6.1 Reorganization Agreement
AGREEMENT AND PLAN OF REORGANIZATION ("Agreement") between xXxxxx.xxx,
Inc., a Delaware corporation ("IVOC") and the persons being the owners of record
(collectively the "Shareholders")of all of the issued and outstanding stock of
ThirdCAI, Inc., a Nevada corporation ("CAI").
1
Whereas, IVOC wishes to acquire and the Shareholders wish to transfer all
of the issued and outstanding securities of CAI in a transaction intended to
qualify as a reorganization within the meaning of368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended.
Now, therefore, IVOC 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 IVOC at the
Closing (defined below) all of the shares of common stock of CAI,$.01 par value
per share in exchange for US$150,000.00 and50,000 shares of Class A voting
common stock of IVOC,$.01 par value per share.
1.2. Exchange of Certificates. Each holder of an outstanding certificate
or certificates theretofore representing shares of CAI common stock shall
surrender such certificate(s) for cancellation to IVOC, and shall receive in
exchange a certificate or certificates representing the number of full shares of
IVOC common stock into which the shares of CAI common stock represented by the
certificate or certificates so surrendered shall have been converted. The
transfer of CAI shares by the Shareholders shall be effected by the delivery to
IVOC 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 IVOC common stock shall not
be issued, but in lieu thereof IVOC 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 IVOC may request in order more effectively to sell, transfer, and
assign the transferred stock to IVOC and to confirm IVOC's title thereto.
2. Ratio of Exchange. The securities of CAI owned by the Shareholders, and
the relative securities of IVOC for which they will be exchanged.
3. Closing.
3.1. Time and Place. The Closing contemplated herein shall be held as soon
as possible at the offices of Xxxxxxx and Xxxxxxxx at2080 East Flamingo, Las
Vegas, Nevada, unless another place or time is agreed upon in writing by the
parties without requiring the meeting of the parties hereof. All proceedings to
be taken and all documents to be executed at the Closing shall be deemed to have
been taken, delivered and executed simultaneously, and no proceeding shall be
deemed taken nor documents deemed executed or delivered until all have been
taken, delivered and executed. The date of Closing may be accelerated or
extended by agreement of the parties.
3.2. Form of Documents. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission required by this Agreement
or any signature required thereon may be used in lieu of an original writing or
transmission or signature for any and all purposes for which the original could
be used, provided that such copy, facsimile telecommunication or other
reproduction shall be a complete reproduction of the entire original writing or
transmission or original signature.
4. Unexchanged Certificates. Until surrendered, each outstanding
certificate that prior to the Closing represented CAI 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 IVOC common
stock into which it was
2
converted. No dividend or other distribution shall be paid to the holders of
certificates of CAI common stock until presented for exchange at which time any
outstanding dividends or other distributions shall be paid.
5. Representations and Warranties of the Shareholders
The Shareholders, individually and separately, represent and warrant as
follows:
5.1. Title to shares. The Shareholders, and each of them, are the owners,
free and clear of any liens and encumbrances, of the number of CAI shares which
are listed in the attached schedule and which they have contracted to exchange.
5.2. Litigation. There is no litigation or proceeding pending, or to any
Shareholder's knowledge threatened, against or relating to shares of CAI held by
the Shareholders.
6. Representations and Warranties of IVOC
IVOC represents and warrants as follows:
6.1 Corporate Status. IVOC is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware and is
licensed or qualified as a foreign corporation in all states in which the nature
of its business or the character or ownership of its properties makes such
licensing or qualification necessary.
6.2 Capitalization. The authorized capital stock of IVOC consists of
shares of common stock, par value per share, of which shares are issued and
outstanding, all fully paid and nonassessable and no shares of non-designated
preferred stock.
6.3 Subsidiaries. IVOC has no subsidiaries.
6.4 Litigation. There is no litigation or proceeding pending, or to the
Company's knowledge threatened, against or relating to IVOC, its properties or
business, except as set forth in a list certified by the president of IVOC and
delivered to the Shareholders.
6.5 Contracts. IVOC is not a party to any material contract other than
those listed as an attachment hereto.
6.6 No Violation. Execution of this Agreement and performance by IVOC
hereunder has been duly authorized by all requisite corporate action on the part
of IVOC, and this Agreement constitutes a valid and binding obligation of IVOC
and performance hereunder will not violate any provision of any charter, bylaw,
indenture, mortgage, lease, or agreement, or any order, judgement, decree, law,
or regulation to which any property of IVOC is subject or by which IVOC is
bound.
6.7 Taxes. IVOC has filed in correct form all federal, state, and other
tax returns of every nature required to be filed by it and has paid all taxes as
shown on such returns and all assessments, fees and charges received by it to
the extent that such taxes, assessments, fees and charges have become due. IVOC
has also paid all taxes which do not require the filing of returns and which are
required to be paid by it. To the extent that tax liabilities have accrued, but
have not become payable, they have been adequately reflected as liabilities on
the books of IVOC and are reflected in the financial statements furnished
hereto.
3
6.8 Title to Property. IVOC has good and marketable title to all
properties and assets, real and personal, reflected in IVOC's Financial
Statements, except as since sold or otherwise disposed of in the ordinary course
of business, and IVOC's properties and assets are subject to no mortgage,
pledge, lien, or encumbrance, except for liens shown therein, with respect to
which no default exists.
6.9 Corporate Authority. IVOC has full corporate power and authority to
enter into this Agreement and to carry out its obligations hereunder, and will
deliver at the Closing a certified copy of resolutions of its board of directors
authorizing execution of this Agreement by its officers and performance
thereunder.
6.10 Investment Intent. IVOC is acquiring the CAI shares to be transferred
to it under this Agreement for investment and not with a view to the sale or
distribution thereof. 7. Conduct Pending the Closing
IVOC and the Shareholders covenant that between the date of this Agreement
and the Closing as to each of them:
7.1. No change will be made in the charter documents, by-laws, or other
corporate documents of IVOC.
7.2. IVOC will use its best efforts to maintain and preserve its business
organization, employee relationships and goodwill intact, and will not enter
into any material commitment except in the ordinary course of business.
7.3. None of the Shareholders will sell, transfer, assign, hypothecate,
lien, or otherwise dispose or encumber the CAI shares of common stock owned by
them.
8. Conditions Precedent to Obligation of the Shareholders
The Shareholder's obligation to consummate this exchange shall
be subject to fulfillment on or before the Closing of each of
the following conditions, unless waived in writing by the
Shareholders as appropriate:
8.1. IVOC Representations and Warranties. The representations and
warranties of IVOC set forth herein shall be true and correct at the Closing as
though made at and as of that date, except as affected by transactions
contemplated hereby.
8.2. IVOC Covenants. IVOC shall have performed all covenants required by
this Agreement to be performed by it on or before the Closing.
8.3. Board of Director Approval. This Agreement shall have been approved
by the Board of Directors of IVOC.
8.4. Supporting Documents of IVOC. IVOC shall have delivered to the
Shareholders supporting documents in form and substance reasonably satisfactory
to the Shareholders, to the effect that:
(a) IVOC is a corporation duly organized, validly existing, and in good
standing;
(b) IVOC's authorized capital stock is as set forth herein;
4
(c) Certified copies of the resolutions of the board of directors of IVOC
authorizing the execution of this Agreement and consummation hereof;
(d) Secretary's certificate of incumbency of the officers and directors of
IVOC;
(e) Any document as may be specified herein or required to satisfy the
conditions, representations and warranties enumerated elsewhere herein.
9. Conditions Precedent to Obligation of IVOC
IVOC obligation to consummate this merger shall be subject to
fulfillment on or before the Closing of each of the following
conditions, unless waived in writing by IVOC:
9.1. Shareholder's Representations and Warranties. The representations and
warranties of the Shareholders set forth herein shall be true and correct at the
Closing as though made at and as of that date, except as affected by
transactions contemplated hereby.
9.2. Shareholder's Covenants. The Shareholders shall have performed all
covenants required by this Agreement to be performed by them on or before the
Closing.
10. Termination. This Agreement by be terminated (1) by mutual consent in
writing; (2) by either the Shareholders or IVOC if there has been a material
misrepresentation or material breach of any warranty or covenant by any other
party; or (3) by either Shareholders or IVOC if the Closing shall not have taken
place within 15 days following execution of this Agreement, unless adjourned to
a later date by mutual consent in writing.
11. Survival of Representations and Warranties. The representation and
warranties of the Shareholders and IVOC set out herein shall survive the
Closing.
12. Arbitration
12.1. 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 State of Nevada
12.2. Consent to Jurisdiction, Situs and Judgment. 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 State of Nevada. Any award in arbitration may be
entered in any domestic or foreign court having jurisdiction over enforcement of
such awards.
12.3 Applicable Law. The law applicable to the arbitration and this
agreement shall be that of the State of Nevada, determined without regard to its
provisions which would otherwise apply to a question of conflict of laws.
12.4. 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
5
exist, as may be modified by the arbitrator consistent with the desire to
simplify the conduct and minimize the expense of the arbitration.
12.5. 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 a possible, the same as if the dispute had been
determined by a court of competent jurisdiction.
12.6. 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.
12.7. 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.
12.8. Covenant Not to Xxx. 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.
12.9. 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 the 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.
12.10. Survival. The provisions for arbitration contained herein shall
survive the termination of this agreement for any reason.
13. General Provisions
13.1. 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.
13.2. Waiver. Any failure on the part of either party hereto to comply
with any of its obligation, agreements, or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
13.3. 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.
13.4. 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 IVOC, to:
6
Xxxxxx X. Xxxxxxx
000 Xxxxx00
Xxxxxxx, XX 00000
If to the Shareholders, to:
ThirdCAI, Inc.
0000 X. Xxxxxx Xx., Xxxxx000
Xxxxxxxxxx, XX00000-0000
13.5. Governing Law. This agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada.
13.6. 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.
13.7. 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.
13.8. Exchange Agent and Closing Date. The Exchange Agent shall be the law
firm of Xxxxxxx and Xxxxxxxx, Las Vegas, Nevada. The Closing shall take place
upon the fulfillment by each party of all the conditions of Closing required
herein, but not later than15 days following execution of this agreement unless
extended by mutual consent of the parties.
13.9. Review of the Agreement. Each party acknowledges that it has had
time to review this agreement and, as desired, consult with counsel. In the
interpretation of this agreement, no adverse presumption shall be made against
any party on the basis that it has prepared, or participated in the preparation
of, this agreement.
13.10. Schedules. All schedules attached hereto, if any shall be
acknowledged by each party by signature or initials thereon and shall be dated.
13.11. Effective date. This effective date of this agreement shall be upon
its execution.
7
Signature Page to Agreement and Plan of Reorganization between
xXxxxx.xxx and the Shareholders of ThirdCAI
IN WITNESS WHEREOF, the parties have executed this agreement.
XXXXXX.XXX, INC.
By /s/ Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX, President
THE SHAREHOLDERS OF
THIRDCAI, INC.:
By Xxxxxx X. Xxxxxxxxx
FOR CORPORATE ARCHITECTS, INC.
By /s/ Xxxx X. Xxxxx
XXXX X. XXXXX
By Xxxxxxx X. Xxx
XXXXXXX X. XXX
8
