PLAN AND AGREEMENT
OF REORGANIZATION
DATED AS OF
SEPTEMBER 10, 2010
BY AND AMONG
INFINITY CAPITAL GROUP, INC.
AND
30DC, INC.
AND
ITS SHAREHOLDERS
PLAN AND AGREEMENT
OF REORGANIZATION
This AGREEMENT, dated as of September 10, 2010 (the "Agreement"), by
and among Infinity Capital Group, Inc., a Maryland Corporation, ("ICG"), and
30DC, Inc. which is a Delaware corporation ("Acquiree") and the shareholders of
Acquiree ("Shareholders" as listed on Exhibit A hereto).
WHEREAS, the Board of Directors of ICG and Acquiree, respectively, have
each approved, as being in the best interest of the respective entities and
their stockholder, the Exchange of Acquiree by ICG, in accordance with the
applicable provisions of the Maryland Business Corporation Act;
WHEREAS, ICG, Shareholders and Acquiree desire to make certain
representations, warranties, covenants and agreements in connection with the
Exchange and also to prescribe various conditions to the Exchange; and
WHEREAS, this Agreement is intended to accomplish a tax free
reorganization pursuant to Section 368 of the Internal Revenue Code for benefit
of 30DC, Inc. shareholders.
WHEREAS, this Agreement is intended to set forth the terms upon which
Acquiree will be acquired by ICG from Shareholders.
WHEREAS, this Agreement contemplates a financing transaction up to
11,538,462 units; each unit consist of 1 share of common stock and one 90 day
warrant at $0.37 and one 5 year warrant at $0.50.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties do
hereby agree as follows:
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ARTICLE I
THE CONSIDERATION
------------------------
SECTION 1.01 CONSIDERATION/EXCHANGE; EFFECTIVE TIME
The Exchange shall become effective upon the delivery of the stock
certificates in Acquiree duly executed representing 100% of Acquiree outstanding
shares of common stock and delivery of the following consideration:
60,984,000 shares of restricted common stock of ICG shall be issued to
Acquiree Shareholders prorata in exchange for 100% of Acquiree's
outstanding common stock.
SECTION 1.02 EFFECTS OF THE EXCHANGE.
At the Effective Time and by virtue of the Exchange, all of the
outstanding Acquiree common shares shall be conveyed to ICG which shall become
the owning entity of 100% of the outstanding common shares of common stock of
Acquiree.
SECTION 1.03 CONVERSION OF SECURITIES.
As of the Effective Time, by virtue of the Exchange:
(a) All of the outstanding common shares of Acquiree that are issued
and outstanding immediately prior to the Effective Time, shall be exchanged for
shares of ICG in the conversion amount. All such shares of Acquiree shall be
conveyed to ICG, and each holder of a certificate representing such shares shall
cease to have any rights with respect thereto, except the right to receive the
number of shares of ICG Common Stock to be issued in consideration therefore
upon surrender of such certificate in accordance with Section 1.03 (b).
(b) Shares shall be issued in exchange to Acquiree Shareholders as
shown on Exhibit A.
SECTION 1.04 EXCHANGE PROCEDURES.
(a) As soon as practicable after the execution hereof, ICG shall
provide to each Acquiree shareholder a letter of transmittal and a form of
Exchange Agreement (Exhibit B) with Representations for execution by acquiree
shareholders and instructions for use in effecting the surrender of certificates
representing shares of Acquiree outstanding immediately prior to the Effective
Time (the"Certificates") in appropriate and customary form with such provisions
as the board of directors of ICG after the Exchange may reasonably specify. Upon
surrender of a Certificate for cancellation to ICG, together with such letter of
transmittal, duly and properly executed, the holder of such Certificate shall be
entitled to receive in exchange therefore a certificate representing that number
of shares of ICG Common Stock as is equal to the product of the percentage of
Acquiree's shares represented by the certificate multiplied by the Conversion
Amount, and the Certificate so surrendered shall be canceled. Until surrendered
as contemplated by this Section 1.04, each Certificate shall, at and after the
Effective Time, be deemed to represent only the right to receive, upon surrender
of such Certificate, ICG Common Stock as contemplated by this Section 1.04,
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together with any dividends and other distributions payable as provided in
Section 1.05 hereof, and the holders thereof shall have no rights whatsoever as
stockholders of ICG. Shares of ICG Common Stock issued in the Exchange shall be
issued, and be deemed to be outstanding, as of the Effective Time. ICG shall
cause all such shares of ICG Common Stock issued pursuant to the Exchange to be
duly authorized, validly issued, fully paid and non-assessable and not subject
to preemptive rights.
(b) If any certificate representing shares of ICG Common Stock is to be
issued in a name other than that in which the Certificate surrendered in
exchange therefore is registered, it shall be a condition of such exchange that
the Certificate so surrendered shall be properly endorsed and otherwise in
proper form for transfer and that the person requesting such exchange shall pay
any transfer or other taxes required by reason of the issuance of certificates
for such shares of ICG Common Stock in a name other than that of the registered
holder of the Certificate so surrendered.
(c) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and upon the posting by such
person of a bond in such amount as ICG may reasonably direct as an indemnity
against any claim that may be made against it with respect to such Certificate,
ICG will issue in respect of such lost, stolen or destroyed Certificate one or
more certificates representing shares of ICG Common Stock as contemplated by
this Section 1.04 and such person shall be entitled to the dividend and other
distribution rights provided in Section 1.05 hereof.
(d) If any Certificates shall not have been surrendered prior to three
years after the Effective Time (or immediately prior to such earlier date on
which any payment in respect hereof would otherwise escheat or become the
property of any governmental unit or agency), the payment in respect of such
Certificates shall, to the extent permitted by applicable law, become the
property of the Surviving Entity, free and clear of all claims or shares of any
person previously entitled thereto.
(e) ICG shall be entitled to deduct and withhold from the consideration
otherwise payable pursuant to this Agreement to any holder of a Certificate
surrendered for shares of ICG Common Stock (and dividends or distributions with
respect to ICG Common Stock as contemplated by Section 1.05 hereof) such amount
as ICG is required to deduct and withhold with respect to the making of such
payment under the Doe, or provisions of any state, local or foreign tax law. To
the extent that amounts are so deducted and withheld, such amounts shall be
treated for all purposes of this Agreement as having been paid to the holder of
such Certificate.
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SECTION 1.05. DIVIDENDS AND DISTRIBUTIONS.
No dividends or other distributions declared or made with respect to
ICG Common Stock with a record date on or after the Effective Time shall be paid
to the holder of a Certificate entitled by reason of the Exchange to receive
certificates representing ICG Common Stock until such holder surrenders such
Certificate as provided in Section 1.05 hereof. Upon such surrender, there shall
be paid by ICG to the person in whose name certificates representing shares of
ICG Common Stock shall be issued pursuant to the terms of this Article I (i) at
the time of the surrender of such Certificate, the amount of any dividends and
other distributions theretofore paid with respect to that number of whole shares
of such ICG Common Stock represented by such surrendered Certificate pursuant to
the terms of this Article I, which dividends or other distributions had a record
date on or after the Effective Time and a payment date prior to such surrender
and (ii) at the appropriate payment date, the amount of dividends and other
distributions payable with respect to that number of whole shares of ICG Common
Stock represented by such surrendered Certificate pursuant to the terms of this
Article I, which dividends or other distributions have a record date on or after
the Effective Time and a payment date subsequent to such surrender.
ARTICLE II
THE CLOSING
------------------------
SECTION 2.01 CLOSING.
Unless this Agreement shall have been terminated and the transactions
herein contemplated shall have been abandoned pursuant to Article VIII, and
subject to the satisfaction or waiver of the conditions set forth in Article VI,
the closing of the Exchange (the "Closing") shall take place as soon as
reasonably practicable (but in no event on written notice of less than two (2)
business days) after all of the conditions set forth in Article VI are satisfied
or, to the extent permitted thereunder, waived, at the offices of Infinity
Capital Group, Inc., located at 00 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, XX 00000
or at such other time and place as may be agreed to in writing by the parties
hereto (the date of such Closing being referred to herein as the "Closing
Date").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF ICG
Except as set forth in the applicable section of the disclosure
schedule delivered by ICG to Sellers prior to the execution of this Agreement
(the "ICG Disclosure Schedule"), ICG represents and warrants to Sellers as
follows:
SECTION 3.01 ORGANIZATION OF ICG; AUTHORITY.
ICG is an Entity duly organized, validly existing and in good standing
under the laws of the State of Maryland. ICG has all requisite corporate power
and corporate authority to enter into the transaction documents to which it is a
party, to consummate the transactions contemplated hereby and thereby, to own,
lease and operate its properties and to conduct its business. Subject to the
receipt of its board of director's approval, the execution, delivery and
performance by ICG of the Transaction Documents to which it is a party and the
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consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of ICG, including,
without limitation, the approval of the board of directors of ICG. The
Transaction Documents have been duly executed and delivered by each of ICG and,
assuming that the Transaction Documents constitute a valid and binding
obligation of the other parties thereto, constitute a valid and binding
obligation of ICG, enforceable against ICG in accordance with its terms. ICG is
a Maryland corporation operating only in Maryland to date hereof. ICG has
heretofore delivered or made available to Acquiree complete and correct copies
of the certificate of incorporation and by-laws of ICG, the minute books and
stock transfer records of ICG, as in effect as of the date of this Agreement.
ICG is not in violation of its organizational documents.
SECTION 3.02 CAPITALIZATION.
The authorized capital stock of ICG consists of 100,000,000 shares of
ICG Common Stock, of which 6,547,391 shares are outstanding on the date hereof
and 10,000,000 shares of ICG Preferred Stock of which no shares are issued and
outstanding. Currently, there are 404,000 employee stock options exercisable at
$0.80, expiring on August 7, 2018 and 196,000 employee stock options exercisable
at $0.50, expiring on January 5, 2019 (see Schedule). The board of Directors of
ICG approve extending the term of all outstanding options to be coterminous with
the term of the original grand; and that all option agreements outstanding be
hereby amended to reflect the full term originally intended by the Board of
Directors at the time of grant on August 7, 2008 and January 5, 2009 and without
regard to any termination of service restriction provisions that may be found in
said option agreements. No other shares of any other class or series of ICG
Common Stock or securities exercisable or convertible into or exchangeable for
ICG Common Stock ("ICG Common Stock Equivalents") are authorized, issued or
outstanding. The outstanding shares of ICG Common Stock have been duly
authorized and validly issued and are fully paid and nonassessable and were not
issued in violation of, and are not subject to, any preemptive, subscription or
similar rights. To ICG's knowledge, none of the outstanding shares of ICG Common
Stock was issued in violation of any Law, including without limitation, federal
and state securities laws. Except as shown on Schedule 3.02, there are no
outstanding warrants, options, subscriptions, calls, rights, agreements,
convertible or exchangeable securities or other commitments or arrangements
relating to the issuance, sale, purchase, return or redemption, and, to ICG's
knowledge, voting or transfer of any shares, whether issued or unissued, of ICG
Common Stock, ICG Common Stock Equivalents or other securities of ICG. On the
Closing Date, the shares of ICG Common Stock being issued in the Exchange will
have been duly authorized and, when issued and delivered in accordance with this
Agreement, such shares of ICG Common Stock will be validly issued, fully paid
and nonassessable.
SECTION 3.03 NO VIOLATION; CONSENTS AND APPROVALS.
The execution and delivery by ICG of the transaction documents does
not, and the consummation of the transactions contemplated hereby and thereby
and compliance with the terms hereof and thereof will not, conflict with or
result in any violation of or default (or an event which, with notice or lapse
of time or both, would constitute a default) under, (a) the terms and conditions
or provisions of the certificate of incorporation or by-laws of ICG (b) any Law
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applicable to ICG or the property or assets of ICG, or (c) give rise to any
right of termination, cancellation or acceleration under, or result in the
creation of any lien upon any of the properties of ICG under any contract to
which ICG is a party or by which ICG or any assets of ICG may be bound, except,
in the case of clauses (b) and (c), for such conflicts, violations or defaults
which are set forth in Section 3.04 of the ICG Disclosure Schedule and as to
which requisite waivers or consents will have been obtained prior to the Closing
or which, individually or in the aggregate, would not have a material adverse
effect on ICG. No Governmental Approval is required to be obtained or made by or
with respect to ICG in connection with the execution and delivery of this
Agreement or the consummation by ICG of the transactions contemplated hereby.
SECTION 3.04 LITIGATION; COMPLIANCE WITH LAWS.
(a) Except as would not have a Material Adverse Effect on Acquiree,
there are: there are: (i) no claims, actions, suits, investigations or
proceedings pending or, to the knowledge of ICG, threatened against, relating to
or affecting ICG, the business, the assets, or any employee, officer, director,
stockholder, or independent contractor of ICG in their capacities as such, and
(ii) no orders of any Governmental Entity or arbitrator outstanding against ICG,
the business, the assets, or any employee, officer, director, stockholder, or
independent contractor of ICG in their capacities as such, or that could prevent
or enjoin, or delay in any respect, consummation of the transactions
contemplated hereby.
(b) ICG has complied and is in compliance in all material respects with
all laws applicable to ICG, its business or its assets. Neither ICG has received
notice from any Governmental Entity or other Person of any material violation of
law applicable to ICG, its business or assets. ICG has obtained and holds all
required Licenses (all of which are in full force and effect) from all
Government Entities applicable to ICG, its business or their assets. No
violations are or have been recorded in respect of any such license and no
proceeding is pending, or, to the knowledge of ICG, threatened to revoke or
limit any such License.
SECTION 3.05 FINANCIAL STATEMENTS
The financial statement of ICG as most recently filed with Securities
Exchange Commission on Form 10K and true and correct to the best of its
knowledge and there have been no material changes except that those financial
statements are pursuant to Investment Company Act accounting and not GAAP and
certain adjustments may be required to bring into compliance with GAAP. No
significant adverse changes have occurred or shall have occurred with customers,
suppliers, and management. ICG warrants that at closing, its assets will be
minimal consisting only of stock of companies and liabilities outstanding net of
assets will be less than $300,000 (direct or contingent) currently shown on
Schedule 3.05 hereto.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ACQUIREE
-----------------------------------------------
Except as set forth in the applicable section of the disclosure
schedule delivered by Acquiree to ICG prior to the execution of this Agreement
(the "Acquiree Disclosure Schedule"), Acquiree represents and warrants to ICG as
follows:
SECTION 4.01 ORGANIZATION OF ACQUIREE; AUTHORITY.
Acquiree is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite corporate
power and corporate authority to enter into the Transaction Documents, to
consummate the transactions contemplated hereby and thereby, to own, lease and
operate its properties and to conduct its business. Subject to the receipt of
shares holder approval by Acquiree holders, the execution, delivery and
performance by Acquiree of the Transaction Documents and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary corporate action on the part of Acquiree, including, without
limitation, the approval of the board of directors of Acquiree. The Transaction
Documents have been duly executed and delivered by Acquiree and, assuming that
the Transaction Documents constitute a valid and binding obligation of ICG,
constitute a valid and binding obligation of Acquiree. Acquiree is duly
qualified or licensed to do business as a foreign Entity and are in good
standing in each jurisdiction in which the property owned, leased or operated by
it or the nature of the business conducted by it makes such qualification
necessary, except where the failure to obtain such qualification or license
would not, individually or in the aggregate, have a Acquiree Material Adverse
Effect on Acquiree. Acquiree has herewith delivered or made available to ICG
complete and correct copies of the articles of organization and conversion to a
corporation and by-laws of Acquiree, the minute books and stock transfer records
of Acquiree, as in effect as of the date of this Agreement. Acquiree is not in
violation of its organizational documents.
SECTION 4.02 CAPITALIZATION.
(a) The authorized and outstanding shares of Acquiree is set forth in
Section 4.02(a) of the Acquiree Disclosure Schedule (the "Acquiree shares"). All
of the outstanding shares of the Acquiree are validly issued, fully paid and
non-assessable. To Acquiree's knowledge, none of the outstanding shares of
Acquiree or other securities of Acquiree was issued in violation of any Law,
including, without limitation, state and federal securities laws. There are no
Liens on or with respect to any outstanding shares of Acquiree.
(b) Except as shown in Section 4.02 (a) of Acquiree's disclosure
schedule. There are no outstanding: (i) securities convertible into or
exchangeable for Acquiree shares; (ii) options, warrants or other rights to
purchase or subscribe for Acquiree shares; or (iii) contracts, commitments,
agreements, understandings or arrangements of any kind relating to the issuance
of any Acquiree shares, any such convertible or exchangeable securities or any
such options, warrants or rights. There is no outstanding right, option or other
agreement of any kind to purchase or otherwise to receive from Acquiree, or any
stockholder of Acquiree, any ownership shares in Acquiree, and there is no
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outstanding right or security of any kind convertible into such ownership
shares. To Acquiree's knowledge, there are no voting trusts, proxies or other
similar agreements or understandings with respect to the shares of Acquiree.
There are no obligations, contingent or otherwise, of Acquiree to repurchase,
redeem or otherwise acquire any shares of Acquiree or to provide funds to or
make any investment (in the form of a loan, capital contribution or otherwise)
in any other Person. There are no accrued and unpaid dividends with respect to
any outstanding shares of Acquiree.
SECTION 4.03 NO VIOLATION; CONSENTS AND APPROVALS.
The execution and delivery by Acquiree of the Transaction Documents
does not, and the consummation of the transactions contemplated hereby and
thereby and compliance with the terms hereof and thereof will not conflict with,
or result in any violation of or default (or an event which, with notice or
lapse of time or both, would constitute a default) under, (a) the terms and
conditions or provisions of the articles of incorporation or by-laws of
Acquiree, (b) any Laws applicable to Acquiree or the property or assets of
Acquiree, or (c) give rise to any right of termination, cancellation or
acceleration under, or result in the creation of any Lien upon any of the
properties of Acquiree under, any Contracts to which Acquiree is a party or by
which Acquiree or any of its assets may be bound, except, in the case of clauses
(b) and (c), for such conflicts, violations or defaults as to which requisite
waivers or consents will have been obtained prior to the Closing or which,
individually or in the aggregate, would not have an Acquiree Material Adverse
Effect. No Governmental Approval is required to be obtained or made by or with
respect to Acquiree or any Acquiree Subsidiary in connection with the execution
and delivery of this Agreement or the consummation by Acquiree of the
transactions contemplated hereby, except where the failure to obtain such
Governmental Approval would not, individually or in the aggregate, have an
Material Adverse Effect on Acquiree.
SECTION 4.04 LITIGATION; COMPLIANCE WITH LAWS.
(a) Except as would not have a Material Adverse Effect on Acquiree,
there are: (i) no claims, actions, suits, investigations or proceedings pending
or, to the knowledge of Acquiree, threatened against, relating to or affecting
Acquiree, its business, its assets, or any employee, officer, director,
stockholder, or independent contractor of Acquiree in their capacities as such,
and (ii) no orders of any Governmental Entity or arbitrator are outstanding
against Acquiree, its business, its assets, or any employee, officer, director,
stockholder, or independent contractor of Acquiree in their capacities as such,
or that could prevent or enjoin, or delay in any respect, consummation of the
transactions contemplated hereby. Section 4.04 of the Acquiree Disclosure
Schedule includes a description of all claims, actions, suits, investigations or
proceedings involving Acquiree, its business, its assets, or any employee,
officer, director, stockholder or independent contractor of Acquiree in their
capacities as such.
(b) Except as would not have an Acquiree Material Adverse Effect,
Acquiree has complied and is in compliance in all material respects with all
Laws applicable to Acquiree, its business or its assets. Acquiree has not
received notice from any Governmental Entity or other Person of any material
violation of Law applicable to it, its business or its assets. Acquiree has
obtained and holds all required Licenses (all of which are in full force and
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effect) from all Government Entities applicable to it, its business or its
assets. No violations are or have been recorded in respect of any such License
and no proceeding is pending, or, to the knowledge of Acquiree threatened to
revoke or limit any such License.
SECTION 4.05 FINANCIAL STATEMENTS.
Acquiree shall have provided, prior to closing hereunder, Unaudited
Financial Statements thru March 31, 2010 prepared in accordance with Securities
and Exchange Commission Rules and Regulations accounting consistently applied,
complete and true and accurate in all respects, disclosing all liabilities, and
assets of Acquiree and shall provide all books and records necessary to complete
all audits of Acquiree filings in accordance with SEC Rules and Regulations.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF
BUSINESS PENDING THE EXCHANGE
---------------------------------
SECTION 5.01 CONDUCT OF THE BUSINESS PENDING THE EXCHANGE
(a) During the period from the date of this Agreement and continuing
until the Effective Time, ICG agrees as to itself and the ICG Subsidiaries, that
ICG shall not, and shall cause the ICG Subsidiaries not to, engage in any
business whatsoever other than in connection with the consummation of the
transactions contemplated by this Agreement, and shall use commercially
reasonable efforts to preserve intact its business and assets, maintain its
assets in good operating condition and repair (ordinary wear and tear excepted),
retain the services of its officers, employees and independent contractors and
use reasonable commercial efforts to keep in full force and effect liability
insurance and bonds comparable in amount and scope of coverage to that currently
maintained with respect to its business, unless, in any case, Acquiree consents
otherwise in writing.
(b) During the period from the date of this Agreement and continuing
until the Effective Time, Acquiree agrees that, other than in connection with
the consummation of the transactions contemplated hereby, it shall carry on its
business only in the ordinary course of business consistent with past practice,
use commercially reasonable efforts to preserve intact its business and assets
and use reasonable commercial efforts to keep in full force and effect liability
insurance and bonds comparable in amount and scope of coverage to that currently
maintained with respect to its business, unless, in any case, ICG consents
otherwise in writing; provided that Acquiree may take any and all of the actions
listed in Schedule 5.01(b) of the Acquiree Disclosure Schedules at any time
prior to or after the date of this Agreement without the consent of ICG.
Additionally, during the period from the date of this Agreement and continuing
until the Effective Time, Acquiree agrees that, other than in connection with
the consummation of the transaction contemplated hereby, Acquiree shall carry on
its business only in the ordinary course of business consistent with past
practice, use commercially reasonable efforts to preserve intact its business
and assets and use reasonable commercial efforts to keep in full force and
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effect liability insurance and bonds comparable in amount and scope of coverage
to that currently maintained with respect to its business, unless, in any case,
ICG consents otherwise in writing; provided that Acquiree may take any and all
of the actions listed in Schedule 5.01(b) of the Acquiree Disclosure Schedule at
any time prior to or after the date of this Agreement without the consent of
ICG. During the period from the date of this Agreement and continuing until the
Effective Time, Acquiree and ICG agrees as to itself and, with respect to ICG,
that except as expressly contemplated or permitted by this Agreement, as
disclosed in Section 5.01(c) of the Acquiree's Disclosure Schedule or the ICG
Disclosure Schedule, as applicable, or to the extent that the other party shall
otherwise consent in writing:
(1) It shall not amend or propose to amend its certificate of
incorporation or by-laws or equivalent organizational documents except
as contemplated in this Agreement.
(2) It shall not, nor in the case of ICG shall it permit the
ICG Subsidiaries to, issue, deliver, sell, redeem, acquire, authorize
or propose to issue, deliver, sell, redeem, acquire or authorize, any
shares of its capital stock of any class or any securities convertible
into, or any rights, warrants or options to acquire, any such shares or
convertible securities or other ownership of equity, provided that: (1)
ICG shall be permitted to issue the shares of ICG Common Stock to be
issued to Acquiree Stockholders hereunder, and (2) each party shall be
permitted to issue shares of its common stock pursuant to the exercise
of stock options, warrants and other convertible securities outstanding
as of the date hereof and listed on the Acquiree Disclosure Schedule or
the ICG Disclosure Schedule, as the case may be, and (3) Acquiree shall
be permitted to issue the shares of ICG common stock in accordance with
section 3.02 to the persons and in the following amounts as shown on
attached Schedule 5.01:
(3) It shall not, nor in the case of ICG shall it permit any of the ICG
Subsidiaries to, nor shall it propose to: (i) declare, set aside, make or pay
any dividend or other distribution, payable in cash, stock, property or
otherwise, with respect to any of its capital stock or (ii) except with respect
to the Reverse Stock Split, reclassify, combine, split, subdivide or redeem,
purchase or otherwise acquire, directly or indirectly, any of its capital stock.
(4) Other than dispositions in the ordinary course of business
consistent with past practice which would not cause a ICG Material Adverse
Effect or a Acquiree Material Adverse Effect (as applicable), individually or in
the aggregate, to it and its subsidiaries, taken as a whole, it shall not, nor
shall it permit any of its subsidiaries to, sell, lease, encumber or otherwise
dispose of, or agree to sell, lease (whether such lease is an operating or
capital lease), encumber or otherwise dispose of its assets.
(5) It shall promptly advise the other party hereto in writing of any
change in the condition (financial or otherwise), operations or properties,
businesses or business prospects of such party or any of its subsidiaries which
would result in a ICG Material Adverse Effect or Acquiree Material Adverse
Effect, as the case may be.
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(6) It shall not permit to occur, any (1) change in accounting
principles, methods or practices, investment practices, claims, payment and
processing practices or policies regarding intercompany transactions, (2)
incurrence of Indebtedness or any commitment to incur Indebtedness, any
incurrence of a contingent liability, Contingent Obligation or other liability
of any type, except for, with respect to Acquiree, other than obligations
related to the Exchange of Inventory in the ordinary course of business
consistent with past practices, (3) cancellation of any debt or waiver or
release of any contract, right or claim, except for cancellations, waivers and
releases in the ordinary course of business consistent with its past practice
which do not exceed $50,000 in the aggregate, (4) amendment, termination or
revocation of, or a failure to perform obligations or the occurrence of any
default under, any contract or agreement (including, without limitation, leases)
to which it is or, as of April 30, 2010, was a party, other than in the ordinary
course of business consistent with past practice, or any License, (5) execution
of termination, severance or similar agreements with any of its officers,
directors, employees, agents or independent contractors or (6) entering into any
leases of real property or agreement to acquire real property.
SECTION 5.02 NO ACTION.
During the period from the date of this Agreement and continuing until
the Effective Time, Acquiree and ICG agrees as to itself and, with respect to
ICG, that it shall not, and Acquiree shall not, take or agree or commit to take
any action, (i) that is reasonably likely to make any of its representations or
warranties hereunder inaccurate; or (ii) that is prohibited pursuant to the
provisions of this Article V.
ARTICLE VI
ADDITIONAL AGREEMENTS
-------------------------------
SECTION 6.01 ACCESS TO INFORMATION
From the date hereof until the Effective Time or the earlier
termination of this Agreement, each party shall give the other party and its
respective counsel, accountants, representatives and agents, and with respect to
Acquiree it shall provide to ICG with respect to Acquiree, full access, upon
reasonable notice and during normal business hours, to such party's and
Acquieree's facilities and the financial, legal, accounting and other
representatives of such party and Acquiree with knowledge of the business and
the assets of such party and Acquiree and, upon reasonable notice, shall be
furnished all relevant documents, records and other information concerning the
business, finances and properties of such party and its subsidiaries and
Acquiree that the other party and its respective counsel, accountants,
representatives and agents, may reasonably request. No investigation pursuant to
this Section 6.02 shall affect or be deemed to modify any of the representations
or warranties hereunder or the condition to the obligations of the parties to
consummate the Exchange; it being understood that the investigation will be made
for the purposes among others of the board of directors of each party
determining in its good faith reasonable business judgment the accuracy of the
representations and warranties of the other party. In the event of the
termination of this Agreement, each party, if so requested by the other party,
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will return or destroy promptly every document furnished to it by or on behalf
of the other party in connection with the transactions contemplated hereby,
whether so obtained before or after the execution of this Agreement, and any
copies thereof (except for copies of documents publicly available) which may
have been made, and will use reasonable efforts to cause its representatives and
any representatives of financial institutions and investors and others to whom
such documents were furnished promptly to return or destroy such documents and
any copies thereof any of them may have made. It is hereby acknowledged the ICG
has filed all of its financial reports with the SEC which shall constitute
delivery of the same to Acquiree.
SECTION 6.02 NO SHOP; EXCHANGE PROPOSALS.
From the date hereof until the Effective Time or the earlier
termination of this Agreement, neither Acquiree nor ICG shall, nor shall they
authorize or permit any of their respective officers, directors or employees,
Acquiree employees or any investment banker, financial advisor, attorney,
accountant or other representative retained by it to, solicit, initiate or
encourage (including by way of furnishing information), or take any other action
to facilitate, any inquiries or the making of any proposal which constitutes, or
may reasonably be expected to lead to, any Takeover Proposal (as hereinafter
defined), or negotiate with respect to, agree to or endorse any Takeover
Proposal (except in any case if the board of directors or special committee of
ICG or Acquiree, as the case may be, determines in good faith, based upon the
written opinion of its outside legal counsel, that the failure to do so would
constitute a breach of the fiduciary duties of the ICG' or Acquiree's board of
directors or special committee, as the case may be, to its stockholders under
applicable law). Acquiree shall promptly advise ICG and ICG shall promptly
advise Acquiree, as the case may be, orally and in writing of any such inquiries
or proposals and shall also promptly advise ICG or Acquiree, as the case may be,
of any developments or changes regarding such inquiries or proposals. Acquiree
and ICG shall immediately cease and cause to be terminated any existing
discussions or negotiations with any persons (other than Acquiree and ICG)
conducted heretofore with respect to any Takeover Proposal. Acquiree and ICG
agree not to release (by waiver or otherwise) any third party from the
provisions of any confidentiality or standstill agreement to which Acquiree or
ICG is a party.
SECTION 6.03 LEGAL CONDITIONS TO EXCHANGE; REASONABLE EFFORTS.
Acquiree, ICG shall take all reasonable actions necessary to comply
promptly with all legal requirements which may be imposed on itself with respect
to the Exchange and will promptly cooperate with and furnish information to each
other in connection with any such requirements imposed upon any of them or any
of their Subsidiaries in connection with the Exchange. Acquiree and ICG will
take all reasonable actions necessary to obtain (and will cooperate with each
other in obtaining) any consent, authorization, order or approval of, or any
exemption by, any Governmental Entity or other public or private third party,
required to be obtained or made by Acquiree or ICG in connection with the
Exchange or the taking of any action contemplated thereby or by this Agreement.
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SECTION 6.04 CERTAIN FILINGS.
Each party shall cooperate with the other in (a) connection with the
preparation of an 8-K, (b) determining whether any action by or in respect of,
or filing with, any governmental body, agency, official or authority is
required, or any actions, consents, approvals or waivers are required to be
obtained from parties to any material contracts, in connection with the
consummation of the transactions contemplated by this Agreement and (c) seeking
any such actions, consents, approvals or waivers or making any such filings,
furnishing information required in connection therewith or with the 8-K and
seeking timely to obtain any such actions, consents, approvals or waivers. Each
party shall consult with the other in connection with the foregoing and shall
use all reasonable commercial efforts to take any steps as may be necessary in
order to obtain any consents, approvals, permits or authorizations required in
connection with the Exchange.
SECTION 6.05 PUBLIC ANNOUNCEMENTS AND FILINGS.
Each party shall give the other a reasonable opportunity to comment
upon, and, unless disclosure is required, in the opinion of counsel, by
applicable law, approve (which approval shall not be unreasonably withheld), all
press releases or other public communications of any sort relating to this
Agreement or the transactions contemplated hereby.
SECTION 6.06 TAX MATTERS.
No representation is made that this is a non-taxable transaction,
although it has been structured to claim Reorganization Status.
(a) ICG shall prepare and file on a timely basis all Tax Returns which
are due to be filed with respect to ICG pre-closing (giving effect to any
extension of time) including any 2010 short year return as may be necessary. ICG
shall be responsible for the preparation and filing of all Tax Returns which are
due to be filed (giving effect to any extension of time) after the Closing Date.
(b) From the date hereof until the Effective Time or the earlier
termination of this Agreement, without the prior written consent of the other
party or if required in the opinion of counsel, neither ICG nor Acquiree, shall
make or change any election, change an annual accounting period, adopt or change
any accounting method, file any amended Tax Return, enter into any closing
agreement, settle any Tax claim or assessment relating to it, surrender any
right to claim a refund of Taxes, consent to any extension or waiver of the
limitation period applicable to any Tax claim or assessment relating to it, or
take any other action relating to the filing of any Tax Return or the payment of
any Tax.
SECTION 6.07 SUPPLEMENTS TO SCHEDULES.
Prior to the Closing, Acquiree will supplement or amend its disclosure
schedule with respect to any matter hereafter arising which, if existing or
occurring at the date of this Agreement, would have been required to be set
forth or described in such disclosure schedule. No supplement to or amendment of
the disclosure schedule made pursuant to this SECTION 6.07 shall be deemed to
cure any breach of any representation or warranty made in this Agreement unless
the other parties hereto specifically agree thereto in writing. Prior to the
Closing, ICG may supplement or amend its disclosure schedule with respect to any
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matter which, if existing or occurring at the date of this Agreement, would have
been required to be set forth or described in such disclosure schedule. No
supplement to or amendment of the disclosure schedule made pursuant to this
SECTION 6.07 shall be deemed to cure any breach of any representation or
warranty made in this Agreement unless the other parties hereto specifically
agree thereto in writing.
ARTICLE VII
CONDITIONS OF THE EXCHANGE
---------------------------------
SECTION 7.01 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE EXCHANGE.
The respective obligations of each party to effect the Exchange and the
other transactions contemplated herein shall be subject to the satisfaction at
or prior to the Effective Time of the following conditions, any or all of which
may be waived, in whole or in part to the extent permitted by applicable law:
(a) Shareholder Approval. This Agreement shall have been duly adopted
and agreed by the holders of 100% of the outstanding shares of Acquiree, through
an Exchange Agreement, Consent and Representations signed by each shares holder
of Acquiree.
(b) No Injunctions or Restraints. No governmental authority of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, execution order, decree, injunction or
other order (whether temporary, preliminary or permanent) which is in effect and
which materially restricts, prevents or prohibits consummation of the Exchange
or any transaction contemplated by this Agreement; provided, however, that the
parties shall use their reasonable commercial efforts to cause any such decree,
judgment, injunction or other order to be vacated or lifted.
(c) The Resignation of Xxxx Xxxxxxx as Officer and the appointment of
Xx Xxxx as Director and the appointment of Xxxxxxx Xxxxx as Director shall
become effective immediately.
SECTION 7.02 ADDITIONAL CONDITIONS OF OBLIGATIONS OF ICG.
The obligations of ICG to effect the Exchange and the other
transactions contemplated by this Agreement are also subject to the satisfaction
at or prior to the Closing Date of the following additional conditions unless
waived by ICG:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of Acquiree set forth in this Agreement shall be true and correct in all
material respects (except for those representations and warranties qualified by
materiality, which shall be true and correct in all respects) as of the date of
this Agreement and as of the Closing Date as though made on and as of the
Closing Date, except as otherwise contemplated by this Agreement.
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(b) PERFORMANCE OF OBLIGATIONS OF ACQUIREE. Acquiree shall have
performed in all material respects all conditions, covenants, agreements and
obligations required to be performed by it under this Agreement at or prior to
the Closing Date.
(c) NO MATERIAL ADVERSE CHANGE TO ACQUIREE. From the date hereof
through and including the Effective Time, no event shall have occurred which
would have an Acquiree Material Adverse Effect.
(d) THIRD PARTY CONSENTS. Acquiree shall have obtained all consents and
approvals, required to be obtained prior to or at the Closing Date, from third
parties or governmental and regulatory authorities in connection with the
execution, delivery and performance by Acquiree of this Agreement and the
consummation of the transactions contemplated hereby.
(e) NO GOVERNMENTAL ORDER OR OTHER PROCEEDING OR LITIGATION. No order
of any Governmental Entity shall be in effect that restrains or prohibits the
transactions contemplated hereby and by the other Transaction Documents, and no
suit, action or other proceeding by any Governmental Entity shall have been
instituted or threatened which seeks to restrain or prohibit the transactions
contemplated hereby or thereby.
(f) DELIVERIES. At the Closing, Acquiree shall have delivered to ICG or
ICG shall have otherwise obtained:
(1) a certificate, dated the Closing Date, signed on behalf of
Acquiree by the Chief Executive Officer of Acquiree, certifying as to
the fulfillment of the conditions specified in subsections (a), (b) and
(c) of this Section 7.02;
(2) the consents set forth in Section 4.04 of the Acquiree
Disclosure Schedule;
(3) true, correct and complete copies of (1) the certificate
of organization or other charter document, as amended to date, of
Acquiree as filed with, the Secretary of State or other appropriate
official of the state or other jurisdiction of organization of
Acquiree, (2) the by-laws or other similar organizational document of
Acquiree, and (3) resolutions duly and validly adopted by the Board of
Directors and the stockholders of Acquiree evidencing the authorization
of the execution and delivery of this Agreement, the other Transaction
Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby, in each case, accompanied
by a certificate of the Secretary or Assistant Secretary of Acquiree,
dated as of the Closing Date, stating that no amendments have been made
thereto from the date thereof through the Closing Date; and
(4) Unaudited Financial Statements of Acquiree pursuant to SEC
Rules and Regulations through March 31, 2010.
(g) CLOSING OF FINANCING. Acquireee shall have consummated a financing
in form and amount satisfactory to ICG, or shall waive this provision.
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(h) ACQUIREE'S INDEBTEDNESS. All outstanding Indebtedness of Acquiree
shall have been fully paid or re-negotiated in substance reasonably satisfactory
to ICG.
SECTION 7.02 ADDITIONAL CONDITIONS OF OBLIGATIONS OF ACQUIREE.
The obligation of Acquiree to effect the Exchange and the other
transactions contemplated by this Agreement is also subject to the satisfaction
at or prior to the Closing Date of the following additional conditions unless
waived by Acquiree:
(a) REPRESENTATIONS AND WARRANTIES. The representations and warranties
of ICG set forth in this Agreement shall be true and correct in all material
respects (except for those representations and warranties qualified by
materiality) as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date, except as otherwise contemplated by
this Agreement.
(b) PERFORMANCE OF OBLIGATIONS OF ICG. ICG shall have performed in all
material respects all conditions, covenants, agreements and obligations required
to be performed by them under this Agreement at or prior to the Closing Date.
(c) NO MATERIAL ADVERSE CHANGE TO ICG. From the date hereof through and
including the Effective Time, no event shall have occurred which would have a
ICG Material Adverse Effect.
(d) NO GOVERNMENTAL ORDER OR OTHER PROCEEDING OR LITIGATION. No order
of any Governmental Entity shall be in effect that restrains or prohibits the
transactions contemplated hereby and by the other Transaction Documents, and no
suit, action or other proceeding by any Governmental Entity shall have been
instituted or threatened which seeks to restrain or prohibit the transactions
contemplated hereby or thereby.
(e) DELIVERIES. At the Closing, ICG shall have delivered to Acquiree:
(1) certificates, dated the Closing Date, signed on behalf of
ICG by the President of ICG, certifying as to the fulfillment of the
conditions specified in subsections (a), (b) and (c) of this Section
7.03;
(2) the consents set forth in Section 3.04 of the ICG
Disclosure Schedule;
(3) true, correct and complete copies of (1) the certificate
of incorporation or other charter document, as amended to date, of ICG,
certified as of a recent date by the Secretary of State or other
appropriate official of the state or other jurisdiction of
incorporation of such company, (2) the by-laws or other similar
organizational document of ICG, and (3) resolutions duly and validly
adopted by the Board of Directors of ICG evidencing the authorization
of the execution and delivery of this Agreement, the other Transaction
Documents to which it is a party and the consummation of the
transactions contemplated hereby and thereby, in each case, accompanied
by a certificate of the Secretary of ICG, dated as of the Closing Date,
stating that no amendments have been made thereto from the date thereof
through the Closing Date; and
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(4) the share certificates issued prorata in the names of
Shareholders of Acquiree, in proper amounts as shown on Exhibit A
ARTICLE VIII
TERMINATION
--------------------
SECTION 8.01 TERMINATION.
This Agreement may be terminated at any time prior to the Effective
Time, by ICG or Acquiree as set forth below:
(a) by mutual consent of the boards of directors of ICG and
Acquiree; or
(b) by ICG upon written notice to Acquiree, if: (A) any
condition to the obligation of ICG to close contained in Article VII
hereof has not been satisfied by 60 days after date hereof (the "End
Date") (unless such failure is the result of ICG breach of any of its
representations, warranties, covenants or agreements contained herein)
or (B) the ICG stockholders do not approve the Exchange; or
(c) by Acquiree upon written notice to ICG, if: (A) any
condition to the obligation of Acquiree to close contained in Article
VII hereof has not been satisfied by the End Date (unless such failure
is the result of Acquiree's breach of any of its representations,
warranties, covenants or agreements contained herein); or (B) the
Acquiree shares holders do not approve the Exchange; or
(d) by ICG if the board of directors or special committee of
ICG determines in good faith, based upon the written opinion of its
outside legal counsel, that the failure to terminate this Agreement
would constitute a breach of the fiduciary duties of the ICG board of
directors or special committee to the ICG stockholders under applicable
law; or
SECTION 8.02 FEES, COSTS AND EXPENSES.
Legal costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be paid by each party or out of
financing proceeds at closing.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
-----------------------------------------------
None of the representations and warranties of the parties set forth in
this Agreement shall survive the Closing. Following the Closing Date with
respect to any particular representation or warranty, no party hereto shall have
any further liability with respect to such representation and warranty. None of
the covenants, agreements and obligations of the parties hereto shall survive
the Closing.
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ARTICLE X
MISCELLANEOUS
-------------------------
SECTION 10.01 NOTICES.
All notices, requests and other communications to any party hereunder
shall be in writing (including telecopy, telex or similar writing) and shall be
deemed given or made as of the date delivered, if delivered personally or by
telecopy (provided that delivery by telecopy shall be followed by delivery of an
additional copy personally, by mail or overnight courier), one day after being
delivered by overnight courier or three days after being mailed by registered or
certified mail (postage prepaid, return receipt requested), to the parties at
the following addresses:
if to ICG to: Infinity Capital Group, Inc.
00 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
with a copy to (which shall not constitute notice):
Xxxxxxx Xxxxxxx, Esq.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
if to 30DC to: 30 DC, Inc.
00 Xxxxxxxxxx Xx
Xxxxxx Xxxxx Xxx 0000
Austrialia
or such other address or telex or telecopy number as such party may hereafter
specify for the purpose by notice to the other party hereto.
SECTION 10.02 AMENDMENT; WAIVER.
This Agreement may be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may be given, provided that
the same are in writing and signed by or on behalf of the parties hereto.
SECTION 10.03 SUCCESSORS AND ASSIGNS.
The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns,
provided that no party shall assign, delegate or otherwise transfer any of its
rights or obligations under this Agreement without the written consent of the
other party hereto.
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SECTION 10.04 GOVERNING LAW.
This Agreement shall be construed in accordance with and governed by
the law of the State of Maryland without regard to principles of conflict of
laws.
SECTION 10.05 WAIVER OF JURY TRIAL.
Each party hereto hereby irrevocably and unconditionally waives any
rights to a trial by jury in any legal action or proceeding in relation to this
Agreement and for any counterclaim therein.
SECTION 10.06 CONSENT TO JURISDICTION.
Each of the Parties hereby irrevocably and unconditionally submits to
the exclusive jurisdiction of any court of the State of New York or any federal
court sitting in New York for purposes of any suit, action or other proceeding
arising out of this Agreement and the Transaction Documents (and agrees not to
commence any action, suit or proceedings relating hereto or thereto except in
such courts). Each of the Parties agrees that service of any process, summons,
notice or document pursuant to the laws of the State of New York and on the
individuals designated in Section 10.01 shall be effective service of process
for any action, suit or proceeding brought against it in any such court.
SECTION 10.07 COUNTERPARTS; EFFECTIVENESS.
Facsimile transmissions of any executed original document and/or
retransmission of any executed facsimile transmission shall be deemed to be the
same as the delivery of an executed original. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
SECTION 10.08 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES; RIGHTS OF
OWNERSHIP.
Except as expressly provided herein, this Agreement (including the
documents and the instruments referred to herein) constitute the entire
agreement and supersede all prior agreements and understandings, both written
and oral, among the parties with respect to the subject matter hereof. Except as
expressly provided herein, this Agreement is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder. The
parties hereby acknowledge that no person shall have the right to acquire or
shall be deemed to have acquired shares of common stock of the other party
pursuant to the Exchange until consummation thereof.
SECTION 10.09 HEADINGS.
The headings contained in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
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SECTION 10.10 NO STRICT CONSTRUCTION.
The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises under any provision of this Agreement, this Agreement
shall be construed as if drafted jointly by the parties thereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
SECTION 10.11 SEVERABILITY.
If any term or other provision of this Agreement is invalid, illegal or
unenforceable, all other provisions of this Agreement shall remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in a manner that is materially adverse to
any party.
ARTICLE XI
DEFINITIONS
-----------------------
"Affiliate" shall mean (a) with respect to an individual, any member of
such individual's family including lineal ancestors and descendents; (b) with
respect to an entity, any officer, director, stockholder, partner, manager,
investor or holder of an ownership shares of or in such entity or of or in any
Affiliate of such entity; and (c) with respect to a Person, any Person which
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with such Person or entity.
"Agreement" shall have the meaning set forth in the preamble to this
Agreement.
"Acquiree" shall have the meaning set forth in the preamble to this
Agreement.
"Acquiree Common Stock" shall have the meaning set forth in the
recitals to this Agreement, and elsewhere in Section 4.02"Acquiree Material
Adverse Effect" shall mean an event or change, individually or in the aggregate
with other events or changes, that could reasonably be expected to have a
material adverse effect on (a) the business, properties, prospects, condition
(financial or otherwise) or results of operations of Acquiree taken as a whole
(other than those events, changes or effects resulting from general economic
conditions or the industry in which Acquiree is engaged generally) or (b) the
ability of Acquiree to consummate the transactions contemplated hereby.
"Acquiree Shareholders" mean the holders of common shares in Acquiree.
"Certificates" shall have the meaning set forth in Section 1. of this
Agreement.
"Closing" shall have the meaning set forth in Section 2.01 of this
Agreement.
"Closing Date" shall have the meaning set forth in Section 2.01 of this
Agreement.
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"Code" shall have the meaning set forth in the recitals of this
Agreement.
"Contingent Obligation" as to any Person shall mean the undrawn face
amount of any letters of credit issued for the account of such Person and shall
also mean any obligation of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness, leases, dividends, letters of credit or
other obligations ("Primary Obligations") of any other Person (the "Primary
Obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (a) to
purchase any such Primary Obligation or any property constituting direct or
indirect security therefore, (b) to advance or supply funds (i) for the purchase
or payment of any such Primary Obligation or (ii) to maintain working capital or
equity capital of the Primary Obligor or otherwise to maintain the financial
condition or solvency of the Primary Obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the obligee under
any such Primary Obligation of the ability of the Primary Obligor to make
payment of such Primary Obligation, or (d) otherwise to assure or hold harmless
the obligee under such Primary Obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business.
"Contracts" shall mean all contracts, leases, subleases, notes, bonds,
mortgages, indentures, Permits and Licenses, non-competition agreements, joint
venture or partnership agreements, powers of attorney, purchase orders, and all
other agreements, arrangements and other instruments, in each case whether
written or oral, to which such Person is a party or by which any of them or any
of its assets are bound.
"Conversion Amount" shall mean an amount equal to 1/100th of 60,984,000
shares of ICG Common Stock per 1% shares in Acquiree.
"Effective Time" shall be the date all conditions and performance
hereunder has been completed but no later than August 10, 2010, unless mutually
extended by the parties.
"End Date" shall have the meaning set forth in Section 8.01 of this
Agreement.
"Governmental Approval" shall mean the consent, approval, order or
authorization of, or registration, declaration or filing with any court,
administrative agency or commission or other Governmental Entity, authority or
instrumentality, domestic or foreign.
"Governmental Entity" means the government of the United States of
America, any other nation or any political subdivision thereof, whether foreign,
state or local, and any agency, authority, instrumentality, regulatory body,
court, tribunal, arbitrator, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"ICG" shall have the meaning set forth in the preamble to this
Agreement.
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"ICG" Common Stock" shall have the meaning set forth in the recitals to
this agreement.
"ICG" Common Stock Equivalents" shall have the meaning set forth in
Section 3.02 of this Agreement.
"ICG" Material Adverse Effect" shall mean an event or change,
individually, or in the aggregate with other events or changes, that could
reasonably be expected to have a material adverse effect on (a) the business,
properties, prospects, condition (financial or otherwise) or results of
operations of ICG and the ICG Subsidiaries taken as a whole (other than those
events, changes or effects resulting from general economic conditions or the
industry in which ICG is engaged generally) or (b) the ability of ICG to
consummate the transactions contemplated hereby.
"Indebtedness" shall mean as to any Person and whether recourse is
secured by or is otherwise available against all or only a portion of the assets
of such Person and whether or not contingent, but without duplication: (a) every
obligation of such Person for money borrowed; (b) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the Exchange of property,
assets or businesses; (c) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (d) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (including
securities repurchase agreements but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business which are not more than
120 days overdue or which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in accordance
with GAAP); (e) every Capital Lease Obligation of such Person; (f) any
obligation of such Person to pay any discount, shares, fees, indemnities,
penalties, recourse, expenses or other amounts in connection with any sales by
such Person unless such sales are on a non-recourse basis (as to collectibility)
of (i) accounts or general intangibles for money due or to become due, (ii)
chattel paper, instruments or documents creating or evidencing a right to
payment of money or (iii) other receivables, whether pursuant to a purchase
facility or otherwise, other than in connection with the disposition of the
business operations of such Person relating thereto or a disposition of
defaulted receivables for collection and not as a financing arrangement; (g)
every obligation of such Person under any forward contract, futures contract,
swap, option or other financing agreement or arrangement (including, without
limitation, caps, floors, collars and similar agreements), the value of which is
dependent upon shares rates, currency exchange rates, commodities or other
indices (a "derivative contract"); (h) every obligation in respect of
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent that such Person is liable therefore as a
result of such Person's ownership shares in or other relationship with such
entity, except to the extent that the terms of such Indebtedness provide that
such Person is not liable therefore and such terms are enforceable under
applicable law; and (i) every Contingent Obligation of such Person with respect
to Indebtedness of another Person. Notwithstanding anything to the contrary in
this Agreement, the term "Indebtedness" expressly includes the following debts
and obligations of Acquiree:
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"Laws" shall mean all foreign, federal, state and local statutes, laws,
ordinances, regulations, rules, resolutions, orders, writs, injunctions,
judgments and decrees applicable to the specified Person and to the businesses
and assets thereof.
"License" shall mean any franchise, authorization, license, permit,
certificate of occupancy, easement, variance, exemption, certificate, consent or
approval of any Governmental Entity or other Person.
"Lien" shall mean any mortgage, pledge, assessment, security interest,
lease, lien, adverse claim, levy, charge or other encumbrance of any kind.
"Exchange" shall have the meaning set forth in the recitals of this
Agreement.
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, limited liability company,
association, Entity, institution, entity, party, Governmental Entity or any
other juridical entity of any kind or nature whatsoever.
"Takeover Proposal" shall mean any proposal for a tender or exchange
offer, Exchange, consolidation, sale of all or substantially all of such party's
assets, sale of in excess of fifteen percent of the shares of capital stock or
other business combination involving such party or any proposal or offer to
acquire in any manner a substantial equity shares (including any shares
exceeding fifteen percent of the equity outstanding) in, or all or substantially
all of the assets of, such party other than the transactions contemplated by
this Agreement.
"Taxes" means all federal, state, county, local, municipal, foreign and
other taxes, assessments, duties or similar charges of any kind whatsoever,
including all corporate franchise, income, gross receipts, occupation, windfall
profits, sales, use, ad valorem, value-added, profits, license, withholding,
payroll, employment, excise, premium, real property, personal property, customs,
net worth, capital gains, transfer, stamp, documentary, social security,
disability, environmental, alternative minimum, recapture and other taxes, and
including all shares, penalties and additions imposed with respect thereto,
whether disputed or not and including any obligations to indemnify or otherwise
assume or succeed to the Tax liability of any Person, and any liability in
respect of any Tax as a result of being a member of any affiliated, combined,
consolidated, unitary or similar group.
"Tax Return" means any report, return, statement, estimate,
informational return, declaration or other written information required to be
supplied to a taxing authority in connection with Taxes.
"Taxing Authority" means any domestic, foreign, federal, national,
state, county or municipal or other local government, any subdivision, agency,
commission or authority thereof, or any quasi-governmental body exercising tax
regulatory authority.
"Transaction Documents" shall mean this Agreement
-24-
IN WITNESS WHEREOF, the parties hereto have caused this Exchange
Agreement to be duly executed as of the day and year first above written.
INFINITY CAPITAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
30DC, INC.
By: /s/ Xxxxxx Xxxx
--------------------------------------------
Name:
Title:
EXHIBIT "A"
EXHIBIT A
30 DC SHAREHOLDER INFINITY SHARES
--------------------------------------------------- ---------------
CORHOLDINGS PTY LTD AS TRUSTEE FOR CARBLY TRUST
(ABN59 598 847 541)
ATTN: XX. XXXXXXX XXXXX 2,640,000
0 XXXXXXXX XXXX
XXXXXXXXXXX, XXXXX XXXXXXXXX 0000
XXXXXXXXX
SOMERCORP PTY LTD AS TRUSTEE FOR SOMERVILLE &
NOITZ FAMILY TRUST
ATTN: XX XXXXXX X. XXXXXXXXXX 2,640,000
X.X. XXX 000
XXXXXXX XXX 0000
XXXXXXXXX
XXXXXX XXXXXXXXX 2,640,000
00 XXXXXXXXX XXXXXX
XXXXXXXXX XXXX XXX 0000
XXXXXXXXX
XXXXXXX XXXXX 3,432,000
APARTMENT 1082
0 XXXXXX XXXXXX
XXXX XXXXX, XXXXXXXXXX 0000
XXXXXXXXX
RAINE VENTURES LLC 10,560,000
ATTN: XX. XXX XXXXXX
0 XXXXXX XXXX
XXXXXXX, XXXXXXXX XX0 0XX
XXXXXX XXXXXXX
MARILLION PARTNERSHIP, LTD 37,224,000
ATTN: XX XXXX
00 XXXXXXXXXX XX
XXXXXX XXXXX XXX 0000
AUSTRIALIA
XXXXXX XXXX 1,848,000
00 XXXXXXXXXX XX
XXXXXX XXXXX XXX 0000
AUSTRIALIA
TOTAL 60,984,000
EXHIBIT "B"
EXCHANGE AGREEMENT AND REPRESENTATIONS
Gentlemen:
I understand that shareholders of 30DC, Inc. ("30DC"), a Delaware
corporation, are offering to exchange their shares of common stock of 30DC, for
shares of stock of Infinity Capital Group, Inc. ("Infinity" or the Company), a
Maryland corporation, pursuant to the Plan and Agreement of Reorganization dated
___________, 2010 by and between Infinity Capital Group, Inc. and 30DC Energy,
Inc., in which I hereby join and to which I agree hereby.
I hereby offer to exchange ______________ shares of common stock of
30DC for ______________ shares of Infinity (the "Shares") and tender my shares
of 30DC herewith, and upon acceptance by you, agree to become a shareholder of
the Company. In order to induce the Company to accept my offer, I advise you as
follows; and acknowledge:
1. CORPORATE DOCUMENTS. Receipt of copies of Articles, By-Laws, and December 31,
2009 audited financial statements of Infinity and such other documents as I have
requested, I hereby acknowledge that I have received the documents (as may be
supplemented from time to time) relating to the Company and that I have
carefully read the information and that I understand all of the material
contained therein, and agree to the terms, and understand the risk factors as
described therein.
2. AVAILABILITY OF INFORMATION. I hereby acknowledge that the Company has made
available to me the opportunity to ask questions of, and receive answers from
the Company and any other person or entity acting on its behalf, concerning the
terms and conditions of the Plan, the financial statements and related
information of the Company and 30DC, and the information contained in the
corporate documents, and to obtain any additional information, to the extent the
Company possesses such information or can acquire it without unreasonable effort
or expense, necessary to verify the accuracy of the information provided by the
Company and any other person or entity acting on its behalf.
3. REPRESENTATIONS AND WARRANTIES. I represent and warrant to the Company (and
understand that it is relying upon the accuracy and completeness of such
representations and warranties in connection with the availability of an
exemption for the offer and exchange of the shares from the registration
requirements of applicable federal and state securities laws) that:
(a) RESTRICTED SECURITIES.
(I) I understand that the Shares have not been registered
under the Securities Act of 1933, as amended (the "Act"), or any state
securities laws.
-1-
(II) I understand that if this exchange agreement is accepted
and the Shares are issued to me, I cannot sell or otherwise dispose of
the shares unless the Shares are registered under the Act or the state
securities laws or exemptions therefrom are available (and
consequently, that I must bear the economic risk of the investment for
an indefinite period of time):
(III) I understand that the Company has no obligation now or
at any time to register the Shares under the Act or the state
securities laws or obtain exemptions therefrom.
(IV) I understand that the Company will restrict the transfer
of the Shares in accordance with the foregoing representations.
(V) There is no public market for the common stock of
Infinity, and there is no certainty that a more liquid market will ever
develop or be maintained. There can be no assurance that I will be able
to sell or dispose of the Shares. Moreover, no assignment, sale,
transfer, exchange or other disposition of the Shares can be made other
than in accordance with all applicable securities laws. It is
understood that a transferee may at a minimum be required to fulfill
the investor suitability requirements established by the Company, or
registration may be required.
(b) LEGEND.
I agree that any certificate representing the Shares will contain and be
endorsed with the following, or a substantially equivalent, LEGEND:
"This share certificate has been acquired pursuant to an investment
representation by the holder and shall not be sold, pledged, hypothecated or
donated or otherwise transferred except upon the issuance of a favorable opinion
by its counsel and the submission to the Company of other evidence satisfactory
to and as required by counsel to the Company, that any such transfer will not
violate the Securities Act of 1933, as amended, and applicable state securities
laws. These shares are not and have not been registered in any jurisdiction."
(c) OWN ACCOUNT.
I am the only party in interest with respect to this exchange offer, and I am
acquiring the Shares for my own account for long-term investment only, and not
with an intent to resell, fractionalize, divide, or redistribute all or any part
of my interest to any other person.
(d) AGE: CITIZENSHIP.
I am at least twenty-one years old and a citizen of the United States.
(e) ACCURACY OF INFORMATION.
All information which I have provided to the Company concerning my financial
position and knowledge of financial and business matters is correct and complete
as of the date set forth at the end hereof, and if there should be any material
change in such information prior to acceptance of this exchange offer by the
Company, I will immediately provide the Company with such information.
4. EXCHANGE PROCEDURE. I understand that this exchange is subject to each of the
following terms and conditions:
(a) The Company may reject this exchange for legal reasons, and this
exchange shall become binding upon the Company only when accepted, in writing,
by the Company.
(b) This offer may not be withdrawn by me.
(c) The share certificates to be issued and delivered pursuant to this
exchange will be issued in the name of and delivered to the undersigned.
5. SUITABILITY. I hereby warrant and represent:
(a) That I can afford a complete loss of the investment and can afford
to hold the securities being received hereunder for an indefinite period of
time.
(b) That I consider this investment a suitable investment, and
(c) That I am sophisticated and knowledgeable and have had prior
experience in financial matters and investments.
6. ACKNOWLEDGEMENT OF RISKS. I have been furnished and have carefully read the
Plan and information relating to the Company, including this form of Exchange
Agreement. I am aware that:
(a) There are substantial risks incident to the ownership of Shares
from the Company, and such investment is speculative and involves a high degree
of risk of loss by me of my entire investment in the Company.
(b) No federal or state agency has passed upon the Shares or made any
finding or determination concerning the fairness of this investment.
(c) The books and records of the Company will be reasonably available
for inspection by me and/or my investment advisors, if any, at the Company's
place of business.
(d) All assumptions and projections set forth in any documents provided
by the Company have been included therein for purposes of illustration only, and
no assurance is given that actual results will correspond with the results
contemplated by the various assumptions set forth therein.
(e) Prior to the completion of the exchange, _______has a limited
operating history. ____ is in the development stage, and its proposed operations
are subject to all of the risk inherent in the establishment of a new business
enterprise, including a limited operating history. The unlikelihood of the
success of the Company must be considered in light of the problems, expenses,
difficulties, complications and delays frequently encountered in connection with
the formation and operation of a new business and the competitive environment in
which the Company will operate.
7. RECEIPT OF ADVICE. I acknowledge that I have been advised to consult my own
attorney and investment advisor concerning the investment.
8. RESTRICTIONS ON TRANSFER. I acknowledge that the investment in the Company is
an illiquid investment. In particular, I recognize that:
(a) Due to restrictions described below, the lack of any market
existing or to exist for these Shares, in the event I should attempt to sell my
Shares in the Company, my investment will be highly illiquid and, probably must
be held indefinitely.
(b) I must bear the economic risk of investment in the Shares for an
indefinite period of time, since the Shares have not been registered under the
Securities Act of 1933, as amended, and issuance is made in reliance upon
Section 4(2) and 4(6) of said Act and/or Rules 501-506 of Regulation D under the
Act, as may be applicable. Therefore, the Shares cannot be offered, sold,
transferred, pledged, or hypothecated to any person unless either they are
subsequently registered under said Act or an exemption from such registration is
available and the favorable opinion of counsel for the Company to that effect is
obtained, which is not anticipated. Further, unless said Shares are registered
with the securities commission of the state in which offered and sold, I may not
resell, hypothecate, transfer, assign or make other disposition of said Shares
except in a transaction exempt or exempted from the registration requirement of
the securities act of such state, and that the specific approval of such sales
by the securities regulatory body of the state is required in some states.
(c) My right to transfer my Shares will also be restricted by the
legend endorsed on the certificates.
9. ACCESS TO INFORMATION. I represent and warrant to the Company that:
(a) I have carefully reviewed and understand the risks of, and other
considerations relating to, the exchange of the Shares, including the risks of
total loss in the event the Company's business is unsuccessful.
(b) I and my investment advisors, if any, have been furnished all
materials relating to the Company and its proposed activities and anything which
they have requested and have been afforded the opportunity to obtain any
additional information necessary to verify the accuracy of any representations
about the Company.
(c) The Company has answered all inquiries that I and my investment
advisors, if any, have put to it concerning the Company and its proposed
activities and the Plan and exchange for the Shares.
(d) Neither I nor my investment advisors, if any, have been furnished
any offering literature other than the documents attached as exhibits thereto
and I and my investment advisors, if any, have relied only on the information
contained in such exhibits and the information, as described in subparagraphs
(b) and (c) above, furnished or made available to them by the Company.
(e) I am acquiring the Shares for my own account, as principal, for
investment purposes only and not with a view to the resale of distribution of
all or any part of such Shares, and that I have no present intention, agreement
or arrangement to divide my participation with others or to resell, transfer or
otherwise dispose of all or any part of the Shares subscribed for unless and
until I determine, at some future date, that changed circumstances, not in
contemplation at the time of this exchange, makes such disposition advisable;
(f) I, the undersigned, if on behalf of a corporation, partnership,
trust, or other form of business entity, affirm that: it is authorized and
otherwise duly qualified to purchase and hold Shares in the Company; recognize
that the information under the caption as set forth in (a) above related to
investments by an individual and does not address the federal income tax
consequences of an investment by any of the aforementioned entities and have
obtained such additional tax advice that I have deemed necessary; such entity
has its principal place of business as set forth below; and such entity has not
been formed for the specific purpose of acquiring Shares in the Company.
(g) I have adequate means of providing for my current needs and
personal contingencies and have no need for liquidity in this investment; and
(h) The information provided by the Company is confidential and
non-public and I agree that all such information shall be kept in confidence by
it and neither used by it to its personal benefit (other than in connection with
its exchange for the Shares) nor disclosed to any third party for any reason;
provided, however, that this obligation shall not apply to any such information
which (i) is part of the public knowledge or literature and readily accessible
at the date hereof; (ii) becomes part of the public knowledge or literature and
readily accessible by publication (except as a result of a breach of these
provisions); or (iii) is received from third parties (except those parties who
disclose such information in violation of any confidentiality agreements
including, without limitation, any Exchange Agreement they may have with the
Company).
10. BINDING AGREEMENT. I hereby adopt, accept, and agree to be bound by all the
terms and conditions of the Plan, and by all of the terms and conditions of the
Articles of Incorporation, and amendments thereto, and By-Laws of the Company.
Upon acceptance of this Exchange Agreement by the Company, I shall become a
Shareholder for all purposes.
11. AGREEMENT TO BE BOUND. The Exchange Agreement, upon acceptance by the
Company, shall be binding upon the heirs, executors, administrators, successors,
and assigns of mine.
12. INDEMNIFICATION. I further represent and warrant:
(a) I hereby indemnify the Company and hold the Company harmless from
and against any and all liability, damage, cost, or expense incurred on account
of or arising out of:
(I) Any inaccuracy in my declarations, representations, and
warranties hereinabove set forth;
(II) The disposition of any of the Shares which I will
receive, contrary to my foregoing declarations, representations, and
warranties; and
(III) Any action, suit or proceeding based upon (1) the claim
that said declarations, representations, or warranties were inaccurate
or misleading or otherwise cause for obtaining damages or redress from
the Company; or (2) the disposition of any of the Shares or any part
thereof.
13. GOVERNING LAW. This Agreement shall be construed in accordance with and
governed by the laws of the State of Maryland, except as to the manner in which
the undersigned elects to take title to the Shares in the Company that shall be
construed in accordance with the state of his principal residence.
14. FINANCIAL STATEMENT. Upon request of the Company, I shall provide a sworn
and signed copy of my current financial statement.
15. ACCREDITED INVESTOR. [__] (Check if applicable. ACCREDITED INVESTOR. I
represent that I am an "Accredited Investor" or an Officer of an "Accredited
Investor" as defined below:
ACCREDITED INVESTOR shall mean any person who comes within any
of the following categories, or who the issuer reasonably believes come within
any of the following categories, at the time of the sale of the securities to
that person.
(1) Any bank as defined in section 3(a)(2) of the Act, or any
savings and loan association or other institution as defined in section
3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity;
any broker or dealer registered pursuant to section 15 of the Securities
Exchange Act of 1934; any insurance company as defined in section 2(13) of the
Act; any investment company registered under the Investment Company Act of 1940
or a business development company as defined in section 2(a)(48) of that Act;
any Small Business Investment Company licensed by the U.S. Small Business
Administration under section 301(c) or (d) of the Small Business Investment Act
of 1958; any plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its political
subdivisions, for the benefit of its employees, if such plan has total assets in
excess of $5,000,000; any employee benefit plan within the meaning of the
Employee Retirement Income Security Act of 1974 if the investment decision is
made by a plan fiduciary, as defined in section 3(21) of such act, which is
either a bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in excess
of $5,000,000 or, if a self-directed plan, with investment decisions made solely
by persons that are accredited investors;
(2) Any private business development company as defined in
section 202(a)(22) of the Investment Advisers Act of 1940;
(3) Any organization described in section 501(c)(3) of the
Internal Revenue Code, corporation, Massachusetts or similar business trust, or
partnership, not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of $5,000,000;
(4) Any director, executive officer, or general partner of the
issuer of the securities being offered or sold, or any director, executive
officer, or general partner of a general partner of that issuer;
(5) Any natural person whose individual net worth, or joint net
worth with that person's spouse, at the time of his purchase exceeds $1,000,000;
(6) Any natural person who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that person's
spouse in excess of $300,000 in each of those years and has a reasonable
expectation of reaching the same income level in the current year;
(7) Any trust, with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in
ss.230.506(b)(2)(ii); and
(8) Any entity in which all of the equity owners are accredited
investors.
(9) An entity or person defined under SEC CFR ss.2330.001 and
California Corporations Code ss.25102(n) (by inclusion).
An AFFILIATE of, or person AFFILIATED with, a specific person
shall mean a person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with,
the person specified.
I will hold title to my interest as follows:
{ } Community Property
{ } Joint Tenants with Right Survivorship
{ } Tenants in Common
{ } Individually
{ } Other: (Corporation, Trust, Etc., please indicate)
(Note: Subscribers should seek the advice of their attorneys in
deciding in which of the above forms they should take ownership of the Shares,
since different forms of ownership can have varying gift tax and other
consequences, depending on the state of the investor's domicile and their
particular personal circumstances. For example, in community property states, if
community property assets are used to purchase shares held in individual
ownership, this might have adverse gift tax consequences. If OWNERSHIP IS BEING
TAKEN IN JOINT NAME WITH A SPOUSE OR ANY OTHER PERSON, THEN ALL SUBSCRIPTION
DOCUMENTS MUST BE EXECUTED BY ALL SUCH PERSONS.)
16. NO ASSIGNABILITY. This exchange is personal to the person/entity whose name
and address appear below. The undersigned may not assign any of its rights or
obligations under this Exchange Agreement to any other person or entity.
17. CONDITIONS. This Exchange Agreement shall become binding upon the Company
only when accepted, in writing, by the Company.
18. EFFECTIVE DATE. The exchange for Shares evidenced by this Exchange Agreement
shall, if accepted by the Company, be effective as soon after ____________,
2010, as all state laws have been complied with to effectuate the transaction.
19. CONVEYANCE. I hereby agree to convey title to all of my interest in all my
common shares of 30DC to Infinity in exchange for _________ common shares of
Infinity.
20. FURTHER ACTS. The undersigned hereby agrees to execute any other documents
and take any further actions that are reasonably necessary or appropriate in
order to implement the transaction contemplated by this Exchange Agreement.
DATED THIS ___ DAY OF _________________ 2010.
NAME OF PURCHASER/EXCHANGOR Tax I.D./SSN
------------------------------------------ ---------------------
Signature of Purchaser/Exchanger:
---------------------------------------------------------------------------
Residence Address
THIS EXCHANGE OFFER IS ACCEPTED THIS ______ day of _______________, 20___.
INFINITY CAPITAL GROUP, INC., a Maryland Corporation
By: _____________________________________________
SCHEDULE 3.02
NAME NUMBER OF $0.80 OPTIONS
---------------------- -----------------------
Xxxxxx X. Xxx 111,000
Xxxxxx X. Xxxx 137,000
Xxxxxx XxXxxxx 156,000
Total 404,000
NAME NUMBER OF $0.50 OPTIONS
---------------------- -----------------------
Xxxxxx X. Xxxxxxxxxx 86,500
Xxxxxx X. Xxx 36,500
Xxxxxx X. Xxxx 36,500
Xxxxxx XxXxxxx 36,500
Total 196,000
SCHEDULE 4.02
30DC, Inc. Capitalization
Common Stock: Outstanding: 4,620,000
Authorized: 25,000,000
Preferred Stock: Outstanding: -0-
Authorized: 5,000,000
