Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization ("Agreement") is entered into
between Enpetro Mineral Pool, a Nevada corporation ("EMP") and Accord Advanced
Technologies, Inc. a Nevada corporation ("XXXX") and the persons listed in
Exhibit A hereof (collectively the "Shareholders"), being the owners of record
of all of the issued and outstanding stock of EMP and XXXX.
Whereas, XXXX wishes to acquire and the Shareholders of EMP wish to transfer all
of the issued and outstanding securities of EMP in a transaction intended to
qualify as a reorganization within the meaning of 368(a)(1)(B) of the Internal
Revenue Code 1986, as amended.
Now, therefore, XXXX 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 XXXX at
the Closing (defined below) all of the shares of common stock of EMP, $.0 par
value per share in exchange for 228,000,000 common shares of XXXX which will be
95% of the outstanding shares of the common of stock of XXXX as indicated in
Exhibit A.
1.2. EXCHANGE OF CERTIFICATES. Each holder of an outstanding
certificate or certificates theretofore representing shares of EMP common stock
shall surrender such certificates for cancellation to XXXX, and shall receive in
exchange a certificate or certificates representing the number of full shares of
XXXX common stock into which the shares of EMP common stock represented by the
certificate or certificates so surrendered shall have been converted. The
transfer of EMP shares by the Shareholders shall be effected by the delivery to
XXXX 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 XXXX common stock shall
not be issued, but in lieu thereof XXXX 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 and XXXX shall execute such additional instruments
and take such other action as the Parties may request in order to effectuate
this Agreement.
1.5. AMENDMENTS TO THE ARTICLES OF INCORPORATION. XXXX shall amend its
Articles of Incorporation changing its name to Central Utilities Production,
Corporation
2. RATIO OF EXCHANGE. The securities of EMP owned by the Shareholders, and
the relative securities of XXXX for which they will be exchanged, are set out in
Exhibit A.
3. CLOSING.
3.1. TIME AND PLACE. The Closing contemplated herein shall be held as
soon as possible at the offices of XXXX, Inc., unless another place or time is
agreed upon in writing by the parties 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.
3.2. FORM 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.
4. UNEXCHANGED CERTIFICATES. Until surrendered, each outstanding
certificate that prior to the Closing represented EMP 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 XXXX common
stock into which it was converted. No dividend or other distribution shall be
paid to the holders of certificates of EMP common stock until presented for
exchange at which time any outstanding dividends or other distributions shall be
paid.
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 EMP
shares which are listed in the attached schedule and which they have contracted
to exchange.
5.2. LITIGATION. There is no litigation or proceeding pending or to
any Shareholder's knowledge threatened, against or relating to shares of EMP
held by the Shareholders.
6. REPRESENTATIONS AND WARRANTIES OF XXXX
XXXX represents and warrants as follows:
6.1. CORPORATE STATUS. XXXX is a corporation duly Organized, validly
existing, and in good standing under the laws of the State of Nevada and is
licensed or qualified as a foreign corporation in all states in which the nature
of its business or the character or ownership of its properties makes such
licensing or qualification necessary.
6.2. CAPITALIZATION. The authorized capital stock of XXXX consists of
shares of common stock of which shares are issued and outstanding, all fully
paid and nonassessable and no shares of non-designated preferred stock.
6.3. SUBSIDIARIES. XXXX has no subsidiaries.
6.4. LITIGATION. There is no litigation or proceeding pending, or to
the Company's knowledge threatened, against or relating to XXXX, its properties
or business, except as set forth in a list certified by the president of XXXX
and delivered to the Shareholders.
6.5. CONTRACTS. XXXX is not a party to any material contract.
2
6.6. NO VIOLATION. Execution of this Agreement and performance by XXXX
hereunder has been duly authorized by all requisite corporate action on the part
of XXXX, and this Agreement constitutes a valid and binding obligation of XXXX
and performance hereunder will not violate any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgment, decree, law,
or regulation to which any property of XXXX is subject or by which XXXX is
bound.
6.7. TAXES. XXXX has filed in correct form all federal, state, and
other tax returns of every nature required to be filed by it and has paid all
taxes as shown on such returns and all assessments, fees and charges received by
it to the extent that such taxes, assessments, fees and charges have become due.
XXXX has also paid all taxes which do not require the filing of returns and
which are required to be paid by it. To the extent that tax liabilities have
accrued, but have not become payable, they have been adequately reflected as
liabilities on the books of XXXX and are reflected in. the financial statements
furnished hereto.
6.8. TITLE TO PROPERTY. XXXX has good and marketable title to all
properties and assets, real and personal, reflected in AVTI's Financial
Statements, except as since sold or otherwise disposed of in the ordinary course
of business, and XXXX 's properties and assets are subject to no mortgage,
pledge, lien, or encumbrance, except for. liens shown therein, with respect to
which no default exists.
6.9. CORPORATE AUTHORITY. XXXX has full corporate power and authority
to enter into this Agreement and to carry out its obligations hereunder, and
will deliver at the Closing a certified copy of resolutions of its board of
directors authorizing execution of this Agreement by its officers and
performance thereunder.
6.10. INVESTMENT INTENT. XXXX is acquiring the EMP shares to be
transferred to it under this Agreement for investment and not with a view to the
sale or distribution thereof.
7. CONDUCT PENDING THE CLOSING
XXXX 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 XXXX.
7.2. XXXX 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.
7.3. None of the Shareholders will sell, transfer, assign,
hypothecate, lien, or otherwise dispose of or encumber the EMP shares of common
stock owned by them..
8. CONDITIONS PRECEDENT TO OBLIGATION OF THE SHAREHOLDERS
The Shareholder's obligation to consummate this exchange shall be subject
to fulfillment on or before the Closing of each of the following conditions,
unless waived in writing by the Shareholders as appropriate:
3
8.1. XXXX REPRESENTATIONS AND WARRANTIES. The representations and
warranties of XXXX 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. XXXX COVENANTS. XXXX shall have performed all covenants required
by this Agreement to be performed by it on or before the Closing.
8.3. BOARD OF DIRECTOR AND SHAREHOLDERS APPROVAL. This Agreement shall
have been approved by the Board of Directors and Shareholders of XXXX.
8.4. SUPPORTING DOCUMENTS OF XXXX. XXXX shall have delivered to the
Shareholders supporting documents in a form and substance reasonably
satisfactory to the Shareholders, prior to or simultaneously with the closing:
(a) XXXX is a corporation duly organized, validly existing, and
in good standing;
(b) AVTI's authorized capital stock is as set forth herein;
(c) Certified copies of the resolutions of the board of
directors of XXXX authorizing the execution of this
Agreement and consummation hereof;
(d) Secretary's Certificate of incumbency of the officers and
directors of XXXX
(e) Any document as may be specified herein or required to
satisfy the conditions, representations and warranties
enumerated elsewhere herein.
(f) Agreement, satisfactory to EMP shareholders, resolving the
GEM judgment wherein
(g) Agreement, satisfactory to EMP shareholders, amending the
existing debenture agreements with AJW Partners, LLC and New
Millennium Capital Partners II, LLC wherein said entities
will simultaneous with the closing fund an additional
$500,000 to the Reorganized entity pursuant to this
Agreement
(h) Xxxxxx Xxxxxx shall resign as President, CEO and Chairman at
the closing
9. CONDITIONS PRECEDENT TO OBLIGATION OF XXXX
AVTI's obligation to consummate this merger shall be subject to fulfillment
on or before the Closing of each of the following conditions, unless waived in
writing by XXXX
9.1. SHAREHOLDER'S REPRESENTATIONS AND WARRANTIES. The representations
and warranties of 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.
(a) EMP is a Nevada Corporation in good standing.
(b) The shareholders as set forth in Exhibit A are all of the
shareholders of EMP.
(c) To the best of the shareholders knowledge, EMP has all
rights title and interest to the Gas and Oil Leases as set
forth in Exhibit B attached hereto and made a part hereof.
4
9.2. SHAREHOLDER'S COVENANTS. The Shareholders shall have performed
all covenants required by this Agreement to be performed by them on or before
the Closing.
10. TERMINATION. This Agreement may be terminated (1) by mutual consent in
writing; (2) by either the Shareholders or XXXX if there has been material
misrepresentation or material breach of any warranty or covenant by any other
party; or (3) by either Shareholders or XXXX if the Closing shall not have taken
place within 15 days following execution of this Agreement, unless adjourned to
a later date by mutual consent in writing.
11. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representation and
warranties of the Shareholders and XXXX set out herein shall survive the
Closing.
12. GENERAL PROVISIONS
12.1. 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.
12.2. WAIVER. Any failure on the part of either party hereto to comply
with any of its obligation, agreements, or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
12.3. 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.
12.4. 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 EMP and Shareholders, to:
Enpetro Mineral Pool
c/o Xxxxxxx Xxxxx
000 Xxxxx Xxx 00xx Xxxxx
Xxx Xxxx, XX 00000
If to Accord Advanced Technologies, Inc., to:
Accord Advanced Technologies, Inc
c/o Xxxx X. Xxxxx
0000 Xxxx Xxxxxxxx Xx.
Xxxxxxx, XX 00000
12.5. GOVERNING LAW. This agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Nevada
5
12.6. 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.
12.7. 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.
12.8. CLOSING DATE. The Closing shall take place upon the fulfillment
by each party of all the conditions of Closing required herein, but not later
than 15 days following execution of this agreement unless extended by mutual
consent of the parties.
12.9. REVIEW OF THE 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.
12.10. SCHEDULES. All schedules attached hereto, if any, shall be
acknowledged by each party by signature or initials thereon. and shall be dated.
12.11. EFFECTIVE DATE. The effective date of this agreement shall be
upon its execution.
SIGNATURE PAGE TO AGREEMENT AND PLAN OF REORGANIZATION BETWEEN
ENPETRO MINERAL POOL. IT'S SHAREHOLDERS AND ACCORD ADVANCED TECHNOLOGIES, INC
AND IT'S SHAREHOLDERS.
IN WITNESS WHEREOF, the parties have executed this agreement this day
ofApril, 2001.
ENPETRO MINERAL POOL ACCORD ADVANCED TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
----------------------------- -----------------------------
Xxxxxxx Xxxxxx, President Xxxxxx Xxxxxx, President
6
EXHIBIT A
THE SHAREHOLDERS OF ACCORD ADVANCED TECHNOLOGIES, INC.
NAME DATE
---- ----
THE SHAREHOLDERS OF ENPETRO MINERAL POOL
