PLAN OF REORGANIZATION AND SHARE EXCHANGE AGREEMENT
Exhibit 2.1
PLAN OF REORGANIZATION
AND
This Plan of Reorganization and Share
Exchange Agreement (“Share Exchange Agreement”, dated as of the 8th day of
October, 2008, is entered into by and between Fidelity Aviation Corporation, a
Colorado corporation (“Fidelity” or “Parent”) or the “Surviving Corporation”),
Northern Construction Holding, Ltd. (“NCH”), a Hong Kong limited company, and
Hong Xxx Xx, the controlling shareholder representative of
NCH (“NCH Shareholder).”
W
I T N E S S E T H:
WHEREAS, Fidelity is a
corporation duly organized and existing under the laws of the State of Colorado
with an authorized capitalization of 100,000,000 shares of voting common stock,
with 3,295.900 shares of voting common stock outstanding, and authorized
capitalization of 10,000,000 shares of preferred stock with 0 shares
outstanding;
WHEREAS, NCH is a limited
company duly organized and existing under the laws of Hong Kong with
10,000 shares of common stock outstanding;
WHEREAS, the Boards of
Directors of Fidelity; the managing member of NCH and the holders of a majority
of common stock in NCH have determined that it is advisable that NCH
become a wholly owned subsidiary of Fidelity, on the terms and conditions
hereinafter set forth; and
WHEREAS, Fidelity and NCH
intend that this Agreement of Merger and Plan of Reorganization shall qualify as
a reorganization under Section 368(a)(1) of the Internal Revenue
Code;
NOW, THEREFORE, in
consideration of the mutual covenants, agreements, representations and
warranties herein contained, it is agreed as follows:
ARTICLE
I
Exchange By
Shareholders
Section
1.01
Exchange by
Shareholders. At the Closing (as defined in Section 1.02), the NCH
Shareholder shall sell, transfer, convey, assign and deliver to the Parent its
Company Stock free and clear of all Liens (as defined below) in exchange for the
Twelve Million (12,000,000) shares of newly issued restricted
common stock of Fidelity.
Section
1.02
Closing. The
closing (the “Closing”) of the
transactions contemplated hereby (the “Transactions”) shall
take place at the offices of Argento & Associates Law Firm in
Washington, DC commencing at 9:00am local time on October 8, 2008, or at such
other time and place as may be mutually agreed by the parties.
ARTICLE
II.
Representations and
Warranties of Shareholders and Parent
Each of
the Parent and the NCH Shareholder, hereby severally (and not jointly)
represents and warrants, as follows:
Section
2.01
Good Title.
The NCH Shareholder represents the record and beneficial
owners, and has good title to its common stock, with the right and
authority to sell and deliver such common stock. The Board of
Directors of the Parent has duly authorized the issuance of the Parent's common
stock. The common stock held by the NCH Shareholder and the common stock
issued by the Parent is respectively free and clear of all liens, security
interests, pledges, equities and claims of any kind, voting trusts, stockholder
agreements and other encumbrances.
Section
2.02
Organization.
NCH and the Parent are respectively duly organized and validly
existing in its jurisdiction of organization or has been properly formed under
the laws of its jurisdiction of formation.
Section
2.03
Power and Authority.
The Parent, through its officers and directors, NCH and the NCH
Shareholder each have the legal power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. All acts
required to be taken by the parties to enter into this Agreement have
been properly taken. This Agreement constitutes a legal, valid and binding
obligation of each of the Parent, NCH and the NCH
Shareholder, enforceable against each party in accordance with the terms
hereof.
Section
2.04
No Conflicts.
The execution and delivery of this Agreement by the Parent, NCH
and the NCH Shareholder and the performance by each of its
obligations hereunder in accordance with the terms hereof: (a) will not require
the consent of any third party or any central, provincial, regional, local,
municipal or foreign government or any court of competent jurisdiction,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign (“Governmental Entity”)
under any statutes, laws, ordinances, rules, regulations, orders, writs,
injunctions, judgments, or decrees (collectively, “Laws”); (b) will not
violate any Laws applicable to such shareholder and (c) will not violate or
breach any contractual obligation to which such shareholder is a party.
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Section
2.05
Purchase Entirely for Own
Account. The common stock proposed to be acquired by each of the
Parent and the NCH Shareholder hereunder will be acquired for investment for its
own account, and not with a view to the resale or distribution of any part
thereof, and each of the Parent and the NCH Shareholder has no present intention
of selling or otherwise distributing its common stock, except
in compliance with applicable securities laws.
Section
2.06
Available
Information. Each of the Parent, and the NCH Shareholder has such
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of investment presented in this Share Exchange
Agreement.
Section
2.07
Non-Registration. Each
of the Parent, and the NCH Shareholder understands that neither the Fidelity
common stock nor the NCH common stock has been registered
under the Securities Act of 1933, as amended (the “Securities Act”) and,
if issued in accordance with the provisions of this Agreement, will be issued by
reason of a specific exemption from the registration provisions of the
Securities Act which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of the shareholder’s representations as
expressed herein.
Section
2.08
Restricted
Securities. Each of the Parent and the NCH Shareholder understands that
the Fidelity common stock and the NCH common stock is characterized as
“restricted securities” under the Securities Act. Accordingly such
restricted securities may not be resold without registration under the
Securities Act or the existence of an exemption there from. Each of the
Parent and the NCH Shareholder represents that it is familiar with Rule 144
promulgated under the Securities Act, as presently in effect, and understands
the resale limitations imposed thereby and by the Securities Act.
Section
2.09
Legends. It is
understood that the Fidelity common stock and the NCH common stock will each
bear the following legend or one that is substantially similar to the following
legend:
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A
VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE
OR DISPOSITION MAY BE EFFECTED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION STATEMENT IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933.
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Section
2.10
Adequate
Consideration. At the time of Closing, each of the
Parent and the NCH shareholder will have received adequate consideration for
this Share Exchange Agreement.
ARTICLE
III
Officers and
Directors
When the Share Exchange becomes
effective, the Board of Directors and Officers of
Fidelity shall be as set forth in Exhibit A, and they shall
serve their appointments in accordance with the Certificate of Incorporation and
the By-Laws of Fidelity. The Certificate of Incorporation and By-Laws of
Fidelity shall then govern further election, appointment and removal of officers
and directors in accordance with Colorado law.
ARTICLE
IV
Board of Directors Approval;
Effective Date
(a) This Share Exchange Agreement has
been approved by the managing member of NCH, by a majority of the
holders of the outstanding shares of common stock of NCH and by the
Board of Directors of Fidelity.
(b) The share exchange shall
become effective as of the date of this Share Exchange Agreement, unless
otherwise mutually agreed in writing by the parties.
ARTICLE
V
Counterparts
This Share Exchange Agreement may be
executed in multiple counterparts, each of which when so executed shall be
deemed to be an original, but all of which together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, Northern
Construction Holdings, Inc., Hong Xxx Xx and Fidelity Aviation Corporation. have
caused this Share Exchange Agreement to be signed by their respective officers
and signatories thereunto duly authorized, all as of the date first written
above.
NORTHERN
CONSTRUCTION HOLDINGS, INC.
/s/
Hong Xxx
Xx
By:
Hong Xxx
Xx
Title: CEO
FIDELITY
AVIATION INC.
/s/
Xxxx
Xxxxxxxxxx
By:
Xxxx Xxxxxxxxxx
Title:
President
HONG
XXX XX
/s/ Hong Xxx
Xx
By:
Hong Xxx Xx
Title:
Controlling shareholder representative and CEO
of
Northern Construction Holdings, Ltd.
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Exhibit
A
Director,
Chairman & CEO
Xx. Xxxx
Rong
Director,Vice
Chairman , CFO, Treasurer and Secretary
Mr.
(Xxxx) Hong Xxx Xx
Director
Xx.
Xxxxxxx X. Xxxxxxx
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