Agreement and Plan of Reorganization
by and between
Bayview Corporation
a Nevada corporation
and
Xpention
a Colorado corporation
dated: February 15, 2005
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AGREEMENT AND PLAN OF REORGANIZATION
Bayview
Corporation
and
Xpention
This Agreement and Plan of Reorganization ("Agreement"), dated as
of
February, 2005, among Bayview Corporation
(BVC), a Nevada Corporation, Xpention
("XPI"), a Colorado Corporation, and the
subscribing shareholders of Xpention
("XPI Shareholders") who will join this
Agreement by execution.
W I T N E S S E T H:
A. WHEREAS, XPI and BVC are corporations duly organized under the
laws
of the State of Colorado and Nevada,
respectively.
B. Plan of Reorganization. The subscribing XPI Shareholders are
the
owners of at least 100% of the issued and
outstanding common stock of XPI. It is
the intention that 100% of the issued and
outstanding stock of XPI shall be
acquired by BVC in exchange solely for its
voting stock. For federal income tax
purposes it is intended that this exchange
shall qualify as a reorganization
within the meaning of SEC 368 (a)(1)(B) of
the Internal Revenue Code of 1986, as
amended (the "Code").
C. Exchange of Shares. BVC and the subscribing XPI Shareholders
agree
that 100% of the approximately 1,000 common
shares issued and outstanding of XPI
shall be exchanged with BVC for 1,100,000
shares of the common stock of BVC. The
BVC shares, on the closing date, shall be
delivered ratably divided to the
individual subscribing shareholders of XPI
in exchange for their XPI shares as
hereinafter set forth.
D. WHEREAS, the parties hereto wish to enter into this
Agreement,
pursuant to the provisions of the Nevada
Corporation Act.
NOW, THEREFORE, it is agreed among the parties as follows:
ARTICLE I
The
Consideration
1.1 Subject to the conditions set forth herein on the "Closing
Date"
(as herein defined), the subscribing
Shareholders of XPI shall exchange all of
their shares of XPI (constituting at least
100% of the issued and outstanding
common stock of XPI) for
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1,100,000 common shares of BVC common
stock. The transactions contemplated by
this Agreement shall be completed at a
closing ("Closing") on a closing date
("Closing Date") which shall be as soon as
practicable after joinder in this
exchange by XPI Shareholders holding 100%
of the outstanding XPI common shares,
except that such transaction must be
completed on or before February 28, 2005 or
this Agreement shall expire unless extended
in writing.
All of the documents to be furnished to BVC and XPI, including
the
documents to be furnished pursuant to
Article VII of this Agreement, shall be
delivered to M.A. Littman, to be held in
escrow until the Closing Date or the
date of termination of this Agreement,
whichever first occurs, and thereafter
shall be promptly distributed to the
parties as their interests may appear.
1.2 At the Closing Date, XPI shall become a wholly owned subsidiary
of
BVC. Shareholders shall receive pro rata
shares of voting common stock as
follows:
BVC shall issue 1,100,000 of its shares of common stock for
100% of the outstanding common shares of XPI to the
subscribing shareholders of XPI, ratably according to their
interests.
1.3 If this Agreement is duly executed by the holders of 100% of
the
outstanding common stock of XPI, subject to
the other provisions hereof, it
shall become effective, and such date of
final execution shall be the effective
date of this Agreement.
ARTICLE II
Issuance and Exchange of Shares
2.1 The shares of common stock of BVC shall be issued by it to
the
subscribing XPI shareholders at
Closing.
2.2 BVC represents that no outstanding options or warrants for
its
unissued shares exist.
2.3 The stock transfer books of XPI shall
be closed on the Closing Date, and
thereafter no transfers of the stock of XPI
shall be made. XPI shall appoint M.
A. Littman as exchange agent ("Exchange
Agent"), to accept surrender of the
certificates representing the common shares
of XPI, and to deliver in exchange
for such surrendered certificates, shares
of common stock of BVC.
2.4 No fractional
shares of BVC stock shall be issued as a result of
the Agreement. Shares shall be rounded up
to nearest whole share.
2.5 At the Closing Date, each holder of a certificate or
certificates
representing common shares of XPI, upon
presentation and surrender of such
certificate or certificates to the Exchange
Agent, shall be entitled to receive
the consideration set forth herein.
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ARTICLE III
Representations, Warranties
and Covenants of Xpention
No representations or warranties are made by any director,
officer,
employee or shareholder of XPI as
individuals, except as and to the extent
stated in this Agreement or in a separate
written statement (the "XPI Disclosure
Statement"), if any. XPI hereby represents,
warrants and covenants to BVC except
as stated in the XPI Disclosure Statement,
as follows:
3.1 XPI is a corporation duly organized, validly existing and in
good
standing under the laws of the State of
Colorado, and has the corporate power
and authority to own or lease its
properties and to carry on its business as it
is now being conducted. The Certificate of
Incorporation and Bylaws of XPI are
complete and accurate, and the minute books
of XPI contain a record, which is
complete and accurate in all material
respects, of all meetings, and all
corporate actions of the shareholders and
board of directors of XPI.
3.2 The aggregate number of shares which XPI is authorized to issue
is
100,000,000 shares of common stock of which
1,000 shares are issued and
outstanding; and no shares of preferred
stock.
3.3 XPI has complete and unrestricted power to enter into and, upon
the
appropriate approvals as required by law,
to consummate the transactions
contemplated by this Agreement.
3.4 Neither the making of nor the compliance with the terms and
provisions of this Agreement and
consummation of the transactions contemplated
herein by XPI will conflict with or result
in a breach or violation of the
Articles of Incorporation or Bylaws of
XPI.
3.5 The execution, delivery and performance of this Agreement has
been
duly authorized and approved by XPI' Board
of Directors.
3.6 There are no legal proceedings or regulatory proceedings
involving
material claims pending, or to the
knowledge of the executive officers of XPI,
threatened against XPI or affecting any of
its assets or properties, and to the
knowledge of XPI' officers, XPI is not in
any material breach or violation of or
default under any contract or instrument to
which XPI is a party, or under its
respective Articles of Incorporation or
Bylaws, nor is there any court or
regulatory order pending, applicable to
XPI.
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3.7 The representations and warranties of XPI shall be true and
correct
as of the date hereof and as of the Closing
Date.
3.8 No representation or warranty by XPI in this Agreement, the
XPI
Disclosure Statement or any certificate
delivered pursuant hereto contains any
untrue statement of a material fact or
omits to state any material fact
necessary to make such representation or
warranty not misleading.
3.9 Prior to Closing, XPI will deliver to BVC audited financial
statements of XPI dated December 31, 2004.
All such statements, herein sometimes
called "XPI Financial Statements," are (and
will be) complete and correct in all
material respects and, together with the
notes to these financial statements,
present fairly the financial position and
results of operations of XPI for the
periods indicated. All financial statements
of XPI will have been prepared in
accordance with generally accepted
accounting principles.
3.10 Since the dates of the XPI Financial Statements, there have
not
been any material adverse changes in the
business or condition, financial or
otherwise, of XPI. XPI does not have any
material liabilities or obligations,
secured or unsecured except as shown on the
updated financials of XPI dated
December 31, 2004 (whether accrued,
absolute, contingent or otherwise).
ARTICLE IV
Representations, Warranties and Covenants of
Bayview Corporation.
No representations or warranties are made by any director,
officer,
employee or shareholder of BVC as
individuals, except as and to the extent
stated in this Agreement or in a separate
written statement.
BVC hereby
represents, warrants and covenants to XPI and its
shareholders, except as stated in the BVC
Disclosure Statement, as follows:
4.1 BVC 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 own or lease its properties
and to carry on its business as it is
now being conducted. The Articles of
Incorporation and Bylaws of BVC, copies of
which have been delivered to XPI, are
complete and accurate, and the minute
books of BVC contain a record, which is
complete and accurate in all material
respects, of all meetings, and all
corporate actions of the shareholders and
Board of Directors of BVC.
4.2 The aggregate number of shares which BVC is authorized to issue
is
100,000,000 shares of common stock and
10,000,000 shares of preferred stock, of
which 3,272,500 shares of such common stock
are issued and outstanding, fully
paid and non-assessable, and will be at the
Closing under this Agreement. BVC
will have, on the Closing Date, no
outstanding options, warrants or other rights
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to purchase, or subscribe to, or securities
convertible into or exchangeable for
any shares of capital stock. No preferred
stock of BVC is outstanding.
4.3 BVC has complete and unrestricted power
to enter into and, upon the
appropriate approvals as required by law,
to consummate the transactions
contemplated by this Agreement. Neither the
making of nor the compliance with
the terms and provisions of this Agreement
and consummation of the transactions
contemplated herein by BVC will conflict
with or result in a breach or violation
of the Articles of Incorporation or Bylaws
of BVC.
4.4 BVC has filed all reports required unde
