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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of April __, 2001, among
XXXXXX INTERNATIONAL, INC., a Colorado corporation ("Xxxxxx"), VOCAL INVESTOR
FINANCIAL, CORP., a Nevada corporation ("VIFC"), SANDRINGHAM INVESTMENTS LIMITED
("SIL"), and the shareholders of VIFC identified on Exhibit A attached hereto
and incorporated by this reference (the "Shareholders").
RECITALS
WHEREAS, upon the closing of the transactions contemplated by that
certain Acquisition Agreement by and among VIFC, SIL, and the persons listed on
Schedule A thereto (the "Acquisition Agreement"), VIFC became the owner of more
than ninety percent (90%) of each class of the outstanding voting securities of
Xxxxxx;
WHEREAS, the board of directors and shareholders of VIFC believe it
to be in the best interests of the corporation to merge with Xxxxxx;
WHEREAS, the board of directors of Xxxxxx believes it to be in the
best interest of the corporation to merge with VIFC;
WHEREAS, to effect such transaction in accordance with Sections
92A.120 and 92A.190 of the Nevada Revised Statutes and Sections 0-000-000 and
0-000-000 of the Colorado Revised Statutes, the board of directors and
shareholders of VIFC and the board of directors of Xxxxxx have approved the
transaction (the "Merger") subject to the terms and conditions of this
agreement;
WHEREAS, to effect the Merger, each share of common stock of VIFC
will be converted into one (1) share of common stock of Xxxxxx upon the terms
and subject to the conditions set forth herein;
WHEREAS, each outstanding subscription for the purchase of any
common share of VIFC, together with a warrant to purchase an additional common
share of VIFC, will be converted into the right to receive one (1) common share
of the surviving corporation, together with an identical warrant to purchase an
additional common share of the surviving corporation;
WHEREAS, each of the parties hereto desires to make certain
representations, warranties, covenants and agreements in connection with the
Merger;
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein, the parties hereto agree as follows:
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I. THE MERGER
1. The Merger. Upon the terms and conditions hereof, and in
accordance with the Nevada Revised Statutes (the "NRS") and the Colorado Revised
Statutes (the "CRS"), VIFC shall be merged into Xxxxxx at the Effective Time.
Following the Merger, the separate existence of VIFC shall cease; Xxxxxx shall
continue as the surviving corporation (the "Surviving Corporation"); and the
name of the Surviving Corporation shall be changed to "Vocal Communications,
Inc."
2. Closing. The closing of the Merger (the "Closing") shall take
place at 10:00 a.m., on April __, 2001 or on any other date agreed to by each of
the parties (the "Closing Date"), at the offices of Xxxxx, Xxxxxxxxx & Xxxxx,
P.C., 0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx X-000, Xxxxxxxxxx, Xxxxxxx 00000, or at
any other place agreed to by each of the parties.
3. Effective Time. As soon as practicable on or after the Closing
Date, the parties shall file the Articles of Merger with the Secretaries of the
States of Nevada and Colorado. The Merger shall become effective when the
Articles of Merger have been duly filed or, if later, as soon as any notice
period mandated by any applicable merger statute has elapsed.
4. Effect of Merger. The Merger shall have the effects set forth in
Section 92A.250 of the NRS and Section 0-000-000 of the CRS.
5. Articles of Incorporation. The Articles of Incorporation of
Xxxxxx, as in effect immediately prior to the Effective time, shall be the
Articles of Incorporation of the Surviving Corporation; provided, however, the
name of the Surviving Corporation shall be changed to Vocal Communications, Inc.
6. Exchange Provisions. As soon as practicable after the Effective
Time, the holder of any outstanding certificate which prior to the Effective
Time had represented shares of VIFC common stock shall, upon surrender to the
Surviving Corporation, be entitled to a certificate representing the number of
common shares of the Surviving Corporation into which the aggregate number of
shares of VIFC common stock previously represented by such surrendered
certificate shall have been converted pursuant to this agreement.
7. No Registration. The shares of common stock of the Surviving
Corporation issued in connection with the Merger shall not be registered under
the Securities Act of 1933 and may bear an appropriate legend. Accordingly a
transfer, sale, assignment, pledge, hypothecation or other disposition of such
shares may be restricted.
II. EFFECT OF MERGER ON CAPITAL STOCK
1. VIFC. As of the Effective Time, by virtue of the Merger, and
without any action on the part of any holder of any of the shares of the capital
stock of VIFC, each share of capital stock of VIFC issued and outstanding
immediately prior to the Effective Time shall be converted into and exchanged
for one (1) share of common stock of the Surviving Corporation. In the
aggregate, Eight Million Six Hundred Thousand (8,600,000) shares shall be issued
to the shareholders of VIFC. Prior to the date hereof, VIFC has received
subscriptions for Six Hundred Thirteen Thousand Two Hundred Four (613,204)
shares of its common stock. Each of such subscriptions has been issued with an
attached warrant to purchase one warrant for each share of
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common stock subscribed. By virtue of the Merger, the right to receive common
stock and warrants in VIFC pursuant to such subscriptions shall be converted
automatically into the right to receive an equivalent number of common shares
and identical warrants in the Surviving Corporation.
2. Cancellation of Treasury Stock. Each share of Xxxxxx capital
stock owned by Xxxxxx and each share of VIFC capital stock owned by VIFC shall
be automatically cancelled and no shares of the capital stock of the Surviving
Corporation shall be issued in exchange therefor.
3. Xxxxxx. All of the issued and outstanding capital stock of Xxxxxx
as of the time immediately prior to the Effective Time shall be canceled by
virtue of the Merger; except that in consideration for all of its interest in
Xxxxxx, SIL shall retain one hundred thousand (100,000) shares of the Surviving
Corporation.
III. REPRESENTATIONS AND WARRANTIES
1. Xxxxxx. Xxxxxx hereby represents and warrants that:
X. Xxxxxx is a corporation duly organized and validly existing
under the laws of the State of Colorado.
B. There are Seven Hundred Fifty-One Thousand Seven Hundred
Fifty (751,750) shares of common stock issued and outstanding and, as far as the
records of Xxxxxx reflect, Six Hundred Fifty-One Thousand Seven Hundred Fifty
(651,750) of such shares are owned by VIFC and one hundred thousand (100,000) of
such shares are owned by SIL. The outstanding shares of common stock have been
duly authorized, validly issued, and fully paid and are nonassessable and are
not subject to preemptive rights. Except for the outstanding shares of common
stock, Xxxxxx has no securities outstanding. There are no outstanding existing
or authorized subscriptions, options, warrants, calls, rights or any other
agreements of any character relating to the sale, issuance or voting of any
shares of the capital stock of Xxxxxx.
C. The board of directors of Xxxxxx have authorized the
execution, delivery and performance of this agreement and the transactions
contemplated hereby. This agreement has been duly executed and delivered by
Xxxxxx and is a valid and legally binding obligation of Xxxxxx enforceable
against Xxxxxx in accordance with its terms.
D. The execution, delivery and performance of this agreement
and the consummation of the transactions contemplated hereby will not violate
any provision of law, the articles of incorporation of Xxxxxx, the by-laws of
Xxxxxx, or any material agreement applicable to Xxxxxx. Except for such consents
as have already been obtained and copies of which have been provided to the
parties hereto, no consents are needed by Xxxxxx to enter into this agreement
and consummate the transactions contemplated hereby.
X. Xxxxxx has no subsidiaries and has no ownership,
partnership or membership interest in any other entity.
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F. The books and records of Xxxxxx are open for inspection by
the parties hereto. Xxxxxx is not aware of any event, occurrence, circumstance
or liability which is not reflected in such books and records which if reflected
reasonably could be viewed as being materially adverse to the financial
condition, operations or business prospects of Xxxxxx.
X. Xxxxxx has made all such inspections of the books and
records of the parties hereto and made all such inquires to such parties
relating to the execution, delivery and performance of this agreement and the
consummation of the transaction contemplated hereby as it has deemed necessary
for a transaction of this type.
2. VIFC. VIFC hereby represents and warrants that:
A. VIFC is a corporation duly organized and validly existing
under the laws of the State of Nevada.
B. There are Seven Million One Hundred Thousand (7,100,000)
shares of the common stock of VIFC issued and outstanding and, as far as the
records of VIFC reflect, such shares are owned by the Shareholders in the
amounts set forth opposite each of the names of such Shareholders on Exhibit A.
Each of the outstanding shares of common stock have been duly authorized,
validly issued, and fully paid and are nonassessable and are not subject to
preemptive rights. Except for the Seven Million One Hundred Thousand (7,100,000)
outstanding shares of common stock, and except as disclosed on Schedule III.2B,
VIFC has no securities outstanding. Except as disclosed on Schedule III.2B,
there are no outstanding existing or authorized subscriptions, options,
warrants, calls, rights or any other agreements of any character relating to the
sale, issuance or voting of any shares of the capital stock of VIFC.
C. The board of directors and the shareholders of VIFC have
authorized the execution, delivery and performance of this agreement and the
transactions contemplated hereby. This agreement has been duly executed and
delivered by VIFC and is a valid and legally binding obligation of VIFC
enforceable against VIFC in accordance with its terms.
D. The execution, delivery and performance of this agreement
and the consummation of the transactions contemplated hereby will not violate
any provision of law, the articles of incorporation of VIFC, the by-laws of
VIFC, or any material agreement applicable to VIFC. Except for such consents as
have already been obtained and copies of which have been provided to the parties
hereto, no consents are needed by VIFC to enter into this agreement and
consummate the transactions contemplated hereby.
E. VIFC has no subsidiaries other than Xxxxxx and has no
ownership, partnership or membership interest in any other entity.
F. The books and records of VIFC are open for inspection by
the parties hereto. VIFC is not aware of any event, occurrence, circumstance or
liability which is not reflected in such books and records which if reflected
reasonably could be viewed as being materially adverse to the financial
condition, operations or business prospects of VIFC.
G. VIFC has made all such inspections of the books and records
of the parties hereto and made all such inquires to such parties relating to the
execution, delivery and
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performance of this agreement and the consummation of the transaction
contemplated hereby as it has deemed necessary for a transaction of this type.
3. SIL. SIL hereby represents and warrants that:
A. SIL is a ____________ duly organized and validly existing
under the laws of ___________.
B. The board of directors and shareholders of SIL have
authorized the execution, delivery and performance of this agreement and the
Acquisition Agreement and the consummation of the transactions contemplated
hereby and thereby. This agreement has been duly executed and delivered by SIL
and is the valid and legally binding obligation of SIL enforceable against SIL
in accordance with its terms.
C. The execution, delivery and performance of this agreement
and the Acquisition Agreement and the consummation of the transactions
contemplated hereby and thereby have not and will not violate any provision of
law, the formation documents of SIL, or any material agreement applicable to SIL
Except for such consents as have already been obtained and copies of which have
been provided to the parties hereto, no consents were needed or are needed by
SIL to enter into this agreement or the Acquisition Agreement and to consummate
the transactions contemplated hereby and thereby.
D. SIL is the legal and beneficial owner of one hundred
thousand (100,000) shares of the common stock of Xxxxxx and such shares,
together with the share owned by VIFC, represent one hundred percent (100%) of
the issued and outstanding capital stock of Xxxxxx. Except for the one hundred
thousand (100,000) shares of the common stock of Xxxxxx to be retained by SIL as
consideration for the merger, SIL has no claims, legal or equitable, against
Xxxxxx and no basis for the assertion of any such claims. SIL hereby waives any
mailing requirement with respect to shareholder approval or consideration of the
Merger. SIL acknowledges that by executing this Agreement and Plan of Merger it
shall be deemed to have consented to the Merger, including the change in the
name of Xxxxxx to Vocal Communications, Inc., and that it has no appraisal
rights in connection therewith.
E. SIL has made all such inspections of the books and records
of the parties hereto and made all such inquires to such parties relating to the
execution, delivery and performance of this agreement and the consummation of
the transaction contemplated hereby as it has deemed necessary for a transaction
of this type.
4. Shareholders. Each of the Shareholders hereby represents and
warrants that it is the legal and beneficial owner of that number of shares of
VIFC as is set forth opposite the name of such Shareholder on Exhibit A, and
that such shares, together with the shares owned by SIL, represent one hundred
percent (100%) of the issued and outstanding capital stock of VIFC. Each of the
Shareholders further represents and warrants that it has made all such
inspections of the books and records of the parties hereto and made all such
inquires to such parties relating to the execution, delivery and performance of
this agreement and the consummation of the transaction contemplated hereby as it
has deemed necessary for a transaction of this type.
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VI. CONDITIONS
1. Accuracy of Representations and Warranties. The representations
and warranties made by the parties shall have been true and correct in all
material respects as of the date of this Agreement and as of the Closing Date as
though made on and as of the Closing Date.
2. No Material Adverse Change. Between the date hereof and the
Closing Date, there shall not have occurred any material adverse change in the
condition (financial or otherwise), business or results of operations of Xxxxxx
or VIFC.
3. No Injunction. No order of any court or administrative agency
shall be in effect which restrains or prohibits the transactions contemplated
hereby.
V. INDEMNITY
1. Indemnification. Each party hereto (each an "Indemnifying
Party'), severally and not jointly, agrees to indemnify, defend and hold
harmless each other party hereto and each of such other party's officers,
directors, employees, accountants, attorneys and other agents (each an
"Indemnified Party") from any and all losses, liabilities, claims, demands,
causes of action, suits or expenses (including reasonable attorneys fees)
suffered by any such Indemnified Party which shall have arisen out of or relate
to any breach by an Indemnifying Party of any representation, warranty, covenant
or agreement made by such Indemnifying Party and contained herein.
2. Survival. The parties hereto agree that the representations,
warranties, covenants and agreements contained herein shall survive the Closing
and continue to be binding.
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VI. MISCELLANEOUS
1. No Assignment. Without the prior written consent of all of the
parties hereto, the rights under this agreement shall not be assignable. Any
purported assignment which is not in compliance with this section shall be void.
2. Entire Agreement. This agreement, together with the documents
referred to herein, constitutes the entire agreement between the parties and
supercedes all prior oral or written agreements.
3. Amendment, Modification, Abandonment. This agreement may be
amended, modified or abandoned only with the written consent of all of the
parties hereto.
4. Notices. Any notice or other communication provided for or
allowed hereunder shall be considered to have been validly given if delivered
personally, and evidenced by a receipt signed by an authorized agent or
addressee, or 72 hours after being deposited in the United States mail,
registered or certified, postage prepaid, return receipt requested, or one
business day after being sent overnight delivery by Federal Express or other
courier service, or, in the case of telecopied notice, when telecopied, receipt
acknowledged, and addressed as provided herein.
H. If to Xxxxxx, at:
Xxxxxx International, Inc.
Attention: C. Xxxxxx Xxxxxxx
0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
B. If to VIFC, at:
Vocal Investors Financial Corp.
Attention: C. Xxxxxx Xxxxxxx
0000 Xxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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C. If to SIL, at:
Sandringham Investments Limited
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D. If to Shareholders, at:
The addresses set forth opposite the
Shareholders names on Exhibit A
5. Taxes. Each party shall be responsible for the payment of any
taxes applicable to it which arise by virtue of the execution, delivery or
performance of this agreement or the consummation of the transactions
contemplated hereby.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the undersigned have executed this Agreement and
Plan of Merger as of April __, 2001.
XXXXXX INTERNATIONAL, INC.
By:__________________________________
Name:
Title:
VOCAL INVESTOR FINANCIAL, CORP.
By:__________________________________
Name:
Title:
SANDRINGHAM INVESTMENTS LIMITED
By:__________________________________
Name:
Title:
SHAREHOLDERS
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_________________________________________
C. Xxxxxx Xxxxxxx
_________________________________________
Xxxx Xxxx
_________________________________________
Xxxxx Xxxxxx
_________________________________________
Xxxxxxxxx Xxxxxxxxx
_________________________________________
Xxxx Xxxx
_________________________________________
Xxxxx Xxxxxx
_________________________________________
Xxxx Xxxxx
_________________________________________
Xxxx Xxxxxxx
_________________________________________
Xxxx Xxxxxx
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EXHIBIT A
SHAREHOLDERS ADDRESSES NO. OF SHARES
------------ --------- -------------
C. Xxxxxx Xxxxxxx 2,000,000
Xxxx Xxxx 500,000
Xxxxx Xxxxxx 1,000,000
Xxxxxxxxx Xxxxxxxxx 1,000,000
Xxxx Xxxx 500,000
Xxxxx Xxxxxx 1,000,000
Xxxx Xxxxx 500,000
Xxxx Xxxxxxx 500,000
Xxxx Xxxxxx 100,000
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Schedule III.2B
(Outstanding Securities)
Common Shares Subscribed 613,204
Warrants Subscribed 613,204
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AGREEMENT AND PLAN OF MERGER
Among
XXXXXX INTERNATIONAL, INC.,
VOCAL INVESTOR FINANCIAL, CORP.,
SANDRINGHAM INVESTMENTS LIMITED,
and the
SHAREHOLDERS
Listed on Exhibit A
Dated as of April __, 2001
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