EXHIBIT 2.0
AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
VALLEY EXCAVATION AND TRUCKING, INC.
AND
R X TECHNOLOGY, INC.
TABLE OF CONTENTS
1. Plan of Reorganization ............................................... 1
2. Exchange of Shares ................................................... 1
3. Pre-Closing Events ................................................... 2
4. Exchange of Securities ............................................... 2
5. Events Occurring at Closing .......................................... 2
6. Delivery of Shares ................................................... 3
7. Representations of RXT Stockholders .................................. 3
8. Representations of RXT ............................................... 3
9. Representations of Valley and ▇▇▇▇▇▇▇ ................................ 5
10. Closing .............................................................. 7
11. Conditions Precedent to the Obligations of RXT ....................... 7
12. Conditions Precedent to the Obligations of Valley .................... 9
13. Indemnification ...................................................... 10
14. Nature and Survival of Representations ............................... 10
15. Documents at Closing ................................................. 10
16. Finder's Fees ........................................................ 11
17. Miscellaneous ........................................................ 12
Signature Page ................................................................ 13
Exhibit A - RXT Stockholder Schedule
Exhibit B - Amendment to Articles of Incorporation
Exhibit C - Investment Letter
(i)
AGREEMENT AND PLAN OF REORGANIZATION
------------------------------------
This Agreement and plan of Reorganization (hereinafter the "Agreement")
is entered into effective as of this 27th day of December, 1999, by and among
Valley Excavation and Trucking, Inc., a Nevada corporation (hereinafter
"Valley"); ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the principal shareholder of Valley (hereinafter
"▇▇▇▇▇▇▇"); R X Technology, Inc., a Nevada corporation (hereinafter "RXT"),
and the owners of all the outstanding shares of common stock of RXT
(hereinafter the "RXT Stockholders").
RECITALS:
WHEREAS, the RXT Stockholders own all of the issued and outstanding
common stock of RXT which comprises 2,004,600 shares (the "RXT Common
Stock"). Valley desires to acquire the RXT Common Stock solely in exchange
for voting common stock of Valley, making RXT a wholly-owned subsidiary of
Valley; and
WHEREAS, the RXT Stockholders (as set forth on the attached Exhibit "A")
desire to acquire voting common stock of Valley in exchange for the RXT
Common Stock, as more fully set forth herein.
NOW THEREFORE, for the mutual consideration set out herein and other
good and valuable consideration, the legal sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
---------
1. PLAN OF REORGANIZATION. It is hereby agreed that all of the RXT
Common Stock shall be acquired by Valley in exchange solely for Valley common
voting stock (the "Valley Shares"). It is the intention of the parties hereto
that all of the issued and outstanding shares of capital stock of RXT shall
be acquired by Valley in exchange solely for Valley common voting stock and
that this entire transaction qualify as a corporate reorganization under
Section 368(a)(1)(B) and/or Section 351 of the Internal Revenue Code of 1986,
as amended, and related or other applicable sections thereunder.
2. EXCHANGE OF SHARES. Valley and RXT Stockholders agree that on the
Closing Date or at the Closing as hereinafter defined, the RXT Common Stock
shall be delivered to Valley in exchange for the Valley Shares, as follows:
(a) At Closing, Valley shall, subject to the conditions set forth
herein, issue an aggregate of 5,000,000 shares of Valley common stock for
immediate delivery to the RXT Stockholders in exchange for the Valley Shares.
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(b) Each RXT Stockholder shall execute this Agreement or a written
consent to the exchange of their RXT Common Stock for Valley Shares.
(c) Unless otherwise agreed by Valley and RXT this transaction shall
close only in the event Valley is able to acquire at least 80% of the
outstanding RXT Common Stock; however, it is the intent of the parties to
have Valley acquire all of the RXT Common Stock.
3. EXCHANGE OF SECURITIES. As of the Closing Date each of the following
shall occur:
(a) All shares of RXT Common Stock issued and outstanding immediately
prior to the prior to the Closing Date shall be exchanged for the Valley
Shares (up to an aggregate amount of 5,000,000 Valley Shares to be delivered
at Closing). All such outstanding shares of RXT Common Stock shall be deemed,
after Closing, to be owned by Valley. The holders of such certificates
previously evidencing shares of RXT Common Stock outstanding immediately
prior to the Closing Date shall cease to have any rights with respect to such
shares of RXT Common Stock except as otherwise provided herein or by law;
(b) Any shares of RXT Common Stock held in the treasury of RXT
immediately prior to the Closing Date shall automatically be canceled and
extinguished without any conversion thereof and no payment shall be made with
respect thereto;
(c) The 2,000,000 shares of Valley common stock previously issued and
outstanding prior to the Closing will remain outstanding.
4. EVENTS OCCURRING AT CLOSING. At Closing, the following shall be
accomplished:
(a) Valley shall filed an amendment to its articles of Incorporation
with the Secretary of State of the State of Nevada in substantially the form
attached hereto as Exhibit "B" effecting an amendment to its Articles of
Incorporation to (i) reflect a name change to a new name as selected by RXT
and, (ii) to change the authorized capitalization of Valley to 50,000,000
shares of $0.001 par value common stock and 1,000,000 shares of $.001 par
value preferred stock, as set forth in the attached Exhibit "B".
(b) The resignation of the existing Valley officer and director and
appointment of new officers and directors as directed by RXT.
(c) Valley shall have completed a private offering under Regulation D,
Rule 506, as promulgated by the Securities and Exchange Commission ("SEC")
under the Securities Act of 1933, as amended, of 1,830,000 shares of its
common stock at $1.75 per share. The gross proceeds of this offering (the
"Valley Financing") shall be $3,202,500, which amount, less agreed upon costs
(of $60,000), shall be delivered to the control of new management of Valley
at Closing in good funds and/or shall be represented by the conversion of
previous loan to RXT arranged for by Valley. The Valley Financing shall have
been
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completed in compliance with all applicable state and federal securities laws
and the securities sold shall be delivered at Closing to the investors in the
Valley Financing. Persons who have made bridge loans to RXT pursuant to
arrangements made by Valley, shall be given the opportunity to convert the
principal of said loans to the purchase of shares in the private offering
prior to Closing upon the same terms as other investors in the private
offering exact that the loans may be converted at a price which reflects a
15% discount to the private offering price.
(d) Valley shall adopt a Stock Option Plan at Closing to include up to
$4,000,000 shares of its common stock. The Plan shall include "incentive"
stock options under Section 422 of the Internal Revenue Code of 1986, as
amended and other options and similar rights. Valley shall grants options
under said plan to employees and others including 3,000,000 shares to RXT
Stockholders, at Closing, exercisable at $1.75 per share, as designated by
RXT subject to the reasonable approval of Valley.
(e) Valley shall demonstrate to the reasonable satisfaction of RXT that
it has no material assets and no liabilities contingent or fixed other than
the proceeds of the Valley Financing as described herein.
5. DELIVERY OF SHARES. On or as soon as practicable after the Closing
Date, RXT will use its best efforts to cause the RXT Stockholders to
surrender certificates for cancellation representing their shares of RXT
Common Stock, against delivery of certificates representing the Valley Shares
for which the shares of RXT Common Stock are to be exchanged at Closing.
6. REPRESENTATIONS OF RXT STOCKHOLDERS. Each RXT Stockholder hereby
represents and warrants each only as to its own RXT Common Stock, effective
at the Closing Date as follows:
(a) Except as may be set forth in Exhibit "A", the RXT Common Stock is
free from claims, liens,or other encumbrances, and at the Closing Date said
RXT Stockholder will have good title and the unqualified right to transfer
and dispose of such RXT Common Stock.
(b) Said RXT Stockholder is the sole owner of the issued and outstanding
RXT Common Stock as set forth in Exhibit "A";
(c) Said RXT Stockholder has no present intent to sell or dispose of the
Valley Shares and is not under a binding obligation, formal commitment, or
existing plan to sell or otherwise dispose of the Valley Shares.
7. REPRESENTATIONS OF RXT. RXT hereby represents and warrants as
follows, which warranties and representations shall also be true as the
Closing Date:
(a) Except as noted on Exhibit "A", the RXT Stockholders listed on the
attached Exhibit "A" area the sole owners of record and beneficially of the
issued and outstanding common stock of RXT.
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(b) RXT has no outstanding or authorized capital stock, warrants,
options or convertible securities other than as described in the RXT
Financial Statements or in Exhibit "A", attached hereto.
(c) The unaudited financial statements as of and for the period ended
December 31, 1998, and September 30, 1999, which have been delivered to
Valley (hereinafter referred to as the "RXT Financial Statements") are
complete and accurate in all material respects and fairly present the
financial condition of RXT as of the date thereof and the results of its
operations for the period covered. There are no material liabilities or
obligations, either fixed or contingent, not disclosed in the RXT Financial
Statements or notes thereto which are required to be disclosed therein; RXT
has no contracts or obligations in the ordinary course of business which
disclosed therein; RXT has no contracts or obligations in the ordinary course
of business which constitute liens or other liabilities which materially
alter the financial condition of RXT as reflected in the RXT Financial
Statements. RXT has good title to all assets shown on the RXT Financial
Statements subject only to dispositions and other transactions in the
ordinary course of business, the disclosures set forth therein and liens and
encumbrances of record. The RXT Financial Statements have been prepared in
accordance with generally accepted accounting principles consistently applied
(except as may be indicated therin or in the notes thereto).
(d) Since the date of the RXT Financial Statements, there have been any
material adverse changes in the financial position of RXT except changes
arising in the ordinary course of business, which changes will in no event
materially and adversely affect the financial position of RXT.
(e) RXT is not a party to any material pending litigation or, to its
best knowledge, any governmental investigation or proceeding, not reflected
in the RXT Financial Statements, and to its best knowledge, no material
litigation, claims, assessments or any governmental proceedings are
threatened against RXT.
(f) RXT is in good standing in its jurisdiction of incorporation, and is
in good standing and duly qualified to do business in each jurisdiction where
required to be so qualified except where the failure to so qualify would have
no material negative impact on RXT.
(g) RXT has (or, by the Closing Date, will have filed) all material tax,
governmental and/or related forms and reports (or extensions thereof) due or
required to be filed and has (or will have) paid or made adequate provisions
for all taxes or assessments which have become due as of the Closing Date.
(h) RXT has not materially breached any material agreement to which it
is a party. RXT has previously given Valley copies or access thereto of all
material contracts, commitments and/or agreements to which RXT is a party
including all relationships or dealing with related parties or affiliates.
(i) RXT has no subsidiary corporations except as described in writing to
Valley.
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(d) On or before the Closing Date, Valley shall have delivered to RXT
certified copies of resolutions of the board of directors and shareholders of
Valley approving and authorizing the execution, delivery and performance of
this Agreement and authorizing all of the necessary and proper action to
enable Valley to comply with the terms of this Agreement including the
election of RXT's nominees to the Board of Directors of Valley and all
matters outlined herein.
(e) The Acquisition shall be permitted by applicable law and Valley
shall have sufficient shares of its capital stock authorized to complete the
Acquisition.
(f) At Closing, the existing sole officer and director of Valley shall
have resigned in writing from all positions as director and officer of Valley
effective upon the election and appointment of the RXT nominees.
(g) At the Closing, all instruments and documents delivered to RXT and
RXT Stockholders pursuant to the provisions hereof shall be reasonably
satisfactory to legal counsel for RXT.
(h) The shares of restricted Valley capital stock to be issued to RXT
Stockholders and in the Valley Financing at Closing will be validly issued,
nonassessable and fully-paid under Nevada corporation law and will be issued
in compliance with all federal, state and applicable corporation and
securities laws.
(i) RXT and RXT Stockholders shall have received the advice of their tax
advisor, if deemed necessary by them, as to all tax aspects of the Acquisition.
(j) RXT shall have received all necessary and required approvals and
consents from required parties and its shareholders.
(k) Valley shall have completed the Valley Financing.
(l) At the Closing, Valley shall have delivered to RXT an opinion of its
counsel dated as of the Closing to the effect that:
(i) Valley is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation;
(ii) This Agreement has been duly authorized, executed and
delivered by Valley and is a valid and binding obligation of Valley
enforceable in accordance with its terms;
(iii) Valley through its board of directors and stockholders has
taken all corporate action necessary for performance under this
Agreement;
(iv) The documents executed and delivered by Valley to RXT and RXT
Stockholders hereunder are valid and binding in accordance with their
terms and vest in
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all right, title and interest in and to the RXT Common Stock, which
stock is duly and validly issued, fully-paid and nonassessable.
12. INDEMNIFICATION. For a period of one year from the Closing, Valley
and ▇▇▇▇▇▇▇ agree to jointly and severally indemnify and hold harmless RXT,
and RXT agrees to indemnify and hold harmless Valley, at all times after the
date of this Agreement against and in respect of any liability, damage or
deficiency, all actions, suits, proceedings, demands, assessments, judgments,
costs and expenses including attorney's fees incident to any of the
foregoing, resulting from any misrepresentations made by an indemnifying
party to an indemnified party, an indemnifying party's breach of covenant or
warranty or an indemnifying party's nonfulfillment of any agreement
hereunder, or from any misrepresentation in or omission from any certificate
furnished or to be furnished hereunder.
13. NATURE AND SURVIVAL OF REPRESENTATIONS. All representations,
warranties and covenants made by any party in this Agreement shall survive
the Closing and the consummation of the transactions contemplated hereby for
one year from the Closing. All of the parties hereto are executing and
carrying out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement and not upon any investigation upon which it might have made or any
representation, warranty, agreement, promise or information, written or oral,
made by the other party or any other person other than as specifically set
forth herein.
14. DOCUMENTS AT CLOSING. At the Closing, the following documents shall
be delivered:
(a) RXT will deliver, or will cause to be delivered, to Valley the
following:
(i) a certificate executed by the President and Secretary of RXT
to the effect that all representations and warranties made by RXT under
this Agreement are true and correct as of the Closing, the same as though
originally given to Valley on said date;
(ii) a certificate from the jurisdiction of incorporation of RXT
dated at or about the Closing to the effect that RXT is in good standing
under the laws of said jurisdiction;
(iii) Investment Letters in the form attached hereto as Exhibit "C"
executed by each RXT Stockholder;
(iv) such other instruments, documents and certificates, if any,
as are required to be delivered pursuant to the provisions of this
Agreement;
(v) certified copies of resolutions adopted by the shareholders
and directors of RXT authorizing this transaction; and
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(vi) all other items, the delivery of which is a condition
precedent to the obligations of Valley as set forth herein.
(vii) the legal opinion required by Section 12(d) hereof.
(b) Valley will deliver or cause to be delivered to RXT:
(i) stock certificates representing the Valley Shares to be
issued as a part of the stock exchange as described herein;
(ii) a certificate of the President of Valley, to the effect that
all representation and warranties of Valley made under this Agreement
are true and correct as of the Closing, the same as though originally
given to RXT on said date;
(iii) certified copies of resolutions adopted by Valley's board of
directors and Valley's Stockholders authorizing the Acquisition and all
related matters described herein;
(iv) certification from the jurisdiction of incorporation of
Valley dated at or about the Closing Date that Valley is in good standing
under the laws of said state;
(v) opinion of Valley's counsel as described in Section 11(1)
above;
(vi) good funds representing the net proceeds of the Valley
Financing;
(vii) resignation of the existing officer and director of Valley;
(viii) all corporate and financial records of Valley; and
(ix) all other items, the delivery of which is a condition
precedent to the obligations of RXT, as set forth in Section 12 hereof.
15. FINDER'S FEES. Valley represents and warrants to RXT, and RXT
represents and warrants to Valley that neither of them, or any party acting
on their behalf, has incurred any liabilities, either express or implied, to
any "broker" of "finder" or similar person in connection with this Agreement
or any of the transactions contemplated hereby other than arrangements, if
any, disclosed to RXT by Valley to compensate any person who introduced the
parties, which obligation shall be the sole responsibility of Valley. In this
regard, Valley, on the one band, and RXT on the other hand, will indemnify
and hold the other harmless from any claim, loss, cost or expense whatsoever
(including reasonable fees and disbursements of counsel) from or relating to
any such express or implied liability other than as disclosed herein.
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16. MISCELLANEOUS.
(a) FURTHER ASSURANCES. At any time, and from time to time, after the
Closing Date, each party will execute such 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 this Agreement.
(b) WAIVER. Any failure on the part of any 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.
(c) AMENDMENT. This Agreement may be amended only in writing as agreed
to by all parties hereto.
(d) 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 registered or certified mail, return receipt requested.
(e) HEADINGS. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) 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.
(g) GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Nevada.
(h) BINDING EFFECT. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors and assigns.
(i) ENTIRE AGREEMENT. This Agreement and the attached Exhibits
constitute the entire agreement of the parties covering everything agreed
upon or understood in the transaction. There are no oral promises,
conditions, representations, understandings, interpretations or terms of any
kind as conditions or inducements to the execution hereof.
(j) TIME. Time is of the essence.
(k) SEVERABILITY. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written.
VALLEY EXCAVATION AND
TRUCKING, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President and Secretary
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, individually
R X TECHNOLOGY, INC.
By: By: /s/ ▇▇▇▇▇▇ ▇▇▇ GAY
--------------------------- -----------------------------------------
Secretary President
SHAREHOLDERS OF R X TECHNOLOGY, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇ GAY
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EXHIBIT "A"
To Agreement and Plan of Reorganization
List of RXT Stockholders
------------------------
Valley Shares to be
Name RXT Shares Issued at Closing
---- ---------- -------------------
▇▇▇▇▇▇ ▇▇▇ Gay 2,000,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,000
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1,000
Mr. & Mrs. ▇▇▇▇ ▇▇▇▇▇▇▇ 1,600
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,000
5,000,000
Options to be
Granted at Closing
------------------
▇▇▇▇▇▇ ▇▇▇ Gay 3,000,000
Employee Options 1,000,000
RX TECHNOLOGY, INC.
LIST OF SHAREHOLDERS
SHAREHOLDER NAME RXT SHARES VALLEY SHARES OPTIONS
------------------------------------------------------------------------------------------------
1. ▇▇▇▇▇▇ ▇▇▇ GAY 2,000,000 4,933,000 2,959,836
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇-▇▇▇▇ DAY
▇▇▇ ▇▇▇-▇▇▇▇ EVENING
▇▇▇ ▇▇▇-▇▇▇▇ FAX
2. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,000 4,933 2,960
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇-▇▇▇▇ HOME
▇▇▇ ▇▇▇-▇▇▇▇ FAX
3. ▇▇▇▇ ▇. ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,000 2,467 1,480
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇-▇▇▇▇ DAY
▇▇▇ ▇▇▇-▇▇▇▇ EVENING
▇▇▇ ▇▇▇-▇▇▇▇ FAX
▇▇▇ ▇▇▇-▇▇▇▇ OFFICE FAX
4. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,200 2,960 1,776
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇-▇▇▇▇ HOME
▇▇▇ ▇▇▇-▇▇▇▇ FAX
5. ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 400 987 592
8745 LITZSINGER
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇ PHONE
6. RX TECHNOLOGY EUROPE 22,539 55,593 33,356
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇(▇) ▇▇▇-▇▇▇-▇▇▇ PHONE
▇▇(▇) ▇▇▇-▇▇▇-▇▇▇ FAX
=========================================================
TOTAL 2,027,139 5,000,000 3,000,000