EXHIBIT 99.1
AMENDED
AGREEMENT AND PLAN OF REORGANIZATION
This Amended Agreement is made as of the 30th day of June, 2004 by and
among Secured Data, Inc., a Nevada corporation (hereinafter referred to as
"SCRE") and Secure Enterprise Software, Inc., a Nevada corporation (hereinafter
referred to as "SES"), and the holders of one hundred percent of the outstanding
shares of common stock of SES (hereinafter referred to individually by name or
as the "SES Shareholders" collectively).
This Agreement amends the Agreement and Plan of Reorganization dated June
4, 2004 and replaces said Agreement is its entirety.
This Agreement provides for the exchange of all of the outstanding common
stock of SES for 12,284,000 shares of common voting stock of SCRE, and other
valuable consideration, all for the purpose of and SES being a wholly owned
subsidiary of SCRE and SCRE carrying on the business of SES as set forth herein.
AGREEMENT
Now, therefore, on the stated premises and for and in consideration of the
mutual covenants and agreements hereinafter set forth and the mutual benefits to
the parties to be derived here from, it is hereby agreed as follows:
ARTICLE 1: REPRESENTATIONS AND WARRANTIES OF SCRE
As an inducement to, and to obtain the reliance of SES, SCRE represents and
warrants as follows:
1.1. Organization, Good Standing, Power, Etc. SCRE (i) is a corporation
duly organized, validly existing and in good standing under the law of the State
of Nevada; (ii) is qualified or authorized to do business as a foreign
corporation and is in good standing in all jurisdictions in which qualification
or authorization may be required; and (iii) has all requisite corporate power
and authority, licenses and permits to own or lease and operate its properties
and carry on its business as presently being conducted and to execute, deliver
and perform this Agreement and consummate the transactions contemplated hereby.
1.2. Articles of Incorporation and Bylaws. Prior to execution of this
Agreement by both parties, SCRE has furnished to SES's representatives complete
and correct copies of (i) its Articles of Incorporation, as amended to date, and
(ii) its Bylaws, as amended to date. SCRE' Articles of Incorporation and Bylaws
are in full force and effect, and they are not in violation of any of the
provisions thereof.
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1.3 Capitalization. The authorized capital stock of SCRE consists solely of
100,000,000 shares of Common Stock, $0.001 par value, (the "SCRE Common Stock"),
of which, on the date hereof 12,280,000 shares are issued and outstanding and no
shares are held in the treasury of SCRE. At the Closing of this Agreement:
1.4 Options, Warrants, Rights, Etc. By closing, SCRE will not have
outstanding any options, warrants or other rights to purchase or convert any
obligation into, any shares of the SCRE Common Stock, nor any instruments or
obligations to confer or create such rights except the outstanding options held
by the current directors of SCRE which on or before Closing will have been
amended in the form attached hereto as Exhibit 1.4.
1.5. Authorization of Agreement. This Agreement has been or will be at
Closing, duly and validly authorized, executed and delivered by SCRE.
1.6. Tax Matters. On or before Closing, SCRE will have prepared and filed
with the appropriate United States, state and local governmental agencies, and
all foreign countries and political subdivisions thereof, all tax returns
required to be filed; SCRE will have paid all taxes shown on such tax returns to
be payable or which have become due pursuant to any assessment, deficiency,
notice, 30 day letter or similar notice received by it; and the provisions for
income taxes payable in the Balance Sheets of SCRE delivered to SES are
sufficient for all accrued and unpaid taxes, whether or not disputed and for all
periods to and including the date of such Balance Sheet. On or before Closing,
SCRE will provide true and accurate copies of all tax returns filed for the last
three fiscal years, together with a balance sheet and income statement as of the
date of this Agreement. The balance sheet and income statement of SCRE shall be
updated through Closing.
1.7. Compliance with Applicable Laws. The conduct by SCRE of their business
does not violate or infringe on any domestic (federal, state or local) or
foreign law, statute, ordinance or regulation now in effect, or, to the
knowledge of SCRE proposed to be adopted, the enforcement of which would
materially and adversely affect its business or the value of its properties or
assets.
1.8. Litigation. There is no material claim, action, suit, proceeding,
arbitration, investigation or inquiry pending before any federal, state,
municipal, foreign or other court or governmental or administrative body or
agency, or any private arbitration tribunal, or to the knowledge of SCRE,
threatened, against, relating to or affecting SCRE or any of its properties or
business, or the transactions contemplated by this Agreement; nor to the
knowledge of SCRE is there any basis for any such material claim, action, suit,
proceeding, arbitration, investigation or inquiry which may have any adverse
effect upon the assets, properties or business of SCRE, or the transactions
contemplated by this Agreement. Neither SCRE nor any officer, director, partner
or employee of SCRE, have been permanently or temporarily enjoined by order,
judgment or decree of any court or other tribunal or any agency from engaging in
or continuing any conduct or practice in connection with the business engaged in
by SCRE. There is not in existence at present any order, judgment or decree of
any court or other tribunal or any agency enjoining or requiring SCRE to take
any material action of any kind or to which SCRE or its business, properties or
assets are subject or bound. SCRE is not in default under any order, license,
regulation or demand of any federal, state or municipal or other governmental
agency or with respect to any order, writ, injunction or decree or any court
which would have a materially adverse impact upon SCRE' operations or affairs.
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1.9. Other Information. As disclosed to SES, none of the information and
documents made or to be made available by SCRE or any of its representatives to
SES or any of its representatives in connection with the transactions
contemplated by this Agreement is materially false or misleading or contains any
material misstatements of fact or omits any material fact necessary to be stated
in order to make the statements therein not misleading.
1.10. No Adverse Changes. Since the date of SCRE' most recent financial
statements, there has been no material adverse change in SCRE' financial
condition, assets, liabilities, or business.
1.11. Exchange Act Filings and Financial Statements. On or before Closing,
SCRE has delivered to SES true and accurate copies of all Financial Statements
and reports filed by SCRE with the United States Securities and Exchange
Commission (the SEC) pursuant to Section 12(g) of the Securities Exchange Act of
0000 (xxx 0000 Xxx) including without limitation, registration statements,
10-KSB's, 10-QSB's, Form 8-K's, etc. for each of the annual, quarterly or other
fiscal periods for the past three fiscal years. SCRE financial statements have
been prepared in accordance with generally accepted accounting principles
applied on a basis consistent with that of prior years or periods and fairly
present the financial position and results of operations of SCRE as of the
respective dates and for the periods indicated in such statements. The Balance
Sheets of SCRE included in the statements make full and adequate provision for
all obligations, liabilities or commitments (fixed and contingent) of SCRE as of
their respective dates. As of the date of such financial statements, SCRE had no
material obligations, liabilities or commitments (fixed or contingent) not
required to be reserved against in the foregoing financial statements or
disclosed in the notes thereto in accordance with generally accepted accounting
principles, and since the date of the most recent balance sheet has not incurred
any material obligations, liabilities, defaults or commitments except the
transactions contemplated by this Agreement. SCRE will file all reports required
of it under the 1934 Act as a result of this transaction, including a Form 8-K.
1.12 Payment of SCRE Obligations/Balance at Closing. At Closing, SCRE shall
have paid or otherwise settled all outstanding accounts payable and have account
balances of not greater than $1,000.
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ARTICLE 2: REPRESENTATIONS AND WARRANTIES
OF SES
As an inducement to, and to obtain the reliance of SCRE, SES represent and
warrant as follows:
2.1. Organization, Good Standing, Power, Etc. SES (i) is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and (ii) has all requisite corporate power and authority, licenses,
permits and franchises to own or lease and operate its properties and carry on
its business as presently being conducted and to execute, deliver and perform
this Agreement and consummate the transactions contemplated hereby.
2.2. Certificate of Incorporation and Bylaws. Prior to execution of this
Agreement by both parties, SES will furnish to SCRE' representatives a complete
and correct copy of (i) SES's Certificate of Incorporation, as amended to date;
and, (ii) SES's Bylaws, as amended to date. As of such date and the date of
Closing, SES's Certificate of Incorporation and Bylaws are and shall be in full
force and effect, and SES is not and shall not be in violation of any of the
provisions thereof.
2.3. Capitalization. As of the date hereof the authorized capital stock of
SES will consist solely of 100,000,000 Common Shares with a par value of .001
per share. By Closing 15,000,000 shares of Common Stock will have been issued
and outstanding and no shares are held in the treasury of SES. All of such
issued and outstanding shares of SES Common Stock have been duly authorized and
validly issued and are fully paid and non-assessable with no personal liability
attaching to the ownership thereof.
2.4. Options, Warrants, Rights, Etc. By closing, SES will not have
outstanding any options, warrants or other rights to purchase or convert any
obligation into, any shares of the SES Common Stock, nor any instruments or
obligations to confer or create such rights, except as disclosed to and accepted
bySCRE.
2.5 Subsidiaries. SES does not have any subsidiaries and does not own a
controlling interest in any capital stock of any corporation except as disclosed
on Exhibit 2.5.
2.6. Authorization of Agreement. This Agreement has been or will be at
Closing duly and validly authorized, executed and delivered by SES.
2.7. Financial Statements. SES will deliver on or before Closing, to SCRE
audited financial statements of SES for its most recent fiscal year ending
December, 2003 and interim financial statements through the most recently
completed fiscal quarter. These financial statements have been prepared to the
best of SES's ability in accordance with generally accepted accounting
principles applied on a basis consistent with that of prior years or periods,
are correct and complete and to the best knowledge of SES's management fairly
present the financial position and results of operations of SES as of the date
thereof and for the periods indicated in such statements. The Balance Sheets of
SES included in the statements makes full and adequate provisions for all
obligations, liabilities or commitments (fixed and contingent) of SES as of
their respective dates. As of the date of such financial statements, SES has no
undisclosed obligations, liabilities or commitments (fixed or contingent) not
required to be reserved against in the foregoing financial statements or
disclosed in the notes thereto in accordance with generally accepted accounting
principles, except the transactions contemplated by this Agreement.
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2.8. Tax Matters. On or before Closing, SES will have prepared and filed
with the appropriate United States, state and local governmental agencies, and
all foreign countries and political subdivisions thereof, all tax returns
required to be filed; SES will have paid all taxes shown on such tax returns to
be payable or which have become due pursuant to any assessment, deficiency,
notice, 30 day letter or similar notice received by it; and the provisions for
income taxes payable in the Balance Sheets of SES delivered to SCRE are
sufficient for all accrued and unpaid taxes, whether or not disputed and for all
periods to and including the date of such Balance Sheet. On or before Closing,
SES will provide true and accurate copies of all tax returns filed since its
date of incorporation, together with a balance sheet and income statement as of
the date of this Agreement. The balance sheet and income statement of SES shall
be updated through Closing.
2.9. Material Contracts. There has not occurred any default by SES of any
event which with the lapse of time or the election of any person other than SES
or any combination thereof, will become a default, except defaults, if any,
which will not result in any material loss to or liability of SES.
2.10 Permits, Licenses, Etc. SES have all permits, licenses, orders and
approvals of federal, state, local or foreign governmental or regulatory bodies
that are required in order to permit it to carry on their business as presently
conducted.
2.11. Compliance with Applicable Laws. The conduct by SES of their business
does not violate or infringe upon any domestic (federal, state or local) or
foreign law, statute, ordinance or regulation now in effect, or, to the
knowledge of SES proposed to be adopted, the enforcement of which would
materially and adversely affect its business or the value of their properties or
assets.
2.12. Litigation. There is no material claim, action, suit, proceeding,
arbitration, investigation or inquiry pending before any federal, state,
municipal, foreign or other court or governmental or administrative body or
agency, or any private arbitration tribunal, or to the knowledge of SES
threatened, against, relating to or affecting SES or any of their properties or
business, or the transactions contemplated by this Agreement; nor to the
knowledge of SES is there any basis for any such material claim, action, suit,
proceeding, arbitration, investigation or inquiry which may have any adverse
effect upon the assets, properties or business of SES, or the transactions
contemplated by this Agreement. Neither SES nor any officer, director, partner
or employee of SES, has been permanently or temporarily enjoined by order,
judgment or decree of any court or other tribunal or any agency from engaging in
or continuing any conduct or practice in connection with the business engaged in
by SES. There is not in existence at present any order, judgment or decree of
any court or other tribunal or any agency enjoining or requiring SES to take any
material action of any kind or to SES and their respective business, properties
or assets are subject or bound. SES is not in default under any order, license,
regulation or demand of any federal, state or municipal or other governmental
agency or with respect to any order, writ, injunction or decree of any court
which would have a materially adverse impact upon SES's 's operations or
affairs.
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2.13. Other Information. None of the information and documents which have
been furnished or made available by SES or any of its representatives to SCRE or
any of their representatives in connection with the transactions contemplated by
this Agreement is materially false or misleading or contains any material
misstatements of fact or omits any material fact necessary to be stated in order
to make the statements therein not misleading.
2.14. Investment Representation by SES Shareholders. The SES shareholders
are acquiring shares of SCRE Common Stock issuable hereunder for their own
account and agree not to distribute any shares issuable there under within the
meaning of the Securities Act of 1933 (the 1933 Act), except as otherwise
provided herein, unless an appropriate registration statement has been filed
with the SEC or unless an exemption from registration under the 1933 Act is
available according to opinion of counsel for SCRE. Each certificate for shares
issued shall be stamped or otherwise imprinted with the following or a
substantially similar legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act") nor any
state securities laws. These shares may not be offered for sale,
sold or otherwise transferred except pursuant to an effective
registration statement under the Act or pursuant to an opinion of
counsel acceptable to SCRE that an exemption from such
registration is available."
By execution of this Agreement and the Subscription Agreement attached hereto as
Exhibit 2,14, the SES shareholders represent that they have sufficient
investment sophistication and ability to take the financial risks associated
with this transaction and those representations contained in this Section 2.14,
which meet the standards for availability of an exemption from the registration
requirements of the 1933 Act and from the registration and/or qualification
requirements of any other applicable securities law. The foregoing
notwithstanding, the Shares issuable hereunder may be registered in the name of
or transferred to family members, trusts and other related parties.
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2.15. Investment Representation by SCRE. SCRE is acquiring the shares of
SES Common Stock issuable hereunder for its own account and agrees not to
distribute any shares within the meaning of the Securities Act of 0000 (xxx 0000
Xxx) unless an appropriate registration statement has been filed with the SEC or
unless an exemption from registration under the 1933 Act is available according
to opinion of counsel for SES. Each certificate for shares issued shall be
stamped or otherwise imprinted with the following or a substantially similar
legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act") nor any
state securities laws. These shares may not be offered for sale,
sold or otherwise transferred except pursuant to an effective
registration statement under the Act or pursuant to an opinion of
counsel acceptable to SCRE that an exemption from such
registration is available."
By execution of this Agreement SCRE represents that it has sufficient investment
sophistication and ability to take the financial risks associated with this
transaction and those representations contained in this Section 2.15, which meet
the standards for availability of an exemption from the registration
requirements of the 1933 Act and from the registration and/or qualification
requirements of any other applicable securities law.
ARTICLE 3: PLAN OF EXCHANGE AND CLOSING
3.1. The Exchange. The issued and outstanding shares of common stock of SES
shall be exchanged as follows for the consideration set forth herein:
A). At Closing, the SES Shareholders shall deliver to SCRE, certificates
representing all of the outstanding common stock of SES properly endorsed for
transfer thereto and executed Subscription Agreements in the form attached as
Exhibit A for the SCRE shares.
B). At Closing, SCRE shall deliver to the SES Shareholders, SCRE common
shares in the amounts set forth in the Subscription Agreements totaling in the
aggregate 12,284,000 shares.
3.2. Closing. The Closing of the transactions contemplated by this
Agreement shall take place on such date as may be agreed upon by the parties,
but no later than July 30, 2004 (herein called the "Closing Date"), at the
offices of SES, 00 Xxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 or such other
time and location as the parties may mutually agree.
3.3. Closing Events. At the Closing, each of the respective parties hereto
shall execute, acknowledge, and deliver (or shall cause to be executed,
acknowledged, and delivered) any agreements, resolutions, or other instruments
required by this Agreement to be so delivered at or prior to the Closing,
together with such other items as may be reasonably requested by the parties
hereto and their respective legal counsel in order to effectuate or evidence the
transactions contemplated hereby.
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3.4 Directors of SCRE. Effective on the Closing Date of this transaction,
SCRE shall deliver certified resolutions to SES to the effect that all existing
Directors of SCRE shall have submitted their resignations effective on Closing,
and the Board of Directors of SCRE shall consist of the following individuals:
Xxx Xxxxxx, Jr. Chairman, Director
Xxxxxx Xxxxx Director
3.5. Officers of SCRE. Effective on the Closing Date of this transaction
SCRE shall deliver certified resolutions to SES to the effect that the above
Board shall have elected new officers of SES to consist of the following
persons:
Xxxxxx Xxxxx President, Chief Executive Officer
Xxx Xxxxxx, Jr. Secretary
ARTICLE 4: SPECIAL COVENANTS
4.1. Due Diligence. The parties hereto shall have up to and including June
4, 2004 within which to complete their due diligence investigations on the other
party and the transaction contemplated hereunder. In the event either party
hereto decides, in its sole discretion, not to proceed with the Closing based on
its due diligence investigation, it shall notify the other in writing on or
before 5:00 P.M. Pacific Time, July 30, 2004 of such decision and this
Agreement.
4.2. Exchange of Information. Each party shall cooperate fully by
exchanging information requested by the other party in a timely manner. Without
in any manner reducing or otherwise mitigating the representations contained
herein, each party and/or its attorneys shall have the opportunity to meet with
the accountants and attorneys of the other party to discuss its respective legal
and financial condition and this transaction. If this transaction is not
completed, all documents received by each party and/or its attorney shall be
returned to the other party and all such information so received shall be
treated as confidential in accordance with Section 6.10.
4.3. Conduct of Business. Prior to Closing, SCRE and SES shall each conduct
their business in the normal course, and shall not sell, pledge, or assign any
assets, without the prior written approval of the other party, except in the
regular course of business. Neither SCRE and SES shall amend their Articles of
Incorporation or Bylaws, declare dividends, redeem or sell stock or other
securities, incur additional or newly-funded liabilities, 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, pay more on any
liability than its stated amount, or enter into any other transaction other than
in the regular course of business and with notice to the other party.
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ARTICLE 5: CONDITIONS PRECEDENT TO
OBLIGATIONS OF PARTIES
5.1. SES and SES'S SHAREHOLDERS' Closing Conditions. The obligations of SES
and SES'S SHAREHOLDERS hereunder are subject to fulfillment prior to or at the
Closing of each of the following conditions:
A). Closing Date. The transactions contemplated by this Agreement shall be
closed on or before July 30, 2004.
B). Representations and Warranties. The representations and warranties of
SCRE made pursuant to Article 1 above shall be true and accurate in all material
respects as of the Closing Date.
C). Performance. SCRE shall have performed and complied with all agreements
and conditions required by this Agreement to be performed or complied with by it
prior to or at the Closing.
D). No Adverse Changes. There shall not have been, since the date of the
latest audited financial statements of SCRE, any materially adverse change in
SCRE' financial condition, assets, liabilities or business.
E). Current Status with Securities and Exchange Commission. SCRE shall have
prepared and filed with the SEC all periodic reports required under the 1934 Act
pursuant to Section 12(g) thereof including but not limited to an 8-K Current
Report regarding this Agreement and Plan of Reorganization.
F). Due Diligence. SES and SES'S SHAREHOLDERS shall have completed and be
satisfied with its due diligence investigation of SCRE pursuant to Article 4.1.
5.2. SCRE' Closing Conditions. The obligations of SCRE hereunder are
subject to fulfillment prior to or at the Closing of each of the following
conditions:
A). Closing Date. The transactions contemplated by this Agreement shall be
closed on or before July 30, 2004.
B). Representations and Warranties. The representations and warranties of
SES made pursuant to Article 2 above, shall be true and accurate in all material
respects as of the Closing Date.
C). Performance. SES and SES Shareholders shall have performed and complied
with all agreements and conditions required by this Agreement to be performed or
complied with by it prior to or at the Closing, including but not limited to
delivery of the audited financial statements of SES, the execution of
subscription agreements and delivery of SES share certificates.
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D). No Adverse Changes. There shall not have been, since the date of the
latest audited financial statements of SES, any materially adverse change in
their financial condition, assets, liabilities or business;
E). Due Diligence. SCRE shall have completed and be satisfied with its due
diligence investigation of SES pursuant to Article 4.1.
ARTICLE 6: MISCELLANEOUS
6.1. Expenses and Further Assurances. The parties hereto shall each bear
their respective costs and expenses incurred in connection with the transactions
contemplated by this Agreement. Each party hereto will use its best efforts
provide any and all additional information, execute and deliver any and all
documents or other written material and perform any and all acts necessary to
carryout the intent of this Agreement.
6.2. Survival of Representations, Warranties and Covenants. All of the
representations, warranties and covenants made as of the date of this Agreement
and as of Closing, shall survive the closing of this transaction.
6.3. Successors and Assigns. All representations, warranties, covenants and
agreements in this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, representatives,
successors and assigns whether so expressed or not.
6.4. Governing Law. This Agreement is to be governed by and interpreted
under the laws of the State of Nevada, without giving effect to the principles
of conflicts of laws thereof. In addition, the parties agree to venue and
jurisdiction in the State or Federal Courts of the State of Nevada in and for
Las Vegas.
6.5. Section and Other Headings. The section and other headings herein
contained are for convenience only and shall not be construed as part of this
Agreement.
6.6. Counterparts. This Agreement may be executed in any number of
counterparts and each counterpart shall constitute an original instrument, but
all such separate counterparts shall constitute but one and the same instrument.
6.7. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, understandings
and arrangements, oral or written, between the parties hereto with respect to
the subject matter hereof. This Agreement may not be amended or modified, except
by a written agreement signed by all parties hereto.
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6.8. Severability. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffectual to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
6.9. Confidentiality. Each party hereto agrees with the other parties that,
unless and until this Agreement has been consummated, or for a period of one (1)
year from the date of this Agreement if the transaction contemplated by this
Agreement is not consummated it and its representatives will hold in strict
confidence all data and information obtained with respect to the other party
from any representative, Officer, Director or employee, or from any books or
records or from personal inspection, of such other party, and shall not use such
data or information or disclose the same to others, except: (i) to the extent
such data or information has theretofore been publicly disclosed, is a matter of
public knowledge or is required by law to be publicly disclosed; and (ii) to the
extent that such data or information must be used or disclosed in order to
consummate the transactions contemplated by this Agreement. The foregoing
notwithstanding, SCRE shall be authorized to publicly announce the execution and
closing of this Agreement, details thereof and a description of SES and the
business conducted thereby.
IN WITNESS WHEREOF, the corporate parties hereto have caused this Agreement
to be executed by their respective Officers, hereunto duly authorized, as of the
date first above written.
SECURED DATA, INC.
By: /s/ Xxx Xxxxxx Jr. ATTEST: /s/ Xxx Xxxxxx Jr.
-------------------------------- -------------------------
Xxx Xxxxxx Jr., Chairman Xxx Xxxxxx Jr., Secretary
Secure Enterprise Software, Inc.
By: /s/ Xxxxxx Xxxxx ATTEST: /s/ Xxxxxxx Xxxxxxxx
-------------------------------- ---------------------------
Xxxxxx Xxxxx, President Xxxxxxx Xxxxxxxx, Secretary
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