AGREEMENT AND PLAN OF REORGANIZATION among QUIK PIX,
INC., a Nevada corporation ("Quik Pix"), BAROQUE CORPORATION, a
Delaware corporation ("Baroque") and the persons listed in Exhibit A
hereof (collectively the "Shareholders"), being the owners of record
of all the issued and outstanding stock of Baroque.
Whereas, Quik Pix wishes to acquire and the Shareholders
wish to transfer all of the issued and outstanding securities of
Baroque 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, Quik Pix, Baroque, 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 Quik Pix at the Closing (defined below) the number of
shares of common stock of Baroque, $.0001 par value per share, shown
opposite their names in Exhibit A, in exchange for an aggregate of
410,510 shares of voting common stock of Quik Pix, $____ par value
per share.
1.2. EXCHANGE OF CERTIFICATES. Each holder of an
outstanding certificate or certificates theretofore representing
shares of Baroque common stock shall surrender such certificate(s)
for cancellation to Quik Pix, and shall receive in exchange a
certificate or certificates representing the number of full shares
of Quik Pix common stock into which the shares of Baroque common
stock represented by the certificate or certificates so surrendered
shall have been converted. The transfer of Baroque shares by the
Shareholders shall be effected by the delivery to Quik Pix 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 Quik
Pix common stock shall not be issued, but in lieu thereof Quik Pix
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 Quik Pix may
request in order more effectively to sell, transfer, and assign the
transferred stock to Quik Pix and to confirm Quik Pix'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
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
Baroque 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 Quik Pix common stock into
which it was converted. No dividend or other distribution shall be
paid to the holders of certificates of Baroque common stock until
presented for exchange at which time any outstanding dividends or
other distributions shall be paid.
4. REPRESENTATIONS AND WARRANTIES OF BAROQUE
Baroque represents and warrants as follows:
4.1. CORPORATE ORGANIZATION AND GOOD STANDING. Baroque 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. Baroque 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. Baroque 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. Baroque'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 Baroque Common or Preferred Stock
issued or committed to be issued.
4.7. CORPORATE AUTHORITY. Baroque 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 Baroque's board of directors.
4.9. SUBSIDIARIES. Except as may be set out by attached
schedule, Baroque has no subsidiaries.
4.10. FINANCIAL STATEMENTS. Baroque's financial statements
dated October 31, 1999, copies of which will have been delivered by
Baroque to Quik Pix prior to the Closing (the "Baroque Financial
Statements"), fairly present the financial condition of Baroque 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 Baroque Financial
Statements, Baroque 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 Baroque since the
date of the Baroque Financial Statements.
4.13. LITIGATION. Except as may be set out by attached
schedule, there is not, to the knowledge of Baroque, any pending,
threatened, or existing litigation, bankruptcy, criminal, civil, or
regulatory proceeding or investigation, threatened or contemplated
against Baroque or against any of its officers.
4.14. CONTRACTS. Except as may be set out by attached
schedule, Baroque 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,
Baroque has good and marketable title to all the real property and
good and valid title to all other property included in the Baroque
Financial Statements. Except as set out in the balance sheet
thereof, the properties of Baroque 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 Baroque.
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 Baroque 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 Baroque Financial Statements are
adequate to cover any such taxes that may be assessed against
Baroque in respect of its business and its operations during the
periods covered by the Baroque 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
Baroque is subject or by which Baroque 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 Baroque 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 Baroque held by the Shareholders.
6. REPRESENTATIONS AND WARRANTIES OF QUIK PIX
Quik Pix represents and warrants as follows:
6.1. CORPORATE ORGANIZATION AND GOOD STANDING. Quik Pix 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. Quik Pix's authorized capital stock
consists of 50,000,000 shares of common stock, $.001 par value
per share, of which 8,503,462 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 Quik Pix common or preferred
stock issued or committed to be issued.
6.5. CORPORATE AUTHORITY. Quik Pix 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 Quik Pix's board of directors.
6.7. SUBSIDIARIES. Except as may be set out by attached
schedule, Quik Pix has no subsidiaries.
6.8. FINANCIAL STATEMENTS. Quik Pix's financial statements
dated as of _______________ copies of which will have been
delivered by Quik Pix to Baroque prior to the Exchange Date (the
"Quik Pix Financial Statements"), fairly present the financial
condition of Quik Pix 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 Quik Pix Financial
Statements, Quik Pix 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 Quik Pix since the
date of the Quik Pix Financial Statements.
6.11. LITIGATION. Except as may be set out by attached
schedule, there is not, to the knowledge of Quik Pix, any pending,
threatened, or existing litigation, bankruptcy, criminal, civil, or
regulatory proceeding or investigation, threatened or contemplated
against Quik Pix or against any of its officers.
6.12. CONTRACTS. Except as may be set out by attached
schedule, Quik Pix 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,
Quik Pix has good and marketable title to all the real property and
good and valid title to all other property included in the Quik Pix
Financial Statements. Except as set out in the balance sheet
thereof, the properties of Quik Pix 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 Quik Pix.
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 Quik Pix 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 Quik Pix Financial Statements are
adequate to cover any such taxes that may be assessed against Quik
Pix in respect of its business and its operations during the periods
covered by the Quik Pix 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
Quik Pix is subject or by which Quik Pix is bound.
7. CONDUCT OF BAROQUE PENDING THE CLOSING. Baroque
covenants that between the date of this agreement and the Closing:
7.1. No change will be made in Baroque's certificate of
incorporation or bylaws.
7.2. Baroque 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. Baroque 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
Quik Pix, Baroque 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 Quik Pix or Baroque.
8.2. Baroque and Quik Pix 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 Baroque
shares of common stock owned by them.
9. CONDITIONS PRECEDENT TO OBLIGATION OF BAROQUE AND THE
SHAREHOLDERS
Baroque'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 Quik Pix's shares by the Shareholders:
9.1. QUIK PIX'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Quik Pix 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. QUIK PIX'S COVENANTS. Quik Pix shall have performed all
covenants required by this agreement to be performed by it on or
before the Closing.
9.3. BOARD OF DIRECTOR APPROVAL. This Agreement shall have
been approved by the Board of Directors of Quik Pix.
9.4. SUPPORTING DOCUMENTS OF QUIK PIX. Quik Pix shall have
delivered to Baroque and the Shareholders supporting documents in
form and substance reasonably satisfactory to Baroque and the
Shareholders, to the effect that:
(a) Quik Pix is a corporation duly organized, validly
existing, and in good standing;
(b) Quik Pix's authorized capital stock is as set forth herein;
(c) Certified copies of the resolutions of the board of
directors of Quik Pix authorizing the execution of this agreement
and the consummation hereof;
(d) Secretary's certificate of incumbency of the officers and
directors of Quik Pix;
(e) Quik Pix's Financial Statements and unaudited financial
statement from the date of Quik Pix'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 QUIK PIX
Quik Pix'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
Baroque's shares by Quik Pix:
10.1. BAROQUE'S AND THE SHAREHOLDERS' REPRESENTATIONS AND
WARRANTIES. The representations and warranties of Baroque 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. BAROQUE'S AND THE SHAREHOLDERS' COVENANTS. Baroque 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 Baroque.
10.4. SHAREHOLDER EXECUTION. This Agreement shall have been
executed by the required number of shareholders of Baroque.
10.5. SUPPORTING DOCUMENTS OF BAROQUE. Baroque shall have
delivered to Quik Pix supporting documents in form and substance
reasonably satisfactory to Quik Pix to the effect that:
(a) Baroque is a corporation duly organized, validly
existing, and in good standing;
(b) Baroque's capital stock is as set forth herein;
(c) Certified copies of the resolutions of the board of
directors of Baroque authorizing the execution of this agreement and
the consummation hereof;
(d) Secretary's certificate of incumbency of the officers and
directors of Baroque;
(e) Baroque's Financial Statements and unaudited financial
statements for the period from the date of the Baroque'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 ▇▇▇▇▇▇▇ & 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 Quik Pix hereunder.
12. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties
of Baroque, the Shareholders and Quik Pix 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.
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 ▇▇▇. 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.
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 Quik Pix, to:
Quik Pix, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Baroque, to:
Baroque Corporation
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
If to the Shareholders, to:
▇▇▇▇▇▇▇ & Associates
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
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.
14.8. EXCHANGE AGENT AND CLOSING DATE. The Exchange
Agent shall be ▇▇▇▇▇▇▇ & 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.
SIGNATURE PAGE TO AGREEMENT AND PLAN OF REORGANIZATION
AMONG QUIK PIX, BAROQUE AND THE SHAREHOLDERS OF BAROQUE
IN WITNESS WHEREOF, the parties have executed this
agreement.
QUIK PIX, INC.
By___________________________________
BAROQUE CORPORATION
By___________________________________
SHAREHOLDERS:
TPG CAPITAL CORPORATION
By___________________________________