AGREEMENT AND
PLAN OF REORGANIZATION
DATED APRIL 12, 1999
BETWEEN
EPL VENTURES CORP
AND
INDUSTRIAL RUBBER INNOVATIONS, INC.
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement")
is entered into this 12th day of April, 1999 by and between EPL
VENTURES CORP, a Florida corporation ("EPL" and "Surviving
Corporation") and INDUSTRIAL RUBBER INNOVATIONS, INC., a Nevada
corporation ("IRI").
RECITALS
A. Subject to and in accordance with the terms and
conditions of this Agreement and pursuant to the Certificate of
Merger attached hereto as Exhibit A ("Certificate of Merger"), the
parties intend that IRI will merge with and into EPL (the "Merger"),
whereby at the Effective Time (and after giving effect to the
Reverse Stock Split described in Section 2.1(a) hereof), all of the
IRI Common Stock will be converted into three million eight hundred
thousand (3,800,000) shares of common stock of EPL (the "EPL Common
Stock").
B. For federal income tax purposes, it is intended that
the Merger shall qualify as a tax free reorganization within the
meaning of Section368(a)(1)(A) of the Code.
C. The parties hereto desire to set forth certain
representations, warranties and covenants made by each to the other
as an inducement to the consummation of the Merger.
AGREEMENT
NOW, THEREFORE, in reliance on the foregoing recitals and in
and for the consideration and mutual covenants set forth herein, the
parties agree as follows:
1. CERTAIN DEFINITIONS.
1.1 "AFFILIATE" shall have the meaning set forth in the
rules and regulations promulgated by the Commission pursuant to the
Securities Act.
1.2 "CLOSING" shall mean the closing of the transactions
contemplated by this Agreement.
1.3 "CLOSING DATE" shall mean the date of the Closing.
1.4 "CODE" shall mean the United States Internal Revenue
Code of 1986, as amended.
1.5 "COMMISSION" shall mean the United States Securities
and Exchange Commission.
1.6 "DISSENTING SHARES" shall mean those shares held by
holders who perfect their appraisal rights under the applicable
state laws.
1.7 "EFFECTIVE TIME" shall mean the date and time of the
effectiveness of the Merger under Florida law.
1.8 "GAAP" shall mean generally accepted accounting
principles.
1.9 "IRI COMMON STOCK" shall mean all of the outstanding
shares of Common Stock of IRI.
1.10 "MATERIAL ADVERSE EFFECT" shall mean a material
adverse effect on the operations, assets or financial condition
(financial or otherwise) of an entity considered as a whole.
1.11 "SECURITIES ACT" shall mean the Securities Act of
1933, as amended, or any similar federal statute and the rules and
regulations thereunder, all as the same shall be in effect at the time.
1.12 "TRANSACTION DOCUMENTS" shall mean all documents or
agreements attached as an exhibit or schedule hereto, and set forth
on the Table of Contents.
2. PLAN OF REORGANIZATION.
2.1 THE MERGER. Subject to the terms and conditions of
this Agreement and the Certificate of Merger, IRI shall be merged
with and into EPL in accordance with the applicable provisions of
the laws of the States of Florida and Nevada, and with the terms and
conditions of this Agreement and the Certificate of Merger, so that:
(A) At the Effective Time (as defined in Section
2.5 (below)), IRI shall be merged with and into EPL. As a result of
the Merger, the separate corporate existence of IRI shall cease, and
EPL shall continue as the surviving corporation, and shall succeed
to and assume all of the rights and obligations of IRI in accordance
with the laws of Florida. In addition, at the Effective Time, the
outstanding shares of common stock of EPL will undergo a 1 for 5
reverse stock split, resulting in an aggregate of 3,444,000 shares
of common stock issued and outstanding (without giving effect to the
shares issued to IRI hereunder).
(B) The Bylaws of EPL in effect immediately prior
to the Effective Time shall be the Bylaws of the Surviving
Corporation after the Effective Time unless and until further
amended as provided by law. The Certificate of Incorporation of EPL
shall be amended as provided in the Certificate of Merger attached
hereto as Exhibit A.
(C) Subject to the terms of this Agreement, the
directors and officers of IRI immediately prior to the Effective
Time shall be the directors and officers of the Surviving
Corporation after the Effective Time. Such directors and officers
shall hold their position until the election and qualification of
their respective successors or until their tenure is otherwise
terminated in accordance with the Bylaws of the Surviving Corporation.
(D) At the Effective Time, EPL shall cause to be
issued to the IRI shareholders (the "Warrant Holders"), pro-rata in
accordance with their stock ownership prior to the merger, warrants
to acquire an aggregate of 2,000,000 shares of EPL common stock (the
"Warrants"). One half (1/2) of the Warrants held by each Warrant
Holder shall be exercisable for a period of 24 months at an exercise
price of $0.50 per share, and the balance shall be exercisable for a
period of 24 months at an exercise price of $0.75 per share. Upon
the exercise of any or all of the Warrants, the Warrant Holders
shall receive shares of common stock which are "restricted" in
accordance with Rule 144 of the Securities Act of 1933.
2.2 CONVERSION OF SHARES. Each share of IRI Common
Stock, issued and outstanding immediately prior to the Effective
Time, will, by virtue of the Merger, and at the Effective Time, and
without further action on the part of any holder thereof, be
converted into 1,000 shares of fully paid and nonassessable shares
of EPL Common Stock.
2.3 FRACTIONAL SHARES. No fractional shares of EPL
Common Stock will be issued in connection with the Merger.
2.4 THE CLOSING. Subject to termination of this
Agreement as provided in Section 10 (below), the Closing shall take
place at the offices of M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, as soon as possible upon the
satisfaction or waiver of all conditions set forth in Sections 8 and
9 hereof, or such other time and place as is mutually agreeable to
the parties.
2.5 EFFECTIVE TIME. Simultaneously with the Closing, the
Certificate of Merger shall be filed in the office of the Secretary
of State of the State of Florida. The Merger shall become effective
immediately upon the filing of the Certificate of Merger with such
office.
2.6 TAX FREE REORGANIZATION. The parties intend to adopt
this Agreement as a tax-free plan of reorganization and to
consummate the Merger in accordance with the provisions of
Section368(a)(1)(A) of the Code. Each party agrees that it will not
take or assert any position on any tax return, report or otherwise
which is inconsistent with the qualification of the Merger as a
reorganization within the meaning of Section368(a) of the Code. EPL
represents now, and as of the Closing Date, that it presently
intends to continue IRI's historic business or use a significant
portion of IRI's business assets in a business.
3. REPRESENTATIONS AND WARRANTIES OF IRI. IRI
represents and warrants to EPL as set forth below. No fact or
circumstance disclosed shall constitute an exception to these
representations and warranties except as may mutually be agreed upon
in writing by the parties hereto.
3.1 ORGANIZATION. IRI is a corporation duly organized,
validly existing and in good standing under the laws of the state of
Nevada and has the corporate power and authority to carry on its
business as it is now being conducted. IRI is duly qualified or
licensed to do business and is in good standing in each jurisdiction
in which the nature of its business or properties makes such
qualification or licensing necessary except where the failure to be
so qualified would not have a Material Adverse Effect on IRI.
3.2 CAPITALIZATION.
(A) The authorized capital of IRI consists of
200,000,000 shares of Common Stock, par value $0.001 per share, of
which 3,800 shares are issued and outstanding.
(B) IRI does not have outstanding any preemptive
rights, subscription rights, options, warrants, rights to convert or
exchange, capital stock equivalents, or other rights to purchase or
otherwise acquire any IRI capital stock or other securities.
(C) All of the issued and outstanding shares of
IRI capital stock have been duly authorized, validly issued, are
fully paid and nonassessable, and such capital stock has been issued
in full compliance with all applicable federal and state securities
laws. None of IRI's issued and outstanding shares of capital stock
are subject to repurchase or redemption rights.
(D) Except for any restrictions imposed by
applicable state and federal securities laws, there is no right of
first refusal, option, or other restriction on transfer applicable
to any shares of IRI's capital stock.
(E) IRI is not a party or subject to any agreement
or understanding (and, to IRI's actual knowledge, there is no
agreement or understanding between or among any persons) that
affects or relates to the voting or giving of written consent with
respect to any security.
3.3 POWER, AUTHORITY AND VALIDITY. IRI has the corporate
power to enter into this Agreement and the other Transaction
Documents to which it is a party and to carry out its obligations
hereunder and thereunder. The execution and delivery of this
Agreement and the Transaction Documents and the consummation of the
transactions contemplated hereby and thereby have been duly
authorized by the Board of Directors of IRI and no other corporate
proceedings on the part of IRI are necessary to authorize this
Agreement, the other Transaction Documents and the transactions
contemplated herein and therein. IRI is not subject to, or
obligated under, any charter, bylaw or contract provision or any
license, franchise or permit, or subject to any order or decree,
which would be breached or violated by or in conflict with its
executing and carrying out this Agreement and the transactions
contemplated hereunder and under the Transaction Documents. Except
for (i) the filing of the Certificate of Merger with the Secretary
of State of the State of Nevada and appropriate documents with the
relevant authorities of other states in which IRI is qualified to do
business, and (ii) filings under applicable securities laws, no
consent of any person who is a party to a contract which is material
to IRI's business, nor consent of any governmental authority, is
required to be obtained on the part of IRI to permit the
transactions contemplated herein and to permit IRI to continue the
business activities of IRI as previously conducted by IRI without a
Material Adverse Effect. This Agreement is, and the other
Transaction Documents when executed and delivered by IRI shall be,
the valid and binding obligations of IRI, enforceable in accordance
with their respective terms.
3.4 TAX-FREE REORGANIZATION.
(A) IRI has not taken or agreed to take any action
that would prevent the Merger from constituting a reorganization
qualifying under the provisions of Section368(a) of the Code.
(B) IRI is not an investment company as defined in
SectionSection368(a)(2)(F)(iii) and (iv) of the Code.
3.5 EXEMPT REORGANIZATION. For purposes of the
transactions contemplated hereunder and in accordance with Section
25103(h) of the California Corporate Securities Code:
(A) IRI has 35 or fewer security holders, all of
which are equity security holders.
(B) all equity security holders of IRI have either
a preexisting personal or business relationship with EPL or any of
its officers, directors, or controlling persons or by reason of
their business or financial experience or the business and financial
experience of their financial advisors could be reasonably assumed
to have the capacity to protect their own interest in connection
with the transaction.
(C) all equity security holders of IRI have
consented in writing to the transaction.
(D) each equity security holder of IRI has
represented that the acquisition of the EPL Common Stock in the
transaction is for the equity security holder's own account and not
with a view to or for sale in connection with any distribution of
common stock.
3.6 NO BROKERS. IRI is not obligated for the payment of
fees or expenses of any broker or finder in connection with the
origin, negotiation or execution of this Agreement or the
Certificate of Merger or in connection with any transaction
contemplated hereby or thereby.
4. REPRESENTATIONS AND WARRANTIES OF EPL. EPL
represents and warrants to IRI as set forth below. No fact or
circumstance disclosed to IRI shall constitute an exception to these
representations and warranties except as may mutually be agreed upon
in writing by IRI and EPL.
4.1 ORGANIZATION. EPL is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Florida and has the corporate power and authority to carry on its
business as it is now being conducted. EPL is duly qualified or
licensed to do business and is in good standing in each jurisdiction
in which the nature of its businesses or properties makes such
qualification or licensing necessary except where the failure to be
so qualified would not have a Material Adverse Effect on EPL.
4.2 CAPITALIZATION.
(A) The authorized capital of EPL consists of
50,000,000 shares of Common Stock, of which 17,220,000 shares are
issued and outstanding (prior to the Reverse Stock Split described
in Section 2.1(a) hereof and without giving effect to the shares
issued to IRI hereunder). Immediately following the Merger and the
other transactions contemplated herein, there shall be issued an
outstanding an aggregate of 7,244,000 shares of common stock, plus
warrants to acquire an additional 2,000,000 shares of common stock
as described in Section 2.1(d) hereof.
(B) EPL has no outstanding preemptive rights,
subscription rights, options, warrants, rights to convert or
exchange, capital stock equivalents, or other rights to purchase or
otherwise acquire any EPL capital stock or other securities.
(C) All of the issued and outstanding shares of
EPL capital stock have been duly authorized, validly issued, are
fully paid and nonassessable, and such capital stock has been issued
in full compliance with all applicable federal and state securities
laws. None of EPL's issued and outstanding shares of capital stock
are subject to repurchase or redemption rights.
(D) Except for any restrictions imposed by
applicable state and federal securities laws, there is no right of
first refusal, option, or other restriction on transfer applicable
to any shares of EPL capital stock.
(E) EPL is not a party or subject to any agreement
or understanding (and, to EPL's actual knowledge, there is no
agreement or understanding between or among any persons) that
affects or relates to the voting or giving of written consent with
respect to any security.
4.3 POWER, AUTHORITY AND VALIDITY. EPL has the corporate
power to enter into this Agreement and the other Transaction
Documents to which they are parties and to carry out their
obligations hereunder and thereunder. The execution and delivery of
this Agreement and the Transaction Documents and the consummation of
the transactions contemplated hereby and thereby have been duly
authorized by the Board of Directors of EPL and no other corporate
proceedings on the part of EPL are necessary to authorize this
Agreement, the other Transaction Documents and the transactions
contemplated herein and therein. EPL is not subject to, or
obligated under, any charter, bylaw or contract provision or any
license, franchise or permit, or subject to any order or decree,
which would be breached or violated by or in conflict with its
executing and carrying out this Agreement and the transactions
contemplated hereunder and under the Transaction Documents. Except
for (i) the filing of the Certificate of Merger with the Secretary
of State of the State of Florida and appropriate documents with the
relevant authorities of other states in which EPL is qualified to do
business, and (ii) filings under applicable securities laws, no
consent of any person who is a party to a contract which is material
to EPL's business, nor consent of any governmental authority, is
required to be obtained on the part of EPL to permit the
transactions contemplated herein and to permit EPL to continue the
business activities of EPL as previously conducted by EPL without a
Material Adverse Effect. This Agreement is, and the other
Transaction Documents when executed and delivered by EPL shall be,
the valid and binding obligations of EPL, enforceable in accordance
with their respective terms.
4.4 TAX-FREE REORGANIZATION.
(A) EPL has not taken or agreed to take any action
that would prevent the Merger from constituting a reorganization
qualifying under the provisions of Section368(a) of the Code.
(B) EPL is not an investment company as defined in
SectionSection368(a)(2)(F)(iii) and (iv) of the Code.
4.5 EXEMPT REORGANIZATION. For purposes of the
transactions contemplated hereunder and in accordance with Section
25103(h) of the California Corporate Securities Code:
(A) EPL has not earned a majority of its revenue
from investments in the last four years.
(B) The transactions contemplated hereunder have
not been accomplished by the publication of any advertisement.
4.6 NO BROKERS. EPL is not obligated for the payment of
fees or expenses of any broker or finder in connection with the
origin, negotiation or execution of this Agreement or the
Certificate of Merger or in connection with any transaction
contemplated hereby or thereby.
5. PRECLOSING COVENANTS OF EPL.
5.1 NOTICES AND APPROVALS. EPL agrees: (a) to give all
notices to third parties which may be necessary or deemed desirable
by IRI in connection with this Agreement and the consummation of the
transactions contemplated hereby; (b) to use its best efforts to
obtain all federal and state governmental regulatory agency
approvals, consents, permit, authorizations, and orders necessary or
deemed desirable by IRI in connection with this Agreement and the
consummation of the transaction contemplated hereby; and (c) to use
its best efforts to obtain, and to cause EPL to obtain, all consents
and authorizations of any other third parties necessary or deemed
desirable by IRI in connection with this Agreement and the
consummation of the transactions contemplated hereby.
5.2 INFORMATION FOR IRI S STATEMENTS AND APPLICATIONS.
EPL and its employees, accountants and attorneys shall cooperate
fully with IRI in the preparation of any statements or applications
made by IRI to any federal or state governmental regulatory agency
in connection with this Agreement and the transactions contemplated
hereby and to furnish IRI with all information concerning EPL
necessary or deemed desirable by IRI for inclusion in such
statements and applications, including, without limitation, all
requisite financial statements and schedules.
6. MUTUAL COVENANTS.
6.1 REGULATORY FILINGS; CONSENTS; REASONABLE EFFORTS.
Subject to the terms and conditions of this Agreement, IRI and EPL
shall use their respective best efforts to (i) make all necessary
filings with respect to the Merger and this Agreement under the
Securities Act, and applicable blue sky or similar securities laws
and shall use all reasonable efforts to obtain required approvals
and clearances with respect thereto and shall supply all additional
information requested in connection therewith; (ii) make merger
notification or other appropriate filings with federal, state or
local governmental bodies or applicable foreign governmental
agencies and shall use all reasonable efforts to obtain required
approvals and clearances with respect thereto and shall supply all
additional information requested in connection therewith; (iii)
obtain all consents, waivers, approvals, authorizations and orders
required in connection with the authorization, execution and
delivery of this Agreement and the consummation of the Merger; and
(iv) take, or cause to be taken, all appropriate action, and do, or
cause to be done, all things necessary, proper or advisable to
consummate and make effective as promptly as practicable the
transactions contemplated by this Agreement.
6.2 FURTHER ASSURANCES. Prior to and following the
Closing, each party agrees to cooperate fully with the other parties
and to execute such further instruments, documents and agreements
and to give such further written assurances, as may be reasonably
requested by any other party to better evidence and reflect the
transactions described herein and contemplated hereby and to carry
into effect the intents and purposes of this Agreement.
7. CLOSING MATTERS.
7.1 FILING OF CERTIFICATE OF MERGER. On the date of the
Closing, but not prior to the Closing, the Certificate of Merger
shall be filed with the offices of the Secretary of State of the
State of Florida and the merger of IRI with and into EPL shall be
consummated.
7.2 EXCHANGE OF CERTIFICATES. At or within 30 days of
the Closing, EPL shall deliver and issue to each shareholder of IRI
a certificate or certificates representing the EPL Common Stock
issuable to such shareholder as consideration in this Merger.
7.3 DELIVERY OF DOCUMENTS. On or before the Closing, the
parties shall deliver the documents, and shall perform the acts,
which are set forth in Sections 8 and 9, as specified in such
Sections, including delivery of the counterpart signature pages of
the Transaction Documents executed by IRI and/or EPL, as the case
may be. All documents which IRI shall deliver or cause to be
delivered shall be in form and substance reasonably satisfactory to
EPL. All documents which EPL shall deliver or cause to be delivered
shall be in form and substance reasonably satisfactory to IRI.
8. TERMINATION OF AGREEMENT.
8.1 TERMINATION. This Agreement may be terminated at any
time prior to the Closing by the mutual written consent of each of
the parties hereto. This Agreement may also be terminated and
abandoned by either IRI or EPL, if the Merger is not effected by
April 30, 1999. Any termination of this Agreement under this
Section 8.1 shall be effected by the delivery of written notice of
the terminating party to the other parties hereto.
8.2 LIABILITY FOR TERMINATION. Any termination of this
Agreement pursuant to this Section 8 shall be without further
obligation or liability upon any party in favor of any other party
hereto; provided, that if such termination shall result from the
willful failure of a party to carry out its obligations under this
Agreement, then such party shall be liable for losses incurred by
the other parties as set forth in Section 8.5. The provisions of
this Section 8.2 shall survive termination.
8.3 CERTAIN EFFECTS OF TERMINATION. In the event of the
termination of this Agreement as provided in Section herein, each
party, if so requested by the other party, will (i) return promptly
every document (other than documents publicly available) furnished
to it by the other party (or any subsidiary, division, associate or
affiliate of such other party) in connection with the transactions
contemplated hereby, whether so obtained before or after the
execution of this Agreement, and any copies thereof which may have
been made, and will cause its representatives and any
representatives of financial institutions and investors and others
to whom such documents were furnished promptly to return such
documents and any copies thereof any of them may have made; or (ii)
destroy such documents and cause its representatives and such other
representatives to destroy such documents, and such party shall
deliver a certificate executed by its president or vice president
stating to such effect.
8.4 REMEDIES. No party shall be limited to the
termination right granted in Section 8.1 hereto by reason of the
nonfulfillment of any condition to such party's closing obligations
but may, in the alternative, elect to do one of the following:
(A) proceed to close despite the nonfulfillment of
any closing condition, it being understood that consummation of the
transactions contemplated hereby shall be deemed a waiver of any
misrepresentation or breach of warranty or covenant and of any
party's rights and remedies with respect thereto to the extent that
the other party shall have actual knowledge of such
misrepresentation or breach and the Closing shall nonetheless take
place; or
(B) decline to close, terminate this Agreement as
provided in Section 8.1 hereof, and thereafter seek damages to the
extent permitted in Section 8.5 hereof.
8.5 ARBITRATION. Any dispute arising out of this
Agreement, or its performance or breach, shall be resolved by
binding arbitration conducted by JAMS/Endispute under the
JAMS/Endispute Rules for Complex Arbitration (the "JAMS Rules").
This arbitration provision is expressly made pursuant to and shall
be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-14.
The parties hereto agree that pursuant to Section 9 of the Federal
Arbitration Act, a judgment of the United States District Courts for
the Southern District of California shall be entered upon the award
made pursuant to the arbitration. A single arbitrator, who shall
have the authority to allocate the costs of any arbitration
initiated under this paragraph, shall be selected according to the
JAMS Rules within ten (10) days of the submission to JAMS/Endispute
of the response to the statement of claim or the date on which any
such response is due, whichever is earlier. The arbitrator shall
conduct the arbitration in accordance with the Federal Rules of
Evidence. The arbitrator shall decide the amount and extent of
pre-hearing discovery which is appropriate. The arbitrator shall
have the power to enter any award of monetary and/or injunctive
relief (including the power issue permanent injunctive relief and
also the power to reconsider any prior request for immediate
injunctive relief by either of the parties and any order as to
immediate injunctive relief previously granted or denied by a court
in response to a request therefor by either of the parties),
including the power to render an award as provided in Rule 43 of the
JAMS Rules; provided, however, that the arbitrator shall not have
the power to award punitive damages under any circumstances (whether
styled as punitive, exemplary, or treble damages, or any penalty or
punitive type of damages) regardless of whether such damages may be
available under applicable law, the parties hereby waiving their
rights to recover any such damages. The arbitrator shall award the
prevailing party its costs and reasonable attorneys' fees, and the
losing party shall bear the entire cost of the arbitration,
including the arbitrator's fees. All arbitration shall be held in
Orange County, California. In addition to the above court, the
arbitration award may be enforced in any court having jurisdiction
over the parties and the subject matter of the arbitration.
Notwithstanding the foregoing, the parties irrevocably submit to the
nonexclusive jurisdiction of the state and federal courts situated
where the respondent is domiciled or resides as of the Effective
Date in any action to enforce an arbitration award. With respect to
any request for immediate injunctive relief, that state and federal
courts in Orange County, California shall have exclusive
jurisdiction and venue over any such disputes.
9. MISCELLANEOUS.
9.1 GOVERNING LAWS. It is the intention of the parties
hereto that the internal laws of the State of California
(irrespective of its choice of law principles) shall govern the
validity of this Agreement, the construction of its terms, and the
interpretation and enforcement of the rights and duties of the
parties hereto.
9.2 BINDING UPON SUCCESSORS AND ASSIGNS. Subject to, and
unless otherwise provided in, this Agreement, each and all of the
covenants, terms, provisions, and agreements contained herein shall
be binding upon, and inure to the benefit of, the permitted
successors, executors, heirs, representatives, administrators and
assigns of the parties hereto.
9.3 SEVERABILITY. If any provision of this Agreement, or
the application thereof, shall for any reason and to any extent be
invalid or unenforceable, the remainder of this Agreement and
application of such provision to other persons or circumstances
shall be interpreted so as best to reasonably effect the intent of
the parties hereto. The parties further agree to replace such void
or unenforceable provision of this Agreement with a valid and
enforceable provision which will achieve, to the extent possible,
the economic, business and other purposes of the void or
unenforceable provision.
9.4 ENTIRE AGREEMENT. This Agreement, the exhibits
hereto, the documents referenced herein, and the exhibits thereto,
constitute the entire understanding and agreement of the parties
hereto with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous agreements or
understandings, inducements or conditions, express or implied,
written or oral, between the parties with respect hereto and
thereto. The express terms hereof control and supersede any course
of performance or usage of the trade inconsistent with any of the
terms hereof.
9.5 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original as
against any party whose signature appears thereon and all of which
together shall constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of
the parties reflected hereon as signatories.
9.6 EXPENSES. Except as provided to the contrary herein,
each party shall pay all of its own costs and expenses incurred with
respect to the negotiation, execution and delivery of this
Agreement, the exhibits hereto, and the other Transaction Documents.
9.7 AMENDMENT AND WAIVERS. Any term or provision of this
Agreement may be amended, and the observance of any term of this
Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by a
writing signed by the party to be bound thereby. The waiver by a
party of any breach hereof for default in payment of any amount due
hereunder or default in the performance hereof shall not be deemed
to constitute a waiver of any other default or any succeeding breach
or default.
9.8 SURVIVAL OF AGREEMENTS. All covenants, agreements,
representations and warranties made herein shall survive the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby notwithstanding any investigation
of the parties hereto and shall terminate on the date one year after
the Closing Date.
9.9 NO WAIVER. The failure of any party to enforce any
of the provisions hereof shall not be construed to be a waiver of
the right of such party thereafter to enforce such provisions.
9.10 ATTORNEYS' FEES. Should suit be brought to enforce
or interpret any part of this Agreement, the prevailing party shall
be entitled to recover, as an element of the costs of suit and not
as damages, reasonable attorneys' fees to be fixed by the court
(including without limitation, costs, expenses and fees on any
appeal). The prevailing party shall be the party entitled to
recover its costs of suit, regardless of whether such suit proceeds
to final judgment. A party not entitled to recover its costs shall
not be entitled to recover attorneys' fees. No sum for attorneys'
fees shall be counted in calculating the amount of a judgment for
purposes of determining if a party is entitled to recover costs or
attorneys' fees.
9.11 NOTICES. Any notice provided for or permitted under
this Agreement will be treated as having been given when (a)
delivered personally, (b) sent by confirmed telex or telecopy, (c)
sent by commercial overnight courier with written verification of
receipt, or (d) mailed postage prepaid by certified or registered
mail, return receipt requested, to the party to be notified, at the
address set forth below, or at such other place of which the other
party has been notified in accordance with the provisions of this
Section 9.11.
IRI:
Industrial Rubber Innovations, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Law Offices of M. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
EPL:
EPL Ventures Corp
_____________________________
_____________________________
_____________________________
Such notice will be treated as having been received upon actual
receipt.
9.12 TIME. Time is of the essence of this Agreement.
9.13 CONSTRUCTION OF AGREEMENT. This Agreement has been
negotiated by the respective parties hereto and their attorneys and
the language hereof shall not be construed for or against any party.
The titles and headings herein are for reference purposes only and
shall not in any manner limit the construction of this Agreement
which shall be considered as a whole.
9.14 NO JOINT VENTURE. Nothing contained in this
Agreement shall be deemed or construed as creating a joint venture
or partnership between any of the parties hereto. No party is by
virtue of this Agreement authorized as an agent, employee or legal
representative of any other party. No party shall have the power to
control the activities and operations of any other and their status
is, and at all times, will continue to be, that of independent
contractors with respect to each other. No party shall have any
power or authority to bind or commit any other. No party shall hold
itself out as having any authority or relationship in contravention
of this Section 9.14.
9.15 PRONOUNS. All pronouns and any variations thereof
shall be deemed to refer to the masculine, feminine or neuter,
singular or plural, as the identity of the person, persons, entity
or entities may require.
9.16 FURTHER ASSURANCES. Each party agrees to cooperate
fully with the other parties and to execute such further
instruments, documents and agreements and to give such further
written assurances, as may be reasonably requested by any other
party to better evidence and reflect the transactions described
herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement.
9.17 ABSENCE OF THIRD-PARTY BENEFICIARY RIGHTS. No
provisions of this Agreement are intended, nor shall be interpreted,
to provide or create any third-party beneficiary rights or any other
rights of any kind in any client, customer, affiliate, stockholder,
partner of any party hereto or any other person or entity except
employees and stockholders of IRI specifically referred to herein,
and, except as so provided, all provisions hereof shall be personal
solely between the parties to this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first set forth above.
INDUSTRIAL RUBBER INNOVATIONS, INC. EPL VENTURES CORP.
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
By: ▇▇▇▇ ▇▇▇▇▇▇ By: ▇▇▇▇ ▇▇▇▇▇▇▇
Its: President and CEO Its: President
ATTEST: ATTEST:
/s/ ▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
By: ▇▇▇▇ ▇▇▇▇▇ By: ▇▇▇▇ ▇▇▇▇▇▇▇
Its: Secretary Its: Secretary
Industrial Rubber Innovations, Inc.
Secretary's Certificate
The undersigned, ▇▇▇▇ ▇▇▇▇▇, Secretary of Industrial
Rubber Innovations, Inc., a Nevada corporation and one of the
merging corporations mentioned in the foregoing Agreement and Plan
of Reorganization (the "Agreement"), certifies that the Agreement
has been adopted by the written consent of the shareholders of all
of the outstanding stock of Industrial Rubber Innovations, Inc.
entitled to vote thereon in accordance with the provisions of the
General Corporation Law of the State of Nevada.
Dated: April 12, 1999
/s/ ▇▇▇▇ ▇▇▇▇▇
Name:
Secretary of Industrial Rubber Innovations, Inc.
EPL Ventures Corp.
Secretary's Certificate
The undersigned, ▇▇▇▇ ▇▇▇▇▇▇▇, Secretary of EPL Ventures
Corp, a Florida corporation and one of the merging corporations
mentioned in the foregoing Agreement and Plan of Reorganization (the
"Agreement"), certifies that the Agreement has been adopted by the
affirmative vote of the holders of a majority of the outstanding
Common Stock of EPL Ventures Corp entitled to vote thereon at a
meeting held pursuant to notice in accordance with the provisions of
the Florida General Corporation Law.
Dated: April 12, 1999
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name:
Secretary of EPL Ventures Corp
EXHIBIT A
ARTICLES OF MERGER
OF
INDUSTRIAL RUBBER INNOVATIONS, INC.
(A NEVADA CORPORATION)
INTO
EPL VENTURES CORP
(A FLORIDA CORPORATION)
FLORIDA
ARTICLES OF MERGER
OF
INDUSTRIAL RUBBER INNOVATIONS, INC.
(A NEVADA CORPORATION)
INTO
EPL VENTURES CORP
(A FLORIDA CORPORATION)
The following articles of merger are submitted in
accordance with the Florida Business Corporation Act, pursuant to
section 607.1105, F.S.
FIRST: The name and jurisdiction of the SURVIVING corporation is:
EPL Ventures Corp, a Florida corporation
SECOND: The name and jurisdiction of each MERGING corporation is:
Industrial Rubber Innovations, Inc., a Nevada corporation
THIRD: The Plan of Merger is attached.
FOURTH: The merger shall become effective on the date the
Articles of Merger are filed with the Florida Department
of State.
FIFTH: The Plan of Merger was adopted by the
shareholders of the surviving corporation by
written consent on April 12, 1999.
SIXTH: The Plan of Merger was adopted by the
shareholders of the merging corporation by
written consent on April 12, 1999.
EPL VENTURES CORP., INDUSTRIAL RUBBER
A FLORIDA CORPORATION INNOVATIONS, INC.,
A NEVADA CORPORATION
_________________________
______________________________
By: _____________________ By: ▇▇▇▇ ▇▇▇▇▇▇
Its: ______________________ Its: President
PLAN OF MERGER
The following plan of merger is submitted in compliance with
section 607.1101, F.S. and in accordance with the laws of any other
applicable jurisdiction of incorporation.
FIRST: The name and jurisdiction of the SURVIVING corporation is:
EPL Ventures Corp, a Florida corporation
SECOND: The name and jurisdiction of each MERGING corporation is:
Industrial Rubber Innovations, Inc., a Nevada corporation
THIRD: The terms and conditions of the merger are as follows:
Effective on the date the Articles of Merger are filed
with the State of Florida, the Merging Corporation will
merge into the Surviving Corporation, and the existence
of the Merging Corporation will cease. The shareholders
of the Merging Corporation (the "Merging Shareholders"),
representing an aggregate of 3,800 shares, will exchange
each of their shares in the Merging Corporation for
1,000 shares of common stock in the Surviving
Corporation. In addition, the Merging Shareholders will
receive an aggregate of 2,000,000 warrants to acquire
common stock of the Surviving Corporation. Prior to the
exchange by the Merging Shareholders as described above,
the outstanding common stock of the Surviving
Corporation will undergo a 1 for 5 reverse stock split
so that there will then be issued and outstanding
3,444,000 shares of common stock. Subsequent to the
transactions described herein, there will be issued and
outstanding an aggregate of 7,244,000 shares of common
stock issued and outstanding in the Surviving
Corporation. Finally, on the Effective Date, the name
of the Surviving Corporation will be changed to
Industrial Rubber Innovations, Inc. A complete executed
Plan and Agreement of Merger is on file at the Surviving
Corporation's registered office or other place of
business and shall be furnished, on request, to any
owner of either the Merging Corporation or the Surviving
Corporation.
FOURTH: The manner and basis of converting the shares of each
corporation into shares, obligations, or other
securities of the surviving corporation or any other
corporation or, in whole or in part, into cash or other
property and the manner and basis of converting rights
to acquire shares of each corporation into rights to
acquire shares, obligations, or other securities of the
surviving or any other corporation or, in whole or in
part, into cash or other property is as follows:
(1) At the time this Amendment becomes effective,
each five shares of common stock, $.001 par value
per share, of the Corporation issued and
outstanding at such time shall be, and hereby is,
changed and reclassified into one fully-paid and
nonassessable share of common stock, $.001 par
value per share, of the Corporation authorized by
such Amendment, with the result that the number of
shares of common stock of the Corporation issued
and outstanding immediately prior to the taking of
effect of this Amendment is 17,220,000 shares of
common stock, $.001 par value per share, and the
number of shares of common stock of the
Corporation issued and outstanding immediately
following the taking of effect of this Amendment
is 3,444,000 shares of common stock, $.001 par
value per share. At any time after this Amendment
becomes effective, each certificate representing
any shares of common stock, $.001 par value per
share, of the Corporation outstanding immediately
prior to the taking of effect of this Amendment
(collectively, the "Old Certificates") shall be
exchangeable for a certificate representing shares
of common stock, $.001 par value per share, of the
Corporation authorized by such Amendment
(collectively, the "New Certificates"), in the
ratio for such reclassification stated above
(i.e., 1 : 5) through the surrender of such Old
Certificates by the holders of record thereof to
the Secretary of this Corporation at the principal
office of the Corporation.
(2) Upon surrender for exchange by each
shareholder of an Old Certificate, the Corporation
shall issue and deliver to each such shareholder a
New Certificate representing one share of common
stock, $.001 par value per share, of the
Corporation for each five shares of common stock,
$.001 par value per share, of the Corporation
issued and outstanding immediately prior to the
taking of effect of this Amendment. The
reclassification of issued and outstanding shares
of common stock, $.001 par value per share, of the
Corporation into shares of common stock, $.001 par
value per share, of the Corporation shall be
deemed to occur when this Amendment becomes
effective and neither the surrender of the Old
Certificates nor the issuance of the New
Certificates shall be a necessary condition for
the effectiveness of such reclassification. Each
Old Certificate shall be canceled upon its
surrender and the issuance of a New Certificate
evidencing such shares as so reclassified.
Consequently, the stated capital of this
Corporation shall remain unchanged following the
taking of effect of this Amendment.
FIFTH: Amendments to the articles of incorporation of
the surviving corporation are indicated below:
"Articles I - Name
The name of this corporation is Industrial Rubber
Innovations, Inc.
Article IV - Capital Stock
This Corporation is authorized to issue two classes of
shares of stock to be designated as "Common Stock" and
"Preferred Stock". The total number of shares of Common
Stock which this Corporation is authorized to issue is
Fifty Million (50,000,000) shares, par value $0.001.
The total number of shares of Preferred Stock which this
Corporation is authorized to issue is Five Million
(5,000,000) shares, par value $0.001.
The shares of Preferred Stock may be issued from time
to time in one or more series. The Board of Directors
of the Corporation (the "Board of Directors") is
expressly authorized to provide for the issue of all or
any of the shares of the Preferred Stock in one or more
series, and to fix the number of shares and to determine
or alter for each such series, such voting powers, full
or limited, or no voting powers, and such designations,
preferences, and relative, participating, optional, or
other rights and such qualifications, limitations, or
restrictions thereof, as shall be stated and expressed
in the resolution or resolutions adopted by the Board of
Directors providing for the issue of such shares (a
"Preferred Stock Designation") and as may be permitted
by the General Corporation Law of the State of Florida.
The Board of Directors is also expressly authorized to
increase or decrease (but not below the number of shares
of such series then outstanding) the number of shares of
any series subsequent to the issue of shares of that
series. In case the number of shares of any such series
shall be so decreased, the shares constituting such
decrease shall resume the status that they had prior to
the adoption of the resolution originally fixing the
number of shares of such series.
The outstanding shares of common stock are subject to a 1 to
5 reverse stock split."
EXHIBIT B
ARTICLES AND AGREEMENT OF MERGER
OF
INDUSTRIAL RUBBER INNOVATIONS, INC.
(A NEVADA CORPORATION)
INTO
EPL VENTURES CORP
(A FLORIDA CORPORATION)
NEVADA
ARTICLES AND AGREEMENT OF MERGER
OF
INDUSTRIAL RUBBER INNOVATIONS, INC.
(A NEVADA CORPORATION)
INTO
EPL VENTURES CORP
(A FLORIDA CORPORATION)
The undersigned officers of Industrial Rubber Innovations,
Inc., a Nevada corporation as the disappearing corporation, and of
EPL Ventures Corp., a Florida corporation as the surviving
corporation, pursuant to a Plan and Agreement of Merger submit these
Articles and Agreement of Merger pursuant to the provisions of the
Nevada Revised Statutes 92A.
Article I - Constituent Corporations
The name and place of organization and governing law of each
constituent corporation is:
A. Industrial Rubber Innovations, Inc., a Nevada corporation
B. EPL Ventures Corp., a Florida corporation
The Address for Service of Process is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Esq.
Article II - Adoption of the Plan and Agreement of Merger
The respective Boards of Directors of the Surviving Corporation
and the Disappearing corporation have adopted a Plan and Agreement
of Merger.
Article III - Approval of the Plan and Agreement of Merger by the
Owners
The Plan and Agreement of Merger was approved by the written
consent of the owners of each class of interests of the Surviving
Corporation and the Disappearing Corporation.
Article IV - Amendments to the Articles of Incorporation of the
Surviving Corporation
The Articles of Incorporation of the Surviving Corporation
shall not be amended by these Articles of Merger.
Article V - Plan and Agreement of Merger
A. The complete executed Plan and Agreement of Merger is on
file at the Surviving Corporation's registered office or other place
of business.
B. A copy of the Plan and Agreement of Merger shall be
furnished, on request and without cost, to any owner of a
corporation which is party to the merger.
Article VI - Effective Date of Merger
The merger of the Disappearing Corporation with and into the
Surviving Corporation shall take effect on April ___, 1999, which
date is not more than 90 days after the filing of these Articles and
Agreement of Merger.
Dated this 12th day of April, 1999.
"DISAPPEARING CORPORATION" "SURVIVING CORPORATION"
Industrial Rubber Innovations, Inc. EPL Ventures Corp.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇ ____________________
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ____________________
________________________________ ______________________________
By: ▇▇▇▇ ▇▇▇▇▇▇ By: ________________________
Its: President Its: ________________________
STATE OF CALIFORNIA)
)ss.
COUNTY OF )
On ______________, 1999, before me, _______________________, Notary
Public, personally appeared ▇▇▇▇ ▇▇▇▇▇▇, ___ personally known to me,
or ___ proved to me on the basis of satisfactory evidence to be the
person whose name is subscribed to the within instrument and
acknowledged to me that they executed the same in their authorized
capacity and that by their signature on the instrument, the person
or the entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature: ____________________
(This are for official notarial seal)
STATE OF )
)ss.
COUNTY OF )
On ______________, 1999, before me,
_________________________, Notary Public, personally
appeared ______________________________________, ___
personally known to me, or ___ proved to me on the basis of
satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me
that they executed the same in their authorized capacity and
that by their signature on the instrument, the person or the
entity upon behalf of which the person acted, executed the
instrument.
WITNESS my hand and official seal.
Signature: ____________________
(This are for official notarial seal)