AGREEMENT AND PLAN OF REORGANIZATION among GENERATION
ACQUISITION CORPORATION, a Delaware corporation ("Generation"),
XXXX0X.XXX, INC., a Delaware corporation ("Life2K") and the persons
listed in Exhibit A hereof (collectively the "Shareholders"), being
the owners of record of all the issued and outstanding stock of Life2K.
Whereas, Generation wishes to acquire and Shareholders
wish to transfer all of the issued and outstanding securities of
Life2K in a transaction intended to qualify as a reorganization
within the meaning of Section368(a)(1)(B) of the Internal Revenue
Code of 1986, as amended (the "Exchange").
Now, therefore, Generation, Life2K, 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 Generation at the Closing (defined below) the number of
shares of common stock of Life2K, $.0001 par value per share, shown
opposite their names in Exhibit A, in exchange for an aggregate of
10,656,750 shares of voting common stock of Generation, $ .0001 par
value per share.
1.2. EXCHANGE OF CERTIFICATES. Each holder of an
outstanding certificate or certificates theretofore representing
shares of Life2K common stock shall surrender such certificate(s)
for cancellation to Generation, and shall receive in exchange a
certificate or certificates representing the number of full shares
of Generation common stock into which the shares of Life2K common
stock represented by the certificate or certificates so surrendered
shall have been converted. The transfer of Life2K shares by the
Shareholders shall be effected by the delivery to Generation 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
Generation common stock shall not be issued, but in lieu thereof
Generation 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 Generation may
request in order more effectively to sell, transfer, and assign the
transferred stock to Generation and to confirm Generation's title
thereto.
2. CLOSING
2.1. MANNER. 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
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 Life2K
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 Generation common stock into which it was
converted. No dividend or other distribution shall be paid to the
holders of certificates of Life2K common stock until presented for
exchange at which time any outstanding dividends or other
distributions shall be paid.
4. REPRESENTATIONS AND WARRANTIES OF GENERATION
Generation represents and warrants as follows:
4.1. CORPORATE ORGANIZATION AND GOOD STANDING. Generation
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. Generation 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
Section12(g) thereunder.
4.3. REPORTING COMPANY FILINGS. Generation has timely
filed and is current on all reports required to be filed by it
pursuant to Section13 of the Securities Exchange Act of 1934.
4.4. CAPITALIZATION. Generation'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. There are no stock grants, options,
rights, warrants or other rights to purchase or obtain Generation
common or preferred stock issued or committed to be issued.
4.7. CORPORATE AUTHORITY. Generation 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.
4.8. AUTHORIZATION. Execution of this agreement has been
duly authorized and approved by Generation's board of directors.
4.9. SUBSIDIARIES. Generation has no subsidiaries.
4.10. FINANCIAL STATEMENTS. Generation's financial
statements, copies of which will have been delivered by Generation
to Life2K prior to the Closing (the "Generation Financial
Statements"), fairly present the financial condition of Generation
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. Generation 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. There has been no material
adverse change in the business, properties, or financial condition
of Generation since the date of the Generation Financial Statements.
4.13. LITIGATION. There is not, to the knowledge of
Generation, any pending, threatened, or existing litigation,
bankruptcy, criminal, civil, or regulatory proceeding or
investigation, threatened or contemplated against Generation or
against any of its officers.
4.14. CONTRACTS. Generation 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. Generation has good and marketable title to
all the real property and good and valid title to all other property
included in the Generation Financial Statements. Except as set out
in the balance sheet thereof, the properties of Generation 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 Generation.
4.16. TAX RETURNS. All required tax returns for federal,
state, county, municipal, local, foreign and other taxes and
assessments have been properly prepared and filed by Generation 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 Generation
Financial Statements are adequate to cover any such taxes that may
be assessed against Generation in respect of its business and its
operations during the periods covered by the Generation Financial
Statements and all prior periods.
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
Generation is subject or by which Generation 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 Life2K shares which are listed in the attached Exhibit A
and which they have contracted to exchange.
5.2. STOCK RIGHTS. No Shareholder owns or claims any stock
grants, options, rights, warrants or other rights to purchase or obtain
Life2K's common or preferred stock.
5.3. ALL STOCK. Each Shareholder shall transfer herewith
all common stock of Life2K owned legally or beneficially by such Shareholder.
5.4. LITIGATION. There is no litigation or proceeding
pending, or to each Shareholder's knowledge threatened, against or
relating to shares of Life2K held by the Shareholders.
5.5. STOCK LEGEND. Each Shareholder understands and
agrees that the shares of common stock issued hereunder will be
"restricted securities," as defined by Rule 144 under the Securities
Act of 1933, will be restricted as to transferability, and will bear
substantially the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "ACT") AND ARE "RESTRICTED SECURITIES" AS THAT
TERM IS DEFINED IN RULE 144 UNDER THE ACT. THE SECURITIES
MAY NOT BE OFFERED FOR SALE, SOLD OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT, OR PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE ACT, THE AVAILABILITY OF WHICH IS
TO BE ESTABLISHED TO THE SATISFACTION OF THE COMPANY.
5.6. ACCEPTANCE OF AGREEMENT. Each Shareholder
understands and hereby accepts all
and any terms of this agreement which relate to such Shareholder.
5.7. CONSENT TO EXCHANGE. Each Shareholder hereby
consents to exchange all his shares
of capital stock of Life2K for the capital stock of Generation as
provided in Exhibit "A" attached hereto.
5.8. SUITABILITY REPRESENTATION FOR INVESTORS WHO
ARE NOT ACCREDITED INVESTORS. If
such Shareholder does not meet the definition of an Accredited
Investor contained in the Shareholder Signature Page, such
Shareholder hereby represents and warrants that such Shareholder has
such knowledge and experience in financial and business matters that
such Shareholder (alone or together with a purchaser representative)
is capable of evaluating the merits and risks of this investment and
is able to bear the economic risks of this investment.
6. REPRESENTATIONS AND WARRANTIES OF LIFE2K
Life2K represents and warrants as follows:
6.1. CORPORATE ORGANIZATION AND GOOD STANDING.
Life2K 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.
6.2. CAPITALIZATION. Life2K's authorized capital
stock consists of 100,000,000 shares of common stock, $.0001 par
value per share, of which 17,148,250 shares are issued and
outstanding, and 25,000,000 shares of preferred stock, $.0001 par
value per share, of which 60,000 shares are issued and outstanding.
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. There are no stock grants,
options, rights, warrants or other rights to purchase or obtain
Life2K common or preferred stock issued or committed to be issued.
6.5. CORPORATE AUTHORITY. Life2K 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 Life2K's board of
directors.
6.7. SUBSIDIARIES. Life2K has one subsidiary.
6.8. FINANCIAL STATEMENTS. Life2K's audited
financial statements dated as of December 31, 1999 and unaudited
financial statements dated June 30, 2000, copies of which will have
been delivered by Life2K to Generation prior to the Exchange Date
(the "Life2K Financial Statements"), fairly present the financial
condition of Life2K 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 Life2K Financial
Statements, Life2K 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. There has been no
material adverse change in the business, properties, or financial
condition of Life2K since the date of the Life2K Financial Statements.
6.11. LITIGATION. There is not, to the knowledge of
Life2K, any pending, threatened, or existing litigation, bankruptcy,
criminal, civil, or regulatory proceeding or investigation,
threatened or contemplated against Life2K or against any of its
officers.
6.12. CONTRACTS. Life2K 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. Life2K has good and marketable title
to all the real property and good and valid title to all other
property included in the Life2K Financial Statements. Except as set
out in the balance sheet thereof, the properties of Life2K 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 Life2K.
6.14. TAX RETURNS. All required tax returns for
federal, state, county, municipal, local, foreign and other taxes
and assessments have been properly prepared and filed by Life2K 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 Life2K
Financial Statements are adequate to cover any such taxes that may
be assessed against Life2K in respect of its business and its
operations during the periods covered by the Life2K 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 order, judgment, decree, law, or regulation to
which any property of Life2K is subject or by which Life2K is bound.
7. CONDUCT PENDING THE CLOSING
Generation, Life2K and the Shareholders covenant that
between the date of this agreement and the Closing as to each of them:
7.1. No change will be made in the charter
documents, by-laws, or other corporate documents of Generation or
Life2K.
7.2. Life2K and Generation 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.
7.3. None of the Shareholders will sell, transfer,
assign, hypothecate, lien, or otherwise dispose or encumber the
Life2K shares of common stock owned by them.
8. CONDITIONS PRECEDENT TO OBLIGATION OF LIFE2K
AND THE SHAREHOLDERS
Life2K'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:
8.1. GENERATION'S REPRESENTATIONS AND WARRANTIES.
The representations and warranties of Generation 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.
8.2. GENERATION'S COVENANTS. Generation shall have
performed all covenants required by this agreement to be performed
by it on or before the Closing.
8.3. BOARD OF DIRECTOR APPROVAL. This Agreement
shall have been approved by the board of directors of Generation.
8.4. SUPPORTING DOCUMENTS OF GENERATION.
Generation shall have delivered to Life2K and the Shareholders
supporting documents in form and substance reasonably satisfactory
to Life2K and the Shareholders, to the effect that:
(a) Generation is a corporation duly organized, validly
existing, and in good standing;
(b) Generation's authorized capital stock is as set
forth herein;
(c) Certified copies of the resolutions of the board of
directors of Generation authorizing the execution of this agreement
and the consummation hereof;
(d) Secretary's certificate of incumbency of the
officers and directors of Generation;
(e) Generation's Financial Statements and unaudited
financial statement from the date of Generation'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.
9. CONDITIONS PRECEDENT TO OBLIGATION OF GENERATION
Generation'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:
9.1. LIFE2K'S AND THE SHAREHOLDERS' REPRESENTATIONS AND
WARRANTIES. The representations and warranties of Life2K 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.
9.2. LIFE2K'S AND THE SHAREHOLDERS' COVENANTS.
Life2K and the Shareholders
shall have performed all covenants required by this agreement to be
performed by them on or before the Closing.
9.3. BOARD OF DIRECTOR APPROVAL. This Agreement
shall have been approved by the board of directors of Life2K.
9.4. SHAREHOLDER EXECUTION. This Agreement shall
have been executed by all the Shareholders.
9.5. SUPPORTING DOCUMENTS OF LIFE2K. Life2K shall
have delivered to Generation supporting documents in form and
substance reasonably satisfactory to Generation to the effect that:
(a) Life2K is a corporation duly organized, validly
existing, and in good standing;
(b) Life2K's capital stock is as set forth herein;
(c) Certified copies of the resolutions of the board of
directors of Life2K authorizing the execution of this agreement and
the consummation hereof;
(d) Secretary's certificate of incumbency of the
officers and directors of Life2K;
(e) Life2K's Financial Statements and unaudited
financial statements for the period from the date of the Life2K'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.
10. SHAREHOLDERS' REPRESENTATIVE. The Shareholders
hereby irrevocably designate and appoint Xxxxx Xxxxxxxxxx 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.
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
The representations and warranties
of Life2K, the Shareholders and Generation set out herein shall
survive the Closing.
12. ARBITRATION
12.1. 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.
12.2. 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.
12.3. 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.
12.4. 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.
12.5. 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.
12.6. 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.
12.7. 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.
12.8. 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.
12.9. 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.
12.10. SURVIVAL. The provisions for arbitration
contained herein shall survive the termination of this agreement for
any reason.
13. GENERAL PROVISIONS.
13.1. 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.
13.2. 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.
13.3. 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.
13.4. 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 Generation, to:
Generation Acquisition Corporation
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
If to Life2K, to:
Xxxx0X.xxx, Inc.
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
If to the Shareholders, to:
Xxxxx Xxxxxxxxxx
Xxxx0X.xxx, Inc.
0000 00xx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
If to the Exchange Agent, to:
Xxxxxx Mill Associates, Inc.
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
13.5. GOVERNING LAW. This agreement shall be
governed by and construed and enforced in accordance with the laws
of the State of Delaware.
13.6. 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
any party of its rights under this agreement without the written
consent of each other party shall be void.
13.7. 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.
13.8. EXCHANGE AGENT AND CLOSING DATE. The Exchange
Agent shall be Xxxxxx Mill Associates, Inc., 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.
13.9. 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.
13.10. EFFECTIVE DATE. This effective date of this
agreement shall be September 15, 2000.
SIGNATURE PAGE TO AGREEMENT AND PLAN OF REORGANIZATION
AMONG GENERATION, LIFE2K AND THE SHAREHOLDERS OF LIFE2K
IN WITNESS WHEREOF, the parties have executed this
agreement.
GENERATION ACQUISITION CORPORATION
By___________________________________
XXXX0X.XXX, INC.
By___________________________________
SHAREHOLDERS:
By separate attachment
