AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION ("Plan") is made this 8th day
of January, 2004, among IDI Global, Inc., a Nevada corporation ("IDIB"); and
Chief Financial, Inc., a Utah corporation,(hereinafter collectively referred
to as "Chief") and their Shareholders (hereinafter referred to as
"Shareholders").
IDIB wishes to acquire all the issued and outstanding stock of Chief for
and in exchange for stock of IDIB, in a stock-for-stock transaction intending
to qualify as a tax-free exchange pursuant to Section 368(a)(1)(B) of the
Internal Revenue Code of 1986, as amended. The parties intend for this Plan
to represent the terms and conditions of such tax-free reorganization, which
Plan the parties hereby adopt.
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, IT IS AGREED:
Section 1
Terms of Exchange
1.1 Number of Shares. At the Closing, the Shareholders will assign,
transfer, and deliver to IDIB, free and clear of all liens, pledges,
encumbrances, charges, restrictions or known claims of any kind, nature or
description, 100,000 shares of Chief common shares, which represents 100% of
the issued and outstanding shares of Chief, in exchange for 1,000,000 shares
of IDIB's common shares, par value $.001, of which 1,000,000 common shares
shall be delivered at the Closing. Subsequent to the date hereof, the
Shareholders shall, upon the surrender of the Chief certificates representing
its beneficial and record ownership of the issued and outstanding shares of
Chief to IDIB or as soon as practicable hereafter, and pursuant to the
exemptions from the registration provisions of Section 5 of the Securities Act
of 1933, provided by Sections 3 and 4 of that act, the Shareholders shall be
entitled to receive an exchange certificate(s) evidencing shares of IDIB stock
as provided for herein. Upon the consummation of the transaction contemplated
herein, Chief shall be a wholly-owned subsidiary of IDIB.
1.2 Anti-Dilution. For all relevant purposes of this Plan, the number
of IDIB shares to be issued and delivered pursuant to this Plan, shall be
appropriately adjusted to take into account any stock split, stock dividend,
reverse stock split, recapitalization, or similar change in IDIB common stock,
which may occur between the date of the execution of the letter of intent and
the execution of the Plan.
1.3 Delivery of Certificates. The Shareholders shall transfer to Chief
at the closing provided for in Section 2 (the "Closing") 1,000,000 shares of
common stock of Chief listed opposite their respective names on Exhibit A
hereto (the "Chief Shares") in exchange for shares of the common stock of IDIB
as outlined above in Section 1.1 hereof (the "IDIB Stock"). All of such
shares of IDIB Stock shall be issued at the closing to the Shareholders. The
transfer of Chief Shares by the Shareholders shall be effected by the delivery
to IDIB at the Closing of one or more certificates representing the Chief
shares, endorsed in blank or accompanied by stock powers executed in blank.
1.4 Further Assurances. Subsequent to the execution hereof, and from
time to time thereafter, the Shareholders shall execute such additional
instruments and take such other action as IDIB may reasonably request in order
to more effectively sell, transfer and assign clear title and ownership in the
Chief Shares to IDIB.
Section 2
Closing
2.1 Closing. The Closing contemplated by Section 1.4 shall be held at
the office of IDI Global, Inc., 000 Xxxx 000 Xxxxx, Xxxx, Xxxx on July 31,
2004 or at such other time or place as may be mutually agreed upon in writing
by the parties. The Closing may also be accomplished by wire, express mail or
other courier service, conference telephone communications or as otherwise
agreed by the respective parties or their duly authorized representatives. In
any event, the closing of the transactions contemplated by this Plan shall be
effected as soon as practicable after all of the conditions contained herein
have been satisfied.
2.2 Closing Events. At the Closing, each of the respective parties
hereto shall execute, acknowledge and deliver (or shall cause to be executed,
acknowledged, and delivered) any agreements, resolutions, rulings, or other
instruments required by this Plan to be so delivered at or prior to Closing,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence
the transaction contemplated hereby.
Section 3
Representations, Warranties and Covenants of IDIB
IDIB represents and warrants to, and covenants with, the Shareholders
and Chief as follows:
3.1 Corporate Status. IDIB is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada. IDIB
has full corporate power and is duly authorized, qualified, franchised, and
licensed under all applicable laws, regulations, ordinances, and orders of
public authorities to own all of its properties and assets and to carry on its
business on all material respects as it is now being conducted, and there is
no other jurisdiction in which the character and location of the assets owned
by it, or the nature of the business transacted by it, requires qualification.
Included in the IDIB schedules (defined below) are complete and correct copies
of its Articles of Incorporation and Bylaws as in effect on the date hereof.
The execution and delivery of this Plan does not, and the consummation of the
transactions contemplated hereby will not, violate any provision of IDIB's
Articles of Incorporation or Bylaws. IDIB has taken all action required by
law, its Articles of Incorporation, its Bylaws, or otherwise, to authorize the
execution and delivery of this Plan.
3.2 Capitalization. The authorized capital stock of IDIB as of the
date hereof consists of 50,000,000 common shares, par value $.001. As of the
date hereof there are 14,850,433 common shares of IDIB issued and outstanding.
The foregoing shares constitute fully paid, non-assessable shares.
3.3 Options and Rights. IDIB has employee options outstanding to
purchase up to ____________ shares of its authorized but unissued common
stock.
3.4 Financial Statements.
(a) IDIB hereby warrants and covenants to Chief that the audited
financial statements for the years ended December 31, 2001 and 2002, fairly
and accurately represent the financial condition of IDIB and that the same
will be prepared along with the period ended as of the date of Closing, for
consolidation prepared in accordance with generally accepted accounting
principles consistently applied, on or before the expiration of ninety days
from the date of Closing.
(b) IDIB hereby warrants and represents that the audited financial
statements for the periods set forth in subparagraph (a), supra, fairly and
accurately represent the financial condition of IDIB as submitted heretofore
to Chief for examination and review.
3.5 Conduct of Business. IDIB will use its best efforts to maintain and
preserve its business organization, employee relationships and goodwill
intact, and will not, without the prior written consent of Chief, enter into
any material commitments except in the ordinary course of business.
IDIB will conduct itself in the following manner pending the Closing:
(a) Certificate of Incorporation and Bylaws. No change will be
made in the Articles of Incorporation or Bylaws of IDIB.
(b) Capitalization, etc. IDIB will not make any change in its
authorized or issued shares of any class, declare or pay any dividend or other
distribution, or issue, encumber, purchase or otherwise acquire any of its
shares of any class.
3.6 Title to Property. IDIB has good and marketable title to all of
its properties and assets, real and personal, proprietary or otherwise, as
will be reflected in the balance sheets of IDIB , and the properties and
assets of IDIB are subject to no mortgage, pledge, lien or encumbrance, unless
as otherwise disclosed in its financial statements.
3.7 Litigation. There are no material actions, suits, or proceedings,
pending, or, to the best knowledge of IDIB, threatened by or against or
affecting IDIB at law or in equity, or before any governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind;
IDIB does not have any knowledge of any default on its part with respect to
any judgment, order, writ, injunction, decree, warrant, rule, or regulation of
any court, arbitrator, or governmental agency or instrumentality.
3.8 Books and Records. From the date hereof until closing, and for any
reasonable period subsequent thereto, IDIB and its present management will (i)
give to the Shareholders and Chief, or their duly authorized representatives,
full access, during normal business hours, to all of its books, records,
contracts and other corporate documents and properties so that the
Shareholders and Chief, or their duly authorized representatives, may inspect
them; and (ii) furnish such information concerning the properties and affairs
of IDIB as the Shareholders and Chief, or their duly authorized
representatives, may reasonably request.
3.9 Confidentiality. Until the Closing (and thereafter if there is no
Closing), IDIB and its representatives will keep confidential any information
which they obtain from the Shareholders or from Chief concerning its
properties, assets and the proposed business operations of Chief. If the
terms and conditions of this Plan imposed on the parties hereto are not
consummated on or before 5:00 p.m. MST on February 27, 2004 or otherwise
waived or extended in writing to a date mutually agreeable to the parties
hereto, IDIB will return to Chief all written matter with regard to Chief
obtained in connection with the negotiations or consummation of this Plan.
3.10 Conflict with Other Instruments. The transactions contemplated by
this Plan will not result in the breach of any term or provision of, or
constitute a default under any transaction requirement, material agreements or
instrument to which IDIB was or is a party, or to which any of its assets or
operations are subject, and will not conflict with any provision of the
Articles of Incorporation or Bylaws of IDIB.
3.11 Corporate Authority. IDIB has full corporate power and authority
to enter into this Plan and to carry out its obligations hereunder and will
deliver to the Shareholders and Chief, or their respective representatives, at
the Closing, a certified copy of resolutions of its Board of Directors
authorizing execution of this Plan by its officers and performance thereunder.
3.12 Special Covenants and Representations Regarding the Exchanged IDIB
Stock. The consummation of this Plan and the transactions herein contemplated
include the issuance of the exchanged IDIB shares to the Shareholders, which
constitutes an offer and sale of securities under the Securities Act of 1933,
as amended, and applicable states' securities laws. Such transaction shall be
consummated in reliance on exemptions from the registration and prospectus
requirements of such statutes which depend inter alia on the circumstances
under which the Shareholders acquire such securities. In connection with the
reliance upon exemptions from the registration and prospectus delivery
requirements for such transactions, at the Closing, Shareholders shall cause
to be delivered to IDIB a Letter(s) of Investment Intent in the form attached
hereto as Exhibit B and incorporated herein by reference.
3.13 Undisclosed or Contingent Liabilities. IDIB hereby represents and
warrants that it has no undisclosed or contingent liabilities which have not
been disclosed to Chief.
3.14 Information. The information concerning IDIB set forth in this
Plan, and the IDIB schedules attached hereto, are complete and accurate in all
material respects and do not contain, or will not contain, when delivered, any
untrue statement or a material fact or omit to state a material fact the
omission of which would be misleading to Chief or the shareholders of Chief in
connection with this Plan.
3.15 Title and Related Matters. IDIB has good and marketable title to
all of its properties, interests in properties, and assets, real and personal,
which are reflected, or will be reflected, in the IDIB balance sheets, free
and clear of any encumbrances.
3.16 Contracts or Agreements. IDIB is not bound by any material
contracts, agreements or obligations which it has not already disclosed to
Chief.
3.17 Governmental Authorizations. IDIB has all licenses, permits and
other government authorizations that are legally required to enable it to
conduct its business in all material respects as conducted on the date hereof.
Except for compliance with federal and state securities laws, no
authorization, approval, consent or order of, or registration, declaration, or
filing with, any court or other governmental body is required in connection
with the execution and delivery by IDIB of this Plan and the consummation by
Chief of the transactions contemplated hereby.
3.18 Compliance with Laws and Regulations. IDIB has complied with all
applicable statutes and regulations of any federal, state, or other applicable
jurisdiction or agency thereof, except to the extent that noncompliance would
not materially and adversely affect the business, operations, properties,
assets, or condition of IDIB or except to the extent that noncompliance would
incur any material liability.
3.19 Approval of Plan. The Board of Directors of IDIB has authorized
the execution and delivery of this Plan by IDIB and have approved the Plan and
the transactions contemplated hereby. IDIB has full power, authority, and
legal right to enter into this Plan and to consummate the transactions
contemplated hereby.
3.20 Investment Intent. IDIB is acquiring the Chief Shares to be
transferred to it under this Plan for investment and not with a view to the
sale or distribution thereof, and IDIB has no commitment or present intention
to liquidate Chief or to sell or otherwise dispose of the Chief Shares.
3.21 Unregistered Shares and Access to Information. IDIB understands
that the offer and sale of the Chief Shares have not been registered with or
reviewed by the Securities and Exchange Commission under the Securities Act of
1933, as amended, or with or by any state securities law administrator, and no
federal, state securities law administrator has reviewed or approved any
disclosure or other material concerning Chief or the Chief Shares. IDIB has
been provided with and reviewed all information concerning Chief, the Chief
Shares as it has considered necessary or appropriate as a prudent and
knowledgeable investor to enable it to make an informed investment decision
concerning the Chief Shares. IDIB has made an investigation as to the merits
and risks of its acquisition of the Chief Shares and has had the opportunity
to ask questions of, and has received satisfactory answers from, the officers
and directors of Chief concerning Chief, the Chief Shares and related matters,
and has had an opportunity to obtain additional information necessary to
verify the accuracy of such information and to evaluate the merits and risks
of the proposed acquisition of the Chief Shares.
3.22 IDIB Schedules. IDIB has delivered to Chief the following items
pertaining to IDIB, listed below, hereafter referred to as the "IDIB
Schedules", which is hereby incorporated by reference and made a part hereof.
A certification has been executed by a duly authorized officer of IDIB on or
about the date which the Plan is executed to certify that the IDIB Schedules
are true and correct.
(a) Copy of Articles of Incorporation and any amendments, and
Bylaws;
(b) Financial statements;
(c) Shareholder list;
(d) Resolutions of Directors approving Plan;
(e) Officers' Certificate as required under Section 6.2 of the
Plan;
(f) Opinion of counsel as required under Section 6.4 of the Plan;
(g) Certificate of Good Standing;
Section 4
Representations, Warranties and Covenants of Chief
Chief represents and warrants to, and covenants with, the Shareholders
and IDIB as follows:
4.1 Corporate Status. Chief is a corporation duly organized, validly
existing and in good standing under the laws of the State of Utah incorporated
on November 20, 2001. Chief has full corporate power and is duly authorized,
qualified, franchised, and licensed under all applicable laws, regulations,
ordinances, and orders of public authorities to own all of its properties and
assets and to carry on its business on all material respects as it is now
being conducted. Included in the Chief schedules (defined below) are complete
and correct copies of its Articles of Incorporation and Bylaws as in effect on
the date hereof. The execution and delivery of this Plan does not, and the
consummation of the transactions contemplated hereby will not, violate any
provision of Chief's Articles of Incorporation or Bylaws. Chief has taken all
action required by law, its Articles of Incorporation, its Bylaws, or
otherwise, to authorize the execution and delivery of this Plan.
4.2 Capitalization. The authorized capital stock of Chief as of the
date hereof consists of 1,000,000 common shares, no par value. As of the date
hereof there are 100,000 common shares of Chief issued and outstanding. The
issued and outstanding common shares of Chief are fully paid, non-assessable
shares. There are no outstanding options, warrants, obligations convertible
into shares of stock, or calls or any understanding, agreements, commitments,
contracts or promises with respect to the issuance of Chief's common stock or
with regard to any options, warrants or other contractual rights to acquire
any of Chief's authorized but unissued common shares.
4.3 Undisclosed Liabilities. Chief has no liabilities or obligations
which are material, individually or in the aggregate, that have not been
disclosed in writing to IDIB, other than those put forth in Chief's financial
statements or as incurred in the ordinary course of Chief's business, and
Chief expressly warrants to IDIB that it has no liabilities or obligations
either vested or contingent to its management of employees for payment of
benefits or compensation of any type or manner.
4.4 Indemnification. Chief agrees to indemnify and hold IDIB and its
shareholders, employees and affiliates harmless against any losses, claims,
damages or liabilities, joint or several (which shall, for all purposes of
this Agreement, include, but not be limited to all costs of defense and
investigation and all attorney's fees), relating to, concerning or in any way
arising from any and all undisclosed material obligations or liabilities of
Chief. This indemnity agreement shall be in addition to any liability which
Chief may otherwise have to IDIB.
4.5 Conduct of Business. Chief will use its best efforts to maintain
and preserve its business organization, employee relationships and goodwill
intact, and will not, without the prior written consent of IDIB, enter into
any material commitments except in the ordinary course of business.
Chief agrees that Chief will conduct itself in the following manner
pending the Closing:
(a) Certificate of Incorporation and Bylaws. No change will be
made in the Certificate of Incorporation or Bylaws of Chief.
(b) Capitalization, etc. Chief will not make any change in its
authorized or issued shares of any class, declare or pay any dividend or other
distribution, or issue, encumber, purchase or otherwise acquire any of its
shares of any class.
4.6 Title to Property. Chief has good and marketable title to all of
its properties and assets, real and personal, proprietary or otherwise, as
will be reflected in the balance sheets of Chief, and the properties and
assets of Chief are subject to no mortgage, pledge, lien or encumbrance,
unless as otherwise disclosed in its financial statements.
4.7 Litigation. There are no material actions, suits, or proceedings,
pending, or, to the best knowledge of Chief, threatened by or against or
affecting Chief at law or in equity, or before any governmental agency or
instrumentality, domestic or foreign, or before any arbitrator of any kind;
Chief does not have any knowledge of any default on its part with respect to
any judgment, order, writ, injunction, decree, warrant, rule, or regulation of
any court, arbitrator, or governmental agency or instrumentality.
4.8 Books and Records. From the date hereof, and for any reasonable
period subsequent thereto, Chief and its present management will (i) give to
IDIB, or their duly authorized representatives, full access, during normal
business hours, to all of its books, records, contracts and other corporate
documents and properties so that IDIB, or their duly authorized
representatives, may inspect them; and (ii) furnish such information
concerning the properties and affairs of Chief as IDIB, or their duly
authorized representatives, may reasonably request. Any such request to
inspect Chief's books shall be directed to Chief's representative, at the
address set forth herein under Section 10.4 Notices.
4.9 Confidentiality. Until the Closing (and thereafter if there is no
Closing), Chief and its representatives will keep confidential any information
which they obtain from IDIB concerning its properties, assets and the proposed
business operations of Chief. If the terms and conditions of this Plan
imposed on the parties hereto are not consummated on or before 5:00 p.m. MST
on February 27, 2004 or otherwise waived or extended in writing to a date
mutually agreeable to the parties hereto, Chief will return to IDIB all
written matter with regard to IDIB obtained in connection with the
negotiations or consummation of this Plan.
4.10 Investment Intent. The Shareholders represent and covenant that
they are acquiring the unregistered and restricted common shares of IDIB to be
delivered to them under this Plan for investment purposes and not with a view
to the subsequent sale or distribution thereof, and as agreed, supra, the
Shareholders, their successors and assigns agree to execute and deliver to
IDIB on the date of Closing or no later than the date on which the restricted
shares are issued and delivered to the Shareholders, their assigns, or
designees, an Investment Letter similar in form to that attached hereto as
Exhibit B.
4.11 Vote Required. The affirmative vote of the holders of at least a
majority of the outstanding Chief Shares is the only vote of the holders of
any class or series of Chief's capital stock necessary to approve and adopt
this Plan.
4.12 Unregistered Shares and Access to Information. Chief and the
Shareholders understand that the offer and sale of IDIB shares to be exchanged
for the Chief Shares have not been registered with or reviewed by the
securities and Exchange Commission under the Securities Act of 1933, as
amended, or with or by any state securities law administrator, and no federal
or state securities law administrator has reviewed or approved any disclosure
or other material facts concerning IDIB or IDIB stock. Chief and the
Shareholders have been provided with and reviewed all information concerning
IDIB and IDIB shares, to be exchanged for the Chief Shares as they have
considered necessary or appropriate as prudent and knowledgeable investors to
enable them to make informed investment decisions concerning the IDIB shares,
to be exchanged for the Chief Shares. Chief and the Shareholders have made an
investigation as to the merits and risks of their acquisition of the IDIB
shares, to be exchanged for the Chief Shares and have had the opportunity to
ask questions of, and have received satisfactory answers from, the officers
and directors of IDIB concerning IDIB shares to be exchanged for the Chief
Shares and related matters, and have had an opportunity to obtain additional
information necessary to verify the accuracy of such information and to
evaluate the merits and risks of the proposed acquisition of the IDIB shares
to be exchanged for the Chief Shares.
4.13 Title to Shares. The Shareholders are the beneficial and
record owners, free and clear of any liens and encumbrances, of whatever kind
or nature, of all of the Chief Shares of whatever class or series, which the
Shareholders have contracted to exchange under this Agreement.
4.14 Contracts.
(a) Except for the contracts set forth in the Chief Schedules,
Chief is not a party to any other license agreements, material contracts,
written or oral, nor is Chief a party to any franchise agreements or other
commitments.
(b) Except as may be set forth in the Chief Schedules, Chief is
not a party to any contract, agreement, corporate restriction, or subject to
any judgment, order, writ, injunction, decree, or award, which materially and
adversely affect the business, operations, properties, assets, or conditions
of Chief.
(c) Except as set forth in the Chief Schedules, Chief is not a
party to any material oral or written (i) contract for employment of any
officer which is not terminable on 30 days (or less) notice; (ii) profit
sharing, bonus, deferred compensation, stock option, severance, or any other
retirement plan or arrangement covered by Title IV of the Employee Retirement
Income Security Act, as amended, or otherwise covered; (iii) agreement
providing for the sale, assignment or transfer of any of its rights, assets or
properties, whether tangible or intangible, except sales of its property in
the ordinary course of business with a value of less than $5,000; or (iv)
waiver of any right of any value which in the aggregate is extraordinary or
material concerning the assets or properties scheduled by Chief, except for
adequate value and pursuant to contract. Chief has not entered into any
material transaction which is not listed in the Chief Schedules or reflected
in the Chief financial statements.
4.15 Material Contract Defaults. Chief is not in default in any
material respect under the terms of any contract, agreement, lease or other
commitment which is material to the business, operations, properties or
assets, or condition of Chief, and there is no event of default or event
which, with notice or lapse of time or both, would constitute a default in any
material respect under any such contract, agreement, lease, or other
commitment in respect of which Chief has not taken adequate steps to prevent
such default from occurring, or otherwise compromised, reached a satisfaction
of, or provided for extensions of time in which to perform under any one or
more contract obligations, among others.
4.16 Conflict with Other Instruments. The consummation of the within
transactions will not result in the breach of any term or provision of, or
constitute a default under any indenture, mortgage, deed of trust, or other
material agreement or instrument to which Chief was or is a party, or to which
any of its assets or operations are subject, and will not conflict with any
provision of the Articles of Incorporation or Bylaws of Chief.
4.17 Governmental Authorizations. Chief is in good standing in the
State of Texas, Except for compliance with federal and state securities laws,
no authorization, approval, consent or order of, or registration, declaration,
or filing with, any court or other governmental body is required in connection
with the execution and delivery by Chief of this Plan and the consummation by
Chief of the transactions contemplated hereby.
4.18 Compliance with Laws and Regulations. Chief has complied with all
applicable statutes and regulations of any federal, state, or other applicable
jurisdiction or agency thereof, except to the extent that noncompliance would
not materially and adversely affect the business, operations, properties,
assets, or condition of Chief or except to the extent that noncompliance would
incur any material liability, not otherwise disclosed to IDIB.
4.19 Approval of Plan. The Board of Directors of Chief have authorized
the execution and delivery of this Plan by Chief and have approved the Plan
and the transactions contemplated hereby. Chief has full power, authority,
and legal right to enter into this Plan and to consummate the transactions
contemplated hereby.
4.20 Information. The information concerning Chief set forth in this
Plan, and the Chief Schedules attached hereto, are complete and accurate in
all material respects and do not contain, or will not contain, when delivered,
any untrue statement of a material fact or omit to state a material fact the
omission of which would be misleading to IDIB in connection with this Plan.
4.21 Chief Schedules. Chief has delivered to IDIB the following items
listed below, hereafter referred to as the "Chief Schedules", which is hereby
incorporated by reference and made a part hereof. A certification has been
executed by a duly authorized officer of Chief on or about the date which the
Plan is executed to certify that the Chief Schedules are true and correct.
(a) Copy of Articles of Incorporation and Bylaws
(b) Financial Statements and Tax Returns
(c) Any and all Material Contracts
(d) A schedule setting forth the shareholders, together with
the number of shares owned beneficially or of record by
each (also attached as Exhibit A)
(e) Resolutions of Board of Directors approving Plan
(f) Consent of Shareholders approving Plan
(g) A list of key employees, including current compensation,
with notation as to job description and whether or not such
employee is subject to written contract, and if subject to
a contract or employment agreement, a copy of the same
(h) A schedule showing the name and location of each bank or
other institution with which Chief has an account and the
names of the authorized persons to draw thereon or having
access thereto
(i) Officers' Certificate as required by Section 7.2 of the
Plan
(j) Certificate of Good Standing
Section 5
Special Covenants
5.1 Chief Information Incorporated in IDIB's Reports. Chief represents
and warrants to IDIB that all the information furnished under this Plan shall
be true and correct in all material respects and that there is no omission of
any material fact required to make the information stated not misleading.
Chief agrees to indemnify and hold IDIB harmless, including each of its
Directors and Officers, and each person, if any, who controls such party,
under any applicable law from and against any and all losses, claims, damages,
expenses or liabilities to which any of them may become subject under
applicable law, or reimburse them for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
actions insofar as such losses, claims, damages, expenses, liabilities or
actions arise out of or are based on any untrue statement, intentional untrue
statement, or intentional omission of a material fact contained in such
information delivered hereunder. This indemnity shall only survive as long as
specified within this agreement.
5.2 Special Covenants and Representations Regarding the Exchanged IDIB
Stock. The consummation of this Plan and the transactions herein
contemplated, including the issuance of the IDIB shares in exchange for all of
the issued and outstanding shares of Chief to the Shareholders constitutes the
offer and sale of securities under the Securities Act and the applicable state
statutes, which depend, inter alia, on the circumstances under which the
Shareholders acquire such securities. IDIB intends to rely on the exemption
of the registration provision of Section 5 of the Securities Act as provided
for under Section 4 (2) of the Securities Act of 1933, which states
"transactions not involving a public offering", among others. Each
Shareholder upon submission of his Chief Shares and the receipt of the IDIB
post-split shares exchanged therefor, shall execute and deliver to IDIB a
letter of investment intent to indicate, among other representations, that the
Shareholder is exchanging the Chief Shares for IDIB post-split shares for
investment purposes and not with a view to the subsequent distribution
thereof. A proposed Investment Letter is attached hereto as Exhibit B and
incorporated herein by reference for the general use by the Shareholders, as
they may determine.
5.3 Action Prior to Closing. Upon the execution hereof until the
Closing date, and the completion of the consolidated audited financial
statements:
(a) Chief and IDIB will (i) perform all of its obligations under
material contracts, leases, insurance policies and/or documents relating to
its assets and business; (ii) use its best efforts to maintain and preserve
its business organization intact, to retain its key employees, and to maintain
its relationship with existing potential customers and clients; and (iii)
fully comply with and perform in all material respects all duties and
obligations imposed on it by all federal and state laws and all rules,
regulations, and orders imposed by all federal or state governmental
authorities.
(b) Neither Chief nor IDIB will (i) make any change in its
Articles of Incorporation or Bylaws except and unless as contemplated pursuant
to Section 3 of this Plan, or as mutually agreed upon by both parties; (ii)
enter into or amend any contract, agreement, or other instrument of the types
described in the parties' schedules, except that a party may enter into or
amend any contract or other instrument in the ordinary course of business
involving the sale of goods or services, provided that such contract does not
involve obligations in excess of $5,000 or as mutually agreed upon by both
parties.
Section 6
Conditions Precedent to Obligations of
Chief and the Shareholders
All obligations of Chief and the Shareholders under this Plan are
subject to the satisfaction, on or before the Closing date, except as
otherwise provided for herein, or waived or extended in writing by the parties
hereto, of the following conditions:
6.1 Accuracy of Representations. The representations and warranties
made by IDIB in this Plan were true when made and shall be true as of the
Closing date (except for changes therein permitted by this Plan) and have the
same force and effect as if such representations and warranties were made at
and as of the Closing date; and, Chief shall have performed and complied with
the terms and conditions of this Plan prior to the Closing. Chief and its
shareholders shall have been furnished with a certificate, signed by a duly
authorized executive officer of IDIB and dated the Closing date, to the
foregoing effect.
6.2 Officers' Certificate. Chief and the Shareholders shall have been
furnished with a certificate dated the Closing date and signed by a duly
authorized executive officer of IDIB, to the effect that no litigation,
proceeding, investigation, or inquiry is pending, or to the best knowledge of
IDIB, threatened, which might result in an action to enjoin or prevent the
consummation of the transactions contemplated by this Plan, or which might
result in any material adverse change in the assets, properties, business, or
operations of IDIB.
6.3 No Material Adverse Change. Prior to the Closing date, there shall
have not occurred any material adverse change in the condition, business or
operations of IDIB, nor shall any event have occurred which, with lapse of
time or the giving of notice or both, may cause or create any material adverse
change in the financial condition, business or operations of IDIB, except as
otherwise disclosed to Chief.
6.4 Opinion of Counsel of IDIB. IDIB shall furnish to Chief and the
Shareholders an opinion dated as of the Closing date and in form and substance
satisfactory to Chief and the Shareholders to the effect that:
(a) IDIB is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Nevada, and with all
requisite corporate power to perform its obligations under this Plan.
(b) The business of IDIB, as presently conducted, including, upon
the consummation hereof, the ownership of all of the issued and outstanding
shares of Chief, does not require it to register it to do business as a
foreign corporation in any jurisdiction other than under the jurisdiction of
its Articles of Incorporation or Bylaws and IDIB has complied to the best of
its knowledge in all material respects with all the laws, regulations,
licensing requirements and orders applicable to its business activities and
has filed with the proper authorities, including the Department of Commerce,
Division of Corporations, and Secretary of State for the State of Utah and/or
Nevada, all statements and reports required to be filed.
(c) The authorized and outstanding capital stock of IDIB as set
forth in Section 3.2 above, and all issued and outstanding shares have been
duly and validly authorized and issued and are fully paid and non-assessable.
(d) There are no material claims, suits or other legal
proceedings pending or threatened against IDIB in any court or before or by
any governmental body which might materially affect the business of IDIB or
the financial condition of IDIB as a whole and no such claims, suits or legal
proceedings are contemplated by governmental authorities against IDIB.
(e) To the best knowledge of such counsel, the consummation of
the transactions contemplated by this Plan will not violate or contravene the
provisions of the Articles of Incorporation or Bylaws of IDIB, or any
contract, agreement, indenture, mortgage, or order by which IDIB is bound.
(f) This Plan constitutes a legal, valid and binding obligation
of IDIB enforceable in accordance with its terms, subject to the affect of any
bankruptcy, insolvency, reorganization, moratorium, or similar law affecting
creditors' rights generally and general principles of equity.
(g) The execution and delivery of this Plan and the consummation
of the transactions contemplated hereby have been ratified by a majority of
the Shareholders of IDIB and have been duly authorized by its Board of
Directors.
(h) IDIB has not, nor will it undertake any action, the result
of which would endanger the tax-free nature of the Plan.
6.5 Good Standing. Chief shall have received a Certificate of Good
Standing from the State of Texas obtained and delivered, prior to Closing
certifying that IDIB is in good standing as a corporation in the State of
Nevada.
6.6 Other Items. Chief and the Shareholders shall have received such
further documents, certifications or instruments relating to the transactions
contemplated hereby as Chief and the Shareholders may reasonably request.
Section 7
Conditions Precedent to Obligations of IDIB
All obligations of IDIB under this Plan are subject, at its option, to
the fulfillment, before the Closing, of each of the following conditions:
7.1 Accuracy of Representations. The representations and warranties
made by Chief and the Shareholders under this Plan were true when made and
shall be true as of the Closing date (except for changes therein permitted by
this Plan) and have the same force and effect as if such representations and
warranties were made at and as of the Closing date; and IDIB shall have
performed and complied with the terms and conditions of this Plan prior to the
Closing, unless waived or extended in writing by the parties hereto. Chief and
its shareholders shall have been furnished with a certificate, signed by a
duly authorized executive officer of Chief and dated the Closing date, to the
foregoing effect.
7.2 Officers' Certificate. IDIB shall have been furnished with a
certificate dated the Closing date and signed by a duly authorized executive
officer of Chief, to the effect that no litigation, proceeding, investigation,
or inquiry is pending, or to the best knowledge of Chief, threatened, which
might result in an action to enjoin or prevent the consummation of the
transactions contemplated by this Plan, or which might result in any material
adverse change in the assets, properties, business, or operations of Chief.
7.3 No Material Adverse Change. Prior to the Closing date, there shall
have not occurred any material adverse change in the final condition, business
or operations of IDIB, nor shall any event have occurred which, with lapse of
time or the giving of notice or both, may cause or create any material adverse
change in the financial condition, business or operations of Chief, except as
otherwise disclosed to IDIB.
7.4 Good Standing. IDIB shall have received either a Certificate of
Good Standing from the State of Nevada or some kind of verification certifying
that Chief is in good standing as a corporation in the State of Texas.
7.5 Dissenters' Rights Waived. The Shareholders of both IDIB and Chief
agree and hereby waive any dissenters' rights, if any, under the laws of the
State of Utah, Nevada and/or Texas in regards to any objection to this Plan as
outlined herein and otherwise consent to and agree and authorize the execution
and consummation of the Plan in accordance to the terms and conditions of this
Plan.
7.6 Other Items. IDIB shall have received such further documents,
certifications or instruments relating to the transactions contemplated hereby
as IDIB may reasonably request.
7.7 Execution of Investment Letter. The Shareholders shall have
executed and delivered copies of Exhibit B to IDIB.
Section 8
Termination
8.1 Termination by Chief or the Shareholders. This Plan may be
terminated at any time prior to the Closing date by action of Chief or the
Shareholders, if IDIB shall fail to comply in any material respect with any of
the covenants or agreements contained in this Plan, or if any of its
representations and warranties contained herein shall be inaccurate in any
material respect.
8.2 Termination by IDIB. This Plan may be terminated at any time prior
to the Closing date by action of IDIB if Chief shall fail to comply in any
material respect with any of the covenants or agreements contained in this
Plan, or if any of its representations or warranties contained herein shall be
inaccurate in any material respect.
8.3 Termination by Mutual Consent
(a) This Plan may be terminated at any time prior to the Closing
date by mutual consent of IDIB, expressed by action of its Board of Directors,
Chief or the Shareholders.
(b) If this Plan is terminated pursuant to Section 8, this Plan
shall be of no further force and effect and no obligation, right or liability
shall arise hereunder. Each party shall bare its own costs in connection
herewith.
(c) If the Plan is terminated pursuant to Section 8, the parties
hereto shall sign non-disclosure agreements which shall survive the
cancellation of the Plan.
Section 9
Shareholders' Representative
The Shareholders hereby irrevocably designate and appoint Xxxxx Xxxxxx
as their agent and attorney in fact (the "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 Plan and to take such other action on
their behalf in connection with this Plan, the Closing and the transactions
contemplated hereby as such agent deems 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 under Section 1 hereof or
increase the extent of their obligation to IDIB hereunder, unless agreed in
writing by the Shareholders.
Section 10
General Provisions
10.1 Further Assurances. At any time after the Closing date, each
party will execute and deliver such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the
intent and purposes of the Plan.
10.2 Payments of Estimated Costs and Fees. IDIB and Chief mutually
determine and agree that IDIB shall pay the actual reasonable and
customarycosts and fees incurred by either firm hereto in connection with the
execution and consummation of the Plan.
10.3 Press Release and Shareholders' Communications. On the date of
Closing, or as soon thereafter as practicable, Chief and the Shareholders
shall cause to have promptly prepared and disseminated a news release
concerning the execution and consummation of the Plan, such press release and
communication to be released promptly and within the time required by the
laws, rules and regulations as promulgated by the United States Securities and
Exchange Commission, and concomitant therewith to cause to be prepared a full
and complete letter to IDIB's shareholders which shall contain information
required by Regulation 240.14f-1 as promulgated under Section 14(f) as
mandated under the Securities and Exchange Act of 1934, as amended.
10.4 Notices. All notices and other communications required or
permitted hereunder shall be sufficiently given if personally delivered, sent
by registered mail, or certified mail, return receipt requested, postage
prepaid, or by facsimile transmission addressed to the following parties
hereto or at such other addresses as follows:
If to IDIB: IDI Global, Inc.
000 Xxxx 000 Xxxxx
Xxxxx, Xxxx 00000
If to Chief or
shareholder of Chief: Chief Financial, Inc
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000
or at such other addresses as shall be furnished in writing by any party in
the manner for giving notices hereunder, and any such notice or communication
shall be deemed to have been given as of the date so delivered, mailed, sent
by facsimile transmission, or telegraphed.
10.5 Entire Agreement. This Plan represents the entire agreement
between the parties relating to the subject matter hereof, including any
previous letters of intent, understandings, or agreements between IDIB, Chief
and the Shareholders with respect to the subject matter hereof, all of which
are hereby merged into this Plan, which alone fully and completely expresses
the agreement of the parties relating to the subject matter hereof. Excepting
the foregoing agreement, there are no other courses of dealing,
understandings, agreements, representations, or warranties, written or oral,
except as set forth herein with respect to the subject matter hereof.
10.6 Governing Law. This Plan shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada, except to the
extent preempted by federal law, in which event (and to that extent only)
federal law shall govern.
10.7 Tax Treatment. The transaction contemplated by this Plan is
intended to qualify as a "tax-free" reorganization under the provisions of
Section 368(a)(1)(B) of the Internal Revenue Code of 1986, as amended. Chief
and IDIB acknowledge, however, that each are being represented by their own
tax advisors in connection with this transaction, and neither has made any
representations or warranties to the other with respect to treatment of such
transaction or any part or effect thereof under applicable tax laws,
regulations or interpretations; and no attorney's opinion or tax revenue
ruling has been obtained with respect to the tax consequences of the
transactions contemplated by the within Plan.
10.8 Amendment of Waiver. Every right and remedy provided herein shall
be cumulative with every other right and remedy, whether conferred herein, at
law or in equity, and may be enforced concurrently or separately, and no
waiver by any party of the performance of any obligation by the other shall be
construed as a waiver of the same or any other default then, therefore, or
thereafter occurring or existing. Any time prior to the expiration of thirty
(30) days from the date hereof, this Plan may be amended in writing signed by
all parties hereto, with respect to any of the terms contained herein, and any
term or condition of this Plan may be waived or the time for performance
thereof may be extended by a writing signed by the party or parties for whose
benefit the provision is intended.
10.9 Counterparts. This Plan may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be
an original, and all of which together shall constitute one and the same
instruments.
10.10 Headings. The section and subsection headings in this Plan are
inserted for convenience only and shall not effect in any way the meaning or
interpretation of the Plan.
10.11 Parties in Interest. Except as may be otherwise expressly
provided herein, all terms and provisions of this Plan shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
beneficiaries, personal and legal representatives, and assigns.
[Signature page to follow]
IN WITNESS WHEREOF, the parties have executed this Plan and Agreement of
Reorganization effective the day and year first set forth above.
IDI GLOBAL, INC.
Attest:
/s/ Xxxxxxx Xxxxx
_____________________ By: /s/ Xxxxx Xxxxxxxx
Its: CEO - Xxxxx Xxxxxxxx
CHIEF FINANCIAL, INC.
Attest:
/s/ Xxxxxxx Xxxxx
__________________________ By: /s/ Xxxxx Xxxxxx
Its: President - Xxxxx Xxxxxx
SHAREHOLDERS:
Attest:
_____________________ By: __________________________
Attest:
_____________________ By: __________________________
