Exhibit 2.2
THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "1933 ACT"), NOR REGISTERED UNDER ANY
STATE SECURITIES LAW, AND ARE "RESTRICTED SECURITIES" AS THAT TERM IS DEFINED IN
RULE 144 UNDER THE 1933 ACT. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD OR
OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT, OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE 1933
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE SATISFACTION OF THE
COMPANY.
AGREEMENT FOR THE EXCHANGE OF COMMON STOCK
AGREEMENT made this May 28, 2004, by and between SK Technologies
Corporation, a Delaware corporation, (the "ISSUER"), Cirilium Holdings, Inc., a
Delaware corporation ("CIRILIUM"), and the individual shareholders as listed in
Exhibit A, (the "SHAREHOLDERS"), which SHAREHOLDERS own all of the issued and
outstanding shares of CIRILIUM.
In consideration of the mutual promises, covenants, and representations
contained herein, and other good and valuable consideration,
THE PARTIES HERETO AGREE AS FOLLOWS:
1. EXCHANGE OF SECURITIES. Subject to the terms and conditions of this
Agreement, ISSUER agrees to issue to each Shareholder that number of shares of
the common stock of ISSUER, par value $.0001 per share, as is set forth opposite
the name of each such Shareholder on Exhibit A hereto (the "Shares"),
constituting an exchange of shares on a 1:1 basis, for a total of approximately
25,591,801 shares of the common stock of ISSUER, which includes 21,500,000
shares to be issued to the current CIRILIUM Shareholders and approximately
4,091,801 shares to be issued to current CIRILIUM subscribers who have not yet
received their shares, in exchange for all the issued and outstanding shares of
CIRILIUM, such that CIRILIUM shall become a wholly-owned subsidiary of the
ISSUER.
2. REPRESENTATIONS AND WARRANTIES. As a condition to closing, ISSUER
represents and warrants to SHAREHOLDERS and CIRILIUM as follows:
i. Organization. ISSUER is a corporation duly organized, validly
existing, and in good standing under the laws of Delaware, and has all
necessary corporate powers to own properties and carry on a business, and
is duly qualified to do business and is in good standing in Delaware and in
all jurisdictions where such qualification is required. All actions taken
by the Incorporators, directors and shareholders of ISSUER have been valid
and in accordance with the laws of the State of Delaware.
ii. Capital. The authorized capital stock of ISSUER consists of
200,000,000 shares of common stock, $0.0001 par value, of which
approximately 5,196,682 shares are issued and outstanding prior to Closing,
and 25,000,000 shares of preferred stock, par $0.001 value, of which zero
shares will be issued and outstanding. All outstanding shares are fully
paid and nonassessable, free of liens, encumbrances, options, restrictions
(with the exception of Rule 144 requirements) and legal or equitable rights
of others not a party to this Agreement. ISSUER's common stock is currently
quoted on the Over The Counter Bulletin Board. The Shares of common stock
of the Issuer are registered under Section 12 of the Securities Exchange
Act of 1934, as amended. ISSUER acknowledges that CIRILIUM has committed to
and accepted subscriptions from shareholders for
1
4,091,801 shares of CIRILIUM common stock, which have not been issued prior
to Closing. Additionally, ISSUER acknowledges that CIRILIUM has entered
into a certain Stock Option Award Agreement with certain Employees of
CIRILIUM, pursuant to which CIRILIUM has committed to issue such Employees
options to purchase shares of CIRILIUM common stock, at an exercise price
of $.0001 per share. Such obligations are accepted by ISSUER and will
result in a post-Closing additional share issuance of approximately
4,091,801 for CIRILIUM's previous subscribers, as well as additional shares
of common stock of ISSUER to be issued in the future pursuant to the Stock
Option Award Agreement. Following the Closing and subsequent issuance to
previous subscribers, there shall be a total of approximately 30,788,483
shares of common stock of ISSUER issued and outstanding. There will be no
outstanding subscriptions, options, rights, warrants, convertible
securities, or other agreements or commitments obligating ISSUER to issue
or to transfer from treasury any additional shares of its capital stock
other than those contemplated herein. None of the outstanding shares of
ISSUER are subject to any agreements restricting transfer or voting of such
shares, including without limitation, any preemptive right or rights of
first refusal which have not been properly waived or extinguished. All of
the shareholders of ISSUER have valid title to such shares and acquired
their shares in a lawful transaction and in accordance with the laws of the
State of Delaware.
iii. Financial Statements. The financial statements of ISSUER have
been prepared in accordance with generally accepted accounting principles
consistently followed by ISSUER throughout the periods indicated, and
fairly present the financial position of ISSUER as of the date of the
balance sheet and the financial statements, and the results of its
operations for the periods indicated. ISSUER is current in its filings
withthe Securities and Exchange Commission (SEC) to include but not limited
to Form 10-K, Form 10-Qs and Form 8-K filings and with any state securities
regulators, where applicable.
iv. Absence of Changes. Since the date of the financial statements
filed with the Securities and Exchange Commission, there has not been any
change in the financial condition or operations of ISSUER, except changes
in the ordinary course of business, which changes have not in the aggregate
been materially adverse.
v. Liabilities. ISSUER does not have any debt, liability, or
obligation of any nature, whether accrued, absolute, contingent, or
otherwise, and whether due or to become due, that is not reflected on the
ISSUERS' financial statements, including without limitation, obligations of
ISSUER to officers, directors, shareholders, or employees of ISSUER or any
subsidiary other than (a) for payment of salary for services rendered, (b)
reimbursement for reasonable expenses incurred on behalf of ISSUER and (c)
for other standard employee benefits made generally available to all
employees. ISSUER is not aware of any pending, threatened or asserted
claims, lawsuits or contingencies involving ISSUER or its common stock.
There is no dispute of any kind between the ISSUER and any third party, and
no such dispute will exist at the closing of this Agreement. At closing,
ISSUER will be free from any and all liabilities, liens, claims and/or
Commitments, other than a maximum of $25,000 for miscellaneous expenses and
liabilities.
vi. Ability to Carry Out Obligations. ISSUER has the right, power, and
authority to enter into and perform all its obligations under this
Agreement. The execution and delivery of this Agreement by ISSUER and the
2
performance by ISSUER of its obligations hereunder will not cause,
constitute, or conflict with or result in (a) any breach or violation or
any of the provisions of or constitute a default under any license,
indenture, mortgage, charter, instrument, articles of incorporation, bylaw,
or other agreement or instrument to which ISSUER or its shareholders are a
party, or by which they may be bound, nor will any consents or
authorizations of any party other than those hereto be required, (b) an
event that would cause ISSUER to be liable to any party, or (c) an event
that would result in the creation or imposition or any lien, charge or
encumbrance on any asset of ISSUER or upon the securities of ISSUER to be
acquired by SHAREHOLDERS.
vii. Full Disclosure. None of the representations and warranties made
by the ISSUER, or in any certificate or memorandum furnished or to be
furnished by the ISSUER, contains or will contain any untrue statement of a
material fact, or omit any material fact the omission of which would be
misleading.
viii. Power of Attorney. No person holds a power of attorney from
ISSUER.
ix. Compliance with Laws. ISSUER has complied with, and is not in
violation of any federal, state, or local statute, law, and/or regulation
pertaining to ISSUER. ISSUER has complied with all federal and state
securities laws in connection with the issuance, sale and distribution of
its securities. Without limiting the foregoing:
(1) ISSUER has filed all reports, returns, and other documents required by
the SEC, the Internal Revenue Service (IRS) and/or applicable state
securities regulatory or tax authorities, including any reports
connected with the instant transaction as it applies to ISSUER.
(2) ISSUER has no knowledge or belief that any past filing made with the
IRS, SEC and/or any state authority, as applicable, is or may be
defective, incomplete, or contain any statement of material fact not
true at the time such statement was made, or omits any material fact
the omission of which would be misleading, and ISSUER agrees to
indemnify and hold each of CIRILIUM and SHAREHOLDERS harmless for any
intentional or unintentional errors, defects or omissions of material
fact, or failures to disclose any material fact, in any filing
referenced herein.
x. Litigation. ISSUER is not a party to any suit, action, arbitration,
or legal, administrative, or other proceeding, or pending governmental
investigation. To the best knowledge and belief of the ISSUER, there is no
basis for any such action or proceeding and no such action or proceeding is
threatened against ISSUER and ISSUER is not subject to or in default with
respect to any order, writ, injunction, or decree of any federal, state,
local, or foreign court, department, agency, or instrumentality.
xi. Conduct of Business. Prior to the closing, ISSUER shall conduct
its business in the normal course, and shall not (1) sell, pledge, or
assign any assets (2) amend its Articles of Incorporation or Bylaws, (3)
declare dividends, redeem issue or sell stock or other securities, (4)
incur any liabilities, (5) acquire or dispose of any assets, enter into any
contract, guarantee obligations of any third party, or (6) enter into any
other transaction except as provided herein.
3
xii. Documents. All minutes, consents or other documents pertaining to
ISSUER to be delivered at Closing shall be valid and in accordance with the
laws of Delaware.
xiv. Title. Notwithstanding any provision to the contrary, the Shares
to be issued to SHAREHOLDERS will be, at closing, free and clear of all
liens, security interests, pledges, charges, claims, encumbrances and
restrictions of any kind, shall be issued pursuant to Regulation D, Rule
506 under the Act and 4(2)of the Act and shall bear a Rule 144 legend. None
of such Shares are or will be subject to any voting trust or agreement. No
person holds or has the right to receive any proxy or similar instrument
with respect to such shares, except as provided in this Agreement. ISSUER
is not a party to any agreement which offers or grants to any person the
right to purchase or acquire any of the securities to be issued to
SHAREHOLDERS. There is no applicable local, state or federal law, rule,
regulation, or decree which would, as a result of the issuance of the
Shares to SHAREHOLDERS, impair, restrict or delay SHAREHOLDERS' voting
rights with respect to the Shares.
xv. ISSUER hereby accepts assignment of and assumes any and all
continuing written obligations as they exist between CIRILIUM and its
shareholders as if ISSUER had originally been a party thereto.
3. As a condition to Closing, CIRILIUM represents and warrants to ISSUER as
follows:
i. Organization. CIRILIUM is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Delaware, and
in all jurisdictions in which it conducts business, has all necessary
corporate powers to own properties and is duly qualified to do and carry on
a business in these jurisdictions and that all actions taken by the
Incorporators, directors and shareholders of CIRILIUM have been valid and
in accordance with the laws of Delaware.
ii. Shareholders and Issued Stock. Exhibit A annexed hereto sets forth
the names and shareholdings of 100% of CIRILIUM Shareholders to this
transaction.
iii. General Obligations. Following the Closing, ISSUER shall comply
with applicable federal and state securities laws.
iv. Counsel. CIRILIUM represents and warrants that prior to Closing,
it is represented by independent counsel or has had the opportunity to
retain independent counsel to represent it in this transaction.
4. INVESTMENT INTENT. SHAREHOLDERS agree that the shares being issued
pursuant to this Agreement may be sold, pledged, assigned, hypothecate or
otherwise transferred, with or without consideration (a "Transfer"), only
pursuant to an effective registration statement under the Act, or pursuant to an
exemption from registration under the Act, the availability of which is to be
established to the satisfaction of ISSUER. SHAREHOLDERS agree, prior to any
transfer, to give written notice to ISSUER expressing his desire to effect the
transfer and describing the proposed transfer.
5. CLOSING. The closing of this transaction ("Closing") shall take place at
000 Xxxxx Xxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, XX 00000 on June 4, 2004 or
such earlier date as the parties shall agree.
4
6. DOCUMENTS TO BE DELIVERED AT CLOSING.
i. By the ISSUER
(1) Board of Directors Resolution authorizing the issuance of certificates
representing the Shares to the Shareholders. All certificates shall be
delivered promptly after Closing.
(2) The resignation of all officers of ISSUER.
(3) A Board of Directors resolution appointing such person as SHAREHOLDERS
designate as a director(s) of ISSUER.
(4) The resignation of all the directors of ISSUER, except that of
SHAREHOLDER'S designee, dated subsequent to the resolution described
in 3, above.
(5) An executed copy of the Registration Rights Agreement attached hereto
as Exhibit B.
(6) Current SEC filings of the ISSUER, which shall include a current
balance sheet and statements of operations, stockholders equity and
cash flows for the twelve (12) month period then ended.
(7) All of the business and corporate records of ISSUER, including but not
limited to correspondence files, bank statements, checkbooks, savings
account books, minutes of shareholder and directors meetings,
financial statements, shareholder listings, stock transfer records,
all state and federal tax returns (if applicable), agreements and
contracts.
(8) A current list of ISSUER's shareholders, including names, addresses
and such other information as may be reasonably necessary or
convenient in the ordinary course of business.
(9) Such other minutes of ISSUER's shareholders or directors as may
reasonably be required by SHAREHOLDERS.
ii. By SHAREHOLDERS and CIRILIUM:
(1) Delivery to the ISSUER, or to its Transfer Agent, all stock
certificates of SHAREHOLDERS.
(2) Shareholder list of CIRILIUM certified by the corporation's secretary
dated of even date herewith.
7. REMEDIES: ARBITRATION. Any controversy or claim arising out of, or
relating to, this Agreement, or the making, performance, or interpretation
thereof, shall be settled by arbitration in Palm Beach, Florida in accordance
with the Rules of the American Arbitration Association then existing, and
judgment on the arbitration award may be entered in any court having
jurisdiction over the subject matter of the controversy. In the event any suit
or action is instituted to enforce any provision of this Agreement, the
prevailing party in such dispute shall be entitled to recover from the losing
party all reasonable fees, costs and expenses of enforcing any right of such
prevailing party under or with respect to this Agreement.
5
8. MISCELLANEOUS.
i. Captions and Headings. The Article and paragraph headings
throughout this Agreement are for convenience and reference only, and shall
in no way be deemed to define, limit, or add to the meaning of any
provision of this Agreement.
ii. No Oral Change. This Agreement and any provision hereof, may not
be waived, changed, modified, or discharged orally, but only by an
agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, or discharge is sought.
iii. Non Waiver. Except as otherwise provided herein, no waiver of any
covenant, condition, or provision of this Agreement shall be deemed to have
been made unless expressly in writing and signed by the party against whom
such waiver is charged; and (i) the failure of any party to insist in any
one or more cases upon the performance of any of the provisions, covenants,
or conditions of this Agreement or to exercise any option herein contained
shall not be construed as a waiver or relinquishment for the future of any
such provisions, covenants, or conditions, (ii) the acceptance of
performance of anything required by this Agreement to be performed with
knowledge of the breach or failure of a covenant, condition, or provision
hereof shall not be deemed a waiver of such breach or failure, and (iii) no
waiver by any party of one breach by another party shall be construed as a
waiver with respect to any other or subsequent breach.
iv. Time of Essence. Time is of the essence of this Agreement and of
each and every provision hereof.
v. Entire Agreement. This Agreement, the Exhibits hereto and the other
documents delivered pursuant hereto contain the entire Agreement and
understanding between the parties hereto, and supersedes all prior
agreements and understandings.
vi. Counterparts. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
vii. Severability. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
viii. Amendment. This Agreement may be amended or modified only upon
the written consent of the parties.
ix. Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been
6
duly given on the date of service if served personally on the party to whom
notice is to be given, or on the third day after mailing if mailed to the
party to whom notice is to be given, by first class mail, registered or
certified, postage prepaid, and properly addressed, and by fax, as follows:
ISSUER: SK Technologies Corporation
000 Xxxxxxxxxx Xxxxxx X.
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Phone:(000) 000-0000
CIRILIUM: Cirilium Holdings, Inc.
000 Xxxxx Xxxxxxx Xxxxx
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
x. Governing Law. This Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Florida.
xi. Survival. All representations and warranties made herein shall
survive the Closing of this transaction.
7
IN WITNESS WHEREOF, the undersigned has executed this Agreement this 28th
day of May 2004.
SK Technologies Corporation Cirilium Holdings, Inc.
a Delaware corporation a Delaware corporation
By: /s/ F. Xxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxx
------------------------------- ------------------------------
F. Xxxxx Xxxxxx, President Xxxxxx Xxxxxx, Chairman
By: /s/ Xxx Xxxx
------------------------------
Xxx Xxxx
By: /s/ Noor Xxxxxx Xxxxxxxxx
------------------------------
Noor Xxxxxx Xxxxxxxxx
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx
By: /s/ Xxxx Xxxxxxx Xxxxx
------------------------------
Xxxx Xxxxxxx Ahmed
By: /s/ Syed Xxxxxx Xxxxx
------------------------------
Syed Xxxxxx Xxxxx
By: /s/ Noor Nawaz Xxxxxxxxx
------------------------------
Noor Nawaz Xxxxxxxxx
By: /s/ Xxxxx Ukkah
------------------------------
Md. Xxxxx Ukkah
By: /s/ Xxxxx Xxxxx
------------------------------
Xxxxx Xxxxx
By: /s/
------------------------------
Heritage Communications Corp.
By: /s/ Xxxxxxx X. Xxxxxx Xx. Rev.
------------------------------
Xxxxxxx X. Xxxxxx Xx. Rev. Trust
By: /s/ Xxxxxxx X. Xxxx
------------------------------
Xxxxxxx X. Xxxx Trust
By: /s/ J. Xxxxx Xxxxxx
------------------------------
J. Xxxxx Xxxxxx
8
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
By: /s/ Xxxxx X Xxxxxxx
------------------------------
Xxxxx X Xxxxxxx
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Xxxxx X. Xxxxxx
By: /s/
------------------------------
Royal Palm Capital Group, Inc.
By: /s/
------------------------------
St. Xxxxx Investment Group Inc.
9
EXHIBIT A
Share Exchange to Shareholders of Cirilium Holdings, Inc.
Shares of
Cirilium
Holdings, Shares of
Name Inc. ISSUER
------------------------------------------------------------------------
Xxx Xxxx 500,000 500,000
Noor Xxxxxx Xxxxxxxxx 600,000 600,000
Xxxxx Xxxxx 50,000 50,000
Xxxx Xxxxxxx Ahmed 100,000 100,000
Syed Xxxxxx Xxxxx 100,000 100,000
Noor Nawaz Xxxxxxxxx 100,000 100,000
Md. Xxxxx Ukkah 40,000 40,000
Xxxxx Xxxxx 10,000 10,000
Heritage Communications Corp 2,700,000 2,700,000
Xxxxxxx X. Xxxxxx Xx. Rev. Trust 1,254,000 1,254,000
Xxxxxxx X. Xxxx Trust 924,000 924,000
J. Xxxxx Xxxxxx 594,000 594,000
Xxxxx X. Xxxxxxx 198,000 198,000
Xxxxxxx X. Xxxxxx 132,000 132,000
Xxxxx X Xxxxxxx 132,000 132,000
Xxxxx X. Xxxxxx 66,000 66,000
Royal Palm Capital Group, Inc. 12,000,000 12,000,000
St. Xxxxx Investment Group Inc. 2,000,000 2,000,000
------------ ------------
TOTALS 21,500,000 21,500,000 (100%)
10
