MERGER AGREEMENT AND PLAN OF REORGANIZATION
THIS MERGER AGREEMENT AND PLAN OF REORGANIZATION, (hereinafter
the "Agreement") is made and entered into this 27th day of
January, 1996, by and between Investment Growth Resources, Inc., a
Nevada corporation (hereinafter "IGRI"), and Phoenician Olive Oil,
Inc., an Arizona corporation (hereinafter "Phoenician").
RECITALS
WHEREAS, IGRI desires to merge Phoenician with and into IGRI
whereby IGRI shall be the surviving corporate entity pursuant to
the terms and conditions set forth herein;
WHEREAS, all current stockholders of Phoenician desire to
exchange all of their shares of Phoenician common stock for shares
of IGRI's common stock; and
WHEREAS, the parties hereto desire to reorganize the
management and operations of IGRI, to change its corporate name,
and to change its principal place of business.
NOW, THEREFORE, in consideration of the premises and mutual
representations, warranties and covenants herein contained, the
parties hereby agree as follows:
ARTICLE I
MERGER AND EXCHANGE OF SHARES
SECTION 1.1 Merger and Plan of Reorganization.
(a) The parties hereto have previously entered into and
executed a Letter of Intent dated December 14, 1995 setting
forth their intent to enter into this Agreement and to
facilitate the transactions provided for herein. The parties
therefore agree that this Agreement shall supplant and take
precedence over the Letter of Intent and the parties shall
proceed with those transactions anticipated in the Letter of
Intent and more fully described herein. It is further agreed
to by the parties hereto that the transaction contemplated in
the Letter of Intent as an acquisition and exchange of shares
shall be structured as a merger and as otherwise set forth
herein..
(b) The parties hereby agree that IGRI shall merge Phoenician
with and into IGRI with IGRI to be the surviving corporation
(hereinafter the "Merger"), and whereby each share of
Phoenician common stock currently issued and outstanding at
the Effective Time of the Merger, herein defined, shall, by
action of the Merger and without any action on the part of the
holder thereof, automatically be converted into 11,200,000
shares of authorized but previously unissued common stock of
IGRI, par value $.001 per share (the "IGRI Common Stock"),
post-split as per Section 1.5(b) below.
(c) The parties hereto hereby further agree that at or prior
to the Effective Time
of the Merger:
(i) management of IGRI shall be reorganized so as to
seat the new Board of Directors of IGRI to consist of
those persons elected by written consent of a majority
of IGRI shareholders;
(ii) IGRI's corporate name shall be changed to
Phoenician Olive Oil International, Inc.;
(iii) the corporate identity, existence, purposes,
powers, franchises, rights, and immunities of Phoenician
shall be merged into IGRI and IGRI shall be fully
vested therewith;
(iv) the separate existence of Phoenician, except as
specifically otherwise provided by law, shall cease,
whereupon Phoenician and IGRI shall become a single
corporation;
(v) the necessary steps shall be taken in order to
reflect that IGRI will be principally engaged in the
business of gaining control of existing live olive trees
and/or acquiring new trees for use in the commercial
production of olive oil and in any other act or activity
for which a corporation may be organized under the Nevada
Revised Statutes ("NRS"); and
(vi) IGRI's principal place of business shall be moved to
Phoenix, Arizona.
SECTION 1.2 Effective Time of the Merger. Subject to satisfaction
of the terms and conditions of this Agreement, the parties hereto
shall cause the Articles of Merger in substantially the form of
Exhibit 1.2 annexed hereto (the "Articles of Merger"), to be
signed, verified and, immediately upon its execution, delivered to
the Secretary of State of the State of Nevada. The Effective Time
of the Merger shall be the date the Articles of Merger shall have
been filed with the State of Nevada and at such time IGRI shall
have merged Phoenician with and into IGRI and the separate
existence of Phoenician shall cease.
SECTION 1.3 Issuance of Shares.
(a) Upon the Effective time of the Merger, each share of
Phoenician common stock issued and outstanding shall by action
of the Merger and without any action on the part of the holder
thereof, automatically be converted into 11,200,000 shares of
IGRI Common Stock.
(b) The shares of IGRI Common Stock to be issued hereunder
are authorized but previously unissued shares of common stock
of IGRI and shall be, when issued, properly authorized,
validly issued, fully paid and nonassessable.
(c) All shares of IGRI Common Stock to be issued hereunder
are deemed "restricted securities" as defined by Rule 144 of
the Securities Act of 1933 (the "1933 Act"), and the
recipients thereof or their designees shall represent that
they are acquiring said shares for investment purposes only
and without the intent to make a further distribution of the
shares. All shares of IGRI Common Stock to be issued under
the terms of this Agreement shall be issued pursuant to an
exemption from the registration requirements of the 1933 Act,
under Section 4(2) of the 1933 Act and the rules and
regulations promulgated thereunder. All certificates
representing the IGRI Common Stock to be issued hereunder
shall bear the following legend:
The shares represented by this certificate have
not been registered under the Securities Act of
1933, as amended, and may not be offered for
sale, sold or otherwise transferred except in
compliance with the registration provisions of
such Act or pursuant to an exemption from such
registration provisions, the availability of
which is to be established to the satisfaction
of the Company.
SECTION 1.4 Closing. The closing of this Agreement and the
transactions contemplated hereby (the "Closing") shall take place
on or about to the 27th day of January, 1996 (the "Closing Date"),
unless extended by the mutual assent of the parties hereto, at a
time and place to be mutually agreed upon by the parties hereto,
and shall be subject to the provisions of ARTICLE X of this
Agreement. At the Closing or within thirty (30) days thereafter:
(a) Holders of Phoenician common stock shall deliver to IGRI
all stock certificates representing all of the issued and
outstanding shares of Phoenician common stock, duly endorsed,
so as to make IGRI the sole holder thereof, free and clear of
all claims and encumbrances, and which certificates shall be,
upon the issuance of IGRI Common Stock, canceled and deemed
void and of no further effect;
(b) IGRI shall deliver to the holders of Phoenician common
stock, stock certificates representing an aggregate of eleven
million, one hundred fifty-four thousand, seven hundred
twenty-tree (11,154,723) shares of IGRI Common Stock and each
certificate representing such shares shall bear a restrictive
legend in a form customarily used with restricted securities
and as set forth in Section 1.3(c) above;
(c) Phoenician shall deliver to IGRI all deeds, mortgages,
agreements and other pertinent documents evidencing
Phoenician's title, interest and ownership of all of its
assets and property, a complete list of which shall be
attached hereto as Exhibit 1.4 and by this reference made a
part hereof;
(d) IGRI shall deliver an Officer's Certificate as described
in Sections 9.1, 9.2 and 9.4 hereof, dated the Closing Date,
that all representations, warranties, covenants and conditions
set forth herein by IGRI are true and correct as of, or have
been fully performed and complied with by, the Closing Date;
and
(e) Phoenician shall deliver an Officer's Certificate as
described in Sections 8.1, 8.2 and 8.4 hereof, dated the
Closing Date, that all representations, warranties, covenants
and conditions set forth herein by Phoenician are true and
correct as of, or have been fully performed and complied with
by, the Closing Date.
SECTION 1.5 IGRI Special Meeting of Shareholders / Action by
Written Consent. In anticipation of this Agreement and prior to
the Closing Date, IGRI shall have taken all necessary and requisite
corporate action to either (i) call for a Special Meeting of
Shareholders to be held on the earliest practical date, or (ii)
obtain written consents from shareholders representing a majority
of IGRI's outstanding shares of common stock in order to approve
and transact the following business:
(a) To ratify this Agreement and all transactions
contemplated hereby;
(b) To ratify the proposal to effect a one (1) share for
fifty (50) shares reverse stock split of IGRI's currently
issued and outstanding shares of common stock;
(c) To elect a new Board of Directors to consist of Xxxxxx
X. Xxxxxx, C. Xxxxx Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxxxx X.
Xxxxxxxx, Xxxxxxx Xxxxx, Xxx XxXxxxxx and Xxxxxxx Xxxxx, Xx.;
(d) To amend the Articles of Incorporation to change the
corporate name to Phoenician Olive Oil International, Inc., or
any other name deemed suitable by the shareholders; and
(e) To ratify the proposal to authorize and issue an
aggregate of 240,000 shares (post-split) of IGRI's authorized
but previously unissued common stock to Xxxxxx X. Xxxxxx,
Xxxxxx Xxxxx and Xxxxxxx X. Xxxxxxx, in exchange for the
forgiveness of certain debts owed by IGRI and in the
respective amount to be designated by separate instrument.
SECTION 1.6 Consummation of Transaction. If at the Closing, no
condition exists which would permit any of the parties to terminate
this Agreement, or a condition then exists and the party entitled
to terminate because of that condition elects not to do so, then
the transactions herein contemplated shall be consummated upon such
date, and then and thereupon, IGRI will file the Articles of Merger
and all other necessary documents that may be required by the State
of Nevada.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF IGRI
IGRI hereby represents, warrants and agrees that:
SECTION 2.1 Organization of IGRI. IGRI is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Nevada, is duly qualified and in good standing as a
foreign corporation in every jurisdiction in which such
qualification is necessary, and has the corporate power and
authority to own its properties and assets and to transact the
business in which it is engaged. There are no corporations or
other entities with respect to which (i) IGRI owns any of the
outstanding stock or other interest, or (ii) IGRI may be deemed to
be in control because of factors or relationships other that the
quantity of stock or other interest owned. IGRI has all requisite
corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. This
Agreement is the legal, valid and binding obligation of IGRI,
enforceable against IGRI in accordance with its respective terms
except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency and other similar laws affecting
creditors' rights generally.
SECTION 2.2 Capitalization of IGRI. The authorized capital stock
of IGRI consists of 200,000,000 shares of common stock, par value
$.001 per share, of which 33,221,833 shares are presently issued
and outstanding. All shares of IGRI common stock currently issued
and outstanding have been duly authorized and validly issued, are
fully paid and non-assessable, and have been issued in compliance
with applicable federal and state laws or pursuant to appropriate
exemptions therefrom. There are no options, warrants, rights,
calls, commitments or agreements of any character obligating IGRI
to issue any shares of its capital stock or any security
representing the right to purchase or otherwise receive any such
stock. IGRI's Class "A" and Class "B" Stock Purchase Warrants
previously outstanding expired on December 23, 1995. Shares of
IGRI common stock to be issued pursuant to this Agreement, when so
issued, will be duly authorized, validly issued, fully paid and
non-assessable.
SECTION 2.3 Charter Documents. Complete and correct copies of the
Articles of Incorporation and By-Laws of IGRI and all amendments
thereto, have been or will be delivered to Phoenician prior to the
Closing.
SECTION 2.4 Corporate Documents. The IGRI shareholders' list and
corporate minute books are complete and accurate as of the date
hereof and the corporate minute books contain the recorded minutes
of all corporate meetings of shareholders and directors.
SECTION 2.5 Financial Statements. IGRI's financial statements for
the period ended September 30, 1994 and the fiscal years ended
December 31, 1993 and 1992, a copy of which is annexed hereto as
Exhibit 2.5 and by this reference made a part hereof, are true and
complete in all material respects, having been prepared in
accordance with generally accepted accounting principles applied on
a consistent basis for the periods covered by such statements, and
fairly present, in accordance with generally accepted accounting
principles, the financial condition of IGRI, and results of its
operations for the periods covered thereby. IGRI represents that
it shall, as soon as practical following the Closing, update its
financial statements through December 31, 1995. IGRI further
represents that its September 30, 1994 financial statements do not
depict those certain material changes to the business operation,
assets and properties of IGRI as set forth in Section 2.6 below.
SECTION 2.6 Certain Changes or Events. Since the date of the IGRI
financial report attached hereto as Exhibit 2.5, IGRI has undergone
certain material changes in its financial condition. On January
30, 1995, IGRI executed two agreements, a Stock Sale Agreement and
a Stock Acquisition Agreement. As per the terms of the two
agreements, IGRI sold all of its real estate assets, properties,
and underlying debts and encumbrances in exchange for 71,079,000
shares of IGRI common stock and 48,436 shares of IGRI preferred
stock which were returned to IGRI and cancelled. As a result of
these transactions, IGRI was left with only nominal assets and a
total of 33,221,833 shares of common stock issued and outstanding.
These transactions will be depicted in the IGRI financial
statements to be prepared for December 31, 1995.
SECTION 2.7 Assets and Liabilities. IGRI does not have any
material assets and, as of the date hereof, IGRI does not have any
material debts, liabilities or obligations of any nature, whether
accrued, absolute, contingent, or otherwise, whether due or to
become due, that are not fully reflected in the IGRI financial
statements or otherwise disclosed.
SECTION 2.8 Tax Returns and Payments. IGRI has filed with the
appropriate governmental authority tax returns, whether based upon
income, sales or franchise, as required by law to be filed on or
before the date of this Agreement. IGRI has paid all taxes to be
due on said returns, any assessments made against IGRI and all
other taxes, fees and similar charges imposed on IGRI by any
governmental authority. No tax liens have been filed and no claims
are being assessed and no returns are under audit with respect to
any such taxes, fees or other similar charges.
SECTION 2.9 Contracts. IGRI is not a party to or bound by any
contract or commitment, including guaranty whether written or oral,
except as otherwise disclosed in Exhibit 2.9.
SECTION 2.10 Required Authorizations. There have been or will be
timely filed, given, obtained or taken, all applications, notices,
consents, approvals, orders, registrations, qualifications waivers
or other actions of any kind required by virtue of execution and
delivery of this Agreement by IGRI or the consummation by it of the
transactions contemplated hereby. The IGRI Board of Directors has
approved this Agreement and prior to the Closing, a majority of the
shareholders of IGRI shall have ratified this Agreement and the
transactions contemplated hereunder. Immediately following the
Closing, the appropriate corporate filings shall be made with the
State of Nevada.
SECTION 2.11 Compliance with Law and Government Regulations. IGRI
is in compliance with and is not in violation of, applicable
federal, state, local or foreign statutes, laws and regulations
(including without limitation, any applicable building, zoning or
other law, ordinance or regulation) affecting its properties or the
operation of its business. IGRI is not subject to any order,
decree, judgment or other sanction of any court, administrative
agency or other tribunal.
SECTION 2.12 Securities Regulations. IGRI has filed with the
Securities and Exchange Commission (the "Commission") an effective
registration statement on Form SB-2 (formerly Form S-18) under the
Securities Act of 1933, as amended (the "1933 Act"), and
accordingly is required to file with the Commission certain
periodic reports under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). IGRI is presently delinquent in
filing certain quarterly and annual reports pursuant to Section
15(d) of the Exchange Act. Upon the execution of this Agreement,
IGRI shall cause to be prepared and filed with the Commission all
reports and filings necessitated by consummation of the
transactions contemplated hereby, and such other reports and
filings so as to bring IGRI current in all its filings due and to
be deemed a "reporting company" under Section 15(d) of the Exchange
Act.
SECTION 2.13 Litigation. There is no litigation, arbitration,
proceeding or investigation pending or threatened to which IGRI is
a party or which may result in any material change in the business
or condition, financial or otherwise, of IGRI or in any of its
properties or assets, or which might result in any liability on the
part of IGRI, or which questions the validity of this Agreement or
of any action taken or to be taken pursuant to or in connection
with the provisions of this Agreement, and to the best knowledge of
IGRI, there is no basis for any such litigation, arbitration,
proceeding or investigation.
SECTION 2.14 Trade Names and Rights. IGRI does not use any trade
xxxx, service xxxx, trade name, or copyright in its business, nor
does it own any trade marks, trade xxxx registrations or
application, trade name, service marks, copyrights, copyright
registrations or application. No person owns any trade xxxx, trade
xxxx registration or application, service xxxx, trade name,
copyright, or copyright registration or application, the use of
which is necessary or contemplated in connection with the operation
of IGRI's business.
SECTION 2.15 Governmental Consent. No consent, approval,
authorization or order of, or registration, qualification,
designation, declaration or filing with, any governmental authority
on the part of IGRI is required in connection with the execution
and delivery of this Agreement or the carrying out of any
transactions contemplated hereby with the exception of the
necessary corporate filings with the State of Nevada relating to
the amendment of the Articles of Incorporation and the proposed
exchange of shares.
SECTION 2.16 Authority. IGRI's Board of Directors has approved
execution of this Agreement and its shareholders will, prior to the
Closing, ratify this Agreement and the transactions contemplated
hereby and will duly authorize the execution and delivery hereof.
IGRI has full power, authority and legal right to enter into this
Agreement and to consummate the transactions contemplated hereby,
and all corporate action necessary to authorize the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby has been duly and validly taken. The execution
and delivery of this Agreement, the consummation of the
transactions contemplated hereby and compliance by IGRI with the
provisions hereof will not (a) conflict with or result in a breach
of any provisions of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default)
under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of IGRI
under, any of the terms, conditions or provisions of the Articles
of Incorporation or By-Laws of IGRI, or any note, bond, mortgage,
indenture, license, lease, agreement or any instrument or
obligation to which IGRI is a party or by which it is bound; or (b)
violate any order, writ, injunction, decree, statute, rule or
regulation applicable to IGRI or any of its properties or assets.
SECTION 2.17 Full Disclosure. None of the representations and
warranties made by IGRI herein, or in any exhibit, certificate or
memorandum furnished or to be furnished by IGRI, on its behalf
pursuant hereto, contains or will contain any untrue statement of
material fact, or omits any material fact, the omission of which
would be misleading.
ARTICLE III
COVENANTS OF IGRI
SECTION 3.1 Conduct Prior to the Closing. Between the date
hereof and the Closing:
(a) IGRI will not enter into any material agreement, contract
or commitment, whether written or oral, or engage in any
transaction, without the prior written consent of Phoenician;
(b) IGRI will not declare any dividends or distributions with
respect to its capital stock or amend its Articles of
Incorporation or By-Laws, without the prior written consent
of Phoenician;
(c) IGRI will not authorize, issue, sell, purchase or redeem
any shares of its capital stock or any options or other rights
to acquire its capital stock, without the prior written
consent of Phoenician;
(d) IGRI will comply with all requirements which federal or
state law may impose on it with respect to this Agreement and
the transactions contemplated hereby, and will promptly
cooperate with and furnish written information to Phoenician
in connection with any such requirements imposed upon the
parties hereto in connection therewith;
(e) IGRI will not incur any indebtedness for money borrowed,
or issue or sell any debt securities, incur or suffer to be
incurred any liability or obligation of any nature whatsoever,
or cause or permit any lien, encumbrance or security interest
to be created or arise on or in any of its properties or
assets, acquire or dispose of fixed assets, change employment
terms, enter into any material or long-term contract,
guarantee obligations of any third party, settle or discharge
any balance sheet receivable for less than its stated amount
or enter into any other transaction other than in the regular
course of business, except to comply with the terms of this
Agreement, without the prior written consent of Phoenician;
(f) IGRI shall grant to Phoenician and its counsel,
accountants and other representatives, full access during
normal business hours during the period prior to the Closing
to all its respective properties, books, contracts,
commitments and records and, during such period, furnish
promptly to Phoenician and such representatives all
information relating to IGRI as Phoenician may reasonably
request, and shall extend to Phoenician the opportunity to
meet with IGRI's accountants and attorneys to discuss the
financial condition of IGRI; and
(g) Except for the transactions contemplated by this
Agreement, IGRI will conduct its business in the normal
course, and shall not sell, pledge or assign any of its assets
without the prior written consent of Phoenician.
SECTION 3.2 Affirmative Covenants. Prior to Closing, IGRI will do
the following:
(a) Use its best efforts to accomplish all actions necessary
to consummate this Agreement, including satisfaction of all
the conditions contained in this Agreement;
(b) Promptly notify Phoenician in writing of any material
adverse change in the financial condition, business,
operations or key personnel of IGRI, any threatened material
litigation or investigation, any breach of its representations
or warranties contained herein, and any material contract,
agreement, license or other agreement which, if in effect on
the date of this Agreement, should have been included in this
Agreement or in an exhibit annexed hereto and made a part
hereof;
(c) Obtain approval of this Agreement from its shareholders;
(d) Accept the resignation of Xxxxxx Xxxxx, a current
director of IGRI, and cause to be nominated immediately a new
Board of Directors consisting of the following nominees:
Xxxxxx X. Xxxxxx, C. Xxxxx Xxxxxxxx, Xxxxxx Xxxxxxx, Xxxxxxxxx
X. Xxxxxxxx, Xxxxxxx Xxxxx, Xxx XxXxxxxx and Xxxxxxx Xxxxx,
Xx. ;
(e) Reserve, and promptly after the Closing, issue and
deliver to the shareholders of Phoenician or their designees
the number of shares of IGRI common stock required hereunder;
(f) Reserve, and promptly after the Closing, issue and
deliver to those persons designated in Sections 1.5(e) and 6.3
hereof, the 240,000 shares of IGRI common stock as provided
for in said Sections;
(g) Take the necessary corporate action to amend its Articles
of Incorporation to change its name to Phoenician Olive Oil,
Inc. or any other name deemed suitable and approved by the
shareholders; and
(h) Take all other necessary corporate actions to accomplish
those items set forth in Section 1.5 hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PHOENICIAN
Phoenician hereby represents, warrants and agrees that:
SECTION 4.1 Organization of Phoenician. Phoenician is a
corporation duly organized, validly existing and in good standing
under the laws of Arizona and is duly qualified and in good
standing in every jurisdiction in which such qualification is
necessary. There are no corporations or other entities with
respect to which (i) Phoenician owns any of the outstanding stock
or other interest, or (ii) Phoenician may be deemed to be in
control because of factors or relationships other than the
percentage of outstanding stock or other interest owned in such
entity, except as otherwise disclosed in Exhibit 4.1 annexed hereto
and by this reference made a part hereof. Phoenician has all
requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
SECTION 4.2 Charter Documents. Complete and correct copies of
the Articles of Incorporation and By-Laws of Phoenician and all
amendments thereto, have been or will be delivered to IGRI prior to
the Closing.
SECTION 4.3 Financial Statements / Assets and Liabilities.
Phoenician's financial statements for the period ended
__________________, 1995 (which shall be updated through the period
ended December 31, 1995 as soon as practical), a copy of which is
annexed hereto as Exhibit 4.3 and by this reference made a part
hereof, are true and complete in all material respects, having been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis for the periods covered by
such statements, and fairly present the financial condition of
Phoenician and results of its operations for the periods covered
thereby. Phoenician has good and marketable title to all of its
assets and property to be delivered to IGRI hereunder, free and
clear of any and all liens, claims and encumbrances, except as may
be otherwise set forth herein and in its financial statements or as
otherwise set forth in Exhibit 1.4.
SECTION 4.4 Tax Returns and Payments. All of Phoenician's tax
returns (federal, state, city, county or foreign) which are
required by law to be filed on or before the date of this
Agreement, have been duly filed or extended with the appropriate
governmental authority. Phoenician has paid all taxes to be due on
said returns, any assessments made against Phoenician and all other
taxes, fees and similar charges imposed on Phoenician by any
governmental authority (other than those, the amount or validity of
which is being contested in good faith by appropriate proceedings).
No tax liens have been filed and no claims are being assessed with
respect to any such taxes, fees or other similar charges.
SECTION 4.5 Required Authorizations. There have been or will be
timely filed, given, obtained or taken, all applications, notices,
consents, approvals, orders, registrations, qualifications waivers
or other actions of any kind required by virtue of execution and
delivery of this Agreement by Phoenician or the consummation by it
of the transactions contemplated hereby.
SECTION 4.6 Compliance with Law and Government Regulations.
Phoenician is in compliance with all applicable statutes,
regulations, decrees, orders, restrictions, guidelines and
standards affecting its properties and operations, imposed by the
State of Arizona, the United States of America or any state to
which Phoenician is subject.
SECTION 4.7 Litigation. With the exception of any disclosure set
forth in an exhibit attached hereto, there is no material
litigation, arbitration, proceeding or investigation pending or
threatened to which Phoenician is a party or which may result in
any material change in the business or condition, financial or
otherwise, of Phoenician or in any of its properties or assets, or
which if determined against Phoenician would have a material
adverse effect against Phoenician, or which might result in any
liability on the part of Phoenician, or which questions the
validity of this Agreement or of any action taken or to be taken
pursuant to or in connection with the provisions of this Agreement,
and to the best knowledge of Phoenician, there is no basis for any
such litigation, arbitration, proceeding or investigation except as
otherwise set forth herein.
SECTION 4.8 Patents, Trademarks, Rights and Technology. Exhibit
4.8 annexed hereto and by this reference made a part hereof,
contains a complete list of all patents, trademarks, service marks,
trademark and service xxxx registrations, applications and licenses
with respect to the foregoing owned or held by Phoenician.
Phoenician has no knowledge of any facts and nothing has come to
its attention that would lead it to believe that it has infringed
or misappropriated or is infringing upon any trademark, copyright,
patent or other similar right of any person. No claim relating
thereto is pending or to the knowledge of Phoenician is threatened.
Phoenician further represents and warrants that its present
technology, systems and products are commercially viable and fully
operational as previously represented and demonstrated to IGRI.
SECTION 4.9 Governmental Consent. No consent, approval,
authorization or order of, or registration, qualification,
designation, declaration or filing with, any governmental authority
on the part of Phoenician is required in connection with the
execution and delivery of this Agreement or the carrying out of any
transactions contemplated hereby.
SECTION 4.10 Authority. Phoenician and its shareholders
representing at least a majority of the issued and outstanding
shares of Phoenician capital stock of record, have approved this
Agreement and duly authorized the execution and delivery hereof.
Phoenician has full power, authority and legal right to enter into
this Agreement on behalf of Phoenician and its shareholders and to
consummate the transactions contemplated hereby, and all corporate
action necessary to authorize the execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby has been duly and validly taken. The execution and delivery
of this Agreement, the consummation of the transactions
contemplated hereby and compliance by Phoenician with the
provisions hereof will not (a) conflict with or result in a breach
of any provisions of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default)
under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of
Phoenician under, any of the terms, conditions or provisions of the
Articles of Incorporation or By-Laws of Phoenician, or any note,
bond, mortgage, indenture, license, agreement or any instrument or
obligation to which Phoenician is party or by which it is bound; or
(b) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Phoenician or any of its properties or
assets. Execution of this Agreement represents and acknowledges
that the Phoenician Board of Directors and a majority of its
shareholders have ratified this Agreement and agreed to proceeds as
per the terms stated herein.
SECTION 4.11 Investment Purpose . Phoenician represents that it
shall acquire from each of the recipients of the IGRI Shares to be
issued hereunder a representation that each shareholder is
acquiring the shares for investment purposes only and acknowledges
that the IGRI Shares issued hereunder are "restricted securities"
and may not be sold, traded or otherwise transferred without
registration under the 1933 Act or exemption therefrom.
SECTION 4.12 Full Disclosure. None of the representations and
warranties made by Phoenician herein, or in any exhibit,
certificate or memorandum furnished or to be furnished by IGRI, on
its behalf, contains or will contain any untrue statement of
material fact, or omit any material fact, the omission of which
would be misleading.
ARTICLE V
COVENANTS OF PHOENICIAN
SECTION 5.1 Conduct Prior to the Closing. Between the date
hereof and the Closing:
(a) Except within the regular course of business, Phoenician
and its subsidiaries will not enter into any material
agreement, contract or commitment, whether written or oral, or
engage in any transaction, without the consent of IGRI;
(b) Phoenician and its subsidiaries will not declare any
dividends or distributions with respect to its capital stock
or amend its Articles of Incorporation or By-Laws, without the
prior consent of IGRI;
(c) Except within the regular course of business, Phoenician
and its subsidiaries will not incur any indebtedness for money
borrowed or issue any debt securities, or incur or suffer to
be incurred any liability or obligation of any nature
whatsoever, or cause or permit any lien, encumbrance or
security interest to be created or arise on or in any of its
properties or assets, without the consent of IGRI;
(d) Phoenician will comply with all requirements which
federal or state law may impose on it with respect to this
Agreement and the transactions contemplated hereby, and will
promptly cooperate with and furnish information to IGRI in
connection with any such requirements imposed upon the parties
hereto in connection therewith; and
(e) Phoenician shall grant to IGRI and its counsel,
accountants and other representatives, full access during
normal business hours during the period prior to the Closing
to all its respective properties, books, contracts,
commitments and records and, during such period, furnish
promptly to IGRI and such representatives all information
relating to Phoenician as IGRI may reasonably request, and
shall extend to IGRI the opportunity to meet with Phoenician's
accountants and attorneys to discuss the financial condition
of Phoenician.
SECTION 5.2 Affirmative Covenants. Prior to Closing, Phoenician
will do the following:
(a) Use its best efforts to accomplish all actions necessary
to consummate this Agreement, including satisfaction of all
the conditions contained in this Agreement;
(b) Provide to IGRI the sum of $57,500 for payment at the
Closing of certain debts owed by IGRI and for certain costs
and expenses related to the transactions contemplated by this
Agreement, to be paid to those persons and in the respective
amounts to be designated by separate document and as otherwise
provided by Sections 1.5(e) and 6.3 hereof.
(c) Promptly notify IGRI in writing of any materially adverse
change in the financial condition, business, operations or key
personnel of Phoenician, any breach of its representations or
warranties contained herein, and any material contract,
agreement, license or other agreement which, if in effect on
the date of this Agreement, should have been included in this
Agreement.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Expenses. Whether or not the transactions
contemplated in this Agreement are consummated, all costs and
expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such expense or as otherwise agreed to herein. Certain
expenses related to this Agreement shall be paid as provided by
Section 6.3 below.
SECTION 6.2 Brokers and Finders. Each of the parties hereto
represents, as to itself, that no agent, broker, investment banker
or other firm or person is or will be entitled to any broker's or
finder's fee or any other commission or similar fee in connection
with any of the transactions contemplated by this Agreement.
SECTION 6.3 Payment of Certain Debts and Obligations. In exchange
for the forbearance and cancellation of certain debts and
obligations previously owed by IGRI, the parties hereto agree that
at the Closing, IGRI shall cause to be issued the aggregate of
240,000 shares of authorized but previously unissued IGRI common
stock (post-split) to Xxxxxx X. Xxxxxx, Xxxxxx Xxxxx and Xxxxxxx X.
Xxxxxxx, in the respective amounts to be designated by separate
document. These 240,000 shares shall be deemed restricted
securities and certificates representing the shares shall bear the
appropriate restrictive legend. The parties hereto further agree
that at the Closing, IGRI shall pay the aggregate sum of $57,500 to
Xxxxxx X. Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx X. Xxxxxxx and Xxxxx,
Xxxxxx & Company, in payment of certain debts owed by IGRI and for
certain costs and expenses related to the transactions contemplated
by this Agreement. The money is to be paid to the aforementioned
persons and entity in the respective amounts to be designated by
separate document. Phoenician agrees that it will pay to IGRI at
the Closing the $57,500 for the payment of these obligations.
SECTION 6.4 Lock-up Agreements. The parties hereto agree that at
the Closing, IGRI will deliver to Phoenician executed Lock-up
Agreements representing at least
shares of IGRI common stock (post-split), whereby those IGRI
shareholders executing such Lock-up Agreements shall agree to not
sell, assign, hypothecate, or otherwise transfer their respective
shares of IGRI common stock subject to the Lock-up Agreements for
a period of one (1) year from the date of the Closing of this
Agreement.
SECTION 6.5 Necessary Actions. Subject to the terms and
conditions herein provided, each of the parties hereto agree to use
all reasonable efforts to take, or cause to be taken, all action,
and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement. In
the event at any time after the Closing, any further action is
necessary or desirable to carry out the purposes of this Agreement,
the proper officers and/or directors of IGRI or Phoenician, as the
case may be, shall take all such necessary action.
SECTION 6.6 Indemnification.
(a) Phoenician agrees to defend and hold IGRI harmless
against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries
and deficiencies, including interest, penalties, and
reasonable attorney fees, that IGRI shall incur or suffer,
which arise out of, result from or relate to any material
breach of, or failure by Phoenician to perform any of its
representations, warranties, covenants and agreements in this
Agreement or in any exhibit or other instrument furnished or
to be furnished by Phoenician under this Agreement.
(b) IGRI agrees to defend and hold Phoenician harmless
against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries
and deficiencies, including interest, penalties, and
reasonable attorney fees, that Phoenician shall incur or
suffer, which arise out of, result from or relate to any
material breach of, or failure by IGRI to perform any of its
representations, warranties, covenants and agreements in this
Agreement or in any exhibit or other instrument furnished or
to be furnished by IGRI under this Agreement.
SECTION 6.7 Confidentiality. All parties hereto agree to keep
confidential this Agreement and all information and documents
relating to this Agreement until such time as the Agreement and the
transactions contemplated hereunder are made public by means of an
appropriate press release or by any other means reasonably assured
to make such information publicly available. It is the intent of
the parties hereto that as soon as practical following the
execution of this Agreement, IGRI and Phoenician shall cause to be
prepared and distributed in the appropriate manner a press release
publicly announcing the execution of the Agreement.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF THE PARTIES
The obligations of the parties under this Agreement are
subject to the fulfillment and satisfaction of each of the
following conditions:
SECTION 7.1 Legal Action. No preliminary or permanent injunction
or other order by any federal or state court which prevents the
consummation of this Agreement or any of the transactions
contemplated by this Agreement shall have been issued and remain in
effect.
SECTION 7.2 Absence of Termination. The obligations to
consummate the transactions contemplated hereby shall not have been
canceled pursuant to Article X hereof.
SECTION 7.3 Required Approvals. IGRI and Phoenician shall have
received all such approvals, consents, authorizations or
modifications as may be required to permit the performance by IGRI
and Phoenician of the respective obligations under this Agreement,
and the consummation of the transactions herein contemplated,
whether from governmental authorities or other persons, and IGRI
and Phoenician shall each have received any and all permits and
approvals from any regulatory authority having jurisdiction
required for the lawful consummation of this Agreement.
SECTION 7.4 Blue Sky Compliance. There shall have been obtained
any and all permits, approvals and consents of the Securities or
"Blue Sky" Commissions of any jurisdictions, and of any other
governmental body or agency, which counsel for IGRI may reasonably
deem necessary or appropriate so that consummation of the
transactions contemplated by this Agreement may be in compliance
with all applicable laws.
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF IGRI
All obligations of IGRI under this Agreement are subject to
the fulfillment and satisfaction by Phoenician prior to or at the
time of the Closing, of each of the following conditions, any one
or more of which may be waived by IGRI.
SECTION 8.1 Representations and Warranties True at the Closing.
All representations and warranties of Phoenician contained in this
Agreement will be true and correct at and as of the time of the
Closing, and Phoenician shall have delivered to IGRI certificates,
dated the date of the Closing, to such effect and in the form and
substance satisfactory to IGRI, and signed, in the case of
Phoenician, by its president and secretary.
SECTION 8.2 Performance. The obligations of Phoenician to be
performed on or before the Closing pursuant to the terms of this
Agreement shall have been duly performed at such time, and
Phoenician shall have delivered to IGRI a certificate, dated the
date of the Closing, to such effect and in form and substance
satisfactory to IGRI.
SECTION 8.3 Authority. All action required to be taken by, or on
the part of Phoenician and its shareholders to authorize the
execution, delivery and performance of this Agreement by Phoenician
and the consummation of the transactions contemplated hereby, shall
have been duly and validly taken.
SECTION 8.4 Absence of Certain Changes or Events. There shall not
have occurred, since the date hereof, any adverse change in the
business, condition, (financial or otherwise), assets or
liabilities of Phoenician or any event or condition of any
character adversely affecting Phoenician, and it shall have
delivered to IGRI, certificates, dated the date of the Closing, to
such effect and in form and substance satisfactory to IGRI and
signed, in the case of Phoenician, by its president and secretary.
ARTICLE IX
CONDITIONS PRECEDENT TO OBLIGATIONS OF PHOENICIAN
All obligations of Phoenician under this Agreement are subject
to the fulfillment and satisfaction by IGRI, prior to or at the
time of Closing, of each of the following conditions, any one or
more of which may be waived by Phoenician.
SECTION 9.1 Representations and Warranties True at the Closing.
All representations and warranties of IGRI contained in this
Agreement will be true and correct at and as of the time of the
Closing, and IGRI shall have delivered to Phoenician a certificate,
dated the date of the Closing, to such effect and in the form and
substance satisfactory to Phoenician, and signed, in the case of
IGRI, by its president and secretary.
SECTION 9.2 Performance. Each of the obligations of IGRI to be
performed on or before the Closing pursuant to the terms of this
Agreement shall have been duly performed at the time of the
Closing, and IGRI shall have delivered to Phoenician a certificate,
dated the date of the Closing, to such effect and in form and
substance satisfactory to Phoenician, and signed, in the case of
IGRI, by its president and secretary.
SECTION 9.3 Authority. All action required to be taken by, or on
the part of IGRI, to authorize the execution, delivery and
performance of this Agreement by IGRI, and the consummation of the
transactions contemplated hereby shall be duly and validly taken.
SECTION 9.4 Absence of Certain Changes or Events. There shall not
have occurred, since the date hereof, any adverse change in the
business, condition, (financial or otherwise), assets or
liabilities of IGRI or any event or condition of any character
adversely affecting IGRI and it shall have delivered to Phoenician,
certificates, dated the date of the Closing, to such effect and in
form and substance satisfactory to Phoenician, in the case of IGRI,
by its president and secretary.
SECTION 9.5 Action by IGRI Shareholders. Prior to the Closing of
this Agreement, the shareholders of IGRI shall have ratified this
Agreement and the transactions contemplated hereunder, and shall
have approved the amendments to the IGRI Articles of Incorporation
and elected new directors as set forth in Section 1.5 above.
Xxxxxx Xxxxx, a current director and officer of IGRI, shall have
submitted his resignations as a director and officer of IGRI,
effective on the Closing of this Agreement or at such other time as
mutually agreed to by IGRI and Phoenician.
ARTICLE X
TERMINATION
SECTION 10.1 Termination. Notwithstanding anything herein or
elsewhere to the contrary, this Agreement may be terminated:
(a) By mutual agreement of all the parties hereto at any
time;
(b) By the board of directors of IGRI at any time prior to
the Closing if:
(i) a condition to performance by IGRI under this
Agreement or a covenant of Phoenician contained herein
shall not be fulfilled on or before the time of the
Closing or at such other time and date specified for the
fulfillment for such covenant or condition; or
(ii) a material default or breach of this Agreement shall
be made by Phoenician.
(c) By the board of directors of Phoenician at any time prior
to the Closing if:
(i) a condition to Phoenician's performance under this
Agreement or a covenant of IGRI contained in this
Agreement shall not be fulfilled on or before the Closing
or at such other time and date specified for the
fulfillment of such covenant or conditions; or
(ii) a material default or breach of this Agreement shall
be made by IGRI.
SECTION 10.2 Effect of Termination. If this Agreement is
terminated, this Agreement, except as to Section 11.1 and Section
11.2, shall no longer be of any force or effect and there shall be
no liability on the part of any party or its respective directors,
officers or stockholders; provided however, that in the case of a
Termination without cause by a party or a termination pursuant to
Sections 10.1(b)(i) or 10.1(c)(i) hereof because of a prior
material default under or a material breach of this Agreement by
another party, the damages which the aggrieved party or parties may
recover from the defaulting party or parties shall in no event
exceed the amount of out-of-pocket costs and expenses incurred by
such aggravated party or parties in connection with this Agreement,
and no party to this Agreement shall be entitled to any injunctive
relief.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Cost and Expenses. All costs and expenses incurred
in connection with this Agreement will be paid by the party
incurring such expenses unless otherwise expressly provided for
herein. In the event of any termination of this Agreement pursuant
to Section 10.1, subject to the provisions of Section 10.2, IGRI
and Phoenician will each bear their own respective expenses.
SECTION 11.2 Extension of Time: Waivers. At any time prior to
the Closing date:
(a) IGRI may (i) extend the time for the performance of any
of the obligations or other acts of Phoenician, (ii) waive any
inaccuracies in the representations and warranties of
Phoenician contained herein or in any document delivered
pursuant hereto by Phoenician, and (iii) waive compliance with
any of the agreements or conditions contained herein to be
performed by Phoenician. Any agreement on the part of IGRI to
any such extension or waiver shall be valid only if set forth
in an instrument, in writing, signed on behalf of IGRI;
(b) Phoenician may (i) extend the time for the performance of
any of the obligations or other acts of IGRI, (ii) waive any
inaccuracies in the representations and warranties of IGRI
contained herein or in any document delivered pursuant hereto
by IGRI and (iii) waive compliance with any of the agreements
or conditions contained herein to be performed by IGRI. Any
agreement on the part of Phoenician to any such extension or
waiver shall be valid only if set forth in an instrument, in
writing, signed on behalf of Phoenician.
SECTION 11.3 Notices. Any notice to any party hereto pursuant to
this Agreement shall be in writing and given by Certified or
Registered Mail or by facsimile, addressed as follows:
Copy to:
Investment Growth Resources, Inc. c/o Xxxxxxx X. Xxxxxxx
4180 Flamingo Crest Drive #3 Attorney at Law
Xxx Xxxxx, Xxxxxx 00000 1121 East 0000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
Copy to:
Phoenician Olive Oil, Inc. Xxxxxxx Xxxxxxx
3720 East Kachina c/o Bonnett, Fairbourn, Xxxxxxxx
Xxxxxxx, Xxxxxxx 00000 & Xxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Additional notices are to be given as to each party, at such
other address as should be designated in writing complying as to
delivery with the terms of this Section 11.3. All such notices
shall be effective when sent, addressed as aforesaid.
SECTION 11.4 Parties in Interest. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and the
respective successors and assigns. Nothing in this Agreement is
intended to confer, expressly or by implication, upon any other
person any rights or remedies under or by reason of this Agreement.
SECTION 11.5 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original and
together shall constitute one document. The delivery by facsimile
of an executed counterpart of this Agreement shall be deemed to be
an original and shall have the full force and effect of an original
executed copy.
SECTION 11.6 Severability. The parties hereto agree and affirm
that none of the provisions herein is dependent upon the validity
of any other provision, and if any part of this Agreement is deemed
to be unenforceable, the remainder of the Agreement shall remain in
full force and effect.
SECTION 11.7 Headings. The Article and Section headings are
provided herein for convenience of reference only and do not
constitute a part of this Agreement.
SECTION 11.8 Governing Law. This Agreement shall be governed by
the laws of the State of Nevada. Any action to enforce the
provisions of this Agreement shall be brought in a court of
competent jurisdiction in the State of Nevada and in on other
place.
SECTION 11.9 Survival of Representations and Warranties. All
terms, conditions, representations and warranties set forth in this
Agreement or in any instrument, certificate, opinion, or other
writing providing for in it, shall survive the Closing and the
delivery of the IGRI Shares issued hereunder at the Closing, for a
period of one year from the Closing regardless of any investigation
made by or on behalf of any of the parties hereto.
SECTION 11.10 General Release. Each of the parties to this
Agreement hereby releases and discharges the other party together
with such other party's officers, directors, employees, agents,
assigns, attorneys, accountants and affiliates, whether herein
named or referred to or not, of and from any and all claims, causes
of action, debts, duties, liabilities and obligations of any and
every sort or nature, wherever and however arising, which against
the other party it now has or ever had or which it or its assigns
hereafter may or can have, from any time up to and including the
Closing of this Agreement and the Effective Time of the Merger
contemplated hereby.
SECTION 11.11 Assignability. This Agreement shall not be
assignable by any of the parties hereto without the prior written
consent of the other parties.
SECTION 11.12 Amendment. This Agreement may be amended with the
approval of the boards of directors of IGRI and Phoenician at any
time before or after approval thereof by stockholders of IGRI, if
required, and Phoenician; but after such approval by the IGRI
shareholders, no amendment shall be made which substantially and
adversely changes the terms hereof. This Agreement may not be
amended except by an instrument, in writing, signed on behalf of
each of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement in a manner legally binding upon them as
of the date first above written.
"IGRI"
INVESTMENT GROWTH RESOURCES, INC.
Attest:
By: ___________________________ _________________________
Its: President Secretary
"Phoenician"
PHOENICIAN OLIVE OIL, INC.
Attest:
By: ____________________________ __________________________
Its: President Secretary
