Agreement and Plan of Reorganization - Collectibles America Inc. and BeFirst Internet Corp.
AGREEMENT AND PLAN OF REORGANIZATION
BETWEEN
COLLECTIBLES AMERICA, INC.
AND
BEFIRST INTERNET CORPORATION
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TABLE OF CONTENTS
1. Plan of Reorganization.................................................1
2. Exchange of Shares.....................................................1
3. Pre-Closing Events.....................................................2
4. Exchange of Securities.................................................2
5. Other Events Occurring at Closing......................................3
6. Delivery of Shares.....................................................3
7. Representations of BeFirst Stockholders................................3
8. Representations of BeFirst.............................................4
9. Representations of CAI and Jardine.....................................5
10. Closing................................................................7
11. Conditions Precedent to the Obligations of BeFirst.....................7
12. Conditions Precedent to the Obligations of CAI ........................9
13. Indemnification.......................................................10
14. Nature and Survival of Representations................................10
15. Documents at Closing..................................................10
16. Finder's Fees.........................................................11
17. Miscellaneous.........................................................12
Signature Page................................................................13
Exhibit A - BeFirst Stockholder Schedule
Exhibit B - Amendment to Articles of Incorporation
Exhibit C - Investment Letter
(i)
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AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization (hereinafter the "Agreement") is
entered into effective as of this ___ day of ___________, 1999, by and among
Collectibles America, Inc., a Nevada corporation (hereinafter "CAI"); Mick
Jardine, the principal shareholder of CAI (hereinafter "Jardine"); BeFirst
Internet Corporation, a Delaware corporation (hereinafter "BeFirst"), and the
owners of all the outstanding shares of common stock of BeFirst (hereinafter the
"BeFirst Stockholders").
RECITALS:
WHEREAS, the BeFirst Stockholders own all of the issued and outstanding
common stock of BeFirst which comprises 1,000 shares (the "BeFirst Common
Stock"). CAI desires to acquire the BeFirst Common Stock solely in exchange for
voting common stock of CAI, making BeFirst a wholly-owned subsidiary of CAI; and
WHEREAS, the BeFirst Stockholders (as set forth on the attached Exhibit
"A") desire to acquire voting common stock of CAI in exchange for the BeFirst
Common Stock, as more fully set forth herein.
NOW THEREFORE, for the mutual consideration set out herein and other good
and valuable consideration, the legal sufficiency of which is hereby
acknowledged, the parties agree as follows:
AGREEMENT
1. Plan of Reorganization. It is hereby agreed that all of the BeFirst
Common Stock shall be acquired by CAI in exchange solely for CAI common voting
stock (the "CAI Shares"). It is the intention of the parties hereto that all of
the issued and outstanding shares of capital stock of BeFirst shall be acquired
by CAI in exchange solely for CAI common voting stock and that this entire
transaction qualify as a corporate reorganization under Section 368(a)(1)(B)
and/or Section 351 of the Internal Revenue Code of 1986, as amended, and related
or other applicable sections thereunder.
2. Exchange of Shares. CAI and BeFirst Stockholders agree that on the
Closing Date or at the Closing as hereinafter defined, the BeFirst Common Stock
shall be delivered to CAI in exchange for the CAI Shares, after giving effect to
a 2 to 1 reverse stock split (the "CAI Reverse Stock Split") as to all presently
outstanding shares of CAI common stock, as follows:
(a) At Closing, CAI shall, subject to the conditions set forth herein,
issue an aggregate of 8,750,000 shares of CAI common stock (after giving effect
to the CAI Reverse Stock Split)
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for immediate delivery to the BeFirst Stockholders in exchange for the CAI
Shares.
(b) Each BeFirst Stockholder shall execute this Agreement or a written
consent to the exchange of their BeFirst Common Stock for CAI Shares.
(c) Unless otherwise agreed by CAI and BeFirst this transaction shall close
only in the event CAI is able to acquire at least 80% of the outstanding BeFirst
Common Stock; however, it is the intent of the parties to have CAI acquire all
of the BeFirst Common Stock.
3. Pre-Closing Events. The Closing is subject to the completion of the
following:
(a) CAI shall have authorized 50,000,000 shares of $.001 par value common
stock and 500,000 shares of $.001 par value preferred stock. The preferred stock
shall be subject to issuance in such series and with such rights, preferences
and designations as determined in the sole discretion of the board of directors.
(b) Jardine shall have contributed 8,600,000 shares of CAI Common Stock to
CAI for cancellation, leaving 5,000,000 shares issued and outstanding prior to
the CAI Reverse Stock Split.
(c) CAI shall effectuate the CAI Reverse Stock Split at or about the time
of Closing, and shall have 2,500,000 shares of its common stock issued and
outstanding and no other shares of capital stock issued or outstanding not
taking into effect the shares to be issued under this Agreement.
(d) CAI shall demonstrate to the reasonable satisfaction of BeFirst that it
has no material assets and no liabilities contingent or fixed other than the
proceeds of the CAI Financing as described herein.
4. Exchange of Securities. As of the Closing Date each of the following
shall occur:
(a) All shares of BeFirst Common Stock issued and outstanding immediately
prior to the Closing Date shall be exchanged for the CAI Shares (up to an
aggregate amount of 8,750,000 CAI Shares to be delivered at Closing). All such
outstanding shares of BeFirst Common Stock shall be deemed, after Closing, to be
owned by CAI. The holders of such certificates previously evidencing shares of
BeFirst Common Stock outstanding immediately prior to the Closing Date shall
cease to have any rights with respect to such shares of BeFirst Common Stock
except as otherwise provided herein or by law;
(b) Any shares of BeFirst Common Stock held in the treasury of BeFirst
immediately prior to the Closing Date shall automatically be canceled and
extinguished without any conversion thereof and no payment shall be made with
respect thereto;
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(c) The 2,500,000 shares of CAI common stock previously issued and
outstanding prior to the Closing, after giving effect to the CAI Reverse Split,
will remain outstanding.
5. Other Events Occurring at Closing. At Closing, the following shall be
accomplished:
(a) CAI shall file an amendment to its Articles of Incorporation with the
Secretary of State of the State of Nevada in substantially the form attached
hereto as Exhibit "B" effecting an amendment to its Articles of Incorporation to
(i) reflect a name change to a new name as selected by BeFirst and, (ii) to
change the authorized capitalization of CAI to 50,000,000 shares of $.001 par
value common stock and 500,000 shares of $.001 par value preferred stock, as set
forth in the attached Exhibit "B".
(b) The resignation of the existing CAI officer and director and
appointment of new officers and directors as directed by BeFirst.
(c) CAI shall have completed a private offering under Regulation D, Rule
506, as promulgated by the Securities and Exchange Commission ("SEC") under the
Securities Act of 1933, as amended, of 1,250,000 shares of its common stock at
$2.00 per share. The gross proceeds of this offering (the "CAI Financing") shall
be $2,500,000, which amount, less agreed upon costs, shall be delivered to the
control of new management of CAI at Closing in good funds or shall be
represented by the conversion of previous loans to BeFirst arranged for by CAI.
The CAI Financing shall have been completed in compliance with all applicable
state and federal securities laws and the securities sold shall be delivered at
Closing to the investors in the CAI Financing. Persons who have made bridge
loans to BeFirst pursuant to arrangements made by CAI, shall be given the
opportunity to convert the principal of said loans to the purchase of shares in
the private offering prior to Closing upon the same terms as other investors in
the private offering.
(d) CAI shall adopt a Stock Option Plan at Closing to include up to
1,000,000 shares of its common stock. The Plan shall include "incentive" stock
options under Section 422 of the Internal Revenue Code of 1986, as amended and
other options and similar rights. CAI shall grant options under said plan to
employees and others, at Closing, exercisable at $2.00 per share, as designated
by BeFirst subject to the reasonable approval of CAI.
6. Delivery of Shares. On or as soon as practicable after the Closing Date,
BeFirst will use its best efforts to cause the BeFirst Stockholders to surrender
certificates for cancellation representing their shares of BeFirst Common Stock,
against delivery of certificates representing the CAI Shares for which the
shares of BeFirst Common Stock are to be exchanged at Closing.
7. Representations of BeFirst Stockholders. Each BeFirst Stockholder hereby
represents and warrants each only as to its own BeFirst Common Stock, effective
this date and
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the Closing Date as follows:
(a) Except as may be set forth in Exhibit "A", the BeFirst Common Stock is
free from claims, liens, or other encumbrances, and at the Closing Date said
BeFirst Stockholder will have good title and the unqualified right to transfer
and dispose of such BeFirst Common Stock.
(b) Said BeFirst Stockholder is the sole owner of the issued and
outstanding BeFirst Common Stock as set forth in Exhibit "A";
(c) Said BeFirst Stockholder has no present intent to sell or dispose of
the CAI Shares and is not under a binding obligation, formal commitment, or
existing plan to sell or otherwise dispose of the CAI Shares.
8. Representations of BeFirst. BeFirst hereby represents and warrants as
follows, which warranties and representations shall also be true as of the
Closing Date:
(a) Except as noted on Exhibit "A", the BeFirst Stockholders listed on the
attached Exhibit "A" are the sole owners of record and beneficially of the
issued and outstanding common stock of BeFirst.
(b) BeFirst has no outstanding or authorized capital stock, warrants,
options or convertible securities other than as described in the BeFirst
Financial Statements or in Exhibit "A", attached hereto.
(c) The unaudited financial statements as of and for the period ended
December 31, 1998, which have been delivered to CAI (hereinafter referred to as
the "BeFirst Financial Statements") are complete and accurate in all material
respects and fairly present the financial condition of BeFirst as of the date
thereof and the results of its operations for the period covered. There are no
material liabilities or obligations, either fixed or contingent, not disclosed
in the BeFirst Financial Statements or notes thereto which are required to be
disclosed therein; BeFirst has no contracts or obligations in the ordinary
course of business which constitute liens or other liabilities which materially
alter the financial condition of BeFirst as reflected in the BeFirst Financial
Statements. BeFirst has good title to all assets shown on the BeFirst Financial
Statements subject only to dispositions and other transactions in the ordinary
course of business, the disclosures set forth therein and liens and encumbrances
of record. The BeFirst Financial Statements have been prepared in accordance
with generally accepted accounting principles consistently applied (except as
may be indicated therein or in the notes thereto).
(d) Since the date of the BeFirst Financial Statements, there have not been
any material adverse changes in the financial position of BeFirst except changes
arising in the ordinary course of business, which changes will in no event
materially and adversely affect the financial position of BeFirst.
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(e) BeFirst is not a party to any material pending litigation or, to its
best knowledge, any governmental investigation or proceeding, not reflected in
the BeFirst Financial Statements, and to its best knowledge, no material
litigation, claims, assessments or any governmental proceedings are threatened
against BeFirst.
(f) BeFirst is in good standing in its jurisdiction of incorporation, and
is in good standing and duly qualified to do business in each jurisdiction where
required to be so qualified except where the failure to so qualify would have no
material negative impact on BeFirst.
(g) BeFirst has (or, by the Closing Date, will have filed) all material
tax, governmental and/or related forms and reports (or extensions thereof) due
or required to be filed and has (or will have) paid or made adequate provisions
for all taxes or assessments which have become due as of the Closing Date.
(h) BeFirst has not materially breached any material agreement to which it
is a party. BeFirst has previously given CAI copies or access thereto of all
material contracts, commitments and/or agreements to which BeFirst is a party
including all relationships or dealings with related parties or affiliates.
(i) BeFirst has no subsidiary corporations except as described in writing
to CAI.
(j) BeFirst has made all material corporate financial records, minute
books, and other corporate documents and records available for review to present
management of CAI prior to the Closing Date, during reasonable business hours
and on reasonable notice.
(k) The execution of this Agreement does not materially violate or breach
any material agreement or contract to which BeFirst is a party and has been duly
authorized by all appropriate and necessary corporate action under Delaware of
other applicable law and BeFirst, to the extent required, has obtained all
necessary approvals or consents required by any agreement to which BeFirst is a
party.
(l) All disclosure information regarding BeFirst which is to be set forth
in disclosure documents of CAI or otherwise delivered to CAI by BeFirst for use
in connection with the transaction (the "Acquisition") described herein is true,
complete and accurate in all material respects.
9. Representations of CAI and Jardine. CAI, and Jardine to the best of his
knowledge, hereby jointly and severally represent and warrant as follows, each
of which representations and warranties shall continue to be true as of the
Closing Date:
(a) As of the Closing Date, the CAI Shares, to be issued and delivered to
the BeFirst Stockholders hereunder will, when so issued and delivered,
constitute, duly authorized, validly
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and legally issued shares of CAI common stock, fully-paid and nonassessable. CAI
shall have completed its reverse stock split wherein each holder of CAI Shares
shall have received one share of the CAI Shares for each two CAI Shares
previously held. The total number of CAI Shares outstanding shall be 2,500,000
without giving effect to shares issued in the CAI Financing. No shares of CAI's
preferred stock, $0.001 par value, to be authorized at Closing, shall be
outstanding.
(b) At Closing, all of the issued and outstanding common stock of CAI,
including shares issued in the CAI Financing, shall be duly authorized, validly
issued, fully-paid and nonassessable and shall have been issued in compliance
with all applicable corporate and securities laws.
(c) CAI has the corporate power to enter into this Agreement and to perform
its obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by the board of directors of CAI. The execution and performance of this
Agreement will not constitute a material breach of any agreement, indenture,
mortgage, license or other instrument or document to which CAI is a party and
will not violate any judgment, decree, order, writ, rule, statute, or regulation
applicable to CAI or its properties. The execution and performance of this
Agreement will not violate or conflict with any provision of the Articles of
Incorporation or by-laws of CAI.
(d) CAI has delivered to BeFirst a true and complete copy of its audited
financial statements for the years ended December 31, 1996, 1997, and 1998, (the
"CAI Financial Statements"). The CAI Financial Statements are complete, accurate
in all material respects and fairly present the financial condition of CAI as of
the dates thereof and the results of its operations for the periods then ended.
There are no material liabilities or obligations either fixed or contingent not
reflected therein. The CAI Financial Statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
(except as may be indicated therein or in the notes thereto).
(e) Since December 31, 1998, there have not been any material adverse
changes in the financial condition of CAI except with regard to disbursements to
pay reasonable and ordinary expenses in connection with maintaining its
corporate status and pursuing the matters contemplated in this Agreement. Prior
to Closing, all accounts payable and other liabilities of CAI shall be paid and
satisfied in full and CAI shall have no liabilities either contingent or fixed.
(f) Neither Jardine nor CAI is a party to or the subject of any pending
litigation, claims, or governmental investigation or proceeding not reflected in
the CAI Financial Statements or otherwise disclosed herein, and there are no
lawsuits, claims, assessments, investigations, or similar matters, to the best
knowledge of Jardine, threatened or contemplated against or affecting CAI, its
management or its properties or Jardine.
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(g) CAI is duly organized, validly existing and in good standing under the
laws of the State of Nevada; has the corporate power to own its property and to
carry on its business as now being conducted and is duly qualified to do
business in any jurisdiction where so required except where the failure to so
qualify would have no material negative impact on it.
(h) CAI has filed all federal, state, county and local income, excise,
property and other tax, governmental and/or related returns, forms, or reports,
which are due or required to be filed by it prior to the date hereof, except
where the failure to do so would have no material adverse impact on CAI, and has
paid or made adequate provision in the CAI Financial Statements for the payment
of all taxes, fees, or assessments which have or may become due pursuant to such
returns or pursuant to any assessments received. CAI is not delinquent or
obligated for any tax, penalty, interest, delinquency or charge.
(i) There are no existing options, calls, warrants, preemptive rights,
registration rights or commitments of any character relating to the issued or
unissued capital stock or other securities of CAI, except as contemplated in
this Agreement.
(j) The corporate financial records, minute books, and other documents and
records of CAI have been made available to BeFirst prior to the Closing and
shall be delivered to new management of CAI at Closing.
(k) CAI has not breached, nor is there any pending, or to the knowledge of
management, any threatened claim that CAI has breached, any of the terms or
conditions of any agreements, contracts or commitments to which it is a party or
by which it or its assets are is bound. The execution and performance hereof
will not violate any provisions of applicable law or any agreement to which CAI
is subject. CAI hereby represents that it has no business operations or material
assets and it is not a party to any material contract or commitment other than
appointment documents with its transfer agent, and that it has disclosed to
BeFirst all relationships or dealings with related parties or affiliates.
(l) CAI common stock is currently approved for quotation on the OTC
Bulletin Board under the symbol "CAMJ" and there are no stop orders in effect
with respect thereto and CAI has made all filings currently required to maintain
its listing.
(m) All information regarding CAI which has been provided to BeFirst or
otherwise disclosed in connection with the transactions contemplated herein, is
true, complete and accurate in all material respects. CAI and Jardine
specifically disclaim any responsibility regarding disclosures as to BeFirst,
its business or its financial condition.
10. Closing. The Closing of the transactions contemplated herein shall take
place on such date (the "Closing") as mutually determined by the parties hereto
when all conditions precedent have been met and all required documents have been
delivered, which Closing is
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expected to take place on or about June____ , 1999, but no later than June____ ,
1999, unless extended by mutual consent of all parties hereto. The "Closing
Date" of the transactions described herein (the "Acquisition"), shall be that
date on which all conditions set forth herein have been met and the CAI Shares
are issued in exchange for the BeFirst Common Stock.
11. Conditions Precedent to the Obligations of BeFirst. All obligations of
BeFirst under this Agreement are subject to the fulfillment, prior to or as of
the Closing and/or the Closing Date, as indicated below, of each of the
following conditions:
(a) The representations and warranties by or on behalf of Jardine and CAI
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof shall be true in all material respects at and as of the
Closing and Closing Date as though such representations and warranties were made
at and as of such time.
(b) CAI shall have performed and complied with all covenants, agreements,
and conditions set forth in, and shall have executed and delivered all documents
required by this Agreement to be performed or complied with or executed and
delivered by it prior to or at the Closing.
(c) On or before the Closing, the board of directors, and shareholders
representing a majority interest the outstanding common stock of CAI, shall have
approved in accordance with applicable state corporation law the execution and
delivery of this Agreement and the consummation of the transactions contemplated
herein.
(d) On or before the Closing Date, CAI shall have delivered to BeFirst
certified copies of resolutions of the board of directors and shareholders of
CAI approving and authorizing the execution, delivery and performance of this
Agreement and authorizing all of the necessary and proper action to enable CAI
to comply with the terms of this Agreement including the election of BeFirst's
nominees to the Board of Directors of CAI and all matters outlined herein.
(e) The Acquisition shall be permitted by applicable law and CAI shall have
sufficient shares of its capital stock authorized to complete the Acquisition.
(f) At Closing, the existing sole officer and director of CAI shall have
resigned in writing from all positions as director and officer of CAI effective
upon the election and appointment of the BeFirst nominees.
(g) At the Closing, all instruments and documents delivered to BeFirst and
BeFirst Stockholders pursuant to the provisions hereof shall be reasonably
satisfactory to legal counsel for BeFirst.
(h) The shares of restricted CAI capital stock to be issued to BeFirst
Stockholders and
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in the CAI Financing at Closing will be validly issued, nonassessable and
fully-paid under Nevada corporation law and will be issued in compliance with
all federal, state and applicable corporation and securities laws.
(i) BeFirst and BeFirst Stockholders shall have received the advice of
their tax advisor, if deemed necessary by them, as to all tax aspects of the
Acquisition.
(j) BeFirst shall have received all necessary and required approvals and
consents from required parties and its shareholders.
(k) CAI shall have completed the CAI Financing.
(l) At the Closing, CAI shall have delivered to BeFirst an opinion of its
counsel dated as of the Closing to the effect that:
(i) CAI is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation;
(ii) This Agreement has been duly authorized, executed and delivered
by CAI and is a valid and binding obligation of CAI enforceable in
accordance with its terms;
(iii) CAI through its board of directors and stockholders has taken
all corporate action necessary for performance under this Agreement;
(iv) The documents executed and delivered by CAI to BeFirst and
BeFirst Stockholders hereunder are valid and binding in accordance with
their terms and vest in BeFirst Stockholders, as the case may be, all
right, title and interest in and to the CAI Shares to be issued pursuant to
the terms hereof, and the CAI Shares when issued will be duly and validly
issued, fully-paid and nonassessable;
(v) CAI has the corporate power to execute, deliver and perform under
this Agreement;
(vi) Legal counsel for CAI is not aware of any liabilities, claims or
lawsuits involving CAI;
12. Conditions Precedent to the Obligations of CAI. All obligations of CAI
under this Agreement are subject to the fulfillment, prior to or at the Closing,
of each of the following conditions:
(a) The representations and warranties by BeFirst and BeFirst Stockholders
contained in this Agreement or in any certificate or document delivered pursuant
to the provisions hereof
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shall be true in all material respects at and as of the Closing as though such
representations and warranties were made at and as of such time.
(b) BeFirst shall have performed and complied with, in all material
respects, all covenants, agreements, and conditions required by this Agreement
to be performed or complied with by it prior to or at the Closing;
(c) BeFirst shall deliver on behalf of the BeFirst Stockholders a letter
commonly known as an "Investment Letter," signed by each of said shareholders,
in substantially the form attached hereto as Exhibit "C", acknowledging that the
CAI Shares are being acquired for investment purposes.
(d) BeFirst shall deliver an opinion of its legal counsel to the effect
that:
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(i) BeFirst is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation and is
duly qualified to do business in any jurisdiction where so required except
where the failure to so qualify would have no material adverse impact on
BeFirst;
(ii) This Agreement has been duly authorized, executed and delivered
by BeFirst.
(iii) The documents executed and delivered by BeFirst and BeFirst
Stockholders to CAI hereunder are valid and binding in accordance with
their terms and vest in CAI all right, title and interest in and to the
BeFirst Common Stock, which stock is duly and validly issued, fully-paid
and nonassessable.
13. Indemnification. For a period of one year from the Closing, CAI and
Jardine agree to jointly and severally indemnify and hold harmless BeFirst, and
BeFirst agrees to indemnify and hold harmless CAI, at all times after the date
of this Agreement against and in respect of any liability, damage or deficiency,
all actions, suits, proceedings, demands, assessments, judgments, costs and
expenses including attorney's fees incident to any of the foregoing, resulting
from any misrepresentations made by an indemnifying party to an indemnified
party, an indemnifying party's breach of covenant or warranty or an indemnifying
party's nonfulfillment of any agreement hereunder, or from any misrepresentation
in or omission from any certificate furnished or to be furnished hereunder.
14. Nature and Survival of Representations. All representations, warranties
and covenants made by any party in this Agreement shall survive the Closing and
the consummation of the transactions contemplated hereby for one year from the
Closing. All of the parties hereto are executing and carrying out the provisions
of this Agreement in reliance solely on the representations, warranties and
covenants and agreements contained in this Agreement and not upon any
investigation upon which it might have made or any representation, warranty,
agreement, promise or information, written or oral, made by the other party or
any other person other than as specifically set forth herein.
15. Documents at Closing. At the Closing, the following documents shall be
delivered:
(a) BeFirst will deliver, or will cause to be delivered, to CAI the
following:
(i) a certificate executed by the President and Secretary of BeFirst
to the effect that all representations and warranties made by BeFirst under
this Agreement are true and correct as of the Closing, the same as though
originally given to CAI on said date;
(ii) a certificate from the jurisdiction of incorporation of BeFirst
dated at or about the Closing to the effect that BeFirst is in good
standing under the laws of said
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jurisdiction;
(iii) Investment Letters in the form attached hereto as Exhibit "C"
executed by each BeFirst Stockholder;
(iv) such other instruments, documents and certificates, if any, as
are required to be delivered pursuant to the provisions of this Agreement;
(v) certified copies of resolutions adopted by the shareholders and
directors of BeFirst authorizing this transaction; and
(vi) all other items, the delivery of which is a condition precedent
to the obligations of CAI as set forth herein.
(vii) the legal opinion required by Section 12(d) hereof.
(b) CAI will deliver or cause to be delivered to BeFirst:
(i) stock certificates representing the CAI Shares to be issued as a
part of the stock exchange as described herein;
(ii) a certificate of the President of CAI, to the effect that all
representations and warranties of CAI made under this Agreement are true
and correct as of the Closing, the same as though originally given to
BeFirst on said date;
(iii) certified copies of resolutions adopted by CAI's board of
directors and CAI's Stockholders authorizing the Acquisition and all
related matters described herein;
(iv) certificate from the jurisdiction of incorporation of CAI dated
at or about the Closing Date that CAI is in good standing under the laws of
said state;
(v) opinion of CAI's counsel as described in Section 11(l) above;
(vi) good funds representing the net proceeds of the CAI Financing;
(vii) resignation of the existing officer and director of CAI;
(viii) all corporate and financial records of CAI; and
(ix) all other items, the delivery of which is a condition precedent
to the obligations of BeFirst, as set forth in Section 12 hereof.
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16. Finder's Fees. CAI represents and warrants to BeFirst, and BeFirst
represents and warrants to CAI that neither of them, or any party acting on
their behalf, has incurred any liabilities, either express or implied, to any
"broker" of "finder" or similar person in connection with this Agreement or any
of the transactions contemplated hereby other than arrangements, if any,
disclosed to BeFirst by CAI to compensate any person who introduced the parties,
which obligation shall be the sole responsibility of CAI. In this regard, CAI,
on the one hand, and BeFirst on the other hand, will indemnify and hold the
other harmless from any claim, loss, cost or expense whatsoever (including
reasonable fees and disbursements of counsel) from or relating to any such
express or implied liability other than as disclosed herein.
17. Miscellaneous.
(a) Further Assurances. At any time, and from time to time, after the
Closing Date, each party will execute such additional instruments and take such
action as may be reasonably requested by the other party to confirm or perfect
title to any property transferred hereunder or otherwise to carry out the intent
and purposes of this Agreement.
(b) Waiver. Any failure on the part of any party hereto to comply with any
of its obligations, agreements or conditions hereunder may be waived in writing
by the party to whom such compliance is owed.
(c) Amendment. This Agreement may be amended only in writing as agreed to
by all parties hereto.
(d) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given if delivered in person or sent by
prepaid first class registered or certified mail, return receipt requested.
(e) Headings. The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g) Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Nevada.
(h) Binding Effect. This Agreement shall be binding upon the parties hereto
and inure to the benefit of the parties, their respective heirs, administrators,
executors, successors and assigns.
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(i) Entire Agreement. This Agreement and the attached Exhibits constitute
the entire agreement of the parties covering everything agreed upon or
understood in the transaction. There are no oral promises, conditions,
representations, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereof.
(j) Time. Time is of the essence.
(k) Severability. If any part of this Agreement is deemed to be
unenforceable the balance of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
COLLECTIBLES AMERICA, INC.
By: /s/ Mick Jardine
-------------------------------------
Mick Jardine, President and Secretary
/s/ Mick Jardine
-----------------------------------------
Mick Jardine, individually
BEFIRST INTERNET CORPORATION
By: /s/ Craig Pisaris Henderson By: /s/ Craig Pisaris Henderson
----------------------------- -------------------------------------
Secretary President
SHAREHOLDERS OF BEFIRST
INTERNET CORPORATION
/s/ Robert Brahms
-----------------------------------------
Robert D. Brahms
/s/ Courtney Jones
-----------------------------------------
Courtney Phillips Jones
/s/ Craig Pisaris Henderson
-----------------------------------------
Craig A. Pisaris-Henderson
14
<PAGE>
/s/ Tony Garcia
-----------------------------------------
Tony Garcia
/s/ Christopher Whitaker
-----------------------------------------
Christopher Knight Whitaker
/s/ Peter Miller
-----------------------------------------
Peter Miller
15