Exhibit 2.1
EXECUTION COPY
FIRST AMENDMENT TO SHARE EXCHANGE AGREEMENT
This FIRST AMENDMENT to the SHARE EXCHANGE AGREEMENT (this "AMENDMENT") is
made and entered into as of this 25th day of March, 2011, by and among NETFONE
INC., a publicly held Nevada corporation ("Netfone"), ORANGE CAPITAL CORP., a
British Columbia Company ("ORANGE") and ITP OIL & GAS INTERNATIONAL S.A., a
privately held corporation existing under the laws of Luxembourg ("ITP-LUX" and
collectively with Netfone and Orange, referred to as the "PARTIES", each a
"PARTY").
WITNESSETH:
WHEREAS, the Parties entered into that certain Share Exchange Agreement
dated as of December 22, 2010 (the "SEA"), pursuant to which, among other
things, Netfone has agreed to acquire from ITP-Lux 100% of the issued and
outstanding shares of capital of ITP Impianti e Tecnologie di Processo S.p.A., a
corporation existing under the laws of Italy ("ITP"), in exchange for Netfone
issuing to ITP-Lux 34,000,000 shares of Netfone's common stock par value of
$0.001 (the "COMMON STOCK") representing 94% of Netfone's common stock
(hereinafter, the "SHARES").
WHEREAS, pursuant to the terms of the SEA, Netfone agreed to complete a
reverse stock split of its issued and outstanding Common Stock shares at a ratio
of one new share for every 2.4 old shares and increase the number of authorized
shares of Common Stock from 100,000,000 shares to 1,000,000,000 shares of Common
Stock.
WHEREAS, the Parties agree that certain amendments to the SEA and to the
Schedules to the SEA are necessary or desirable and wish, therefore, to enter
into this Amendment to reflect such amendments to the SEA and to the schedules
to the SEA;
NOW, THEREFORE, in consideration of the foregoing and of the premises,
mutual covenants, representations, warranties and agreements contained in the
SEA, and pursuant to Section 11.3 of the SEA, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 CAPITALIZED TERMS. Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to such terms in the SEA.
ARTICLE II
AMENDMENTS TO SEA
Section 2.01 DEFINITIONS. Section 1.1(d) of the SEA is hereby amended and
restated in its entirety to read as follows:
"(d) "CLOSING DATE" means such date no earlier than April 15th, 2011 and no
later than April 30th, 2011;"
Section 2.02 REORGANIZATION. Section 4.3 of the SEA is hereby amended and
restated in its entirety to read as follows:
"4.3 REORGANIZATION. Prior to or concurrent with the Closing, Netfone will
conduct a reorganization of its share capital whereby it will carry out a
reverse stock split on approximately a 1 for 2.4 basis, will decrease its
authorized capital to 41,666,667 common shares and to 8,333,333 preferred
shares, will reduce its restricted shares of common stock to 3,266,667 and
then cancel approximately 3,166,667 restricted common shares in the capital
of Netfone and perform such other actions and do such other things as
necessary to carry out the transactions contemplated under this Agreement
and will concurrently carry out a name change from "Netfone Inc." to "ITP
Energy Corporation"."
Section 2.03 CONDITIONS PRECEDENT TO CLOSING BY ITP-LUX. Section 6.2(i) of
the SEA is hereby amended and restated in its entirety to read as follows:
"(i) Amendment to Certificate of Incorporation. Prior to or concurrent with
the Closing, Netfone shall have filed an amendment to its certificate of
incorporation whereby it will carry out a reverse stock split on an
approximately 1 for 2.4 basis, will decrease its authorized capital to
41,666,667 common shares and to 8,333,333 preferred shares, will cancel all
but 100,000 post reverse stock split restricted common shares in the
capital of Netfone and perform such other actions and do such other things
as set forth on Schedule 11 hereto, and will carry out a name change from
"Netfone Inc." to "ITP Energy Corporation"."
Section 2.04 EXCLUSIVITY. The date of expiration of the exclusivity
obligation contained in Section 7.4 of the SEA is amended to read "April 30,
2011".
Section 2.05 TERMINATION. The termination date contained in Section 9.1(d)
of the SEA is amended to read "April 30, 2011".
Section 2.06 SCHEDULE 11. Schedule 11 to the SEA is amended and restated in
its entirety in the form attached hereto as Schedule 11.
ARTICLE III
MISCELLANEOUS
Section 3.01 REFERENCES. All references in the SEA to "Agreement,"
"herein," "hereof," or terms of like import referring to the Agreement or any
portion thereof are hereby amended to refer to the SEA as amended by this
Amendment.
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Section 3.02 EFFECT OF AMENDMENT. Except as and to the extent expressly
modified by this Amendment, the SEA (including all schedules and exhibits
thereto) shall remain in full force and effect in all respects, and the parties
hereto hereby reaffirm and approve the SEA as amended by this Amendment.
Section 3.03 EXECUTION IN COUNTERPARTS. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier or in electronic form shall be effective as delivery of a manually
executed counterpart of this Amendment.
Section 3.04 GOVERNING LAW; JURISDICTION. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York
applicable to contracts made and to be performed therein and the courts thereof
will have nonexclusive jurisdiction over any disputes relating hereto.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed and delivered by their respective duly authorized officers as of the date
first above written.
NETFONE INC.
By: /s/ Xxxxxxx El Xxxxxx
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Name: Xxxxxxx El Moussa
Title: President
ITP OIL & GAS INTERNATIONAL S.A.
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Attorney in Fact
ORANGE CAPITAL CORP.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title:
[Signature page to First Amendment to Stock Exchange Agreement]
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