Exhibit 2.2
PLAN AND AGREEMENT OF REORGANIZATION
PLAN AND AGREEMENT OF REORGANIZATION (the "Agreement") entered into the 1st day
of July 2002, by and between Command International Acquisition Corp. a Delaware
corporation ("CIAC"), Command International Group Inc., a Delaware corporation
("CIG"), and the Shareholders of CIG (the "CIG Shareholders").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, there are issued and outstanding 1,500 shares of common stock,
par value $.0001 per share of CIG (the "CIG Shares") and there are issued and
outstanding 5,239,238 shares of common stock par value $.0001 per share of CIAC
(the "CIAC Common Stock").
WHEREAS, CIAC desires to exchange, for CIG Shares 5,239,238 shares of
CIAC Common Stock or an equivalent number of shares of any successor corporation
to CIAC (the "Exchange Shares") and the CIG Shareholders will make such exchange
in a transaction, which qualifies as a tax-free exchange in accordance with
Sections 368(a)(i)(B) of the Internal Revenue code;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
1. Exchange Shares.
On the date that CIAC delivers the Exchange Shares provided in Article
2, which Exchange Shares shall be free and clear of all liens and encumbrances
of any kind whatsoever, and shall be fully paid and nonassessable (the "Closing
Date"), the CIG Shareholders shall deliver in exchange therefore to CIAC, and
CIAC shall accept from the CIG Shareholders, in reliance upon and subject to all
of the representations, warranties and other terms and conditions of this
Agreement, the CIG Shares, free and clear of all liens and encumbrances of any
kind whatsoever, and fully paid and nonassessable.
2. Reorganization Consideration; Closing.
The Reorganization Consideration for the CIG Shares shall be 5,239,238
Exchange Shares, which shall be delivered to CIG at the Closing. Delivery of the
CIG Shares by the CIG Shareholders shall be made to CIAC at the Closing. Upon
delivery of the CIG Shares in exchange for the Exchange Shares, this Agreement
shall be deemed completed. Until the Closing, the CIG Shareholders shall retain
all rights and privileges with respect to the CIG Shares.
The Closing shall be no later than November 1, 2002, at 10:00 a.m. on
such day and at such time and place as shall be mutually agreed upon by CIG and
CIAC.
3. Representations and Warranties of CIG and the CIG Shareholders.
(a) Representations and Warranties of the CIG Shareholders. Each of the
CIG Shareholders hereby represents and warrants jointly but not severally to
CIAC that:
(i) as of the date hereof and on the Closing Date, respectively,
each CIG Shareholder shall own of record and beneficially his or its respective
CIG Shares to be exchanged hereunder, free and clear of all liens and
encumbrances of any kind whatsoever;
(ii) each CIG Shareholder has the full right, power, legal capacity
and authority to enter into this Agreement and to perform his or its respective
obligations hereunder;
(iii) each CIG Shareholder agrees that it is acquiring the Exchange
Shares for investment purposes only and acknowledges that the Exchange Shares
have not been registered under the Securities Act of 1933, as amended (the
"Act") or any state securities laws, and may not be transferred, sold or
otherwise disposed of except if an effective registration statement is then in
effect or pursuant to an exemption from registration under said Act; and
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(iv) this Agreement has been duly executed and delivered by each
CIG Shareholder and constitutes each CIG Shareholder's valid and legally binding
agreement and obligation, subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or hereafter in effect
relating to creditor's rights generally and the application of principals of
equity, including without limitation the principal that equitable remedies, such
as the remedy of specific performance are subject to the discretion of the court
before which any proceeding may therefore be brought;
(b) Representations and Warranties of CIG. CIG hereby represents and
warrants to CIAC that:
(i) the CIG Shares, when delivered shall be fully paid,
non-assessable shares of CIG representing 100% of the issued and outstanding
shares of capital stock of CIG, and no options, warrants, rights or other
securities convertible into equity stock of CIG are outstanding at the date
hereof or will be outstanding at the Closing;
(ii) CIG has acquired and owns all of the capital stock or assets
of Command Line Corp. and SpiderFuel Inc. and Xxxxxx Xxxxxx is and shall remain
at the Closing, President and Chief Executive Officer of CIG.
(iii) this Agreement has been duly executed and delivered by CIG
and constitutes CIG's valid and legally binding agreement and obligation,
subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws now or hereafter in effect relating to creditor's
rights generally and the application of principals of equity, including without
limitation the principal that equitable remedies, such as the remedy of specific
performance are subject to the discretion of the court before which any
proceeding may therefore be brought; and
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(iii) it has the full right, power, legal capacity and authority to
enter into this Agreement and perform its obligations hereunder.
4 Representations and Warranties of CIAC.
CIAC hereby represents and warrants to CIG and each CIG Shareholder
that:
(i) it has the full right, power, legal capacity and authority to
enter into this Agreement and perform its obligations hereunder;
(ii) this Agreement has been duly executed and delivered by CIAC
and constitutes its valid and legally binding agreement and obligation, subject
to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws now or hereafter in effect relating to creditor's rights
generally and the application of principals of equity, including without
limitation the principal that equitable remedies, such as the remedy of specific
performance are subject to the discretion of the court before which any
proceeding may therefore be brought;
(iii) it is acquiring the CIG Shares for investment purposes only
and acknowledges that the CIG Shares have not been registered under the Act or
any state securities laws, and may not be transferred, sold or otherwise
disposed of except if an effective registration statement is then in effect or
pursuant to an exemption from registration under said Act;
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(iv) the Exchange Shares, when issued, shall be fully paid, and
nonassessable shares of CIAC, free and clear of all liens and encumbrances of
any kind whatsoever; and
5. Covenant of CIG. CIG will deliver to CIAC a balance sheet as of the
date of Closing and a statement of operations for the period from inception
through the date of Closing (the " Financial Statements") no later than 30 days
after the Closing. The Financial Statements will be prepared accordance with the
books and records of CIG and will present fairly in all material respects the
financial position and results of operations of CIG as of the times and for the
periods referred to therein.
6. Survival of Representations and Warranties.
The representations, warranties and agreements set forth in Sections 3
and 4 hereof shall survive the execution and delivery of this Agreement and the
sale and purchase of the CIG Shares and the Exchange Shares until the earlier to
occur of (x) two (2) years following the Closing Date or (y) the expiration of
the appropriate time limits under the statute of limitations with respect to
such representation or warranty.
7. Notices.
All notices, requests, demands and other communications which are
required or may be given under this Agreement, shall be in writing, and shall be
deemed delivered (i) if sent by personal delivery, on the date of delivery if
delivered prior to 5:00 P.M., and on the next business day if delivered after
5:00 P.M., (ii) if sent by facsimile, on the date on which receipt thereof is
confirmed by the recipient or a representative thereof, to the addresses and
facsimile numbers as follows:
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If to CIAC: Command International Acquisition Corp.
000 Xxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxx, President
Via Facsimile: (000) 000-0000
If to CIG or the
CIG Shareholders: Command International Group Inc.
0000 Xxxx Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxx, President
Via Facsimile: (000) 000-0000
8. Complete Agreement.
This Agreement constitutes the entire agreement among the parties
hereto with respect to the subject matter hereof. The representations,
warranties and covenants and agreements set forth in this Agreement constitute
all of the representations, warranties, covenants and agreements among the
parties hereto and upon which the parties have relied. No change, modification,
addition or termination of this Agreement or any part thereof shall be valid
unless in writing and signed by or on behalf of the party to be charged
therewith.
9. Assignment.
This Agreement shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective heirs, successors and assigns.
10. No Waiver.
No waiver of any of the provisions hereof shall be effective unless in
writing and signed by the party to be charged with such waiver. No waiver shall
be deemed a continuing waiver or waiver in respect of any subsequent breach or
default, whether of similar or different nature, unless expressly so stated in
writing.
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11. Captions.
The headings or captions under the sections of this Agreement are for
convenience and reference only, and do not form a part hereof, and do not in any
way modify, interpret or construe the intent of the parties or affect any of the
provisions of this Agreement.
12. Governing Law.
This Agreement is intended to be governed by, interpreted and enforced
in accordance with, the laws of the State of New York, without giving effect to
conflicts of law principles.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands,
as of the day and year first above written.
COMMAND INTERNATIONAL ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: President
COMMAND INTERNATIONAL GROUP INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: President
Shareholders:
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/
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New Command Internet
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
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/s/ Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxxxx
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Xxxxxxxxx Trust
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxxx as President
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Global Asset Management, Inc.
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
/s/
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Xxxxxxx, Savage & Xxxxxxxxx, LLP
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
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/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
/s/ Xxxxx Vosoughi
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Xxxxx Xxxxxxxx
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
/s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxx XxxXxxxx
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Xxxxx XxxXxxxx
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/s/ Xxxxxxxx XxxXxxxx
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Xxxxxxxx XxxXxxxx
/s/ Xxxxxxx XxxXxxxx
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Xxxxxxx XxxXxxxx
/s/ Xxxxxxx XxxXxxxx
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Xxxxxxx XxxXxxxx
/s/ XxxxXxx Xxxxx
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XxxxXxx Xxxxx
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
/s/ Xxxxxx Xxxxxx as President
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Old SpiderFuel
/s/ Xxxxx Xxxxxxxxx
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Xxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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/s/ Xxxxxxxxx Xxxxx
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Xxxxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
/s/ Xxxxxxxx Xxxxxxxx
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Xxxxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
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/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxxxxx Xxxxxxx
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Xxxxxxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
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/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
/s/ Xxxxxx Xxxxxxx as President
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CLC
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AMENDMENT NO. 1 TO
PLAN AND AGREEMENT OF REORGANIZATION
THIS AMENDMENT NO. 1 TO PLAN AND AGREEMENT OF REORGANIZATION (this
"Amendment") is entered into as of the 24th day of February, 2003, by and
between Command International Acquisition Corp., a Delaware corporation
("CIAC"), Command International Group Inc., a Delaware corporation ("CIG") and
the Shareholders of CIG ("the "CIG Shareholders").
WHEREAS, CIAC, CIG and the CIG Shareholders are parties to a Plan and
Agreement of Reorganization dated July 1, 2002 (the "Agreement") and capitalized
terms used but not otherwise defined herein have the meanings assigned to them
in the Agreement; and
WHEREAS, the parties desire to amend the Agreement;
NOW, THEREFORE, the parties agree as follows:
1. Representations and Warranties of CIG. Section 3(b) of the Agreement is
hereby amended to read in full as follows:
CIG hereby represents and warrants to CIAC that:
(i) the CIG Shares, when delivered shall be fully paid, non-assessable
shares of CIG representing 100% of the issued and outstanding shares of capital
stock of CIG, and no options, warrants, rights or other securities convertible
into equity stock of CIG are outstanding at the date hereof or will be
outstanding at the Closing;
(ii) CIG has acquired and owns all of the capital stock or assets of
Command Line Corp. and SpiderFuel Inc. and Xxxxxx Xxxxxx is and shall remain at
the Closing, Chairman and Chief Executive Officer of CIG;
(iii) this Agreement has been duly executed and delivered by CIG and
constitutes CIG's valid and legally binding agreement and obligation, subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other
similar laws now or hereafter in effect relating to creditor's rights generally
and the application of principals of equity, including without limitation the
principal that equitable remedies, such as the remedy of specific performance,
are subject to the discretion of the court before which any proceeding may
therefore be brought;
(iv) it has the full right, power, legal capacity and authority to
enter into this Agreement and perform its obligations hereunder;
(v) all federal, state and other returns and reports required to be
filed by CIG have been duly filed by CIG and, except as set forth on Schedule
3(v) attached hereto, all material taxes and other assessments and levies
(including all interest and penalties) including, without limitation, income,
franchise, real estate, sales, gross receipts, use and services taxes, and
employment and employee withholding taxes, owed by CIG have been paid in full by
CIG unless being contested in good faith. Except as set forth on Schedule 3(v),
all such taxes and other assessments and levies which CIG is required by law to
have withheld, collected or deposited have been duly withheld and collected and
deposited with the proper governmental authorities or segregated and set aside
for such payment, and if so segregated and set aside, shall be so paid by CIG as
required by law;
(vi) except as set forth on Schedule 3(vi) attached hereto, the
execution and delivery of this Agreement by CIG does not, and the performance of
this Agreement by CIG and the consummation by CIG of the transactions
contemplated hereby will not, (i) conflict with or violate the Certificate of
Incorporation or By-laws of CIG, (ii) conflict with or violate any federal,
foreign, state or provincial law, rule, regulation, order, judgment or decree
applicable to CIG or any of its subsidiaries or by which its or any of their
respective properties or assets are bound or affected, or (iii) result in any
breach of or constitute a default (or an event that with notice or lapse of time
or both would become a default) under, or impair CIG or any of its subsidiaries'
rights or alter the rights or obligations of any third party under, or give to
others any rights of termination, amendment, acceleration or cancellation of, or
result in the creation of a lien on any of the properties or assets of CIG or
any of its subsidiaries pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which CIG or any of its subsidiaries is a party or by which CIG or
any of its subsidiaries or its or any of their respective properties or assets
are bound or affected;
(vii) Schedule 3(vii) attached hereto contains a true and complete list
of all patents and patent applications (pending or in the process of
preparation), domestic or foreign, patent rights, trademarks, trade names and
licenses under the patents of others, trade secrets, secret processes and other
proprietary rights of every kind and nature used or necessary for use by CIG or
its subsidiaries in its or their business as presently conducted. To CIG's
knowledge, all such patents, patent applications, patent rights and licenses are
valid and effective in accordance with their terms, and all such trade names,
trade secrets, secret processes and other proprietary rights are valid and
effective. CIG has not received any notice of any claim of infringement. Except
as disclosed in Schedule 3(vii) attached hereto, there are no agreements,
contracts or obligations under which CIG or its subsidiaries is obligated with
respect to, or is using, any patents, patent applications, patent rights,
trademarks, trade names, licenses under the patents of others, trade secrets,
secret processes or other proprietary rights. The trade secrets and "know-how"
of CIG and it subsidiaries are in such form and of such quality that, following
the Closing Date, CIG and its subsidiaries will be able to continue to sell the
products heretofore provided by CIG and its subsidiaries; and
(viii) except as otherwise contemplated by this Agreement, after the
date hereof and prior to the Closing Date or earlier termination of this
Agreement, unless the parties shall otherwise agree in writing, neither CIG nor
its subsidiaries shall adopt, enter into or amend any bonus, profit sharing,
compensation, stock option, pension, retirement, deferred compensation, health
care, employment or other employee benefit plan, agreement, trust, fund or
arrangement for the benefit or welfare of any employee or retiree, except in the
ordinary and usual course of business, consistent with past practices or as
required to comply with changes in applicable law and except as contemplated on
Schedule 3(viii) attached hereto.
2. Continuation of Agreement. As amended hereby, the Agreement shall continue in
full force and effect.
3. Counterparts; Facsimile. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute a single agreement. This Amendment may be executed by
facsimile signature.
[Remainder of Page Intentionally Blank, Signature Page Follows]
IN WITNESS WHEREOF, this Amendment has been executed as of the date
first written above in accordance with Section 8 of the Agreement.
COMMAND INTERNATIONAL ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: President
COMMAND INTERNATIONAL GROUP INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
