Exhibit 2.1
AGREEMENT AND PLAN OF EXCHANGE
THIS AGREEMENT AND PLAN OF EXCHANGE (the "Agreement"), is dated as of
December 15, 2000 and entered into by and between High-Tech Industries, Inc., a
Colorado corporation ("High-Tech"), and Nojata, Inc., a Nevada corporation
("Nojata").
RECITALS
Whereas, High-Tech and Nojata and their respective Boards of Directors
deem it advisable to exchange all of the issued and outstanding common stock of
Nojata for 5,550,000 shares of common stock of High-Tech as herein contemplated,
pursuant to which exchange the shareholders of Nojata shall become shareholders
of High-Tech and Nojata shall become a wholly owned subsidiary of High-Tech.
Whereas, the exchange provided for hereby (the "Exchange") shall be
consummated in accordance with the terms and conditions hereof and shall be
consummated as of the close of business on the day on which the duly executed
Agreement pursuant to the Colorado Business Corporation Act has been duly filed
with the Secretary of State of the State of Colorado (the "Effective Date"); it
being understood that the parties shall endeavor to cause the Effective date to
occur on the same day as the date of the closing of this Agreement (the "Closing
Date");
Whereas, High-Tech and Nojata intend that the Exchange shall be
recognized as a tax-free reorganization under the provisions of the Internal
Revenue Code of 1986, as amended (the "Code");
Now Therefore, in consideration of the mutual benefits to be derived
from this Agreement and the provisions hereinafter contained, High-Tech and
Nojata agree as follows:
ARTICLE I
EFFECT OF EXCHANGE ON HIGH-TECH SHARES AND NOJATA SHARES
Section 1.1. Exchange.
The manner and basis of exchanging the Nojata shares and the High-Tech
shares in the Exchange shall be hereafter set forth in this Article I.
Section 1.2. Exchange of Nojata shares.
Each of the Nojata shares issued and outstanding on the Effective Date,
and all rights in respect thereof, shall on the Effective Date, without any
action on the part of any holder thereof, shall be exchanged for five (5) shares
of common stock of High-Tech, each of which shall be validly issued, fully paid
and nonassessable.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Nojata represents and warrants as follows:
Section 2.1. No Breaches of Statute or Contract; Required Consents.
Neither the execution and delivery of this Agreement or the related
articles of exchange by Nojata, nor compliance by Nojata with the terms and
provisions thereof and of the Plan will: (i) conflict with or result in a breach
of any of the provisions of the Articles of Incorporation, bylaws or other
governing instruments of Nojata, or any judgment, order, decree, or ruling to
which Nojata is a party, or any injunction to which it is subject of any court
of governmental authority or of any agreement, contract or commitment to which
it is a party and which is material to the financial condition of Nojata
considered as a whole, or (ii) require the affirmative consent or approval of
any non-governmental third party (apart from stockholder approval referred to
elsewhere herein).
Section 2.2. Authorization of Agreement.
Nojata has the corporate power to enter into this Agreement and to
perform its obligations hereunder; the execution, delivery and, subject to
requisite stockholder approval, the performance of this Agreement by Nojata has
been duly and validly authorized by the Board of Directors of Nojata, and Nojata
has taken, or will use its best efforts to take prior to the Effective Date, all
action required by law, its Articles of Incorporation and bylaws to authorize
the execution, delivery and performance of the Agreement, the Plan, and related
articles of exchange.
Section 2.3. Further Representations.
(a) Nojata is duly organized, validly existing and in good
standing as a corporation under the laws of the State of Nevada; has full
corporate power to carry on its business as it is now being conducted, and to
own and operate the properties and assets it now owns or operates; and is duly
qualified to do business and is in good standing in each jurisdiction where the
conduct of its business or the ownership of its properties require such
qualification.
(b) Nojata has issued and outstanding a total of 1,110,000
shares of common stock, each validly issued, fully paid and nonassessable.
Nojata has no other class of stock or convertible securities outstanding. There
are no existing options, warrants, calls, commitments or rights of any character
to purchase or otherwise acquire from Nojata shares of capital stock of any
class, no outstanding securities of Nojata that are convertible into shares of
capital stock of Nojata of any class, and no options, warrants or rights to
purchase from Nojata any such convertible securities.
(c) Nojata has heretofore delivered to High-Tech accurate and
complete copies of the balance sheet of Nojata at November 30, 2000 (the "Nojata
2000 Balance Sheet") and the related statements of income, stockholders' equity
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and changes in financial position of Nojata from inception through November 30,
2000. Such balance sheet fairly presents the financial position of Nojata at the
date thereof and all such statements of income, stockholders; equity and changes
in financial position present fairly the results of its operations, changes in
stockholders; equity and changes in financial position for the periods
indicated, in conformity with accounting principles generally accepted in the
United States and consistently applied.
(d) Nojata has delivered to High-Tech the following documents,
all of which have been signed for identification by the President of Nojata and
are dated as of the date hereof: (i) a list of all the liabilities and
obligations of Nojata as of November 30, 2000 (Schedule "A"); and (ii) a list of
all property and all other assets of Nojata as of November 30, 2000 (Schedule
"B"). Nojata has good and marketable title to all properties and assets, real
and personal, described in Schedule "B". All of the properties and assets listed
on Schedule "B" are free and clear of all mortgages, pledges, liens, charges,
security interests or other encumbrances of any nature whatsoever, except for
mortgages, pledges, liens, charges, security interests or other encumbrances as
set forth in Schedule "B", liens for current taxes not yet due and payable, and
imperfections of title, easements and encumbrances, if any, that are not
substantial in character, amount or extent and do not materially detract from
the value, or interfere with the present or proposed use, of the property or
assets subject thereto or affected thereby, or otherwise materially impair
business operations. All leases pursuant to which Nojata leases any substantial
amount of real or personal property are in good standing, valid and effective in
accordance with their respective terms, and under none of these leases is there
any existing default, event of default or event that with notice or the lapse of
time, or both, would constitute a default and in respect to which Nojata has not
taken adequate steps to prevent a default from occurring.
(e) Between November 30, 2000 and the date of this Agreement
there has not been any material adverse change in the financial condition or in
the operations, business or property of Nojata.
(f) The structures, equipment, computers, and other physical
assets of Nojata that are necessary to the operation of the business being
conducted by it are in good operating condition and repair, subject only to the
ordinary wear and tear of the business.
(g) Neither Nojata nor, to the knowledge of its shareholders,
any other party have breached any material provision of, or defaulted in any
material respect of the terms of any contract or agreement to which Nojata is a
party which would have a materially adverse effect upon the business or
financial condition of Nojata.
(h) Nojata will deliver such other lists, descriptions,
information, schedules, documents and reports as may reasonably be requested by
High-Tech
(i) To the best knowledge of its shareholders, there is no
default or claim, purported or alleged default, or statement of facts under
which lack of notice or the lapse of time, or both, would constitute a default
on any obligation to be performed by Nojata under any material lease, contract,
plan or other arrangement.
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(j) No suit, action or legal, administrative or arbitration
proceeding, which might materially and adversely affect the overall financial
condition, business or property of Nojata is pending or, to the knowledge of its
shareholders, threatened.
(k) Nojata owns or possesses, or reasonably believes it can
acquire on reasonable terms, adequate patent rights, inventions, trademarks,
service marks, trade names and copyrights necessary to conduct the business now
operated by it, and Nojata has not received any notice of infringement of or
conflict with asserted rights of others with respect to any patent, patent
rights, inventions, trademarks, service marks, trade names or copyrights which,
individually or in the aggregate, if subject of an unfavorable decision, ruling
or finding, would have a material adverse effect upon the business, operations,
properties, assets or condition, financial or otherwise, of Nojata.
(l) The representations and warranties of its shareholders and
Nojata shall be as of the date of this Agreement and as of the date of the
Effective Date. Any such representation made as of such dates shall survive the
Closing Date. All representations and warranties of Nojata are based upon
knowledge only of its officers and directors and no one else.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF HIGH-TECH
High-Tech represents and warrants as follows:
Section 3.1. Status of High-Tech Shares.
The shares of High-Tech shares to be issued to the Nojata shareholders
pursuant to this Agreement and Plan, when so issued, will be duly and validly
authorized and issued, fully paid and nonassessable.
Section 3.2. No Breach of Contract; Required Consents.
Neither the execution and delivery of this Agreement nor compliance by
High-Tech with the terms of provisions hereof and of the Plan will: (i) conflict
with or result in a breach of any of the provision of the Articles of
Incorporation or bylaws or other governing instruments of High-Tech, or any
judgment, order, decree, or ruling to which High-Tech is a party, or any
injunction to which it is subject of any court or government authority, or of
any agreement, contract or commitment to which High-Tech is a party and which is
material to the financial condition or results of operations or conduct of the
business of High-Tech considered as a whole, or (ii) require the affirmative
consent or approval of any non-governmental third party.
Section 3.3. Authorization of Agreement.
High-Tech has the corporate power to enter into this Agreement and to
perform its obligations hereunder; the execution, delivery and performance of
this Agreement by High-Tech have been duly and validly authorized and approved
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by the Board of Directors of High-Tech; and High-Tech has taken, or will use its
best efforts to take prior to the Effective Date, all action required by law,
its Articles of Incorporation or bylaws to authorize the execution, delivery and
performance of this Agreement and the Plan.
Section 3.4. Current Shares Outstanding.
As of the date of this Agreement, there are currently issued 970,000
shares of fully paid and validly issued common stock.
ARTICLE IV
CONDUCT AND TRANSACTIONS PRIOR TO EFFECTIVE DATE
Section 4.1. Access; Operation of Business between the date of this
Agreement and the Effective Date.
(a) Access. Nojata and High-Tech each agrees to furnish the
other with such financial and operating data and other information with respect
to the business and properties of it as the other shall from time to time
reasonably request in furtherance of consummating the Exchange; provided,
however, that any such investigation shall not affect any of the representations
and warranties hereunder. In the event of termination of this Agreement, Nojata
and High-Tech will each return to the other all documents and other material
obtained from the other in connection with the transactions contemplated hereby,
and each shall maintain the confidentiality of such materials.
(b) Conduct of Business. Nojata and High-Tech shall continue
to conduct their business in conformity with established industry practice in a
diligent manner and will use their best efforts to preserve intact their present
business organizations and preserve their relationships with persons having
business dealings with them.
(c) No Mergers. Nojata and High-Tech will not merge or
consolidate with any other corporation, or acquire any stock or, except in the
ordinary course of business, any business, property or assets of any other
person, firm, association, corporation or other business organization.
(d) No Securities Issuances. Nojata and High-Tech will not
issue any shares of any class of their capital stock, or enter into any
contract, or grant any option, warrant or right, calling for the issuance of any
such shares, and will not create or issue any securities convertible into any
such shares or convertible into securities in turn so convertible or enter into
any contract, or grant any option, warrant or right, calling for the issuance of
any such convertible securities.
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Section 4.3. Stockholder Approval of Nojata.
Nojata acknowledges and represents that the execution of this Agreement
by Xxxx X. Xxxxx and Xxxx X. Xxxxx as the sole shareholders of Nojata, shall
constitute all necessary shareholder approval of the transaction contemplated
hereby as is necessary under Nevada law. Xxxx X. Xxxxx and Xxxx X. Xxxxx further
acknowledge and represent that the shares of High-Tech they or their assigns may
acquire as a result of the Exchange contemplated herein are being acquired for
investment purposes only and not with a view toward their redistribution or
re-offering. All stock certificates representing shares of High-Tech issued to
the shareholders of Nojata shall be endorsed with the following restricting
legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933. The shares have been acquired for
investment and may not be offered, sold, or otherwise transferred in the absence
of an effective registration statement for the shares under the Securities Act
of 1933, or a prior opinion of counsel satisfactory to the issuer, that
registration is not required under the Act."
Section 4.4. Stockholder Approval of High-Tech
High-Tech shall obtain approval of the Exchange by consent of a
majority of shareholders in interest without a shareholder meeting as provided
by Colorado law.
ARTICLE V
CONDITIONS TO OBLIGATIONS OF HIGH-TECH AND NOJATA
Section 5.1. General Conditions.
The obligations of the parties hereto to effect the Exchange shall be
subject to the following conditions:
(a) No Governmental Proceedings. No governmental action or
proceeding shall have been instituted or be threatened at the Closing Date by or
before a court or other governmental body, agency or authority to restrain or
prohibit the transactions contemplated by this Agreement.
(b) No Litigation. There shall be no litigation pending at the
Closing Date challenging the authority of either Nojata or High-Tech or the
officers or directors of either to enter into this Agreement or seeking to
restrain or prohibit the transactions contemplated hereby, which the Board of
Directors of either Nojata or High-Tech shall reasonably believe to present a
substantial risk either of restraining or prohibit such transactions or of
resulting in the award of material damages or other relief.
(c) Statutory Requirements and Approvals. All statutory
requirements for the valid consummation by Nojata and High-Tech of the
transactions contemplated by this Agreement and the Plan shall have been
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fulfilled; no approvals of the transactions contemplated by this Agreement shall
be required from any federal or state governmental agency or authorities.
Section 5.2. Conditions and Obligation of High-Tech
The obligation of High-Tech to effect the Exchange shall be subject to
the following conditions:
(a) Representations and Warranties of Nojata to be True. The
representations and warranties of Nojata herein contained shall be true in all
material respects at the Closing Date with the same effect as though made at
such time, except to the extent waived hereunder or affected by the transactions
contemplated herein; Nojata shall have performed all obligations and complied
with all covenants and conditions required by this Agreement to be performed or
complied with by it at or prior to the Closing Date; and Nojata shall have
delivered to High-Tech a certificate of Nojata in form and substance
satisfactory to High-Tech, dated the Closing Date and signed by its President or
Vice President to all such effects.
(b) Certificate of Xxxx X. Xxxxx. High-Tech shall have
received a certificate dated the Closing Date and signed by Xxxx X. Xxxxx to all
such effects and to the effect that the statements contained in the Nojata
certificate described above and in any other written documents delivered by or
on behalf of Nojata pursuant to the provisions of this Agreement constitute
representations and warranties of Nojata under this Agreement to the same extent
as if herein set forth in full.
(c) Letter from a certified public accountant, dated as of the
Closing Date, that after reading the unaudited financial statements of November
30, 2000 and for the period from November 30, 2000 to the date not more than
five business days prior to the delivery of such letter; and making inquiries of
certain officials of Nojata who have responsibility for financial and accounting
matters regarding the specific items for which representations are requested
below; nothing has come to his attention as a result of the foregoing procedures
that cause him to believe that at the date of the latest available interim
financial statements there was any change in the capital stock or long-term debt
of Nojata or any decreases in net current assets or net assets.
Section 5.3. Conditions and Obligation of Nojata.
The obligations of Nojata to effect the Exchange shall be subject to
the following conditions:
(a) Representations and Warranties of High-Tech to be True.
The representations and warranties of High-Tech herein contained shall be true
in all material respects at the Closing Date with the same effect as though made
at such time, except to the extent waived hereunder or affected by the
transactions contemplated herein; High-Tech shall have performed all obligations
and complied with all covenants and conditions required by this Agreement to be
performed or complied with by it prior to the Closing Date; and High-Tech shall
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have delivered to Nojata a certificate of High-Tech in form and substance
satisfactory to Nojata, dated the Closing Date and signed by its President and
its principal financial officer, to all such effects.
ARTICLE VI
INDEMNIFICATION
Section 6.1. Continuation of Representations and Warranties.
High-Tech and Nojata agree that the representations, warranties and
covenants of High-Tech and Nojata contained herein or in any instrument or
certificate delivered hereunder shall survive the Effective Date of the
Exchange, regardless of any investigation or inquiry by or on behalf of
High-Tech and Nojata.
Section 6.2. Indemnification by Nojata.
Nojata agrees to indemnify and hold harmless High-Tech and each person,
if any, who controls High-Tech within the meaning of Section 15 of the 1933 Act
against any and all losses, liabilities, claims, damages and expenses (including
interest, expenses of litigation and attorney's fees) arising out of or as a
result of any inaccuracy or breach of any of the representations, warranties and
covenants of Nojata contained in this Agreement and contained in any instrument,
schedule or certificate delivered to High-Tech pursuant to this Agreement, or
the defense or settlement of any claim asserted against High-Tech challenging
any such representation, warranty and covenant, or the failure or default of
Nojata to perform or observe any covenant or condition under this Agreement.
Section 6.3. Indemnification by High-Tech
High-Tech agrees to indemnify and hold harmless Nojata and each person,
if any who controls Nojata against any and all losses, liabilities, claims,
damages and expenses (including interest, expenses of litigation and attorney's
fees) arising out of or as a result of any inaccuracy or breach of any of the
representations, warranties and covenants of High-Tech contained in this
Agreement and contained in any instrument or certificate, delivered to Nojata
pursuant to this Agreement, or the defense or settlement of any claim asserted
against Nojata challenging any such representation, warranty and covenant, or
the failure or default of High-Tech to perform or observe any covenant or
condition under this Agreement.
Section 6.4. Notice.
Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sough hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this Agreement. An indemnifying party may participate at its own expense in the
defense of such action. In no event shall the indemnifying parties be liable for
the fees and expenses of more than one counsel for all indemnified parties in
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connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstance.
ARTICLE VII
MODIFICATION, WAIVERS AND ABANDONMENT
Section 7.1. Modification.
Nojata and High-Tech may, by mutual consent of the respective Board of
Directors, amend, modify or supplement this Agreement in such manner as may be
mutually agreed upon in a writing executed by Nojata and High-Tech at any time
before or after action thereon by the stockholders of Nojata and High-Tech;
provided, however, that no such amendment, modification or supplement shall
affect the rights of the stockholders of Nojata or High-Tech in a manner which
is materially adverse to such stockholders in the judgment of the Board of
Directors of Nojata and High-Tech, respectively.
Section 7.2 Waivers.
Each of Nojata and High-Tech may, pursuant to action by its respective
Board of Directors, by an instrument in writing, extend the time for or waive
the performance of any of the obligations of the other or waive compliance by
the other with any of the covenants or conditions contained herein; provided,
however, that no such waiver or extension shall affect the rights of the
stockholders of High-Tech or Nojata in a manner which would be materially
adverse to such stockholders.
Section 7.3. Abandonment.
The Exchange may be abandoned before the Closing Date of the Exchange
without liability on the part of any party hereto exercising such right of
abandonment or restriction on the future activities of either party hereto:
(a) Mutual Consent. By the mutual consent of the Boards of
Directors of High-Tech and Nojata evidenced by a writing executed by High-Tech
and Nojata or;
(b) Lapse of Time. By the Board of Directors of High-Tech or
Nojata if the Effective Date has not occurred on or prior to December 31, 2000;
provided, however, that such date shall be extended for up to twenty-five (25)
days in the event an order restraining or prohibiting the Exchange has been
issued by any public authority or court.
The power of abandonment provided for by this Section 7.3 may be
exercised by High-Tech or Nojata only by their respective Boards of Directors
and will be effective only after written notice thereof, signed on behalf of the
party for which it is given by its Chairman of the Board or President, shall be
have been given to the other. If the Exchange shall be abandoned, no articles of
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exchange or certificates relating to the Exchange shall be filed by the officers
of any such party in the States of Colorado and Nevada. Abandonment shall not
effect any rights theretofore accruing hereunder.
ARTICLE VIII
ADDITIONAL MATTERS
Section 8.1. Management.
The parties agree that the respective corporations to the Exchange
shall continue to have the same management after the contemplated Exchange that
they had prior to the Exchange.
Section 8.2. Closing.
The Closing of the Exchange contemplated by this Agreement shall take
place at such time and place as may be convenient to all the parties but in no
event later than December 31, 2000. At the closing Nojata and High-Tech shall
deliver and exchange the certificates specified in Sections 5.2(a) and 5.3(a) of
this Agreement.
Section 8.3. Notices.
All notices, requests, demands and other communications which are
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given when delivered personally or when mailed by registered or
certified mail, postage pre-paid, as follows:
If to High-Tech to:
c/o Xxxx X. XxXxxx
00 Xxx Xxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
If to Nojata to:
c/o Xxxx X. Xxxxx
0000 Xxxxx 0000 Xxxx
Xxxxx, XX 00000
Section 8.4. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Colorado.
Section 8.5 Entire Agreement.
This Agreement supersedes any and all oral or written agreements
heretofore made relating to the subject matter hereof and constitutes the entire
agreement of the parties' relation to the subject matter hereof.
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Section 8.6. No Implied Rights or Remedies.
Except as otherwise expressly provided herein, nothing herein expressed
or implied is intended or shall be construed to confer upon or to give any
person, firm or corporation, other than High-Tech and Nojata and their
stockholders, any rights or remedies under or by reason of this Agreement.
Section 8.7. Headings.
The headings in this Agreement are inserted for convenience of
reference only and shall not be part of, or control or affect the meaning of
this Agreement.
Section 8.8. Counterparts.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf and attested by its officers there unto
duly authorized, all as of the day and year first above written.
High-Tech Industries, Inc., Nojata, Inc.
a Colorado corporation a Nevada corporation
By: /s/ Xxxx X. XxXxxx By: /s/ Xxxx X. Xxxxx
---------------------------- ---------------------------
Xxxx X. XxXxxx, President Xxxx X. Xxxxx, President
SHAREHOLDERS OF SHAREHOLDERS OF
HIGH-TECH INDUSTRIES, INC. NOJATA, INC.
USA Ventures
By: /s/ Xxxxxx X. XxXxxx /s/ Xxxx X. Xxxxx
-------------------------- ------------------------------
Xxxxxx X. XxXxxx Xxxx X. Xxxxx
XX/CM Family Partners, Ltd. /s/ Xxxx X. Xxxxx
------------------------------
Xxxx X. Xxxxx
By: /s/ Xxxx X. XxXxxx Being all of the Shareholders of
--------------------------- Nojata, Inc.
Xxxx X. XxXxxx
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The Xxxxx & Xxxxx Xxxx Trust U/A/D 6/4/97
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Xxxxx X. Xxxx, Trustee
Xxxx Enterprises, LLC
By: /s/ Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx, Member
Being all of the Shareholders of High-Tech Industries, Inc.
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