified in the
opinion, counsel knows of no inaccuracy in the representations in 3.5, 3.6 or
3.7; and (3) the shares of Micro-Hydro to be issued to the Xxxxxxxx
Stockholders under this Plan will, when so issued, be validly issued, fully
paid and non-assessable.
5.5 Assets and Liabilities of Micro-Hydro. Unless otherwise
agreed, Micro-Hydro shall have no assets and no liabilities at Closing, and
all costs, expenses and fees incident to the Plan shall have been paid.
5.6 Resignation of Directors and Executive Officers and
Designation of New Directors and Executive Officers. The present directors
and executive officers of Micro-Hydro shall resign, and shall have designated
nominees of Xxxxxxxx as outlined in Section 1.6 hereof as directors and
executive officers of Micro-Hydro to serve in their place and stead, until the
next respective annual meetings of the stockholders and Board of Directors of
Micro-Hydro, and until their respective successors shall be elected and
qualified or until their respective prior resignations or terminations.
5.7 Name Change and Reverse Split of Micro-Hydro. Subsequent
to the Closing of this Plan, the Company shall adopt such resolutions as
necessary for the preparation and mailing to stockholders of an Information
Statement for the purpose of amending the Company s Articles of Incorporation
to change the name of the Company to "The Xxxxxxxx Coach, Inc. and to effect
a reverse split of its outstanding common stock on a basis of one for two,
while retaining the current par value and authorized shares, with appropriate
adjustments in the additional paid in capital and stated capital accounts of
Micro-Hydro.
Section 6
Conditions Precedent to Obligations of Micro-Hydro
All obligations of Micro-Hydro under this Plan are subject, at
Micro-Hydro option, to the fulfillment, before or at the Closing, of each of
the following conditions:
6.1 Representations and Warranties True at Closing. The
representations and warranties of Xxxxxxxx and the Xxxxxxxx Stockholders
contained in this Plan shall be deemed to have been made again at and as of
the Closing and shall then be true in all material respects and shall survive
the Closing.
6.2 Due Performance. Xxxxxxxx and the Xxxxxxxx Stockholders
shall have performed and complied with all of the terms and conditions
required by this Plan to be performed or complied with by them before the
Closing.
6.3 Officers' Certificate. Micro-Hydro shall have been
furnished with a certificate signed by the President of Xxxxxxxx, in such
capacity, attached hereto as Exhibit I and incorporated herein by reference,
dated as of the Closing, certifying (1) that all representations and
warranties of Xxxxxxxx and the Xxxxxxxx Stockholders contained herein are true
and correct; and (2) that since the date of the financial statements (Exhibit
E), there has been no material adverse change in the financial condition,
business or properties of Xxxxxxxx, taken as a whole.
6.4 Books and Records. The Xxxxxxxx Stockholders or the Board
of Directors of Xxxxxxxx shall have caused Xxxxxxxx to make available all
books and records of Xxxxxxxx, including minute books and stock transfer
records; provided, however, only to the extent requested in writing by Micro-
Hydro at Closing.
Section 7
Termination
Prior to Closing, this Plan may be terminated (1) by mutual
consent in writing; (2) by either the sole director of Micro-Hydro or Xxxxxxxx
and the Xxxxxxxx Stockholders if there has been a material misrepresentation
or material breach of any warranty or covenant by the other party; or (3) by
either the sole director of Micro-Hydro or Xxxxxxxx and the Xxxxxxxx
Stockholders if the Closing shall not have taken place, unless adjourned to a
later date by mutual consent in writing, by the date fixed in Section 2.
Section 8
General Provisions
8.1 Further Assurances. At any time, and from time to time,
after the Closing, each party will execute such additional instruments and
take such action as may be reasonably requested by the other party to confirm
or perfect title to any property transferred hereunder or otherwise to carry
out the intent and purposes of this Plan.
8.2 Waiver. Any failure on the part of any party hereto to
comply with any of Micro-Hydro obligations, agreements or conditions hereunder
may be waived in writing by the party to whom such compliance is owed.
8.3 Brokers. Each party represents to the other parties
hereunder that no broker or finder has acted for it in connection with this
Plan, and agrees to indemnify and hold harmless the other parties against any
fee, loss or expense arising out of claims by brokers or finders employed or
alleged to have been employed by he/she/it.
8.4 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 registered or certified mail, return
receipt requested, as follows:
If to Micro-Hydro: 0000 Xxxxx 000 Xxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
With a copy to: Xxxxxxx X. Xxxxxxxxxx, Esq.
Suite 205 Hermes Building
455 East 000 Xxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
If to Xxxxxxxx: 0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
If to the Xxxxxxxx
Stockholders: To the addresses listed on Exhibit A
8.5 Entire Agreement. This Plan constitutes the entire
agreement between the parties and supersedes and cancels any other agreement,
representation, or communication, whether oral or written, including the
Letter of Intent dated November 8, 1998, between the parties hereto relating
to the transactions contemplated herein or the subject matter hereof.
8.6 Headings. The section and subsection headings in this Plan
are inserted for convenience only and shall not affect in any way the meaning
or interpretation of this Plan.
8.7 Governing Law. This Plan shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware, except to
the extent pre-empted by federal law, in which event (and to that extent
only), federal law shall govern.
8.8 Assignment. This Plan 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 Micro-Hydro s rights under this
Plan without the prior written consent of the other parties shall be void.
8.9 Counterparts. This Plan 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.
8.10 Default. In the event of any default hereunder, the
prevailing party in any action to enforce the terms and provisions hereof
shall be entitled to recover reasonable attorney's fees and related costs.
IN WITNESS WHEREOF, the parties have executed this Agreement and
Plan of Reorganization effective the day and year first above written.
MICRO-HYDRO POWER, INC.
Date: 12/18/98 By/S/Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxxxx, President
THE XXXXXXXX COACH, INC.
Date: 12/17/98 By/s/Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, Chairman
AGREEMENT AND PLAN OR REORGANIZATION
COUNTERPART SIGNATURE PAGE
This Counterpart Signature Page for that certain AGREEMENT AND PLAN OF
REORGANIZATION (the "Plan") dated as of the 17th day of December, 1998, among
Micro-Hydro Power, Inc., a Delaware corporation ("Micro-Hydro"); The Xxxxxxxx
Coach, L.L.C., a Louisiana limited liability company ("Xxxxxxxx"); and the
equity interest holders of Xxxxxxxx who are signatories thereto is executed by
the undersigned, an equity interest holder in Xxxxxxxx as of the date first
written above. The undersigned, through execution and delivery of this
Counterpart Signature page, intends to be legally bound by the terms of the
Agreement.
DKR, Inc.
Xxxxxxxxx Xxxxxxxxx
by:/s/Xxxxxxxxx Xxxxxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxx Xxxxxxxxx
by:/s/Xxxxx Xxxxxxxxx
00000 Xxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxxx
/s/Xxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
EXHIBIT A
STOCKHOLDERS OF THE XXXXXXXX COACH,
L.L.C.
Number of Shares of
Equity Interest Micro-Hydro
Owned of to be
Name and Address Xxxxxxxx Received in Exchange
DRK, Inc. 43.75% 3,062,500
00000 Xxxxxxx Xxxx Xxxx.
Xxxxx, XX 00000
Xxxxx Xxxxxxxxx 43.75% 3,062,500
00000 Xxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxxx Xxxxxx 12.5% 875,000
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
EXHIBIT B
ASSETS AND LIABILITIES OF
THE XXXXXXXX COACH, L.L.C.
AS OF OCTOBER 31, 1998
ACCOUNTS PAYABLE Current-30 60 90 over 90
10/31/98
AIT Freight 955.48
Air Dreco 114.21
Air Engineering 165.53
Austin Hardware 337.82
American Trucker 1100.00
American Trucking On 4000.00
Arriving Magazine 1015.00 1315.00
BFI 152.28
BRT Leasing 1925.00
Belmont Publishing 3435.00
Bus conversion 350.75 253.00
CL Alloys 235.00 6032.58
City of Houston 38.15
Citibank 6455.41
Deutsche Financial 1700.10
E & G Transportation 230.00
Family Motor Coach 250.00
Xxxx Manufacturing 112.00
Xxx Xxxxxx 23.52
Gulf Coast MSO 233.00
HL&P 590.00
Houston Freightliner 194.32 799.48
Xxxxxx Communcation 1651.79 1487.93
IRS 20924.95
Xxxxxxxx Coach SE 144.40
XxXxxx of Memphis 400.75
Lewisburg Builders 341.79
Natl Trust Exchange 4165.56
Truck Paper 580.00
Xxxx Xxxxxxxxx 117.42
Performance Magazine 199.00
XXXX Telcom 248.34
R & B Inc. 330.30 370.65
Reliastar Inc. 451.30
Xxxx Xxxxxx 2295.00
Xxxx Xxxxxx 440.00
Shorewood RV 375.93
Xxxxxxx Ins. 789.18
Smart Power 4250.00
XX Xxxx 1751.83
Xxxxxxx & Xxxxxxxxx 2407.27
TX Workforce Comm 988.29
Ticketman 932.00
Transportation Equip News 3032.00 1500.00
State of TN 479.00
Steel Supply 329.20
Thor America 43.25
UPS 740.13
University Loft 50.37
Vanner 1359.75
Viking Office Products 174.34
Xxxxxx Art 174.72
TOTALS $23108.41 $14035.85 $7148.70 $49723.52
XXXXXXXX COACH
Inventory October 31, 1998
Qty Description Each Extended Cost
1 Roof Cap Moulding $10,000.00
1 Rear Cap Moulding 8,000.00
2 Rear Fender Mold 5,000.00 10,000.00
2 Front Step Mold 5,000.00 10,000.00
1 Side Faring Mold 3,000.00
1 Side Faring Extension mold 1,000.00
1 3/4" Drill press 900.00
1 Radial Arm Saw 2,500.00
4 material stands with bins 1,000.00 4,000.00
1 Ramco Band saw 2,500.00
1 M16 millermatic 250 welder 2,700.00
1 10" Table Saw 800.00
2 Modular Work Tables 400.00 800.00
2 Tail Light Assembly molds 200.00 400.00
1 Hydralic Pipe & Tubing Xxxxxx 800.00
1 50" Brake Press 600.00
1 36" Brake Press 250.00
3 Mobile Work Tables 100.00 300.00
0 Xxxxxxx Xxxxxxx Xxxxxx Cutter 2,300.00
1 Oxygen/Acetelyn Torch set 380.00
1 Xxxxxx 120 Stick Welder 480.00
1 10 Ton Chain Hoist 200.00
2 SAE Wrench Set 400.00 800.00
1 3/4" Socket Set 100.00
1 52" Xxxxxx Xxxxx 800.00
1 3 Phase 10HP Compressor 1,200.00
1 20 Gallon Water heater 189.00
1 110 Shore Power Compressor 280.00
1 6.5K Propane Generator 3,800.00
1 50000' 14 Gauge Wire 7,500.00
1 40000" 16 Gauge Wire 1,200.00
1 60000" 12 Gauge Wire 4,800.00
1 Xxxxxxxx Wire Xxxxxxx 10,000.00
300' 3/8" Loom .42 126.00
600' 1/2" Loom .50 300.00
500' 5/8" Loom .94 470.00
3 14" Air Suspension Bags 140.00 420.00
1 Fantastic Fan 150.00
10 48" Flourescent Light Fixtures 16.00 150.00
1 130 yards Carpet 480.00
3 20 Ton Hydralic Jacks 80.00 240.00
400' Weather Stripping .92 370.00
1 Complete Slide Out Ram Set 2,800.00
4 48" Heat Lamps 200.00 800.00
4 Air Ride Seats 875.00 3,500.00
2 Flex Steel Electric Seats 1,250.00 2,500.00
1 Pleasure Coach Demo 225,000.00
1 Custom Coach Demo 350,000.00
1 6 gal propane Tank(Vapor) 387.00
1 Flex Steel Electric Seat Motor 350.00
500# B5 Stainless Steel Sheets 980.00
27 Mirrored Stainless Sheets 211.11 5,700.00
1 48X96X1/8 Diamond Tread Plate 180.00
150' Side Moulding 1.24 186.00
1 11R22.5 Bridgestone Tire 280.00
3 Bay Door Latches 130.00 390.00
3 Tail Light Assemblies 48.00 144.00
1 Fax Machine 240.00
1 Computer 3,800.00
4 Office Desks 150.00 600.00
1 Executive Desk 380.00
2 Conference Tables 80.00 160.00
1 5 Dubic Foot Icebox 189.00
1 3 seciton scaffold 600.00
1 6' ladder 80.00
1 10' extension ladder 120.00
1 1994 Mercedes 240 D 4,000.00
1 Portable Band Saw 240.00
1 30' Band Saw 240.00
1 Color Copier 800.00
1 Video Door Monitor System 180.00
40 Door Latch Props 8.00 320.00
3 Car Stereo systems 169.00 507.00
1 Enterainment System Speakers 90.00
200' 12-2 Rolmex Wire .37 73.00
1 900 Watt Microwave 139.00
2 220 Volt a/c Units 320.00 640.00
2 BTI Monitoring system 150.00 300.00
2 Frt Spring Air Ride system 480.00 960.00
2 25 Gal Water Tanks 85.00 170.00
1 70 Gal Water Tank 125.00
2 A Stage Foam Tanks 300.00 600.00
2 B Stage Foam Tanks 300.00 600.00
1 Brass Shower Door 143.00
1 32 X 80 Entrance Door 150.00
150' Strip Lights w/ modular control 4.00 600.00
3000# A Structural Steel-Lower Bay 1,500.00
700# Structural Aluminum 900.00
KC1024Kingsley in Process 12,000.00
KC1023Kingsley in Process 48,000.00
KC1019Kingsley in Process 38,000.00
KC1021Kingsley in Process 38,000.00
KC1015Kingsley in Process 35,000.00
Assorted Hand tools 5,000.00
Misc Electrical Connectors 900.00
Misc Hardware 900.00
TOTAL 884,373.00
EXHIBIT C
MICRO-HYDRO POWER, INC.
AUDITED FINANCIAL STATEMENTS
FOR THE YEARS ENDED
DECEMBER 31, 1997 AND 1996
See 10-KSB Annual Report for the year ended December 31, 1997, as
previously filed with the Securities and Exchange Commission.
EXHIBIT C-1
MICRO-HYDRO POWER, INC.
UNAUDITED BALANCE SHEET AND STATEMENT OF OPERATIONS
FOR THE NINE MONTHS ENDED SEPTEMBER 30, 1998
See 10-QSB Quarterly Report for the quarter ended September 30, 1998, as
previously filed with the Securities and Exchange Commission.
EXHIBIT D
None.
EXHIBIT E
THE XXXXXXXX COACH, L.L.C.
UNAUDITED BALANCE SHEET
FOR THE PERIOD ENDED
OCTOBER 31, 1998
XXXXXXXX COACH, LLC
ASSETS
Current Assets:
Cash $ 8,945
Accounts Receivable:
Trade $23,524
Inter-Company 181,926
Employee & Pend. Legal 16,571 222,021
Inventory 219,065
Prepaid expenses 0
Total Current Assets: 450,031
Leasehold Improvements 32,499
Less: Accum. Amortization (3,168) 29,331
Utility Deposits 3,650
Total Assets: 483,012
Liabilities
Current Liabilities
Accounts Payable-Inter/co 380,725
Advance Deposits 483,800
Payroll Taxes Payable 27,219
Total Current Liabilities 891,744
Loans Payable:
Deposit Guaranty 188,532
Hibernia Bank 200,000
Xxxx Xxxxxxxxx 175,000 563,532
Partners Equity:
Partners Contribution (792,655)
Undistributed Partners Share (179,609) (972,264)
Total Liabilities and Partners Equity 483,012
Note:
An agreement to purchase for inventory demo. purposes two coaches for $285,000
and $217,000.
EXHIBIT F
None.
EXHIBIT G
Micro-Hydro Power, Inc.
0000 Xxxxx 000 Xxxx, #000
Xxxx Xxxx Xxxx, Xxxx 00000
Re: Exchange of Assets and Liabilities of The Xxxxxxxx
Coach, L.L.C., a Louisiana limited liability company
("Xxxxxxxx"), for shares of Micro-Hydro Power, Inc., a
Delaware corporation ("Micro-Hydro or the "Company")
Dear Ladies and Gentlemen:
Pursuant to that certain Agreement and Plan of Reorganization (the
"Plan") between the undersigned, Xxxxxxxx, the other equity interest holders
of Xxxxxxxx and Micro-Hydro, I acknowledge that I have approved this exchange;
that I am aware of all of the terms and conditions of the Plan; that I have
received and personally reviewed a copy of the Plan and any and all material
documents regarding the Company, including, but not limited to the 10-KSB
Annual Report, the 10-QSB Quarterly Reports and all other Reports of the
Company filed with the Securities and Exchange Commission during the past
twelve months. I represent and warrant that I have sufficient knowledge and
experience to understand the nature of the exchange and am fully capable of
bearing the economic risk of the loss of my entire cost basis.
I further understand that immediately prior to the completion of
the Plan, Micro-Hydro had no assets and no liabilities, of any measurable
value, and that in actuality, the completion of the Plan and the exchange of
my shares of Xxxxxxxx for shares of Micro-Hydro results in a decrease in the
actual percentage of ownership that my shares of Xxxxxxxx represented in
Xxxxxxxx prior to the completion of the Plan.
I understand that you have and will make books and records of your
Company available to me for my inspection in connection with the contemplated
exchange of my shares, options or warrants, and that I have been encouraged to
review the information and ask any questions I may have concerning the
information of any director or officer of the Company or of the legal and
accounting firms for the Company. I understand that the accountant for the
Company is Xxxxxxx, XxXxxxxxxx & Associates, 0000 Xxxxx 000 Xxxx, #000, Xxxx
Xxxx Xxxx, Xxxx 00000, Telephone (000) 000-0000; and that legal counsel for
Micro-Hydro is Xxxxxxx X. Xxxxxxxxxx, Esq., 455 East 000 Xxxxx, #000, Xxxx
Xxxx Xxxx, Xxxx 00000, Telephone (000) 000-0000. I further understand that,
upon the completion of the Plan, no accountant, attorney, employee or
consultant will have any claim of any kind against the Company for any event
or occurrence on or prior to the completion of the Plan.
I also understand that I must bear the economic risk of ownership
of any of the Micro-Hydro shares for a long period of time, the minimum of
which will be one (1) year, as these shares are "unregistered" shares and may
not be sold unless any subsequent offer or sale is registered with the United
States Securities and Exchange Commission or otherwise exempt from the
registration requirements of the Securities Act of 1933, as amended (the
"Act"), or other applicable laws, rules and regulations.
I intend that you rely on all of my representations made herein
and those in the personal questionnaire (if applicable) I provided to Xxxxxxxx
for use by Micro-Hydro as they are made to induce you to issue me the shares
of Micro-Hydro under the Plan, and I further represent (of my personal
knowledge or by virtue of my reliance on one or more personal
representatives), and agree as follows, to-wit:
1. That the shares being acquired are being received for
investment purposes and not with a view toward further distribution;
2. That I have a full and complete understanding of the phrase
"for investment purposes and not with a view toward further distribution";
3. That I understand the meaning of "unregistered shares and
know that they are not freely tradeable;
4. That any stock certificate issued by you to me in connection
with the shares being acquired shall be imprinted with a legend restricting
the sale, assignment, hypothecation or other disposition unless it can be made
in accordance with applicable laws, rules and regulations;
5. I agree that the stock transfer records of your Company
shall reflect that I have requested the Company not to effect any transfer of
any stock certificate representing any of the shares being acquired unless I
shall first have obtained an opinion of legal counsel to the effect that the
shares may be sold in accordance with applicable laws, rules and regulations,
and I understand that any opinion must be from legal counsel satisfactory to
the Company and, regardless of any opinion, I understand that the exemption
covered by any opinion must in fact be applicable to the shares;
6. That I shall not sell, offer to sell, transfer, assign,
hypothecate or make any other disposition of any interest in the shares,
options or warrants being acquired except as may be pursuant to any applicable
laws, rules and regulations;
7. I fully understand that my shares which are being exchanged
for shares of the Company are "risk capital," and I am fully capable of
bearing the economic risks attendant to this investment, without
qualification; and
8. I also understand that without approval of counsel for
Micro-Hydro, all shares of Micro-Hydro to be issued and delivered to me in
exchange for my shares of Xxxxxxxx shall be represented by one certificate
only and which such certificate shall be imprinted with the following legend
or a reasonable facsimile thereof on the front and reverse sides thereof:
The shares, options or warrants of stock represented
by this certificate have not been registered under the
Securities Act of 1933, as amended, and may not be
sold or otherwise transferred unless compliance with
the registration provisions of such Act has been made
or unless availability of an exemption from such
registration provisions has been established, or
unless sold pursuant to Rule 144 under the Act.
Any request for more than one stock certificate must be
accompanied by a letter signed by the requesting stockholder setting forth all
relevant facts relating to the request. Micro-Hydro will attempt to
accommodate any stockholders' request where Micro-Hydro views the request is
made for valid business or personal reasons so long as in the sole discretion
of Micro-Hydro, the granting of the request will not facilitate a "public"
distribution of unregistered shares of Micro-Hydro.
You are requested and instructed to issue a stock certificate as
follows, to-wit:
Xxxxx Xxxxxxxxx and Xxxxxx X. Xxxxxxxxx JTRS
00000 Xxxxxx Xxxxx
Xxxxxx, XX 00000
Dated this 18th day of December, 1998.
/s/Xxxxx Xxxxxxxxx
DRK, Inc.
00000 Xxxxxxx Xxxx Xxxx.
Xxxxx, XX 00000
Dated this 18th day of December, 1998.
/s/Xxxxxxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, JTRS
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Dated this 18th day of December, 1998.
/s/Xxxxxxx Xxxxxx
EXHIBIT H
CERTIFICATE OF OFFICER PURSUANT TO
AGREEMENT AND PLAN OF REORGANIZATION
The undersigned, the President of Micro-Hydro Power, Inc., a
Delaware corporation ("Micro-Hydro"), represents and warrants the following as
required by the Agreement and Plan of Reorganization (the "Plan") between
Micro-Hydro and The Xxxxxxxx Coach, L.L.C., a Louisiana limited liability
company ("Xxxxxxxx"), and the Xxxxxxxx Stockholders, to-wit:
1. That the undersigned is the President of Micro-Hydro and has
been authorized and empowered by its Board of Directors to execute and deliver
this Certificate to Xxxxxxxx and the Xxxxxxxx Stockholders;
2. Based upon the personal knowledge, information and belief of
the undersigned and opinions of counsel for Micro-Hydro regarding the Plan:
(i) All representations and warranties of Micro-Hydro
contained within the Plan are true and correct;
(ii) Micro-Hydro has complied with all terms and provisions
required of it pursuant to the Plan; and
(iii) There have been no material adverse changes in the
financial position of Micro-Hydro as set forth in its
financial statements for the years ended December 31,
1997 and 1996, and September 30, 1998, except as set
forth in Exhibit D to the Plan.
MICRO-HYDRO POWER, INC.
By/s/Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx, President
EXHIBIT I
CERTIFICATE OF OFFICER PURSUANT TO
AGREEMENT AND PLAN OF REORGANIZATION
The undersigned, the President of The Xxxxxxxx Coach, L.L.C., a
Louisiana limited liability company ("Xxxxxxxx"), represents and warrants the
following as required by the Agreement and Plan of Reorganization (the "Plan")
between Xxxxxxxx, the Xxxxxxxx Stockholders and Micro-Hydro Power, Inc., a
Delaware corporation ("Micro-Hydro"), to-wit:
1. That he is the President of Xxxxxxxx and has been authorized
and empowered by its Board of Directors to execute and deliver this
Certificate to Micro-Hydro;
2. Based on his personal knowledge, information, belief:
(i) All representations and warranties of Xxxxxxxx
contained within the Plan are true and correct;
(ii) Xxxxxxxx has complied with all terms and provisions
required of it pursuant to the Plan; and
(iii) There have been no material adverse changes in the
financial position of Xxxxxxxx as set forth in its
balance sheet dated October 31, 1998, except as set
forth in Exhibit F to the Plan.
THE XXXXXXXX COACH, L.L.C.
By/s/Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, President
/s/Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, Personally
