EXHIBIT 10.1
TO SCHEDULE 13D/A
EXCHANGE AGREEMENT AND REPRESENTATIONS
Gentlemen:
I understand that shareholders of Fayber Group, Inc. ("FGI"), a Nevada
corporation, are offering to exchange their shares of stock of the FGI, for
shares of stock of Infinity Capital Group, Inc. ("ICG" or the Company), a
Maryland corporation.
I hereby offer to exchange 3,675,000 shares of stock of FGI for 45,000 shares of
ICG (the "Shares") and tender my shares of FGI herewith, and upon acceptance by
you, agree to become a shareholder of the Company. In order to induce the
Company to accept my offer, I advise you as follows; and acknowledge:
1. CORPORATE DOCUMENTS. Receipt of copies of Articles, By-Laws, and December 31,
2004 audited financial statements of ICG and such other documents as I have
requested, I hereby acknowledge that I have received the documents (as may be
supplemented from time to time) relating to the Company and that I have
carefully read the information and that I understand all of the material
contained therein, and agree to the terms, and understand the risk factors as
described therein.
2. AVAILABILITY OF INFORMATION. I hereby acknowledge that the Company has made
available to me the opportunity to ask questions of, and receive answers from
the Company and any other person or entity acting on its behalf, concerning the
terms and conditions of the Plan, the financial statements and related
information of the Company and FGI, and the information contained in the
corporate documents, and to obtain any additional information, to the extent the
Company possesses such information or can acquire it without unreasonable effort
or expense, necessary to verify the accuracy of the information provided by the
Company and any other person or entity acting on its behalf.
3. REPRESENTATIONS AND WARRANTIES. I represent and warrant to the Company (and
understand that it is relying upon the accuracy and completeness of such
representations and warranties in connection with the availability of an
exemption for the offer and exchange of the shares from the registration
requirements of applicable federal and state securities laws) that:
(a) RESTRICTED SECURITIES.
(I) I understand that the Shares have not been registered under the
Securities Act of 1933, as amended (the "Act"), or any state securities
laws.
(II) I understand that if this exchange agreement is accepted and the
Shares are issued to me, I cannot sell or otherwise dispose of the
shares unless the Shares are registered under the Act or the state
securities laws or exemptions therefrom are available (and
consequently, that I must bear the economic risk of the investment for
an indefinite period of time):
1
(III) I understand that the Company has no obligation now or at any
time to register the Shares under the Act or the state securities laws
or obtain exemptions therefrom.
(IV) I understand that the Company will restrict the transfer of the
Shares in accordance with the foregoing representations.
(V) There is no public market for the common stock of ICG, and there is
no certainty that a more liquid market will ever develop or be
maintained. There can be no assurance that I will be able to sell or
dispose of the Shares. Moreover, no assignment, sale, transfer,
exchange or other disposition of the Shares can be made other than in
accordance with all applicable securities laws. It is understood that a
transferee may at a minimum be required to fulfill the investor
suitability requirements established by the Company, or registration
may be required.
(b) LEGEND.
I agree that any certificate representing the Shares will contain and be
endorsed with the following, or a substantially equivalent, LEGEND:
This share certificate has been acquired pursuant to an investment
representation by the holder and shall not be sold, pledged, hypothecated or
donated or otherwise transferred except upon the issuance of a favorable opinion
by its counsel and the submission to the Company of other evidence satisfactory
to and as required by counsel to the Company, that any such transfer will not
violate the Securities Act of 1933, as amended, and applicable state securities
laws. These shares are not and have not been registered in any jurisdiction."
(c) OWN ACCOUNT.
I am the only party in interest with respect to this exchange offer, and I am
acquiring the Shares for my own account for long-term investment only, and not
with an intent to resell, fractionalize, divide, or redistribute all or any part
of my interest to any other person.
(d) AGE: CITIZENSHIP.
I am at least twenty-one years old and a citizen of the United States.
3
(e) ACCURACY OF INFORMATION.
All information which I have provided to the Company concerning my financial
position and knowledge of financial and business matters is correct and complete
as of the date set forth at the end hereof, and if there should be any material
change in such information prior to acceptance of this exchange offer by the
Company, I will immediately provide the Company with such information.
4. EXCHANGE PROCEDURE. I understand that this exchange is subject to each of the
following terms and conditions:
(a) The Company may reject this exchange for legal reasons set forth in the Plan
and Agreement of Reorganization, and this exchange shall become binding upon the
Company only when accepted, in writing, by the Company.
(b) This offer may not be withdrawn by me.
(c) The share certificates to be issued and delivered pursuant to this exchange
will be issued in the name of and delivered to the undersigned.
5. SUITABILITY. I hereby warrant and represent:
(a) That I can afford a complete loss of the investment and can afford to hold
the securities being received hereunder for an indefinite period of time.
(b) That I consider this investment a suitable investment, and
(c) That I am sophisticated and knowledgeable and have had prior experience in
financial matters and investments.
6. ACKNOWLEDGEMENT OF RISKS. I have been furnished and have carefully read the
Plan and information relating to the Company, including this form of Exchange
Agreement. I am aware that:
(a) There are substantial risks incident to the ownership of Shares from the
Company, and such investment is speculative and involves a high degree of risk
of loss by me of my entire investment in the Company.
(b) No federal or state agency has passed upon the Shares or made any finding or
determination concerning the fairness of this investment.
(c) The books and records of the Company will be reasonably available for
inspection by me and/or my investment advisors, if any, at the Company's place
of business.
(d) All assumptions and projections set forth in any documents provided by the
Company have been included therein for purposes of illustration only, and no
assurance is given that actual results will correspond with the results
contemplated by the various assumptions set forth therein.
4
(e) Prior to the completion of the exchange, ICG has a limited operating
history. ICG is in the development stage, and its proposed operations are
subject to all of the risk inherent in the establishment of a new business
enterprise, including a limited operating history. The unlikelihood of the
success of the Company must be considered in light of the problems, expenses,
difficulties, complications and delays frequently encountered in connection with
the formation and operation of a new business and the competitive environment in
which the Company will operate.
7. RECEIPT OF ADVICE. I acknowledge that I have been advised to consult my own
attorney and investment advisor concerning the investment.
8. RESTRICTIONS ON TRANSFER. I acknowledge that the investment in the Company is
an illiquid investment. In particular, I recognize that:
(a) Due to restrictions described below, the lack of any market existing or to
exist for these Shares, in the event I should attempt to sell my Shares in the
Company, my investment will be highly illiquid and, probably must be held
indefinitely.
(b) I must bear the economic risk of investment in the Shares for an indefinite
period of time, since the Shares have not been registered under the Securities
Act of 1933, as amended, and issuance is made in reliance upon Section 4(2) and
4(6) of said Act and/or Rules 501-506 of Regulation D under the Act, as may be
applicable. Therefore, the Shares cannot be offered, sold, transferred, pledged,
or hypothecated to any person unless either they are subsequently registered
under said Act or an exemption from such registration is available and the
favorable opinion of counsel for the Company to that effect is obtained, which
is not anticipated. Further, unless said Shares are registered with the
securities commission of the state in which offered and sold, I may not resell,
hypothecate, transfer, assign or make other disposition of said Shares except in
a transaction exempt or exempted from the registration requirement of the
securities act of such state, and that the specific approval of such sales by
the securities regulatory body of the state is required in some states.
(c) My right to transfer my Shares will also be restricted by the legend
endorsed on the certificates.
9. ACCESS TO INFORMATION. I represent and warrant to the Company that:
(a) I have carefully reviewed and understand the risks of, and other
considerations relating to, the exchange of the Shares, including the risks of
total loss in the event the Company's business is unsuccessful.
(b) I and my investment advisors, if any, have been furnished all materials
relating to the Company and its proposed activities and anything which they have
requested and have been afforded the opportunity to obtain any additional
information necessary to verify the accuracy of any representations about the
Company.
(c) The Company has answered all inquiries that I and my investment advisors, if
any, have put to it concerning the Company and its proposed activities and the
Plan and exchange for the Shares.
(d) Neither I nor my investment advisors, if any, have been furnished any
offering literature other than the documents attached as exhibits thereto and I
and my investment advisors, if any, have relied only on the information
contained in such exhibits and the information, as described in subparagraphs
(b) and (c) above, furnished or made available to them by the Company.
5
(e) I am acquiring the Shares for my own account, as principal, for investment
purposes only and with a view to the resale of distribution of all or any part
of such Shares, and that I have no present intention, agreement or arrangement
to divide my participation with others or to resell, transfer or otherwise
dispose of all or any part of the Shares subscribed for unless and until I
determine, at some future date, that changed circumstances, not in contemplation
at the time of this exchange, makes such disposition advisable;
(f) I, the undersigned, if on behalf of a corporation, partnership, trust, or
other form of business entity, affirm that: it is authorized and otherwise duly
qualified to purchase and hold Shares in the Company; recognize that the
information under the caption as set forth in (a) above related to investments
by an individual and does not address the federal income tax consequences of an
investment by any of the aforementioned entities and have obtained such
additional tax advice that I have deemed necessary; such entity has its
principal place of business as set forth below; and such entity has not been
formed for the specific purpose of acquiring Shares in the Company.
(g) I have adequate means of providing for my current needs and personal
contingencies and have no need for liquidity in this investment; and
(h) The information provided by the Company is confidential and non-public and I
agree that all such information shall be kept in confidence by it and neither
used by it to its personal benefit (other than in connection with its exchange
for the Shares) nor disclosed to any third party for any reason; provided,
however, that this obligation shall not apply to any such information which (i)
is part of the public knowledge or literature and readily accessible at the date
hereof; (ii) becomes part of the public knowledge or literature and readily
accessible by publication (except as a result of a breach of these provisions);
or (iii) is received from third parties (except those parties who disclose such
information in violation of any confidentiality agreements including, without
limitation, any Exchange Agreement they may have with the Company).
10. BINDING AGREEMENT. I hereby adopt, accept, and agree to be bound by all the
terms and conditions of the Plan, and by all of the terms and conditions of the
Articles of Incorporation, and amendments thereto, and By-Laws of the Company.
Upon acceptance of this Exchange Agreement by the Company, I shall become a
Shareholder for all purposes.
6
11. AGREEMENT TO BE BOUND. The Exchange Agreement, upon acceptance by the
Company, shall be binding upon the heirs, executors, administrators, successors,
and assigns of mine.
12. INDEMNIFICATION. I further represent and warrant:
(a) I hereby indemnify the Company and hold the Company harmless from and
against any and all liability, damage, cost, or expense incurred on account of
or arising out of:
(I) Any inaccuracy in my declarations, representations, and warranties
hereinabove set forth;
(II) The disposition of any of the Shares which I will receive,
contrary to my foregoing declarations, representations, and warranties;
and
(III) Any action, suit or proceeding based upon (1) the claim that said
declarations, representations, or warranties were inaccurate or
misleading or otherwise cause for obtaining damages or redress from the
Company; or (2) the disposition of any of the Shares or any part
thereof.
13. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Maryland, except as to the manner in which
the undersigned elects to take title to the Shares in the Company that shall be
construed in accordance with the state of his principal residence.
14. FINANCIAL STATEMENT. Upon request of the Company, I shall provide a sworn
and signed copy of my current financial statement.
15. NO ASSIGNABILITY. This exchange is personal to the person/entity whose name
and address appear below. The undersigned may not assign any of its rights or
obligations under this Exchange Agreement to any other person or entity.
16. CONDITIONS. This Exchange Agreement shall become binding upon the Company
only when accepted, in writing, by the Company.
17. EFFECTIVE DATE. The exchange for Shares evidenced by this Exchange Agreement
shall, if accepted by the Company, be effective as soon after April 26, 2005, as
all state laws have been complied with to effectuate the transaction.
18. CONVEYANCE. I hereby agree to convey title to all of my interest in all my
shares of FGI to ICG in exchange for 45,000 shares of ICG.
19. FURTHER ACTS. The undersigned hereby agrees to execute any other documents
and take any further actions that are reasonably necessary or appropriate in
order to implement the transaction contemplated by this Exchange Agreement.
7
DATED THIS 29TH DAY OF APRIL, 2005
M.A. ▇▇▇▇▇▇▇
--------------------------- ------------------
NAME OF PURCHASER/EXCHANGOR Tax I.D./SSN
/s/M.A. ▇▇▇▇▇▇▇
--------------------------------
Signature of Purchaser/Exchangor:
--------------------------------
Residence Address
▇▇▇ ▇▇▇-▇▇▇▇
(----)--------------------------
Business Telephone
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------
Mailing Address (if different)
THIS EXCHANGE OFFER IS ACCEPTED THIS 29TH DAY OF APRIL, 2005.
Infinity Capital Group, Inc., a Maryland Corporation
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇
_____________________________________________
▇▇▇▇ ▇▇▇▇▇▇▇, President
8
