AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Plan") is made this 8th day
of July, 2002, among Whole Living, Inc., a Nevada corporation ("Whole
Living"); Vestrio Corporation, a Utah corporation, and Simple Online
Solutions, LLC, a Utah limited liability company (hereinafter collectively
referred to as "Vestrio") and their Shareholders (hereinafter collectively
referred to as "Shareholders").
Whole Living wishes to acquire all the issued and outstanding stock of
Vestrio for and in exchange for stock of Whole Living, in a stock-for-stock
transaction intending to qualify as a tax-free exchange pursuant to Section
368(a)(1)(B) of the Internal Revenue Code of 1986, as amended. The parties
intend for this Plan to represent the terms and conditions of such tax-free
reorganization, which Plan the parties hereby adopt.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, IT IS AGREED:
Section 1
Terms of Exchange
1.1 Number of Shares. At the Closing, the Shareholders will assign,
transfer, and deliver to Whole Living, free and clear of all liens, pledges,
encumbrances, charges, restrictions or known claims of any kind, nature or
description, 100,000 shares of Vestrio common shares, which represents 100% of
the issued and outstanding shares of Vestrio, in exchange for 6,000,000 shares
of Whole Living's common shares, par value $.001, of which 3,000,000 common
shares shall be delivered at the Closing and the balance of said shares will
be placed into escrow for future delivery pursuant to the terms and conditions
of the escrow agreement and subject to the provisions of this Plan.
Subsequent to the date hereof, the Shareholders shall, upon the surrender of
the Vestrio certificates representing its beneficial and record ownership of
the issued and outstanding shares of Vestrio to Whole Living or as soon as
practicable hereafter, and pursuant to the exemptions from the registration
provisions of Section 5 of the Securities Act of 1933, provided by Sections 3
and 4 of that act, the Shareholders shall be entitled to receive an exchange
certificate(s) evidencing shares of Whole Living stock as provided for herein.
Upon the consummation of the transaction contemplated herein, Vestrio shall be
a wholly- owned subsidiary of Whole Living.
1.2 Registration of Whole Living Shares. In the event that within one
(1) year from the date hereof, Whole Living undertakes to file a Registration
Statement under the Securities Act of 1933, as amended, for the purpose of
offering and/or selling a minimum of two million five hundred thousand dollars
($2,500,000) common stock in any single registered offering, then if
practicable, and subject to the amount of the underwriter(s) the Shareholders
shall have the right to include a portion of the shares in the Registration
Statement. Said "Piggy Back" registration right shall allow the Shareholders
to offer for sale under the Registration Statement a minimum of ten percent
(10%) of the total shares being offered under such Registration Statement by
Whole Living. That percentage may be increased by the mutual consent of Whole
Living, the Shareholders and the underwriters(s).
1.3 Anti-Dilution. For all relevant purposes of this Plan, the number
of Whole Living shares to be issued and delivered pursuant to this Plan, shall
be appropriately adjusted to take into account any stock split, stock
dividend, reverse stock split, recapitalization, or similar change in Whole
Living common stock, which may occur between the date of the execution of the
letter of intent and the executors of the Plan.
1.4 Delivery of Certificates. The Shareholders shall transfer to Whole
Living at the closing provided for in Section 2 (the "Closing") 100,000 shares
of common stock of Vestrio listed opposite their respective names on Exhibit A
hereto (the "Vestrio Shares") in exchange for shares of the common stock of
Whole Living as outlined above in Section 1.1 hereof (the "Whole Living
Stock"). All of such shares of Whole Living Stock shall be issued at the
closing to the Shareholders. The transfer of Vestrio Shares by the
Shareholders shall be effected by the delivery to Whole Living at the Closing
of one or more certificates representing the Vestrio shares, endorsed in blank
or accompanied by stock powers executed in blank.
1.5 Further Assurances. Subsequent to the execution hereof, and from
time to time thereafter, the Shareholders shall execute such additional
instruments and take such other action as Whole Living may reasonably request
in order to more effectively sell, transfer and assign clear title and
ownership in the Vestrio Shares to Whole Living.
Section 2
Closing
2.1 Closing. The Closing contemplated by Section 1.4 shall be held at
the law office of Xxxxxx X. Xxxxxxx, 000 Xxxxx 000 Xxxx, Xxxx Xxxx Xxxx, Xxxx
on July 8, 2002 or at such other time or place as may be mutually agreed upon
in writing by the parties. The Closing may also 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. In any event, the closing of the transactions contemplated
by this Plan shall be effected as soon as practicable after all of the
conditions contained herein have been satisfied.
2.2 Closing Events. At the Closing, each of the respective parties
hereto shall execute, acknowledge and deliver (or shall cause to be executed,
acknowledged, and delivered) any agreements, resolutions, rulings, or other
instruments required by this Plan to be so delivered at or prior to Closing,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence
the transaction contemplated hereby.
Section 3
Representations, Warranties and Covenants of Whole Living
Whole Living represents and warrants to, and covenants with, the
Shareholders and Vestrio as follows:
3.1 Corporate Status. Whole Living is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada.
Whole Living has full corporate power and is duly authorized, qualified,
franchised, and licensed under all applicable laws, regulations, ordinances,
and orders of public authorities to own all of its properties and assets and
to carry on its business on all material respects as it is now being
conducted, and there is no other jurisdiction in which the character and
location of the assets owned by it, or the nature of the business transacted
by it, requires qualification. Included in the Whole Living schedules
(defined below) are complete and correct copies of its Articles of
Incorporation and Bylaws as in effect on the date hereof. The execution and
delivery of this Plan does not, and the consummation of the transactions
contemplated hereby will not, violate any provision of Whole Living's Articles
of Incorporation or Bylaws. Whole Living has taken all action required by
law, its Articles of Incorporation, its Bylaws, or otherwise, to authorize the
execution and delivery of this Plan.
3.2 Capitalization. The authorized capital stock of Whole Living as of
the date hereof consists of 50,000,000 common shares, par value $.001. As of
the date hereof there are 24,044,340 common shares of Whole Living issued and
outstanding. The foregoing shares constitute fully paid, non-assessable
shares.
3.3 Options and Rights. Whole Living has employee options outstanding
to purchase up to 2,500,000 shares of its authorized but unissued common
stock.
3.4 Financial Statements.
(a) Whole Living hereby warrants and covenants to Vestrio that the
audited financial statements for the years ended December 31, 2000 and 2001,
fairly and accurately represent the financial condition of Whole Living and
that the same will be prepared along with the period ended as of the date of
Closing, for consolidation by an independent public accountant, which shall be
prepared in accordance with generally accepted accounting principles
consistently applied, on or before the expiration of ninety days from the date
of Closing.
(b) Whole Living hereby warrants and represents that the audited
financial statements for the periods set forth in subparagraph (a), supra,
fairly and accurately represent the financial condition of Whole Living as
submitted heretofore to Vestrio for examination and review.
3.5 Conduct of Business. Whole Living will use its best efforts to
maintain and preserve its business organization, employee relationships and
goodwill intact, and will not, without the prior written consent of Vestrio,
enter into any material commitments except in the ordinary course of business.
Whole Living will conduct itself in the following manner pending the
Closing:
(a) Certificate of Incorporation and Bylaws. No change will be
made in the Articles of Incorporation or Bylaws of Whole Living.
(b) Capitalization, etc. Whole Living will not make any change in
its authorized or issued shares of any class, declare or pay any dividend or
other distribution, or issue, encumber, purchase or otherwise acquire any of
its shares of any class.
3.6 Title to Property. Whole Living has good and marketable title to
all of its properties and assets, real and personal, proprietary or otherwise,
as will be reflected in the balance sheets of Whole Living, and the properties
and assets of Whole Living are subject to no mortgage, pledge, lien or
encumbrance, unless as otherwise disclosed in its financial statements.
3.7 Litigation. There are no material actions, suits, or proceedings,
pending, or, to the best knowledge of Whole Living, threatened by or against
or affecting Whole Living at law or in equity, or before any governmental
agency or instrumentality, domestic or foreign, or before any arbitrator of
any kind; Whole Living does not have any knowledge of any default on its part
with respect to any judgment, order, writ, injunction, decree, warrant, rule,
or regulation of any court, arbitrator, or governmental agency or
instrumentality.
3.8 Books and Records. From the date hereof until closing, and for any
reasonable period subsequent thereto, Whole Living and its present management
will (i) give to the Shareholders and Vestrio, or their duly authorized
representatives, full access, during normal business hours, to all of its
books, records, contracts and other corporate documents and properties so that
the Shareholders and Vestrio, or their duly authorized representatives, may
inspect them; and (ii) furnish such information concerning the properties and
affairs of Whole Living as the Shareholders and Vestrio, or their duly
authorized representatives, may reasonably request.
3.9 Confidentiality. Until the Closing (and thereafter if there is no
Closing), Whole Living and its representatives will keep confidential any
information which they obtain from the Shareholders or from Vestrio concerning
its properties, assets and the proposed business operations of Vestrio. If
the terms and conditions of this Plan imposed on the parties hereto are not
consummated on or before 5:00 p.m. MST on July 15, 2002 or otherwise waived or
extended in writing to a date mutually agreeable to the parties hereto, Whole
Living will return to Vestrio all written matter with regard to Vestrio
obtained in connection with the negotiations or consummation of this Plan.
3.10 Conflict with Other Instruments. The transactions contemplated by
this Plan will not result in the breach of any term or provision of, or
constitute a default under any indenture, mortgage, deed of trust, or any
material agreements or instrument to which Whole Living was or is a party, or
to which any of its assets or operations are subject, and will not conflict
with any provision of the Articles of Incorporation or Bylaws of Whole Living.
3.11 Corporate Authority. Whole Living has full corporate power and
authority to enter into this Plan and to carry out its obligations hereunder
and will deliver to the Shareholders and Vestrio, or their respective
representatives, at the Closing, a certified copy of resolutions of its Board
of Directors authorizing execution of this Plan by its officers and
performance thereunder.
3.12 Special Covenants and Representations Regarding the Exchanged Whole
Living Stock. The consummation of this Plan and the transactions herein
contemplated include the issuance of the exchanged Whole Living shares to the
Shareholders, which constitutes an offer and sale of securities under the
Securities Act of 1933, as amended, and applicable states' securities laws.
Such transaction shall be consummated in reliance on exemptions from the
registration and prospectus requirements of such statutes which depend inter
alia on the circumstances under which the Shareholders acquire such
securities. In connection with the reliance upon exemptions from the
registration and prospectus delivery requirements for such transactions, at
the Closing, Shareholders shall cause to be delivered to Whole Living a
Letter(s) of Investment Intent in the form attached hereto as Exhibit B and
incorporated herein by reference.
3.13 Undisclosed or Contingent Liabilities. Whole Living hereby
represents and warrants that it has no undisclosed or contingent liabilities
which have not been disclosed to Vestrio.
3.14 Information. The information concerning Whole Living set forth in
this Plan, and the Whole Living schedules attached hereto, are complete and
accurate in all material respects and do not contain, or will not contain,
when delivered, any untrue statement or a material fact or omit to state a
material fact the omission of which would be misleading to Vestrio or the
shareholders of Vestrio in connection with this Plan.
3.15 Title and Related Matters. Whole Living has good and marketable
title to all of its properties, interests in properties, and assets, real and
personal, which are reflected, or will be reflected, in the Whole Living
balance sheets, free and clear of any encumbrances.
3.16 Contracts or Agreements. Whole Living is not bound by any material
contracts, agreements or obligations which it has not already disclosed to
Vestrio in writing.
3.17 Governmental Authorizations. Whole Living has all licenses,
permits and other government authorizations that are legally required to
enable it to conduct its business in all material respects as conducted on the
date hereof. Except for compliance with federal and state securities laws, no
authorization, approval, consent or order of, or registration, declaration, or
filing with, any court or other governmental body is required in connection
with the execution and delivery by Whole Living of this Plan and the
consummation by Vestrio of the transactions contemplated hereby.
3.18 Compliance with Laws and Regulations. Whole Living has complied
with all applicable statutes and regulations of any federal, state, or other
applicable jurisdiction or agency thereof, except to the extent that
noncompliance would not materially and adversely affect the business,
operations, properties, assets, or condition of Whole Living or except to the
extent that noncompliance would incur any material liability, not otherwise
disclosed to Vestrio.
3.19 Approval of Plan. The Board of Directors of Whole Living has
authorized the execution and delivery of this Plan by Whole Living and have
approved the Plan and the transactions contemplated hereby. Whole Living has
full power, authority, and legal right to enter into this Plan and to
consummate the transactions contemplated hereby.
3.20 Investment Intent. Whole Living is acquiring the Vestrio Shares to
be transferred to it under this Plan for investment and not with a view to the
sale or distribution thereof, and Whole Living has no commitment or present
intention to liquidate Vestrio or to sell or otherwise dispose of the Vestrio
Shares.
3.21 Unregistered Shares and Access to Information. Whole Living
understands that the offer and sale of the Vestrio Shares have not been
registered with or reviewed by the Securities and Exchange Commission under
the Securities Act of 1933, as amended, or with or by any state securities law
administrator, and no federal, state securities law administrator has reviewed
or approved any disclosure or other material concerning Vestrio or the Vestrio
Shares. Whole Living has been provided with and reviewed all information
concerning Vestrio, the Vestrio Shares as it has considered necessary or
appropriate as a prudent and knowledgeable investor to enable it to make an
informed investment decision concerning the Vestrio Shares. Whole Living has
made an investigation as to the merits and risks of its acquisition of the
Vestrio Shares and has had the opportunity to ask questions of, and has
received satisfactory answers from, the officers and directors of Vestrio
concerning Vestrio, the Vestrio Shares and related matters, and has had an
opportunity to obtain additional information necessary to verify the accuracy
of such information and to evaluate the merits and risks of the proposed
acquisition of the Vestrio Shares.
3.22 Whole Living Schedules. Whole Living has delivered to Vestrio the
following items pertaining to Whole Living, listed below, hereafter referred
to as the "Whole Living Schedules", which is hereby incorporated by reference
and made a part hereof. A certification has been executed by a duly
authorized officer of Whole Living on or about the date which the Plan is
executed to certify that the Whole Living Schedules are true and correct.
(a) Copy of Articles of Incorporation and any amendments, and
Bylaws;
(b) Financial statements;
(c) Shareholder list;
(d) Resolutions of Directors approving Plan;
(e) Officers' Certificate as required under Section 6.2 of the
Plan;
(f) Opinion of counsel as required under Section 6.4 of the Plan;
(g) Certificate of Good Standing;
Section 4
Representations, Warranties and Covenants of Vestrio
Vestrio represents and warrants to, and covenants with, the Shareholders
and Whole Living as follows:
4.1 Corporate Status. Vestrio is a corporation duly organized, validly
existing and in good standing under the laws of the State of Utah incorporated
on August 31, 2001. Vestrio has full corporate power and is duly authorized,
qualified, franchised, and licensed under all applicable laws, regulations,
ordinances, and orders of public authorities to own all of its properties and
assets and to carry on its business on all material respects as it is now
being conducted. Included in the Vestrio schedules (defined below) are
complete and correct copies of its Articles of Incorporation and Bylaws as in
effect on the date hereof. The execution and delivery of this Plan does not,
and the consummation of the transactions contemplated hereby will not, violate
any provision of Vestrio's Articles of Incorporation or Bylaws. Vestrio has
taken all action required by law, its Articles of Incorporation, its Bylaws,
or otherwise, to authorize the execution and delivery of this Plan.
4.2 Capitalization. The authorized capital stock of Vestrio as of the
date hereof consists of 1,000,000 common shares, $.001 par value. As of the
date hereof there are 100,000 common shares of Vestrio issued and outstanding.
The issued and outstanding common shares of Vestrio are fully paid,
non-assessable shares. There are no outstanding options, warrants,
obligations convertible into shares of stock, or calls or any understanding,
agreements, commitments, contracts or promises with respect to the issuance of
Vestrio's common stock or with regard to any options, warrants or other
contractual rights to acquire any of Vestrio's authorized but unissued common
shares.
4.3 Undisclosed Liabilities. Vestrio has no liabilities or
obligations which are material, individually or in the aggregate, that have
not been disclosed in writing to Whole Living, other than those put forth in
Vestrio's financial statements or as incurred in the ordinary course of
Vestrio's business, and Vestrio expressly warrants to Whole Living that it has
no liabilities or obligations either vested or contingent to its management of
employees for payment of benefits or compensation of any type or manner.
4.4 Indemnification. Vestrio agrees to indemnify and hold Whole
Living and its shareholders harmless against any losses, claims, damages or
liabilities, joint or several (which shall, for all purposes of this
Agreement, include, but not be limited to all costs of defense and
investigation and all attorney's fees), relating to, concerning or in any way
arising from any and all undisclosed material obligations or liabilities of
Vestrio. This indemnity agreement shall be in addition to any liability which
Vestrio may otherwise have to Whole Living.
4.5 Conduct of Business. Vestrio will use its best efforts to maintain
and preserve its business organization, employee relationships and goodwill
intact, and will not, without the prior written consent of Whole Living, enter
into any material commitments except in the ordinary course of business.
Vestrio agrees that Vestrio will conduct itself in the following manner
pending the Closing:
(a) Certificate of Incorporation and Bylaws. No change will be
made in the Certificate of Incorporation or Bylaws of Vestrio.
(b) Capitalization, etc. Vestrio will not make any change in its
authorized or issued shares of any class, declare or pay any dividend or other
distribution, or issue, encumber, purchase or otherwise acquire any of its
shares of any class.
4.6 Title to Property. Vestrio has good and marketable title to all of
its properties and assets, real and personal, proprietary or otherwise, as
will be reflected in the balance sheets of Vestrio, and the properties and
assets of Vestrio are subject to no mortgage, pledge, lien or encumbrance,
unless as otherwise disclosed in its financial statements.
4.7 Litigation. There are no material actions, suits, or proceedings,
pending, or, to the best knowledge of Vestrio, threatened by or against or
affecting Vestrio at law or in equity, or before any governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind;
Vestrio does not have any knowledge of any default on its part with respect to
any judgment, order, writ, injunction, decree, warrant, rule, or regulation of
any court, arbitrator, or governmental agency or instrumentality.
4.8 Books and Records. From the date hereof, and for any reasonable
period subsequent thereto, Vestrio and its present management will (i) give to
Whole Living, or their duly authorized representatives, full access, during
normal business hours, to all of its books, records, contracts and other
corporate documents and properties so that Whole Living, or their duly
authorized representatives, may inspect them; and (ii) furnish such
information concerning the properties and affairs of Vestrio as Whole Living,
or their duly authorized representatives, may reasonably request. Any such
request to inspect Vestrio's books shall be directed to Vestrio's
representative, at the address set forth herein under Section 10.4 Notices.
4.9 Confidentiality. Until the Closing (and thereafter if there is no
Closing), Vestrio and its representatives will keep confidential any
information which they obtain from Whole Living concerning its properties,
assets and the proposed business operations of Vestrio. If the terms and
conditions of this Plan imposed on the parties hereto are not consummated on
or before 5:00 p.m. MST on July 15, 2002 or otherwise waived or extended in
writing to a date mutually agreeable to the parties hereto, Vestrio will
return to Whole Living all written matter with regard to Whole Living obtained
in connection with the negotiations or consummation of this Plan.
4.10 Investment Intent. The Shareholders represent and covenant that
they are acquiring the unregistered and restricted common shares of Whole
Living to be delivered to them under this Plan for investment purposes and not
with a view to the subsequent sale or distribution thereof, and as agreed,
supra, the Shareholders, their successors and assigns agree to execute and
deliver to Whole Living on the date of Closing or no later than the date on
which the restricted shares are issued and delivered to the Shareholders,
their assigns, or designees, an Investment Letter similar in form to that
attached hereto as Exhibit B.
4.11 Vote Required. The affirmative vote of the holders of at least a
majority of the outstanding Vestrio Shares is the only vote of the holders of
any class or series of Vestrio's capital stock necessary to approve and adopt
this Plan.
4.12 Unregistered Shares and Access to Information. Vestrio and the
Shareholders understand that the offer and sale of Whole Living shares to be
exchanged for the Vestrio Shares have not been registered with or reviewed by
the securities and Exchange Commission under the Securities Act of 1933, as
amended, or with or by any state securities law administrator, and no federal
or state securities law administrator has reviewed or approved any disclosure
or other material facts concerning Whole Living or Whole Living stock.
Vestrio and the Shareholders have been provided with and reviewed all
information concerning Whole Living and Whole Living shares, to be exchanged
for the Vestrio Shares as they have considered necessary or appropriate as
prudent and knowledgeable investors to enable them to make informed investment
decisions concerning the Whole Living shares, to be exchanged for the Vestrio
Shares. Vestrio and the Shareholders have made an investigation as to the
merits and risks of their acquisition of the Whole Living shares, to be
exchanged for the Vestrio Shares and have had the opportunity to ask questions
of, and have received satisfactory answers from, the officers and directors of
Whole Living concerning Whole Living shares to be exchanged for the Vestrio
Shares and related matters, and have had an opportunity to obtain additional
information necessary to verify the accuracy of such information and to
evaluate the merits and risks of the proposed acquisition of the Whole Living
shares to be exchanged for the Vestrio Shares.
4.13 Title to Shares. The Shareholders are the beneficial and record
owners, free and clear of any liens and encumbrances, of whatever kind or
nature, of all of the Vestrio Shares of whatever class or series, which the
Shareholders have contracted to exchange under this Agreement.
4.14 Contracts.
(a) Except for the contracts set forth in the Vestrio Schedules,
Vestrio is not a party to any other license agreements, material contracts,
written or oral, nor is Vestrio a party to any franchise agreements or other
commitments.
(b) Except as may be set forth in the Vestrio Schedules, Vestrio is
not a party to any contract, agreement, corporate restriction, or subject to
any judgment, order, writ, injunction, decree, or award, which materially and
adversely affect the business, operations, properties, assets, or conditions
of Vestrio.
(c) Except as set forth in the Vestrio Schedules, Vestrio is not a
party to any material oral or written (i) contract for employment of any
officer which is not terminable on 30 days (or less) notice; (ii) profit
sharing, bonus, deferred compensation, stock option, severance, or any other
retirement plan or arrangement covered by Title IV of the Employee Retirement
Income Security Act, as amended, or otherwise covered; (iii) agreement
providing for the sale, assignment or transfer of any of its rights, assets or
properties, whether tangible or intangible, except sales of its property in
the ordinary course of business with a value of less than $2,000; or (iv)
waiver of any right of any value which in the aggregate is extraordinary or
material concerning the assets or properties scheduled by Vestrio, except for
adequate value and pursuant to contract. Vestrio has not entered into any
material transaction which is not listed in the Vestrio Schedules or reflected
in the Vestrio financial statements.
4.15 Material Contract Defaults. Vestrio is not in default in any
material respect under the terms of any contract, agreement, lease or other
commitment which is material to the business, operations, properties or
assets, or condition of Vestrio, and there is no event of default or event
which, with notice or lapse of time or both, would constitute a default in any
material respect under any such contract, agreement, lease, or other
commitment in respect of which Vestrio has not taken adequate steps to prevent
such default from occurring, or otherwise compromised, reached a satisfaction
of, or provided for extensions of time in which to perform under any one or
more contract obligations, among others.
4.16 Conflict with Other Instruments. The consummation of the within
transactions will not result in the breach of any term or provision of, or
constitute a default under any indenture, mortgage, deed of trust, or other
material agreement or instrument to which Vestrio was or is a party, or to
which any of its assets or operations are subject, and will not conflict with
any provision of the Articles of Incorporation or Bylaws of Vestrio.
4.17 Governmental Authorizations. Vestrio is in good standing in the
State of Utah. Except for compliance with federal and state securities laws,
no authorization, approval, consent or order of, or registration, declaration,
or filing with, any court or other governmental body is required in connection
with the execution and delivery by Vestrio of this Plan and the consummation
by Vestrio of the transactions contemplated hereby.
4.18 Compliance with Laws and Regulations. Vestrio has complied with
all applicable statutes and regulations of any federal, state, or other
applicable jurisdiction or agency thereof, except to the extent that
noncompliance would not materially and adversely affect the business,
operations, properties, assets, or condition of Vestrio or except to the
extent that noncompliance would incur any material liability, not otherwise
disclosed to Whole Living.
4.19 Approval of Plan. The Board of Directors of Vestrio have
authorized the execution and delivery of this Plan by Vestrio and have
approved the Plan and the transactions contemplated hereby. Vestrio has full
power, authority, and legal right to enter into this Plan and to consummate
the transactions contemplated hereby.
4.20 Information. The information concerning Vestrio set forth in this
Plan, and the Vestrio Schedules attached hereto, are complete and accurate in
all material respects and do not contain, or will not contain, when delivered,
any untrue statement of a material fact or omit to state a material fact the
omission of which would be misleading to Whole Living in connection with this
Plan.
4.21 Vestrio Schedules. Vestrio has delivered to Whole Living the
following items listed below, hereafter referred to as the "Vestrio
Schedules", which is hereby incorporated by reference and made a part hereof.
A certification has been executed by a duly authorized officer of Vestrio on
or about the date which the Plan is executed to certify that the Vestrio
Schedules are true and correct.
(a) Copy of Articles of Incorporation and Bylaws
(b) Financial Statements
(c) A schedule setting forth the shareholders, together with the
number of shares owned beneficially or of record by each (also attached as
Exhibit A)
(d) Resolutions of Board of Directors approving Plan
(e) Consent of Shareholders approving Plan
(f) A list of key employees, including current compensation,
with notation as to job description and whether or not such employee is
subject to written contract, and if subject to a contract or employment
agreement, a copy of the same
(g) A schedule showing the name and location of each bank or
other institution with which Vestrio has an account and the names of the
authorized persons to draw thereon or having access thereto
(h) Officers' Certificate as required by Section 7.2 of the Plan
(i) Certificate of Good Standing
Section 5
Special Covenants
5.1 Vestrio Information Incorporated in Whole Living's Reports. Vestrio
represents and warrants to Whole Living that all the information furnished
under this Plan shall be true and correct in all material respects and that
there is no omission of any material fact required to make the information
stated not misleading. Vestrio agrees to indemnify and hold Whole Living
harmless, including each of its Directors and Officers, and each person, if
any, who controls such party, under any applicable law from and against any
and all losses, claims, damages, expenses or liabilities to which any of them
may become subject under applicable law, or reimburse them for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such actions insofar as such losses, claims, damages, expenses,
liabilities or actions arise out of or are based on any untrue statement,
intentional untrue statement, or intentional omission of a material fact
contained in such information delivered hereunder. This indemnity shall only
survive as long as specified within this agreement.
5.2 Special Covenants and Representations Regarding the Exchanged Whole
Living Stock. The consummation of this Plan and the transactions herein
contemplated, including the issuance of the Whole Living shares in exchange
for all of the issued and outstanding shares of Vestrio to the Shareholders
constitutes the offer and sale of securities under the Securities Act and the
applicable state statutes, which depend, inter alia, on the circumstances
under which the Shareholders acquire such securities. Whole Living intends to
rely on the exemption of the registration provision of Section 5 of the
Securities Act as provided for under Section 4 (2) of the Securities Act of
1933, which states "transactions not involving a public offering", among
others. Each Shareholder upon submission of his Vestrio Shares and the
receipt of the Whole Living post-split shares exchanged therefor, shall
execute and deliver to Whole Living a letter of investment intent to indicate,
among other representations, that the Shareholder is exchanging the Vestrio
Shares for Whole Living post-split shares for investment purposes and not with
a view to the subsequent distribution thereof. A proposed Investment Letter
is attached hereto as Exhibit B and incorporated herein by reference for the
general use by the Shareholders, as they may determine.
5.3 Action Prior to Closing. Upon the execution hereof until the
Closing date, and the completion of the consolidated audited financial
statements:
(a) Vestrio and Whole Living will (i) perform all of its obligations
under material contracts, leases, insurance policies and/or documents relating
to its assets and business; (ii) use its best efforts to maintain and preserve
its business organization intact, to retain its key employees, and to maintain
its relationship with existing potential customers and clients; and (iii)
fully comply with and perform in all material respects all duties and
obligations imposed on it by all federal and state laws and all rules,
regulations, and orders imposed by all federal or state governmental
authorities.
(b) Neither Vestrio nor Whole Living will (i) make any change in
its Articles of Incorporation or Bylaws except and unless as contemplated
pursuant to Section 3 of this Plan; (ii) enter into or amend any contract,
agreement, or other instrument of the types described in the parties'
schedules, except that a party may enter into or amend any contract or other
instrument in the ordinary course of business involving the sale of goods or
services, provided that such contract does not involve obligations in excess
of $2,000.
Section 6
Conditions Precedent to Obligations of
Vestrio and the Shareholders
All obligations of Vestrio and the Shareholders under this Plan are
subject to the satisfaction, on or before the Closing date, except as
otherwise provided for herein, or waived or extended in writing by the parties
hereto, of the following conditions:
6.1 Accuracy of Representations. The representations and warranties
made by Whole Living in this Plan were true when made and shall be true as of
the Closing date (except for changes therein permitted by this Plan) and have
the same force and effect as if such representations and warranties were made
at and as of the Closing date; and, Vestrio shall have performed and complied
with the terms and conditions of this Plan prior to the Closing. Vestrio and
its shareholders shall have been furnished with a certificate, signed by a
duly authorized executive officer of Whole Living and dated the Closing date,
to the foregoing effect.
6.2 Officers' Certificate. Vestrio and the Shareholders shall have been
furnished with a certificate dated the Closing date and signed by a duly
authorized executive officer of Whole Living, to the effect that no
litigation, proceeding, investigation, or inquiry is pending, or to the best
knowledge of Whole Living, threatened, which might result in an action to
enjoin or prevent the consummation of the transactions contemplated by this
Plan, or which might result in any material adverse change in the assets,
properties, business, or operations of Whole Living.
6.3 No Material Adverse Change. Prior to the Closing date, there shall
have not occurred any material adverse change in the condition, business or
operations of Whole Living, nor shall any event have occurred which, with
lapse of time or the giving of notice or both, may cause or create any
material adverse change in the financial condition, business or operations of
Whole Living, except as otherwise disclosed to Vestrio.
6.4 Opinion of Counsel of Whole Living. Whole Living shall furnish to
Vestrio and the Shareholders an opinion dated as of the Closing date and in
form and substance satisfactory to Vestrio and the Shareholders to the effect
that:
(a) Whole Living is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Nevada, and with all
requisite corporate power to perform its obligations under this Plan.
(b) The business of Whole Living, as presently conducted,
including, upon the consummation hereof, the ownership of all of the issued
and outstanding shares of Vestrio, does not require it to register it to do
business as a foreign corporation in any jurisdiction other than under the
jurisdiction of its Articles of Incorporation or Bylaws and Whole Living has
complied to the best of its knowledge in all material respects with all the
laws, regulations, licensing requirements and orders applicable to its
business activities and has filed with the proper authorities, including the
Department of Commerce, Division of Corporations, and Secretary of State for
the State of Utah and Nevada, all statements and reports required to be filed.
(c) The authorized and outstanding capital stock of Whole Living as
set forth in Section 3.2 above, and all issued and outstanding shares have
been duly and validly authorized and issued and are fully paid and
non-assessable.
(d) There are no material claims, suits or other legal proceedings
pending or threatened against Whole Living in any court or before or by any
governmental body which might materially affect the business of Whole Living
or the financial condition of Whole Living as a whole and no such claims,
suits or legal proceedings are contemplated by governmental authorities
against Whole Living.
(e) To the best knowledge of such counsel, the consummation of the
transactions contemplated by this Plan will not violate or contravene the
provisions of the Articles of Incorporation or Bylaws of Whole Living, or any
contract, agreement, indenture, mortgage, or order by which Whole Living is
bound.
(f) This Plan constitutes a legal, valid and binding obligation of
Whole Living enforceable in accordance with its terms, subject to the affect
of any bankruptcy, insolvency, reorganization, moratorium, or similar law
affecting creditors' rights generally and general principles of equity.
(g) The execution and delivery of this Plan and the consummation of
the transactions contemplated hereby have been ratified by a majority of the
Shareholders of Whole Living and have been duly authorized by its Board of
Directors.
(h) Whole Living has not, nor will it undertake any action, the
result of which would endanger the tax-free nature of the Plan.
6.5 Good Standing. Vestrio shall have received a Certificate of Good
Standing from the State of Nevada obtained and delivered, prior to Closing
certifying that Whole Living is in good standing as a corporation in the State
of Nevada.
6.6 Other Items. Vestrio and the Shareholders shall have received such
further documents, certifications or instruments relating to the transactions
contemplated hereby as Vestrio and the Shareholders may reasonably request.
Section 7
Conditions Precedent to Obligations of Whole Living
All obligations of Whole Living under this Plan are subject, at its
option, to the fulfillment, before the Closing, of each of the following
conditions:
7.1 Accuracy of Representations. The representations and warranties
made by Vestrio and the Shareholders under this Plan were true when made and
shall be true as of the Closing date (except for changes therein permitted by
this Plan) and have the same force and effect as if such representations and
warranties were made at and as of the Closing date; and Whole Living shall
have performed and complied with the terms and conditions of this Plan prior
to the Closing, unless waived or extended in writing by the parties hereto.
Vestrio and its shareholders shall have been furnished with a certificate,
signed by a duly authorized executive officer of Vestrio and dated the Closing
date, to the foregoing effect.
7.2 Officers' Certificate. Whole Living shall have been furnished with
a certificate dated the Closing date and signed by a duly authorized executive
officer of Vestrio, to the effect that no litigation, proceeding,
investigation, or inquiry is pending, or to the best knowledge of Vestrio,
threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Plan, or which might
result in any material adverse change in the assets, properties, business, or
operations of Vestrio.
7.3 No Material Adverse Change. Prior to the Closing date, there shall
have not occurred any material adverse change in the final condition, business
or operations of Whole Living, nor shall any event have occurred which, with
lapse of time or the giving of notice or both, may cause or create any
material adverse change in the financial condition, business or operations of
Vestrio, except as otherwise disclosed to Whole Living.
7.4 Good Standing. Whole Living shall have received either a
Certificate of Good Standing from the State of Utah or some kind of
verification certifying that Vestrio is in good standing as a corporation in
the State of Utah.
7.5 Dissenters' Rights Waived. The Shareholders of Vestrio, and each of
them, agree and hereby waive any dissenters' rights, if any, under the laws of
the State of Utah in regards to any objection to this Plan as outlined herein
and otherwise consent to and agree and authorize the execution and
consummation of the within Plan in accordance to the terms and conditions of
this Plan by the management of Vestrio.
7.6 Other Items. Whole Living shall have received such further
documents, certifications or instruments relating to the transactions
contemplated hereby as Whole Living may reasonably request.
7.7 Execution of Investment Letter. The Shareholders shall have
executed and delivered copies of Exhibit B to Whole Living.
Section 8
Termination
8.1 Termination by Vestrio or the Shareholders. This Plan may be
terminated at any time prior to the Closing date by action of Vestrio or the
Shareholders, if Whole Living shall fail to comply in any material respect
with any of the covenants or agreements contained in this Plan, or if any of
its representations and warranties contained herein shall be inaccurate in any
material respect.
8.2 Termination by Whole Living. This Plan may be terminated at any
time prior to the Closing date by action of Whole Living if Vestrio shall fail
to comply in any material respect with any of the covenants or agreements
contained in this Plan, or if any of its representations or warranties
contained herein shall be inaccurate in any material respect.
8.3 Termination by Mutual Consent
(a) This Plan may be terminated at any time prior to the Closing
date by mutual consent of Whole Living, expressed by action of its Board of
Directors, Vestrio or the Shareholders.
(b) If this Plan is terminated pursuant to Section 8, this Plan
shall be of no further force and effect and no obligation, right or liability
shall arise hereunder. Each party shall bare its own costs in connection
herewith.
(c) If the Plan is terminated pursuant to Section 8, the parties
hereto shall sign non-disclosure agreements which shall survive the
cancellation of the Plan.
Section 9
Shareholders' Representative
The Shareholders hereby irrevocably designate and appoint Xxxxxx X. Xxxxx
as their agent and attorney in fact (the "Shareholders' Representative") with
full power and authority until the Closing to execute, deliver and receive on
their behalf all notices, requests and other communications hereunder; to fix
and alter on their behalf the date, time and place of the Closing; to waive,
amend or modify any provisions of this Plan and to take such other action on
their behalf in connection with this Plan, the Closing and the transactions
contemplated hereby as such agent deems appropriate; provided, however, that
no such waiver, amendment or modification may be made if it would decrease the
number of shares to be issued to the Shareholders under Section 1 hereof or
increase the extent of their obligation to Whole Living hereunder, unless
agreed in writing by the Shareholders.
Section 10
General Provisions
10.1 Further Assurances. At any time after the Closing date, each party
will execute and deliver 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 the Plan.
10.2 Payments of Estimated Costs and Fees. Whole Living and Vestrio
mutually determine and agree that Whole Living shall pay the actual costs and
fees incurred by any party hereto in connection with the execution and
consummation of the Plan.
10.3 Press Release and Shareholders' Communications. On the date of
Closing, or as soon thereafter as practicable, Vestrio and the Shareholders
shall cause to have promptly prepared and disseminated a news release
concerning the execution and consummation of the Plan, such press release and
communication to be released promptly and within the time required by the
laws, rules and regulations as promulgated by the United States Securities and
Exchange Commission, and concomitant therewith to cause to be prepared a full
and complete letter to Whole Living's shareholders which shall contain
information required by Regulation 240.14f-1 as promulgated under Section
14(f) as mandated under the Securities and Exchange Act of 1934, as amended.
10.4 Notices. All notices and other communications required or
permitted hereunder shall be sufficiently given if personally delivered, sent
by registered mail, or certified mail, return receipt requested, postage
prepaid, or by facsimile transmission addressed to the following parties
hereto or at such other addresses as follows:
If to Whole Living: Whole Living, Inc.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxx 00000
(000) 000-0000 Facsimile
If to Vestrio (Investrio) or Vestrio Corporation
shareholder of Vestrio: 000 Xxxxx 000 Xxxx
Xxxxxxxx Xxxx, Xxxx 00000
Fax: 000-000-0000
or at such other addresses as shall be furnished in writing by any party in
the manner for giving notices hereunder, and any such notice or communication
shall be deemed to have been given as of the date so delivered, mailed, sent
by facsimile transmission, or telegraphed.
10.5 Entire Agreement. This Plan represents the entire agreement
between the parties relating to the subject matter hereof, including any
previous letters of intent, understandings, or agreements between Whole
Living, Vestrio and the Shareholders with respect to the subject matter
hereof, all of which are hereby merged into this Plan, which alone fully and
completely expresses the agreement of the parties relating to the subject
matter hereof. Excepting the foregoing agreement, there are no other courses
of dealing, understandings, agreements, representations, or warranties,
written or oral, except as set forth herein with respect to the subject matter
hereof.
10.6 Governing Law. This Plan shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada, except to the
extent preempted by federal law, in which event (and to that extent only)
federal law shall govern.
10.7 Tax Treatment. The transaction contemplated by this Plan is
intended to qualify as a "tax-free" reorganization under the provisions of
Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended.
Vestrio and Whole Living acknowledge, however, that each are being represented
by their own tax advisors in connection with this transaction, and neither has
made any representations or warranties to the other with respect to treatment
of such transaction or any part or effect thereof under applicable tax laws,
regulations or interpretations; and no attorney's opinion or tax revenue
ruling has been obtained with respect to the tax consequences of the
transactions contemplated by the within Plan.
10.8 Amendment of Waiver. Every right and remedy provided herein shall
be cumulative with every other right and remedy, whether conferred herein, at
law or in equity, and may be enforced concurrently or separately, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, therefore, or
thereafter occurring or existing. Any time prior to the expiration of thirty
(30) days from the date hereof, this Plan may be amended in writing signed by
all parties hereto, with respect to any of the terms contained herein, and any
term or condition of this Plan may be waived or the time for performance
thereof may be extended by a writing signed by the party or parties for whose
benefit the provision is intended.
10.9 Counterparts. This Plan may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be
an original, and all of which together shall constitute one and the same
instruments.
10.10 Headings. The section and subsection headings in this Plan are
inserted for convenience only and shall not effect in any way the meaning or
interpretation of the Plan.
10.11 Parties in Interest. Except as may be otherwise expressly
provided herein, all terms and provisions of this Plan shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
beneficiaries, personal and legal representatives, and assigns.
IN WITNESS WHEREOF, the parties have executed this Plan and Agreement of
Reorganization effective the day and year first set forth above.
WHOLE LIVING, INC.
Attest:
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Its President - Xxxxxx X. Xxxxxxxx
VESTRIO, INC.
Attest:
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Its President - Xxxxxx X. Xxxxx
SHAREHOLDERS:
Attest:
By: _______________________________________
Attest:
By: _______________________________________
Attest:
By: /s/ Xxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxx ---------------------------------------
Attest:
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxx
----------------------------------------
Attest:
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Attest:
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
CLOSING DOCUMENTS CONCERNING REORGANIZATION
BETWEEN WHOLE LIVING, INC. AND
VESTRIO, INC.
1. Agreement and Plan of Reorganization (the "Plan") as between Whole
Living, Inc. ("Whole Living") and Vestrio, Inc., ("Vestrio") dated this 8th
day of July 2002 and Exhibits thereto.
2. Whole Living Schedules: Documents delivered by Whole Living to Vestrio
precedent to or simultaneous with the Closing in accordance with Section 2 of
the plan:
(a) Copy of Articles of Incorporation and Bylaws;
(b) Financial statements;
(c) Shareholders list;
(d) Resolutions of Directors approving plan
(e) Consent of Shareholders approving plan
(f) Officers' Certificate as required under Section 6.2 of the
Plan;
(g) Opinion of counsel as required under Section 6.4 of the
Plan;
(h) Certificate of Good Standing
3 Vestrio Schedules: Documents to be delivered by Vestrio to Whole Living
precedent or simultaneously with the Closing in accordance with Section 4.21
of the Plan;
(a) Copy of Articles of Incorporation and Bylaws;
(b) Financial Statements
(c) Resolutions of Board of Directors approving Plan
(d) Consent of Shareholders approving Plan;
(e) A list of key employees, including current compensation,
with notations as to job description and whether or not such employee is
subject to written contract, and if subject to a contract or employment
agreement, a copy of the same;
(f) A schedule showing the name and location of each bank or
other institution with which Vestrio, Inc. has an account and the names of the
authorized persons to draw thereon or having access thereto;
(g) A schedule setting forth the shareholders, together with the
number of shares owned beneficially or of record by each (attached as Exhibit
A);
(h) A schedule setting forth all material contracts;
(i) Officers' Certificate as required by Section 7.2 of the
Plan;
(j) Certificate of Good Standing
