|
|
|
|
Document Preview Reorganization Agreement |
||||
|
|
||||
|
Click "Add to Cart" button to purchase document. |
||||
|
|
||||
|
Title: |
Reorganization Agreement |
|||
|
Entities: |
||||
|
Date: |
2003 |
|||
|
Size: |
Preview shows 27KB of 123KB total |
|||
|
Price: |
$43 |
|||
|
ID: |
#1072039 |
|||
|
|
||||
|
||||
|
|
||||
|
Start of Preview |
||||
This Reorganization Agreement ("Agreement") between AccuPoll Holding
Corp., a Nevada corporation ("AccuPoll"), Z prompt inc., a California
corporation ("ZPI"), and the persons listed in Exhibit A hereof (collectively
the "Shareholders"), being the owners of record of all of the issued and
outstanding stock of ZPI, and Frank Ehret, the holder of a promissory note of
ZPI, is entered effective as of 12:00 a.m. on April 9, 2003.
RECITALS
A. ZPI, a corporation in existence since May 18, 2000, manages
technology support services for mid-range to fortune 1000 companies.
B. The Shareholders own 100% of the issued and outstanding shares of
Common Stock of ZPI (the "ZPI Shares").
C. This Agreement contemplates a tax-free reorganization of AccuPoll
and ZPI pursuant to Internal Revenue Code section 368(a)(1)(b). The Shareholders
will receive 8,000,000 shares of restricted Common Stock of AccuPoll in exchange
for all of their capital stock in ZPI, pursuant to the terms and conditions set
forth in this Agreement.
D. ZPI will become a wholly-owned subsidiary of AccuPoll.
E. Frank Ehret holds a promissory note due from ZPI in the unpaid
principal amount of $404,774.27, plus accrued interest and desires to exchange
such promissory note and all accrued interest thereon for 533,000 restricted
shares of Common Stock of AccuPoll.
F. AccuPoll has also agreed to purchase the promissory note and accrued
interest held by Frank Ehret in exchange for 533,000 shares of restricted Common
Stock of AccuPoll, pursuant to the terms and conditions set forth in this
Agreement.
In consideration of these premises and the mutual representations,
warranties, covenants and agreements contained in this Agreement, the parties
agree as follows:
1. EXCHANGE OF STOCK AND NOTE.
---------------------------
(a) The Shareholders agree to transfer to AccuPoll, and AccuPoll
agrees to acquire from the Shareholders, all of the
Shareholders' right, title and interest in their ZPI Shares,
representing 100% of the issued and outstanding stock of ZPI,
free and clear of all liens, pledges, security interests,
restrictions, encumbrances, or adverse claims of any nature.
1
(b) At the Closing (as defined in Section 2 below), upon surrender
by the Shareholders of the certificates evidencing all of the
ZPI Shares owned by them duly endorsed for transfer to
AccuPoll or accompanied by stock powers executed in blank by
the Shareholders, AccuPoll will cause 8,000,000 shares
(subject to adjustment for fractionalized shares as set forth
below) of the restricted voting Common Stock, par value $.001
of AccuPoll (the "AccuPoll Stock") to be issued to the
Shareholders, in full satisfaction of any right or interest
which each Shareholder held in the ZPI Stock.
(c) The shares of Common Stock of AccuPoll will be issued to the
Shareholders on a pro rata basis, in the same proportion as
the percentage of their ownership interest in the ZPI Stock,
as set forth on Exhibit A. Any fractional shares that will
result due to such pro rata distribution will be rounded up to
the next highest whole number. As a result of the exchange for
all of the ZPI Stock in exchange for AccuPoll Stock, ZPI will
become a wholly-owned subsidiary of AccuPoll.
(d) Frank Ehret agrees to exchange and transfer his promissory
note and all interest accrued thereon payable to him by ZPI to
AccuPoll in the total principal amount of $404,774.27, free
and clear or all liens, pledges, security interests,
restrictions, encumbrances, or adverse claims of any nature,
in exchange for 533,000 shares of restricted Common Stock of
AccuPoll.
2. CLOSING.
--------
(a) The parties to this Agreement will hold a closing (the
"Closing") for the purpose of executing and exchanging all of
the documents contemplated by this Agreement and otherwise
effecting the transactions contemplated by this Agreement. The
Closing will be held as soon as possible at the offices
AccuPoll in Irvine, California, unless another place or time
is mutually agreed upon in writing by the parties. All
proceedings to be taken and all documents to be executed and
exchanged at the Closing will be deemed to have been taken,
delivered and executed simultaneously, and no proceeding will
be deemed taken nor documents deemed executed or delivered
until all have been taken, delivered and executed. If agreed
to by the parties, the Closing may take place through the
exchange of documents by fax and/or express courier.
(b) With the exception of any stock certificates which must be in
their original form, any copy, fax, e-mail or other reliable
reproduction of the writing or transmission required by this
Agreement or any signature required thereon may be used in
lieu of an original writing or transmission or signature for
any and all purposes for which the original could be used,
provided that such copy, fax, e-mail or other reproduction is
a complete reproduction of the entire original writing or
transmission or original signature, and the originals are
promptly delivered thereafter.
2
3. REPRESENTATIONS AND WARRANTIES OF ACCUPOLL.
-------------------------------------------
AccuPoll represents and warrants as follows:
(a) AccuPoll is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Nevada and
is licensed or qualified as a foreign corporation in all
states in which the nature of its business or the character or
ownership of its properties makes such licensing or
qualification necessary.
(b) The authorized capital stock of AccuPoll consists of
600,000,000 shares of Common Stock, $.001 par value per share,
of which, based on the records of AccuPoll's stock transfer
agent, 110,203,715 shares are issued and outstanding as of the
close of business on March 27, 2003. To the knowledge of
AccuPoll, all issued and outstanding shares of AccuPoll's
Common Stock are fully paid and nonassessable. When issued,
the AccuPoll Stock will be duly authorized, validly and newly
issued, fully paid and nonassessable and free and clear of all
liens.
(c) AccuPoll has one subsidiary, AccuPoll Inc..
(d) Execution of this Agreement and performance by AccuPoll
hereunder has been duly authorized by all requisite corporate
action on the part of AccuPoll, and this Agreement constitutes
a valid and binding obligation of AccuPoll, and AccuPoll's
performance hereunder will not violate any provision of any
charter, bylaw, indenture, mortgage, lease, or agreement, or
any order, judgment, decree, or, to AccuPoll's knowledge any
law or regulation, to which any property of AccuPoll is
subject or by which AccuPoll is bound.
(e) AccuPoll has full corporate power and authority to enter into
this Agreement and to carry out its obligations hereunder, and
will deliver at the Closing a copy of resolutions of its board
of directors authorizing execution of this Agreement by its
officers and performance hereunder.
(f) AccuPoll has provided all financial statements and financial
information in its possession as has been requested by the
Shareholders and Mr. Ehret.
(g) There is no litigation or similar proceeding pending, or to
AccuPoll's knowledge threatened, against or relating to
AccuPoll, its properties or business.
(h) AccuPoll is acquiring the ZPI shares to be transferred to it
under this Agreement for investment and not with a view to the
sale or distribution thereof.
(i) AccuPoll has filed in correct form all tax returns of every
nature required to be filed by it and has paid all taxes as
shown on such returns and all assessments, fees and charges
received by it to the extent that such taxes, assessments,
fees and charges have become due. AccuPoll has also paid all
taxes which do not require the filing of returns and which are
required to be paid by it. To the extent that tax liabilities
have accrued, but have not become payable, they have been
adequately reflected as liabilities on the books of AccuPoll.
3
(j) AccuPoll and its representatives have had the opportunity to
perform all due diligence investigations of ZPI and its
business as they have deemed necessary or appropriate and to
ask questions of ZPI's officers and directors and have
received satisfactory answers to all of their questions.
AccuPoll and its representatives have had access to all
documents and information about ZPI and have reviewed
sufficient information to allow them to evaluate the merits
and risks of AccuPoll's acquisition of the ZPI capital stock.
4. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS AND FRANK EHRET.
-------------------------------------------------------------------
The Shareholders and Frank Ehret, jointly and severally, represent and
warrant as follows:
(a) ZPI is a corporation duly organized, validly existing, and in
good standing under the laws of the State of California and is
licensed or qualified as a foreign corporation in all places
in which the nature of its business or the character or
ownership of its properties makes such licensing or
qualification necessary.
(b) Other than a Shareholder Agreement among the Shareholders
which will be cancelled concurrent with the Closing, there are
no agreements purporting to restrict the transfer of the ZPI
Shares, nor any voting agreements, voting trusts or other
arrangements restricting or affecting the voting of the ZPI
Shares. The ZPI Shares held by the Shareholders are duly and
validly issued, fully paid and non-assessable, and issued in
full compliance with all federal, state, and local laws, rules
and regulations. There are no subscription rights, options,
warrants, convertible securities, or other rights (contingent
or otherwise) presently outstanding, for the purchase,
acquisition, or sale of the capital stock of ZPI, or any
securities convertible into or exchangeable for capital stock
of ZPI or other securities of ZPI, from or by ZPI.
(c) The Shareholders have full right, power and authority to sell,
transfer and deliver the ZPI Shares, and upon delivery of the
certificates therefor as contemplated in this Agreement, the
Shareholders will transfer to AccuPoll valid and marketable
title to the ZPI Shares, including all voting and other rights
to the ZPI Shares, free and clear of all pledges, liens,
security interests, adverse claims, options, rights of any
third party, or other encumbrances. Each of the Shareholders
owns and holds that the number or percentage of ZPI Shares
which are listed opposite their names on Exhibit A attached
hereto.
(d) The financial statements of ZPI presented to AccuPoll are
accurate consistent with U.S. generally accepted accounting
principles.
(e) There is no litigation or proceeding pending, or to any
Shareholder's knowledge, threatened, against or relating to
ZPI or to the ZPI Shares.
4
(f) ZPI has filed in correct form all tax returns of every nature
required to be filed by it and has paid all taxes as shown on
such returns and all assessments, fees and charges received by
it to the extent that such taxes, assessments, fees and
charges have become due. ZPI has also paid all taxes which do
not require the filing of returns and which are required to be
paid by it. To the extent that tax liabilities have accrued,
but have not become payable, they have been adequately
reflected as liabilities on the books of ZPI.
(g) The current residence address or principal place of business
of the ZPI Shareholders and Mr. Ehret is as listed on Exhibit
A attached hereto.
(h) The ZPI Shareholders and their representatives have had the
opportunity to perform all due diligence investigations of
AccuPoll and its business as they have deemed necessary or
appropriate and to ask questions of AccuPoll's officers and
directors and have received satisfactory answers to all of
their questions. The Shareholders have had access to all
documents and information about AccuPoll and have reviewed
sufficient information to allow them to evaluate the merits
and risks of their acquisition of the AccuPoll Stock.
(i) The Shareholders are acquiring the AccuPoll Stock for their
own account (and not for the account of others) for investment
and not with a view to the distribution therefor. The
Shareholders will not sell or otherwise dispose of the
AccuPoll Stock without registration under the Securities Act
of 1933, as amended (the "Act"), or an exemption therefrom,
and the certificate or certificates representing the AccuPoll
Stock will contain a legend to the foregoing effect.
(j) It is understood that the AccuPoll Stock to be issued to the
Shareholders of ZPI will bear the following restrictive legend
or similar legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
APPLICABLE STATE SECURITIES ACTS. THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD OR TRANSFERRED FOR
VALUE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION OF THEM
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND/OR ANY
APPLICABLE STATE SECURITIES ACT OR AN OPINION OF COUNSEL
ACCEPTABLE TO ACCUPOLL HOLDING CORP. THAT SUCH REGISTRATION IS
NOT REQUIRED UNDER SUCH ACT OR ACTS.
(k) The Common Stock of AccuPoll to be acquired constitutes an
investment which is suitable and consistent with each
Shareholder's investment program and that the undersigned's
financial situation enables the him to bear the risks of this
investment. Each Shareholder has such knowledge and experience
in financial and business affairs that he is capable of
evaluating the merits and risks of an investment in the Common
Stock of AccuPoll.
5
(l) Each Shareholder is aware that the AccuPoll stock cannot be
sold or otherwise transferred for an indefinite period unless
subsequently registered or qualified under the Act and
applicable state securities laws (which AccuPoll is not
obligated to do), or an opinion of counsel acceptable to
AccuPoll and its legal counsel is received stating that
exemptions from such registration or qualification
requirements are available.
(m) The undersigned further understands that the exemption under
Rule 144 promulgated under the Act may not be available
because of the conditions and limitations of Rule 144, and
that, in the absence of the availability of Rule 144, any
disposition of the undersigned's investment may require
compliance with some other exemption under the Act, and that
AccuPoll is under no obligation to take any action in
furtherance of making an exemption under Rule 144 or any other
exemption so available.
(n) The undersigned is aware that AccuPoll has been and is relying
upon the representations and warranties set forth herein, in
part, in determining whether the exchange of its Common Stock
meets the conditions of Section 4(2) under the Act and under
the exemptions available from the registration or
qualification requirements under applicable state securities
laws.
(o) Each Shareholder confirms that, in making his decision to
acquire the Common Stock of AccuPoll, such Shareholder has
relied upon independent investigations made by him, or his
representatives, including his own professional tax and other
advisers, and that he and such representatives have been given
the opportunity to examine all documents and to ask questions
of, and to receive answers from AccuPoll or any person(s)
acting on its behalf concerning the terms and conditions of
this Agreement, and to obtain any additional information or
documents, to the extent AccuPoll possesses such information
or can acquire it without unreasonable effort or expense,
necessary to verify the accuracy of the information provided
by AccuPoll, and that no representations have been made to the
Shareholders concerning the Common Stock of AccuPoll, its
business or prospects or other matters.
(p) Each Shareholder understands that the Common Stock is being
offered and sold under an exemption from registration provided
by Section 4(2) of the Act, and warrants and represents that
any Common Stock subscribed for is being acquired by each
Shareholder solely for their own account for investment
purposes only; that he has no present agreement or other
arrangement, formal or informal, with any person to sell,
transfer or pledge any part of any Common Stock subscribed for
or which would guarantee the undersigned any profit or protect
the undersigned against any loss with respect to such Common
Stock; that the undersigned has no present plans to enter into
any such agreement or arrangement; and that the undersigned is
able to bear the economic risk of the investment for an
indefinite period of time.
6
(q) The undersigned recognizes the speculative nature and risks of
loss associated with investments in development stage
companies and that the undersigned may suffer a substantial
loss of the undersigned's investment in the Common Stock of
AccuPoll. In connection therewith, the Shareholders confirm
that each understand, and has fully considered for purposes of
this investment, the risks involved in this investment; and is
aware that: (i) AccuPoll has a very limited financial and
operating history in connection with its current business;
(ii) this is a speculative investment which involves a high
degree of risk of loss by the undersigned of the undersigned's
investment therein; and (iii) at the present, there is a
limited public market for the Common Stock and, accordingly,
it may be difficult if not impossible for him to liquidate an
investment therein for an indefinite period, even in case of
emergency.
(r) The undersigned agrees that the foregoing representations and
warranties shall survive the undersigned's acquisition of the
Common Stock of AccuPoll. All of the information which the
undersigned has furnished AccuPoll herein, or previously with
respect to the undersigned's financial position is current and
complete as of the date of this Agreement and, if there should
be any material change in such information, the undersigned
will immediately furnish such revised or corrected information
to AccuPoll.
5. CONDUCT PRIOR TO THE CLOSING.
-----------------------------
AccuPoll, the Shareholders and Frank Ehret covenant that between the
date of this Agreement and the Closing as to each of them:
(a) No change will be made in the charter documents, by-laws, or
other corporate documents of AccuPoll or ZPI.
(b) AccuPoll and ZPI will each use their best efforts to maintain
and preserve their business organization, employee
relationships, and goodwill intact, and ZPI will not enter
into any material commitment except in the ordinary course of
business.
(C) The Shareholders will not sell, transfer, assign, hypothecate,
lien, or otherwise dispose or encumber the ZPI Shares owned by
them.
(d) Frank Ehret will not sell, transfer, assign, hypothecate,
lien, or otherwise dispose or encumber the ZPI note owned by
him.
6. CONDITIONS TO OBLIGATIONS OF SHAREHOLDERS.
------------------------------------------
The Shareholders' and Mr. Ehret's obligations to complete the
transactions contemplated herein is subject to fulfillment on or before the
Closing of each of the following conditions, unless waived in writing by them as
appropriate:
7
(a) The representations and warranties of AccuPoll set forth
herein will be true and correct at the Closing as though made
at and as of that date, except as affected by transactions
contemplated hereby.
(b) AccuPoll will have performed all covenants required by this
|
End of Preview |
Home Intelligence Services Subscriptions News About Us