Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION among IVP TECHNOLOGY
CORPORATION, a Nevada corporation ("IVP"), EREBUS CORPORATION, a Delaware
corporation ("Erebus") and the persons listed in Exhibit A hereof (collectively
the "Shareholders"), being the owners of record of all the issued and
outstanding stock of Erebus.
Whereas, IVP wishes to acquire and the Shareholders wish to transfer
all of the issued and outstanding securities of Erebus in a transaction intended
to qualify as a reorganization within the meaning of ss.368(a)(1)(B) of the
Internal Revenue Code of 1986, as amended (the "Exchange").
Now, therefore, IVP, Erebus, and the Shareholders adopt this plan of
reorganization and agree as follows:
1. Exchange of Stock
1.1. Number of Shares. The Shareholders agree to transfer to IVP at the
Closing (defined below) the number of shares of common stock of Erebus, $.0001
par value per share, shown opposite their names in Exhibit A, in exchange for an
aggregate of 350,000 shares of voting common stock of IVP, $.001 par value per
share.
1.2. Exchange of Certificates. Each holder of an outstanding
certificate or certificates theretofore representing shares of Erebus common
stock shall surrender such certificate(s) for cancellation to IVP, and shall
receive in exchange a certificate or certificates representing the number of
full shares of IVP common stock into which the shares of Erebus common stock
represented by the certificate or certificates so surrendered shall have been
converted. The transfer of Erebus shares by the Shareholders shall be effected
by the delivery to IVP at the Closing of certificates representing the
transferred shares endorsed in blank or accompanied by stock powers executed in
blank.
1.3. Fractional Shares. Fractional shares of IVP common stock shall not
be issued, but in lieu thereof IVP shall round up fractional shares to the next
highest whole number.
1.4. Further Assurances. At the Closing and from time to time
thereafter, the Shareholders shall execute such additional instruments and take
such other action as IVP may request in order more effectively to sell,
transfer, and assign the transferred stock to IVP and to confirm IVP's title
thereto.
2. Closing
2.1. Date and Place. The Closing contemplated herein shall be held at
the offices of the Exchange Agent provided for herein without requiring the
meeting of the parties hereof. All proceedings to be taken and all documents to
be executed at the Closing shall be deemed to have been taken, delivered and
executed simultaneously, and no proceeding shall be deemed taken nor documents
deemed executed or delivered until all have been taken, delivered and executed.
The date of Closing may be accelerated or extended by agreement of the parties.
2.2. Execution of Documents. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission required by this
agreement or any signature required
AGREEMENT AND PLAN OF REORGANIZATION PAGE NUMBER 2
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thereon may be used in lieu of an original writing or transmission or signature
for any and all purposes for which the original could be used, provided that
such copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission or original
signature.
3. Unexchanged Certificates. Until surrendered, each outstanding
certificate that prior to the Closing represented Erebus common stock shall be
deemed for all purposes, other than the payment of dividends or other
distributions, to evidence ownership of the number of shares of IVP common stock
into which it was converted. No dividend or other distribution shall be paid to
the holders of certificates of Erebus common stock until presented for exchange
at which time any outstanding dividends or other distributions shall be paid.
4. Representations and Warranties of Erebus
Erebus represents and warrants as follows:
4.1. Corporate Organization and Good Standing. Erebus is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware, and is qualified to do business as a foreign corporation in
each jurisdiction, if any, in which its property or business requires such
qualification.
4.2. Reporting Company Status. Erebus has filed with the Securities and
Exchange Commission a registration statement on Form 10-SB which became
effective pursuant to the Securities Exchange Act of 1934 and is a reporting
company pursuant to ss.12(g) thereunder.
4.3. Reporting Company Filings. Erebus has timely filed and is current
on all reports required to be filed by it pursuant to ss.13 of the Securities
Exchange Act of 1934.
4.4. Capitalization. Erebus's authorized capital stock consists of
100,000,000 shares of common stock, $.0001 par value, of which 5,000,000 shares
are issued and outstanding, and 20,000,000 shares of non-designated preferred
stock of which no shares are designated or issued.
4.5. Issued Stock. All the outstanding shares of its common stock are
duly authorized and validly issued, fully paid and non-assessable.
4.6. Stock Rights. Except as may be set out by attached schedule, there
are no stock grants, options, rights, warrants or other rights to purchase or
obtain Erebus Common or Preferred Stock issued or committed to be issued.
4.7. Corporate Authority. Erebus has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its business as
it is now being conducted and to execute, deliver, perform and conclude the
transactions contemplated by this agreement and all other agreements and
instruments related to this agreement.
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4.8. Authorization. Execution of this agreement has been duly
authorized and approved by Erebus's board of directors.
4.9. Subsidiaries. Except as may be set out by attached schedule,
Erebus has no subsidiaries.
4.10. Financial Statements. Erebus's financial statements dated October
31, 1999, copies of which will have been delivered by Erebus to IVP prior to the
Closing (the "Erebus Financial Statements"), fairly present the financial
condition of Erebus as of the date therein and the results of its operations for
the periods then ended in conformity with generally accepted accounting
principles consistently applied.
4.11. Absence of Undisclosed Liabilities. Except to the extent
reflected or reserved against in the Erebus Financial Statements, Erebus did not
have at that date any liabilities or obligations (secured, unsecured,
contingent, or otherwise) of a nature customarily reflected in a corporate
balance sheet prepared in accordance with generally accepted accounting
principles.
4.12. No Material Changes. Except as may be set out by attached
schedule, there has been no material adverse change in the business, properties,
or financial condition of Erebus since the date of the Erebus Financial
Statements.
4.13. Litigation. Except as may be set out by attached schedule, there
is not, to the knowledge of Erebus, any pending, threatened, or existing
litigation, bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against Erebus or against any of its
officers.
4.14. Contracts. Except as may be set out by attached schedule, Erebus
is not a party to any material contract not in the ordinary course of business
that is to be performed in whole or in part at or after the date of this
agreement.
4.15. Title. Except as may be set out by attached schedule, Erebus has
good and marketable title to all the real property and good and valid title to
all other property included in the Erebus Financial Statements. Except as set
out in the balance sheet thereof, the properties of Erebus are not subject to
any mortgage, encumbrance, or lien of any kind except minor encumbrances that do
not materially interfere with the use of the property in the conduct of the
business of Erebus.
4.16. Tax Returns. Except as may be set out by attached schedule, all
required tax returns for federal, state, county, municipal, local, foreign and
other taxes and assessments have been properly prepared and filed by Erebus for
all years for which such returns are due unless an extension for filing any such
return has been filed. Any and all federal, state, county, municipal, local,
foreign and other taxes and assessments, including any and all interest,
penalties and additions imposed with respect to such amounts have been paid or
provided for. The provisions for federal and state taxes reflected in the Erebus
Financial Statements are adequate to cover any such taxes that may be assessed
against Erebus in respect of its business and its operations during the periods
covered by the Erebus Financial Statements and all prior periods.
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4.17. No Violation. Consummation of the Exchange will not constitute or
result in a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree, law,
or regulation to which any property of Erebus is subject or by which Erebus is
bound.
5. Representations and Warranties of the Shareholders
The Shareholders, individually and separately, represent and warrant as
follows:
5.1. Title to Shares. The Shareholders, and each of them, are the
owners, free and clear of any liens and encumbrances, of the number of Erebus
shares which are listed in the attached Exhibit A and which they have contracted
to exchange.
5.2. Litigation. There is no litigation or proceeding pending, or to
each Shareholder's knowledge threatened, against or relating to shares of Erebus
held by the Shareholders.
6. Representations and Warranties of IVP
IVP represents and warrants as follows:
6.1. Corporate Organization and Good Standing. IVP is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Nevada and is qualified to do business as a foreign corporation in each
jurisdiction, if any, in which its property or business requires such
qualification.
6.2. Capitalization. IVP's authorized capital stock consists of
50,000,000 shares of common stock, $.001 par value per share, of which
______________ shares are issued and outstanding, and no shares of preferred
stock.
6.3. Issued Stock. All the outstanding shares of its common stock are
duly authorized and validly issued, fully paid and non-assessable.
6.4. Stock Rights. Except as may be set out by attached schedule, there
are no stock grants, options, rights, warrants or other rights to purchase or
obtain IVP common or preferred stock issued or committed to be issued.
6.5. Corporate Authority. IVP has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its business as
it is now being conducted and to execute, deliver, perform and conclude the
transactions contemplated by this agreement and all other agreements and
instruments related to this agreement.
6.6. Authorization. Execution of this agreement has been duly
authorized and approved by IVP's board of directors.
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6.7. Subsidiaries. Except as may be set out by attached schedule, IVP
has no subsidiaries.
6.8. Financial Statements. IVP's financial statements dated as of
September 30, 1999, copies of which will have been delivered by IVP to Erebus
prior to the Exchange Date (the "IVP Financial Statements"), fairly present the
financial condition of IVP as of the date therein and the results of its
operations for the periods then ended in conformity with generally accepted
accounting principles consistently applied.
6.9. Absence of Undisclosed Liabilities. Except to the extent reflected
or reserved against in the IVP Financial Statements, IVP did not have at that
date any liabilities or obligations (secured, unsecured, contingent, or
otherwise) of a nature customarily reflected in a corporate balance sheet
prepared in accordance with generally accepted accounting principles.
6.10. No Material Changes. Except as may be set out by attached
schedule, there has been no material adverse change in the business, properties,
or financial condition of IVP since the date of the IVP Financial Statements.
6.11. Litigation. Except as may be set out by attached schedule, there
is not, to the knowledge of IVP, any pending, threatened, or existing
litigation, bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against IVP or against any of its
officers.
6.12. Contracts. Except as may be set out by attached schedule, IVP is
not a party to any material contract not in the ordinary course of business that
is to be performed in whole or in part at or after the date of this agreement.
6.13. Title. Except as may be set out by attached schedule, IVP has
good and marketable title to all the real property and good and valid title to
all other property included in the IVP Financial Statements. Except as set out
in the balance sheet thereof, the properties of IVP are not subject to any
mortgage, encumbrance, or lien of any kind except minor encumbrances that do not
materially interfere with the use of the property in the conduct of the business
of IVP.
6.14. Tax Returns. Except as may be set out by attached schedule, all
required tax returns for federal, state, county, municipal, local, foreign and
other taxes and assessments have been properly prepared and filed by IVP for all
years for which such returns are due unless an extension for filing any such
return has been filed. Any and all federal, state, county, municipal, local,
foreign and other taxes and assessments, including any and all interest,
penalties and additions imposed with respect to such amounts have been paid or
provided for. The provisions for federal and state taxes reflected in the IVP
Financial Statements are adequate to cover any such taxes that may be assessed
against IVP in respect of its business and its operations during the periods
covered by the IVP Financial Statements and all prior periods.
6.15. No Violation. Consummation of the Exchange will not constitute or
result in a breach or default under any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any
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order, judgment, decree, law, or regulation to which any property of IVP is
subject or by which IVP is bound.
7. Conduct of Erebus Pending the Closing. Erebus covenants that between
the date of this agreement and the Closing:
7.1. No change will be made in Erebus's certificate of incorporation or
bylaws.
7.2. Erebus will not make any change in its authorized or issued
capital stock, declare or pay any dividend or other distribution or issue,
encumber, purchase, or otherwise acquire any of its capital stock other than as
provided herein.
7.3. Erebus will use its best efforts to maintain and preserve its
business organization, employee relationships, and goodwill intact, and will not
enter into any material commitment except in the ordinary course of business.
8. Conduct Pending the Closing
IVP, Erebus and the Shareholders covenant that between the date of this
agreement and the Closing as to each of them:
8.1. No change will be made in the charter documents, by-laws, or other
corporate documents of IVP or Erebus.
8.2. Erebus and IVP will use their best efforts to maintain and
preserve their business organization, employee relationships, and goodwill
intact, and will not enter into any material commitment except in the ordinary
course of business.
8.3. None of the Shareholders will sell, transfer, assign, hypothecate,
lien, or otherwise dispose or encumber the Erebus shares of common stock owned
by them.
9. Conditions Precedent to Obligation of Erebus and the Shareholders
Erebus's and the Shareholders' obligation to consummate the Exchange
shall be subject to fulfillment on or before the Closing of each of the
following conditions, unless waived in writing or by acceptance of IVP's shares
by the Shareholders:
9.1. IVP's Representations and Warranties. The representations and
warranties of IVP set forth herein shall be true and correct at the Closing as
though made at and as of that date, except as affected by transactions
contemplated hereby.
9.2. IVP's Covenants. IVP shall have performed all covenants required
by this agreement to be performed by it on or before the Closing.
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9.3. Board of Director Approval. This Agreement shall have been
approved by the Board of Directors of IVP.
9.4. Supporting Documents of IVP. IVP shall have delivered to Erebus
and the Shareholders supporting documents in form and substance reasonably
satisfactory to Erebus and the Shareholders, to the effect that:
(a) IVP is a corporation duly organized, validly existing, and in good
standing;
(b) IVP's authorized capital stock is as set forth herein;
(c) Certified copies of the resolutions of the board of directors of
IVP authorizing the execution of this agreement and the consummation hereof;
(d) Secretary's certificate of incumbency of the officers and directors
of IVP;
(e) IVP's Financial Statements and unaudited financial statement from
the date of IVP's Financial Statements to close of most recent fiscal quarter;
and
(f) Any document as may be specified herein or required to satisfy the
conditions, representations and warranties enumerated elsewhere herein.
10. Conditions Precedent to Obligation of IVP
IVP's obligation to consummate the Exchange shall be subject to
fulfillment on or before the Closing of each of the following conditions, unless
waived in writing or by acceptance of Erebus's shares by IVP:
10.1. Erebus's and the Shareholders' Representations and Warranties.
The representations and warranties of Erebus and the Shareholders set forth
herein shall be true and correct at the Closing as though made at and as of that
date, except as affected by transactions contemplated hereby.
10.2. Erebus's and the Shareholders' Covenants. Erebus and the
Shareholders shall have performed all covenants required by this agreement to be
performed by them on or before the Closing.
10.3. Board of Director Approval. This Agreement shall have been
approved by the Board of Directors of Erebus.
10.4. Shareholder Execution. This Agreement shall have been executed by
the required number of shareholders of Erebus.
10.5. Supporting Documents of Erebus. Erebus shall have delivered to
IVP supporting documents in form and substance reasonably satisfactory to IVP to
the effect that:
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(a) Erebus is a corporation duly organized, validly existing, and in
good standing;
(b) Erebus's capital stock is as set forth herein;
(c) Certified copies of the resolutions of the board of directors of
Erebus authorizing the execution of this agreement and the consummation hereof;
(d) Secretary's certificate of incumbency of the officers and directors
of Erebus;
(e) Erebus's Financial Statements and unaudited financial statements
for the period from the date of the Erebus's Financial Statements to the close
of the most recent fiscal quarter; and
(f) Any document as may be specified herein or required to satisfy the
conditions, representations and warranties enumerated elsewhere herein.
11. Shareholders' Representative. The Shareholders hereby irrevocably
designate and appoint Xxxxxxx & Associates, Washington, D.C. as their agent and
attorney in fact ("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 agreement, and to take such other action on their behalf in
connection with this agreement, the Closing, and the transactions contemplated
hereby as such agent or agents deem 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 hereunder or increase the extent of
their obligation to indemnify IVP hereunder.
12. Survival of Representations and Warranties. The representations and
warranties of Erebus, the Shareholders and IVP set out herein shall survive the
Closing.
13. Arbitration
13.1. Scope. The parties hereby agree that any and all claims (except
only for requests for injunctive or other equitable relief) whether existing
now, in the past or in the future as to which the parties or any affiliates may
be adverse parties, and whether arising out of this agreement or from any other
cause, will be resolved by arbitration before the American Arbitration
Association within the District of Columbia.
13.2. Consent to Jurisdiction, Situs and Judgement. The parties hereby
irrevocably consent to the jurisdiction of the American Arbitration Association
and the situs of the arbitration (and any requests for injunctive or other
equitable relief) within the District of Columbia. Any award in arbitration may
be entered in any domestic or foreign court having jurisdiction over the
enforcement of such awards.
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13.3. Applicable Law. The law applicable to the arbitration and this
agreement shall be that of the State of Delaware, determined without regard to
its provisions which would otherwise apply to a question of conflict of laws.
13.4. Disclosure and Discovery. The arbitrator may, in its discretion,
allow the parties to make reasonable disclosure and discovery in regard to any
matters which are the subject of the arbitration and to compel compliance with
such disclosure and discovery order. The arbitrator may order the parties to
comply with all or any of the disclosure and discovery provisions of the Federal
Rules of Civil Procedure, as they then exist, as may be modified by the
arbitrator consistent with the desire to simplify the conduct and minimize the
expense of the arbitration.
13.5. Rules of Law. Regardless of any practices of arbitration to the
contrary, the arbitrator will apply the rules of contract and other law of the
jurisdiction whose law applies to the arbitration so that the decision of the
arbitrator will be, as much as possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
13.6. Finality and Fees. Any award or decision by the American
Arbitration Association shall be final, binding and non-appealable except as to
errors of law or the failure of the arbitrator to adhere to the arbitration
provisions contained in this agreement. Each party to the arbitration shall pay
its own costs and counsel fees except as specifically provided otherwise in this
agreement.
13.7. Measure of Damages. In any adverse action, the parties shall
restrict themselves to claims for compensatory damages and\or securities issued
or to be issued and no claims shall be made by any party or affiliate for lost
profits, punitive or multiple damages.
13.8. Covenant Not to Xxx. The parties covenant that under no
conditions will any party or any affiliate file any action against the other
(except only requests for injunctive or other equitable relief) in any forum
other than before the American Arbitration Association, and the parties agree
that any such action, if filed, shall be dismissed upon application and shall be
referred for arbitration hereunder with costs and attorney's fees to the
prevailing party.
13.9. Intention. It is the intention of the parties and their
affiliates that all disputes of any nature between them, whenever arising,
whether in regard to this agreement or any other matter, from whatever cause,
based on whatever law, rule or regulation, whether statutory or common law, and
however characterized, be decided by arbitration as provided herein and that no
party or affiliate be required to litigate in any other forum any disputes or
other matters except for requests for injunctive or equitable relief. This
agreement shall be interpreted in conformance with this stated intent of the
parties and their affiliates.
13.10. Survival. The provisions for arbitration contained herein shall
survive the termination of this agreement for any reason.
14. General Provisions.
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14.1. Further Assurances. From time to time, each party will execute
such additional instruments and take such actions as may be reasonably required
to carry out the intent and purposes of this agreement.
14.2. Waiver. Any failure on the part of either party hereto to comply
with any of its obligations, agreements, or conditions hereunder may be waived
in writing by the party to whom such compliance is owed.
14.3. Brokers. Each party agrees to indemnify and hold harmless the
other party against any fee, loss, or expense arising out of claims by brokers
or finders employed or alleged to have been employed by the indemnifying party.
14.4. 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 certified mail, return receipt requested, or recognized
commercial courier service, as follows:
If to IVP, to:
IVP Technology Corporation
00 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx X0X 0X0
If to Erebus, to:
Erebus Corporation
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
If to the Shareholders, to:
Xxxxxxx & Associates
0000 X Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000
14.5. Governing Law. This agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Delaware.
14.6. Assignment. This agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their successors and assigns; provided,
however, that any assignment by either party of its rights under this agreement
without the written consent of the other party shall be void.
14.7. Counterparts. This agreement 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. Signatures sent by
facsimile transmission shall be deemed to be evidence of the original execution
thereof.
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14.8. Exchange Agent and Closing Date. The Exchange Agent shall be
Xxxxxxx & Associates, Washington, D.C. The Closing shall take place upon the
fulfillment by each party of all the conditions of the Closing required herein,
but not later than 15 days following execution of this agreement unless extended
by mutual consent of the parties.
14.9. Review of Agreement. Each party acknowledges that it has had time
to review this agreement and, as desired, consult with counsel. In the
interpretation of this agreement, no adverse presumption shall be made against
any party on the basis that it has prepared, or participated in the preparation
of, this agreement.
14.10. Schedules. All schedules attached hereto, if any, shall be
acknowledged by each party by signature or initials thereon.
14.11. Effective Date. This effective date of this agreement shall be
March 21, 2000.
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Signature Page to Agreement and Plan of Reorganization
among IVP, Erebus and the Shareholders of Erebus
IN WITNESS WHEREOF, the parties have executed this agreement.
