EXHIBIT 10.1
PLAN AND AGREEMENT OF REORGANIZATION
THIS PLAN AND AGREEMENT OF REORGANIZATION (hereinafter referred to as
the "Agreement") is entered into as of this 15th day of December 2003, by and
between INTERNATIONAL CARD ESTABLISHMENT, INC. (hereinafter referred to as
"ICE"), GLOBALTECH LEASING, INC. (hereinafter referred to as "GTL") and the
undersigned shareholders of GTL (hereinafter referred to collectively as
"Shareholder").
WITNESSETH
WHEREAS, GTL is a California corporation with authorized capital stock
of 1,000,000 shares of no par value Common Stock, of which 396,040 shares of
Common Stock were issued and outstanding as of December 15, 2003 (hereinafter
"GTL Shares") As of the Closing Date (as defined in Article VIII hereof), there
will be 396,040 GTL Shares issued and outstanding;
WHEREAS, ICE is a Delaware corporation with authorized capital stock of
100,000,000 shares of $0.0005 par value Common Stock, of which 12,970,394 shares
were issued and outstanding as of December 15, 2003;
WHEREAS, ICE desires to purchase from Shareholder all of the issued and
outstanding shares of GTL owned by Shareholder in exchange, solely for ICE
shares of common stock ("Stock");
WHEREAS, it is the intention of Shareholder to exchange the GTL Shares
held by it for Stock of ICE, on the terms and conditions set forth herein; and
WHEREAS, it is the intention of ICE, GTL and Shareholder that the
transactions contemplated hereby constitute a tax-free "reorganization" as
defined in the Internal Revenue Code of 1986, as amended, and that all the terms
and provisions of this Agreement be interpreted, construed and enforced to
effectuate this intent.
NOW THEREFORE in consideration of the foregoing and the mutual
covenants, promises, representations and warranties contained herein, the
parties hereto agree as follows:
Article I
EXCHANGE
1.1 EXCHANGE OF STOCK OF GTL. At the Closing Date in accordance with
the provisions of this Agreement and applicable law, Shareholder shall transfer
and ICE shall acquire all of the GTL Shares owned by Shareholder.
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Article II
CONSIDERATION
2.1 EXCHANGE. Shareholder and ICE agree that all of the GTL Shares
owned by Shareholder shall be exchanged with ICE for a total of five million
(5,000,000) shares of ICE Common Stock. Such Stock shall be issued in
certificates in such denominations, amounts and names as may be requested by
Shareholder, as more fully set forth in Addendum A hereto.
2.2 INVESTMENT INTENT. Shareholder represents and warrants that it is
acquiring said Stock for investment purposes only and not with a view towards
resale or redistribution in violation of state and federal securities laws. Upon
request, Shareholder agrees to deliver to ICE at the closing, or after, a letter
setting forth an agreement that said Stock is being acquired for investment
purposes only and will not be sold except in compliance with the Securities Act
of 1933, as amended, and the Rules and Regulations promulgated thereunder.
2.3 DELIVERY. At said closing, Shareholder shall deliver certificates
for the GTL Shares, duly endorsed in negotiable form, with signatures
guaranteed, free and clear from all claims and encumbrances.
Article III
REPRESENTATIONS AND WARRANTIES OF ICE
ICE represents and warrants to Shareholder as follows:
3.1 ORGANIZATION. ICE is a corporation duly incorporated, validly
existing and, at the closing, in good standing under the laws of the State of
Delaware and has the corporate power and authority to own or lease its
properties and to carry on business as now being conducted.
3.2 CAPITALIZATION. As of the closing date, the authorized capital
stock of ICE shall consist of 100,000,000 shares of $0.0005 par value common
stock, of which 12,970,394 shall be issued and outstanding. All said shares are
validly issued, fully paid and non-assessable.
3.3 FINANCIAL STATEMENTS. ICE has furnished to Shareholder audited
financial statements as of December 31, 2002 and unaudited financial statements
for the periods ending September 30, 2003. Said financial statements contain the
balance sheets of ICE. All of said financial statements, (i) are in accordance
with ICE's books and records, (ii) present fairly and financial position of ICE
as of such dates, and its results of operations and changes in financial
position for the respective periods indicated, (iii) have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis, and (iv) consistent with prior business practice, contain adequate
reserves for all known or contingent liabilities, losses and refunds with
respect to services or products already rendered or sold.
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3.4 CHANGES IN FINANCIAL CONDITION. Except as it relates to the
transactions contemplated by this Agreement, from the date of the Financial
Statements to the Closing Date, there has been no material change in the
properties, assets, liabilities, financial condition, business, operations,
affairs or prospects of ICE from that set forth or reflected in the Financial
Statements, other than changes in the ordinary course of business, none of which
have been, either in any case or in the aggregate, materially adverse.
3.5 AUTHORIZATION. ICE has the power to enter into this Agreement, and
this Agreement, when duly executed and delivered, will constitute the valid and
binding obligation of ICE. Other than approval by the Board of Directors and/or
shareholders of ICE, no proceedings are necessary to authorize this Agreement or
the transactions contemplated hereby. This Agreement constitutes the legal,
valid and binding obligation of ICE enforceable in accordance with its terms.
3.6 EFFECT OF AGREEMENT. The execution and delivery by ICE of this
Agreement and the consummation of the transactions herein contemplated, (i) will
not conflict with, or result in a breach of the terms of, or constitute any
default under or violation of, any law or regulation of any governmental
authority, or the Articles of Incorporation or By-Laws of ICE, or any material
agreement or instrument to which ICE is a party or by which it is bound or is
subject; (ii) nor will it give to others any interest or rights, including
rights of termination, acceleration or cancellation, in or with respect to any
of the properties, assets, agreements, leases, or business of ICE.
3.7 MINUTE BOOK. The records of meetings and other corporate actions of
ICE (including any committees of the Board) which are contained in the Minute
books of ICE contain complete and accurate records of the matters reflected in
such minutes.
3.8 LITIGATION; CLAIMS. ICE is not a party to, and there are not any
claims, actions, suits, investigations or proceedings pending or threatened
against ICE or its business, at law or in equity, or before or by any
governmental department, commission, board, bureau, agency, or instrumentality,
domestic or foreign, which if determined adversely would have a material effect
on the business or financial condition of ICE or the ability of ICE to carry on
its business. The consummation of the transactions herein contemplated will not
conflict with or result in the breach or violation of any judgment, order, writ,
injunction or decree of any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign.
3.9 TAXES AND REPORTS. At the Closing Date, ICE (i) will have filed all
tax returns required to be filed by any jurisdiction, domestic or foreign, to
which it is or has been subject, (ii) has either paid in full all taxes due and
taxes claimed to be due by each jurisdiction, and any interest and penalties
with respect thereto, and (iii) has adequately reflected as liabilities on its
books, all taxes that have accrued for any period to and including the Closing
Date.
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3.10 COMPLIANCE WITH LAWS AND REGULATIONS. To the best of ICE's
knowledge ICE has complied with, and is not in violation of any federal, state,
local or foreign statute, law, rule or regulation with respect to the conduct of
ICE's businesses.
3.11 FINDERS. ICE is not obligated, absolutely or contingently, to any
person for financial advice, a finder's fee, brokerage commission, or other
similar payment in connection with the transactions contemplated by this
Agreement.
3.12 NATURE OF REPRESENTATIONS. ICE has taken reasonable care to ensure
that all disclosures and facts are true and accurate, and that there are no
other material facts, the omission of which would make misleading any statement
herein. Further, to the best of ICE's knowledge, no representation, warranty or
agreement made by ICE in this agreement or any of the Schedules or any other
Exhibits hereto and no statement made in the Schedules or any such Exhibit,
list, certificate or schedule or other instrument or disclosure furnished by
them in connection with the transactions herein contemplated contains, or will
contain, any untrue statement of a material fact necessary to make any
statement, representation, warranty or agreement not misleading.
Article IV
REPRESENTATIONS AND WARRANTIES OF GTL AND SHAREHOLDER
GTL and Shareholder, and each of them, represent and warrant to ICE as
follows:
4.1 ORGANIZATION. GTL is a corporation duly incorporated, validly
existing and, at the closing, in good standing under the laws of the State of
California has the corporate power and authority to own or lease its properties
and to carry on business as now being conducted.
4.2 CAPITALIZATION. The authorized capital stock of GTL consists of one
class of shares of stock, the total number of shares authorized is 1,000,000
shares of no par value Common Stock, of which 396,040 shares of Common Stock are
presently issued and outstanding. All said shares are validly issued, fully paid
and non-assessable. There are no outstanding options, warrants, rights,
commitments or agreements of any kind relating to the issuance of any shares of
Common Stock or other equity or convertible security of GTL to any person. None
of the shares of Common Stock of GTL is reserved for any purpose. GTL is not
subject to any obligation (contingent or otherwise), nor does it have any option
to repurchase or otherwise acquire or retire any shares of its Common Stock.
4.3 AUTHORITY. GTL and Shareholder have the full power and authority to
enter into this Agreement and to carry out its obligations hereunder. Other than
approval by the Board of Directors and/or Shareholder, no proceedings on the
part of Shareholder are necessary to authorize this Agreement or the
transactions contemplated hereby. This Agreement constitutes the legal, valid
and binding obligation of GTL and Shareholder enforceable in accordance with its
terms.
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4.4 FINANCIAL STATEMENTS. GTL has furnished to ICE audited financial
statements as of December 31, 2002 and December 31, 2001 (the "Financial
Statements). All of said Financial Statements, (i) are in accordance with GTL's
books and records, (ii) present fairly and financial position of GTL as of such
dates, and its results of operations and changes in financial position for the
respective periods indicated, (iii) have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis, and (iv)
consistent with prior business practice, contain adequate reserves for all known
or contingent liabilities, losses and refunds with respect to services or
products already rendered or sold.
4.5 CHANGES IN FINANCIAL CONDITION. From the date of the Financial
Statements to the Closing Date, there has been no material change in the
properties, assets, liabilities, financial condition, business, operations,
affairs or prospects of GTL from that set forth or reflected in the Financial
Statements, other than changes in the ordinary course of business, none of which
have been, either in any case or in the aggregate, materially adverse.
4.6 TITLE TO ASSETS. GTL has and on the Closing date will have good
record and marketable title to all its assets. Such assets are subject to no
mortgage, pledge, lien, conditional sales agreement, lease, encumbrance or
charge whatsoever.
4.7 ALL PATENT/LICENSE RIGHTS. To the best of its knowledge, GTL owns
or possesses the requisite licenses or other rights to use all licenses,
patents, trademarks, service marks, service names and trade names presently
used. There is no claim or action by any person, or proceeding pending, or
threatened which challenges the exclusive rights of GTL with respect to said
rights used, or contemplated to be used, in GTL's business. Nothing herein
contained have or shall be deemed to constitute a representation or warranty
that such licenses, patents, trademarks, or trade names may not be utilized or
challenged in the future, and that they will be upheld if challenged.
4.8 CONTRACTS/OTHER RIGHTS. Prior to the closing, GTL will furnish ICE
with a true and complete list and description of all material contracts and
licenses entered into by GTL (the "Contracts"), including any contracts,
licenses by and between GTL and Shareholder, between them and with others. Each
of the agreements, contracts, commitments, leases, plans and other instruments,
documents and undertakings to be supplied is valid and enforceable in accordance
with its terms. GTL is not in default of the performance, observance or
fulfillment of any material obligations, covenant or condition contained
therein; and no event has occurred which with or without the giving of notice or
lapse of time, or both, would constitute a default thereunder; furthermore,
except as may be disclosed in writing at the time of delivery, no such
agreement, contract, commitment, lease, plan or other instrument, document or
undertaking, in the reasonable opinion of GTL, contains any contractual
requirement with which there is a likelihood GTL will be unable to comply.
4.9 EFFECT OF AGREEMENT. The execution and delivery by GTL and
Shareholder of this Agreement and the consummation of the transactions herein
contemplated, (i) will not conflict with, or result in a breach of the terms of,
or constitute a default under or violation of, any law or regulation of any
governmental authority, or the Articles of Incorporation or By-Laws of ICE, or
any material agreement or instrument to which GTL or Shareholder is a party or
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give rise to any interests or rights, including rights of termination,
acceleration or cancellation, in or with respect to any of the properties,
assets, agreements, leases, or business of GTL.
4.10 PERSONAL PROPERTY. All of the property, assets and equipment owned
by or used by GTL is in good repair, well maintained, and in good and
satisfactory operating condition consistent with their age, free from any known
defects, except such minor defects as to not substantially interfere with the
continued use thereof in the conduct of normal operations and such property,
assets, and equipment which is owned by GTL is valued on the Financial
Statements at original purchase price less reasonable depreciation consistently
applied in accordance with generally accepted accounting principles.
4.11 MINUTE BOOK. The records of meetings and other corporate actions
of Shareholder and the Board of Directors (including any committees of the
Board) of Shareholder and GTL which are contained in the Minute books of
Shareholder and GTL contain complete and accurate records of the matters
reflected in such minutes.
4.12 LITIGATION; CLAIMS. Neither Shareholder nor GTL is a party to, and
there are not any claims, actions, suits, investigations or proceedings pending
or threatened against GTL or its business, at law or in equity, or before or by
any governmental department, commission, board, bureau, agency, or
instrumentality, domestic or foreign, which if determined adversely would have a
material effect on the business or financial condition of GTL or the ability of
GTL to carry on its business. The consummation of the transactions herein
contemplated will not conflict with or result in the breach or violation of any
judgment, order, writ, injunction or decree of any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign.
4.13 TAXES AND REPORTS. At the Closing Date, GTL (i) will have filed
all tax returns required to be filed by any jurisdiction, domestic or foreign,
to which it is or has been subject, (ii) has either paid in full all taxes due
and taxes claimed to be due by each jurisdiction, and any interest and penalties
with respect thereto, and (iii) has adequately reflected as liabilities on its
books, all taxes that have accrued for any period to and including the Closing
Date. No state of facts exists or has existed which would constitute grounds for
the assessment of any taxes with respect to the periods which have not been
audited by the Internal Revenue Service or any other taxing authority. There are
no outstanding tax elections, or agreements or waivers extending the statutory
period of limitation, applicable to any federal or state return for taxes of ICE
for any period.
4.14 PERSONNEL. Included in the corporate records described, in part,
in 4.11, is a true and correct list of all directors, officers and employees of
GTL. GTL is not aware that any officer or employee has any intention to
terminate his or her employment with GTL and GTL is not a party to or bound by
any employment agreement, or collective bargaining or other labor agreement.
4.15 COMPLIANCE WITH LAWS AND REGULATIONS. To the best of their
knowledge, GTL and Shareholder have complied with, and are not in violation of
any federal, state, local or foreign statute, law, rule or regulation with
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respect to the conduct of GTL's businesses, which violation might have a
material adverse effect on the business, financial condition or earnings of GTL.
4.16 FINDERS. GTL and Shareholder, and each of them, are not obligated,
absolutely or contingently, to any person for financial advice, a finder's fee,
brokerage commission, or other similar payment in connection with the
transactions contemplated by this Agreement.
4.17 LEASES. Prior to the closing, GTL will furnish ICE with a true and
complete list and description of all leases of real property and equipment by
and between GTL and the lessees. Each of said leases are valid and enforceable
in accordance with its terms.
4.18 NATURE OF REPRESENTATION. GTL and Shareholder have taken
reasonable care to ensure that all disclosures and facts are true and accurate
and that there are no other material facts, the omission of which would make
misleading any statement herein. Further, no representation, warranty or
agreement made by GTL and Shareholder in this Agreement or any of the Schedules
or any other Exhibits hereto and no statement made in the Schedules or any such
Exhibit, list, certificate or schedule or other instrument or disclosure
furnished by them in connection with the transactions herein contemplated
contains, or will contain, any untrue statement of a material fact necessary to
make any statement, representation, warranty or agreement not misleading.
Article V
ACCESS TO INFORMATION
5.1 ACCESS TO INFORMATION. GTL and Shareholder shall afford
representatives of ICE reasonable access to officers, personnel, and
professional representatives of GTL and to the financial, contractual and
corporate records of GTL as shall be reasonably necessary for ICE's
investigations and appraisal of GTL.
5.2 EFFECT OF INVESTIGATIONS. Any such investigation by ICE of GTL
shall not affect any of the representations and warranties hereunder and shall
not be conducted in such manner as to interfere unreasonably with the operation
of the business of GTL.
Article VI
CONDITIONS TO OBLIGATIONS OF ICE
The obligations of ICE under this Agreement are, at the option of ICE,
subject to the satisfaction, at and prior to the Closing Date, of the following
conditions:
6.1 FULFILLMENT OF COVENANTS. All the terms, covenants and conditions
of this Agreement to be complied with and performed by GTL at or before the
Closing Date shall have been duly complied with and performed.
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6.2 ACCURACY OF REPRESENTATIONS AND WARRANTIES; OTHER, DOCUMENTS. All
of the representations and warranties made by all parties to this Agreement
shall be true as of the Closing Date.
6.3 NO LITIGATION. There shall be no action, proceeding, investigation
or pending or actual litigation the purpose of which is to enjoin or may be to
enjoin the transactions contemplated by this Agreement or which would have the
effect, if successful, of imposing a material liability upon GTL, or any of the
officers or directors thereof, because of this consummation of the transactions
contemplated by this Agreement.
Article VII
CONDITIONS TO OBLIGATIONS OF SHAREHOLDER
The obligations of Shareholder under this Agreement are, at the option
of Shareholder, subject to the satisfaction, at and prior to the Closing Date,
of the following conditions:
7.1 FULFILLMENT OF COVENANTS. All the terms, covenants and conditions
of this Agreement to be complied with and performed by ICE at or before the
Closing Date shall have been duly complied with and performed.
7.2 ACCURACY OF REPRESENTATIONS AND WARRANTIES; OTHER DOCUMENTS. All of
the representations and warranties made by all parties to this Agreement shall
be true as of the Closing Date.
7.3 NO LITIGATION. There shall be no action, proceeding, investigation
or pending or actual litigation the purpose of which is to enjoin or may be to
enjoin the transactions contemplated by this Agreement or which would have the
effect, if successful, of imposing a material liability upon Shareholder, GTL,
or any of the officers or directors thereof, because of the consummation of the
transactions contemplated by this Agreement.
7.4 GTL SHAREHOLDERS' APPROVAL. GTL shall have obtained the written
consent of the majority of the holders of all outstanding shares of Common Stock
of GTL entitled to vote thereat, wherein said shareholders shall have voted in
favor of approving and ratifying the transactions contemplated by this
Agreement.
Article VIII
CLOSING
8.1 CLOSING DATE. The consummation of the exchange shall take place on
January 29, 2003, 1:45 p.m., at the offices of ICE at 000 Xxxxxxxxx Xxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxxxx 00000, or such other time or place as shall be mutually
agreed upon by the parties to this Agreement.
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8.2 ACTIONS TO BE TAKEN BY PARTIES ON THE CLOSING DATE. On the Closing
Date, each party shall deliver to the other all documents or agreements provided
or herein to be delivered on the Closing Date.
Article IX
INDEMNIFICATION AND ARBITRATION
9.1 INDEMNIFICATION. Each of the parties agree to indemnify and hold
harmless the other against any and all damages, claims, losses, expenses,
obligations and liabilities (including reasonable attorney's fees) resulting
from or related to any breach of, or failure by each of the parties to perform
any of their representations, warranties, covenants, conditions or agreements in
this Agreement or in any schedule, certificate,, exhibit or other document
furnished, or to be furnished under this Agreement.
9.2 CLAIMS OF INDEMNIFICATION. Any claim for indemnification pursuant
to this Agreement shall be made in writing and delivered to the other party in
accordance with 12.3 below, and shall specify in reasonable detail the nature
and amount of the claim to the other.
Article X
PAYMENT OF EXPENSES
10.1 EXPENSES . Each party shall bear its own expenses relating to this
transaction.
Article XI
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
11.1 SURVIVAL. All statements contained in the Schedules, any Exhibit
or other instrument delivered by or on behalf of the parties hereto or in
connection with the transactions contemplated by this Agreement shall be deemed
to be representations made by or on behalf of the parties to this Agreement, all
representations, warranties and agreements made by the parties to this Agreement
or pursuant hereto shall survive.
Article XII
GENERAL
12.1 PARTIAL INVALIDITY. If any term or provision of this Agreement or
the application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable the remainder of this Agreement or the application of
such term or provision to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby, and each such
term and provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.
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12.2 WAIVER. No waiver of any breach of any covenant or provision
herein contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or of any other covenant or provision herein contained. No extension of
time for performance of any obligation or act shall be deemed and extension of
the time for performance of any other obligation or act.
12.3 NOTICES. All notices or other communications required or permitted
hereunder shall be in writing, and shall be sent by registered or certified
mail, postage prepaid, return receipt requested, and shall be deemed received
upon mailing thereof.
To: International Card Establishment, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
To: GlobalTech Leasing, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Notice of change of address shall be given by written notice in the
manner detailed in this subparagraph 12.3.
12.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the permitted successors and assigns of the
parties hereto.
12.5 PROFESSIONAL FEES. In the event of the bringing of any action or
suit by a party hereto against another party hereunder by reason of any breach
of any of the covenants, agreements or provisions on the part of the other party
arising out of this Agreement, then in that event the prevailing party shall be
entitled to have and recover of and from the other party all costs and expenses
of the action or suit, including actual attorney's fees, accounting fees, and
other professional fees resulting therefrom.
12.6 ENTIRE AGREEMENT. This Agreement is the final expression of, and
contains the entire agreement between, the parties with respect to the subject
matter hereof and supersedes all prior understandings with respect thereto. This
Agreement may not be modified, changed, supplemented or terminated, nor may any
obligations hereunder be waived, except by written instrument signed by the
party to be charged or by his agent duly authorized in writing or as otherwise
expressly permitted herein. The parties do not intend to confer any benefit
hereunder on any person, firm or corporation other than the parties hereto.
12.7 TIME OF ESSENCE. The parties hereby acknowledge and agree that
time is strictly of the essence with respect to each and every term, condition,
obligation and provision hereof and that failure to timely perform any of the
terms, conditions, obligations or provisions hereof by either party shall
constitute a material breach of and non-curable (but waivable) default under
this Agreement by the party so failing to perform.
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12.8 CONSTRUCTION. Headings at the beginning of each paragraph and
subparagraph are solely for the convenience of the parties and are not a part of
the Agreement. Whenever required by the context of this Agreement, the singular
shall include the plural and the masculine shall include the feminine. This
Agreement shall not be construed as if it had been prepared by one of the
parties, but rather as if both parties had prepared the same. Unless otherwise
indicated, all references to paragraphs and subparagraphs are to this Agreement.
In the event the date on which any party is required to take any action under
the terms of this Agreement is not a business day, the action shall be taken on
the next succeeding day.
12.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be an original and all of which taken together
shall constitute one instrument.
12.10 GOVERNING LAW. The parties hereto expressly agree that this
Agreement shall be governed by, interpreted under, and construed and enforced in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day first above here written.
Dated: December 15, 2003 GLOBALTECH LEASING, INC.
By: /s/ XXXXXXX XXXXXX
_________________________
Xxxxxxx Xxxxxx, President
Dated: December 15, 2003 INTERNATIONAL CARD ESTABLISHMENT, INC.
By: /s/ XXXXXXX XXXXXXXX
_________________________________________
Xxxxxxx Xxxxxxxx, Chief Executive Officer
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