Exhibit 2.2 Stock Acquisition Agreement dated August 1, 2001 between the Company
and Omnetrix International of Colorado.
AGREEMENT
AND
PLAN OF REORGANIZATION
by and between
VPN COMMUNICATIONS CORPORATION
and
OMNETRIX INTERNATIONAL INC.
This agreement and plan of reorganization made as of the 1st day of August,
2001 between VPN Communications Corporation, a Nevada corporation (hereinafter
called "Buyer or VPN"), party of the first part; and Omnetrix International
Inc., a Colorado Corporation ("hereinafter called OMN or Seller") and the
individuals whose names are set forth in the attached Exhibit A (hereinafter
called "Selling Shareholders"), parties of the second part,
WITNESSETH:
The parties desire that Buyer shall acquire a majority of the issued and
outstanding shares of common stock of Omnetrix International Inc. a Colorado
corporation (hereinafter called "Seller"), by an exchange of at least 12,000,000
shares of said issued and outstanding shares of common stock of Seller solely
for shares of the voting common stock of Buyer, on the terms and conditions
hereinafter set forth.
Accordingly, the parties hereto covenant and agree as follows:
1. Selling Shareholders represent that:
1 (a) Seller is a corporation duly organized and existing under the
laws of the State of Colorado with authorized capital stock consisting of
20,000,000 shares of capital stock of no par value per share, of which
12,000,000 common shares are duly issued and now outstanding, fully-paid and
non-assessable; Seller does not have issued or outstanding any other shares of
stock or any subscription or other rights to the issuance or receipt of shares
of its common stock; all voting rights are vested exclusively in such common
stock.
1 (b) The balance sheet of Seller as of July 31,2001, copies of which,
including accompanying notes, have previously been delivered to Buyer, has been
prepared from the books and records of the Seller and fairly present the
financial position of Seller at such date.
1 (c) The shares of the outstanding common stock of Seller to be
exchanged hereunder are owned beneficially and of record by the Selling
Shareholders as follows:
NAME NUMBER of SHARES
Individual listed not less than 12,000,000 shares total
Xxxxxxx X. Xxx Xxxxx 6,000,000 shares
Xxxxx Xxxxxxxx 3,000,000 shares
Rototech International 3,000,000
and each of the Selling Shareholders represent that he or she has full right and
title, without any lien or encumbrance whatsoever, to the number of shares of
common stock of Seller set opposite his or her name and full and unrestricted
right and power to exchange and deliver the same pursuant to the provisions of
this agreement and plan of reorganization.
1 (d) Seller is duly qualified and entitled to its respective
properties and to carry on its business all as and in the places where such
properties are now owned or such business is conducted.
1 (e) Seller has good and marketable title to all the property and
assets included in the balance sheet of Seller as of July 31, 2000 referred to
in paragraph 1 (b) hereof, or purported to have been acquired by Seller after
said date, except, however, property and assets sold in the ordinary course of
business subsequent to said date; all the properties and assets of Seller are
free from any liens or encumbrances not disclosed.
1 (f) Seller is not a party to any pending or threatened litigation
which might adversely affect the financial condition, business or properties of
Seller, or interfere with the manufacture or sales of its products, nor to the
knowledge of the Selling Shareholders, is there any threatened or pending
governmental investigation involving Seller or any of its products, including
inquiries, citations or complaints by any Federal government agency , or any
other federal, state or local administration; and there are no outstanding
order, decrees or stipulations affecting Seller or any of its products.
1 (g) All returns for income taxes, surtaxes and excess profits taxes
of Seller for all prior periods up to and including December 31, 2000 have
either been or will be duly prepared and filed in good faith and all taxes shown
there on have been paid or accrued on the Seller's books.
1 (h) Seller has not since 7/31/01:
1 (i) (i) Made any distribution to its shareholders, as shareholders,
of any assets by way of dividends, purchase of shares or otherwise;
(ii) Mortgaged, pledged or subjected to lien or encumbrance any
of its properties or assets beyond that disclosed in the schedule delivered to
Buyer as provider in paragraph (c) hereof,
(iii) Sold or transferred any of its assets, tangible or
intangible, except in each case in the ordinary and usual course of business;
(iv) incurred any extraordinary losses or incurred or become
liable for any operations or liabilities except current liabilities incurred in
the ordinary and usual course of business, or made any extraordinary
expenditures other than for additions and betterments to existing plant,
equipment and facilities; or
(v) Increased the rate of compensation of its officers.
1 (i) The business, properties and assets of Seller have not since
July 31, 2001 been materially and adversely affected as the result of any fire,
explosion, earthquake, flood, drought, windstorm, accident, strike, embargo,
confiscation of vital equipment, materials or inventory, cancellation of
contracts by any domestic or foreign government, or any agency thereof, riot,
activities of armed forces or acts of god or the public enemy.
1 (j) Seller has no liabilities, contingent or otherwise, beyond those
stated in the balance sheet of Seller as of June 30, 2001 or described in the
notes accompanying said balance sheet, referred to in paragraph 1(b) hereof,
other than current liabilities incurred in the ordinary and usual course of
business since that date.
1 (k) Selling shareholders, in acquiring shares of common stock of
Buyer as herein contemplated, are acquiring the same for the purposes of
investment only, with no present intention of selling or otherwise marketing or
distributing such shares, unless such sales or distribution is made in
compliance with the registration provisions of the Securities Act of 1933, or
unless an exemption from registration can be established, or unless sold
pursuant to Rule 144 under the Securities Act of 1933, as amended.
l (l) No representation by Selling Shareholders made in this agreement
and to statement made in any certificate or schedule furnished in connection
with the transaction herein contemplated contains or will contain any knowingly
untrue statement of material fact or knowingly omits or will omit to state any
material fact necessary to make any such representation or warrant or any such
statement or misleading to a prospective purchase of all of the stock of Seller
who is seeking full information as to Seller and its affairs.
2. Buyer represents:
2 (a) That it is a corporation duly organized and existing under the
laws of the state of Nevada with an authorized capital stock consisting of
50,000,000 shares of common stock of par value of $.001 per share, all having
full voting power, of which approximately 25,000,000 shares have been duly
issued and are outstanding full paid and non-assessable.
2 (b) That the shares of Buyer deliverable pursuant to this agreement
will be shares of common stock of the same class of common stock presently
issued and outstanding, which shares Buyer shall have full and lawful authority
to deliver, and when so delivered to Selling Shareholders, will have full and
equal voting rights and will be fully paid and non-assessable and will represent
12,000,000 shares of issued and outstanding stock of the Buyer after this plan
of reorganization takes place.
2 (c) That in acquiring the shares of stock of Sellers hereunder,
Buyer is acquiring the same for purposes of investment only with no present
intention of selling or otherwise marketing or distributing them.
2 (d) In regards to the stock of Buyer, Buyer acknowledges all rights
to the stock are vested exclusively in the common stock, 12,000,000 shares of
which are being issued to the Selling Shareholders, pursuant to this plan of
reorganization.
2 (e) The balance sheet as of the 31st day of March, 2001, a copy of
which including company notes have been previously delivered to Sellers, had
been prepared from the books and records of the Buyer and fairly represent the
financial condition to Buyer as of such date.
2 (f) The Buyer is duly qualified and entitled to its respective
properties and to carry on its business all as and in the places where such
properties are now owned or such business is conducted.
2 (g) The Buyer is not a party to any pending or threatened litigation
which might adversely affect the financial condition, business or properties of
Buyer, or interfere with any manufacturing or sale of its products, nor to the
knowledge of Buyers' shareholders is there any threatened or pending
governmental investigation involving Buyer or any of its products, including
inquiries, citations or complaints by any federal governmental agency or any
federal, state or local administration; there are no outstanding orders, decrees
or stipulations affecting Buyer or any of its products or previous work done.
2 (h) That all returns for income taxes, surtaxes and excess profit
taxes of Buyer for all prior periods up to and including December 31, 2000 have
been or will be filed and prepared in good faith and all taxes shown thereon
have been or will be paid and that there are no other outstanding federal or
state taxes of any sort including income taxes, sales taxes, withholding taxes,
etc.
2 (i) The Buyer has not;
(i) Issued any additional shares of stock other than the
securities mentioned herein;
(ii) Made any distributions to the shareholders of any assets by
way of dividends, purchase of shares or otherwise not disclosed to Seller; or
2 (j) The Buyer has no liabilities, contingent or otherwise, beyond
those stated in this agreement and the balance sheets, copies of which are
attached hereto, reflects the financial condition of Buyer, have been accurately
prepared, in accordance with generally accepted accounting principles.
2 (k) No representation by Buyer or any of its shareholders made in
regards to this agreement and no statement made in any certificate or schedule
furnished in conjunction with this agreement contains or will contain any
knowingly untrue statement of or material fact or knowingly omits or will omit
to state any material fact necessary to snake any such representation or
warranty or any such statement not misleading to Selling Shareholders or to
Seller. Buyer acknowledges that Seller and Selling Shareholders are relying on
the statements and representations of Buyer as to Buyer's financial condition
including its liabilities, if any, and that Seller and Selling Shareholders are
being induced to enter into this agreement with the understanding that Selling
Shareholders will receive and own, after the plan of reorganization contemplated
herein has been finalized, 12,000,000 shares of the outstanding and issued stock
of Buyer.
2 (l) It is specifically agreed herein that if any of the
representations made by Buyer in this agreement are found to be untrue or
incorrect that in that case Selling Shareholders at their option may declare
this plan of reorganization null and void, and rescind this transaction,
thereafter taking back all stock of Seller.
2 (m) Buyer acknowledges that certain fees and costs will be incurred
in order to affect the plan or reorganization and that all such fees and costs
will be disclosed in writing to Seller and Selling Shareholders.
2 (n) Buyer further represent to Sellers that it has not made any
statements which would prove to be untrue, false, or misleading to any
shareholder or investor of Buyer, that they have not violated or have its agents
violated any state or federal securities law in selling interests in Buyer to
prospective investors; that neither Buyer nor any representative or agent of
Buyer has made any representations concerning Buyer or Seller to any investor or
prospective investor which contain any untrue statement of a material fact, nor
have they omitted to a material fact, nor have they omitted to state a material
fact necessary to make such representations or warranties or any such other
statements nor misleading to prospective investors or purchasers of the stock of
Buyer or Seller, who are seeking full information as to Seller and its affairs.
Further Buyer specifically indemnifies and holds harmless Seller and Selling
Shareholders from any and all liabilities to which Selling Shareholders or
Seller could become liable for because of any acts, statements, or omissions of
Buyer or Buyer's agents. This indemnification and hold harmless agreement
specifically, although not exclusively, applies to any securities violations,
fraud, or other related liabilities to which Seller or Selling Shareholders
could become liable for and which acts are caused by Buyer or its agents.
3. Selling shareholders shall not cause, suffer or permit Seller,
subsequent to the date hereof and prior to the delivery hereunder to:
(i) issue any additional shares of stock or other securities;
(ii) make any distribution to its shareholders, as shareholders, of
any assets by way of dividends, purchase of shares or otherwise;
(iii) mortgage, pledge or subject to Lien or encumbrance, any of its
properties or assets;
(iv) sell or transfer any of its assets, tangible or intangible,
except in each case in the ordinary course of business;
(v) incur or become liable for any obligations or liabilities except
current liabilities in the ordinary course of business, or make any unusual or
extraordinary expenditures; or
(vi) increase the rate of compensation of its officers.
4. During the period prior to the closing date hereunder Selling
Shareholders shall cause Seller to conduct its business in the usual and normal
course.
5. Selling shareholders shall cause Seller to grant to Buyer the right and
opportunity to make such examination and investigation of Seller's business,
properties and affairs as Buyer may deem necessary or desirable for all purposes
relating to this agreement and to that end to open its books of account and
records for examinations by Buyer's representatives, accounts, and counsel.
6. Subject to the terms and conditions of this agreement, the parties have
adopted and agreed to the following plan of reorganization to be performed on
the closing date hereinafter provided for. This exchange of shares shall
constitute an Internal Revenue Code Section 368 a(1)B Reorganization and is
intended to qualify under that said Code section or other applicable Code
section as a tax-free exchange of shares.
6 (a) Selling shareholders shall transfer and deliver to Buyer at
least 12,000,000 shares of common stock of Seller owned by them respectively,
such shares and the certificates representing the same to be free and clear of
all liens and encumbrances. The certificates representing such shares shall be
duly endorsed in blank for transfer or accompanied by separate written
instrument of assignment, with signatures guaranteed by a commercial trust or
band company or by a member firm of the New York Stock Exchange and shall be
accompanied by such supporting documents as Buyer or its counsel may reasonably
require.
6 (b) Subject to the provisions of this paragraph 6 and paragraphs 7
and 8 hereof, Buyer shall deliver, in exchange for all the outstanding shares of
common stock of Seller, to Selling Shareholders, prorata in accordance with
their respective holdings of common stock of Seller, certificates representing
one share of Seller for each share of Buyer offered by Selling Shareholders,
totaling not less that 12,000,000 shares of common stock, $.001 par value, of
Buyer, after a one for nine reverse split recapitalization of the approximately
25,000,000 shares of Buyer presently issued. This will result in the exchanging
shareholders of OMN owning not less than 80% of the then outstanding shares of
VPN.
6 (c) If less than all of the required shares of common stock of
Seller required hereunder are duly tendered for exchange, Buyer shall have the
right, at its option, either to withdraw from this agreement and plan of
reorganization, or to deliver to the respective Selling Shareholders duly
tendering their shares for the exchange the same number of shares of Buyer
common stock for which they would otherwise have received, without hereby being
deemed to have elected any remedy or to have waived any of its rights against
any selling stockholder failing to duly tender all his or her shares.
6 (d) All transfer fees payable in connection with the transfer of
shares of common stock of Buyer to be delivered to Selling Shareholders pursuant
to this agreement and plan of reorganization shall be paid by Buyer, and taxes,
including documentary and stock transfer taxes, payable on the transfer or
delivery to Buyer of shares of stock of Seller shall be payable by Selling
Shareholders.
6 (e) The shares referred to in this section (6) shall be issued after
the aforesaid capitalization, and held in escrow until delivered upon closing.
7. All obligations of Buyer under this agreement are subject to the
fulfillment, on or prior to the closing date, of each of the following
conditions in addition to the conditions set forth in paragraph 6 hereof.
7a. That the representations of the Selling Shareholders shall be true
at and as of the closing date as though such representations were made at and as
of such time.
7b. That Buyer shall have received a certificate dated on the closing
date, signed by the president of Seller, that since the date of this agreement
and plan of reorganization Seller has not done or permitted to be done any of
the acts or things forbidden in paragraph 3 of this agreement and plan of
reorganization.
7c. That no claim or liability not fully covered by insurance shall
have been asserted against Seller and that Seller shall not have suffered any
loss on account of fire, flood, accident or other calamity of such a character
as to materially adversely affect its financial condition, regardless of whether
or not such loss shall have been insured.
7d. That all covenants herein made by Selling Shareholders which are
to be performed at or prior to the closing date hereunder shall have been duly
performed.
8. Under no circumstances shall Buyer be required to register with the
Securities and Exchange Commission pursuant to the provisions of the Securities
Act of 1933, as amended, any shares of its common stock deliverable to Selling
Shareholders hereunder.
9. All transactions contemplated by this agreement and plan of
reorganization as well as the form and substance of all legal proceedings and of
all papers and documents used or deliverable hereunder, shall be subject to the
approval at the election of Buyer and Sellers hereunder.
10. The closing under this agreement and plan of reorganization and all
deliveries hereunder shall take place on or before the 30th day of September,
2001. Upon closing the Board of Directors of Buyer will immediately resign, and
a new Board of Directors shall be appointed by the Shareholders of Seller.
However, Seller agrees to retain E.G. Marchi and his designee as Board members
with full rights thereof for a period of two years.
11. All notices under this agreement and plan of reorganization shall be in
writing and any notice to Buyer shall be considered delivered in all respects
when it has been trailed, first class postage prepaid, addressed as follows:
VPN Communications Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx Xxx, Xx 00000
12. This agreement and plan of reorganization shall bind and inure to the
benefit of the parties hereto and their assigns, provided however, that this
agreement and plan of reorganization cannot be assigned by any party except by
or with the written consent of the others. Nothing herein expressed or implied
is intended of shall be construed to confer upon or to give to any person, firm,
or corporation other than the parties hereto and their respective legal
representatives, successors, and assigns any rights or benefits under or by any
reason of this agreement and plan of reorganization.
13. This agreement and plan of reorganization may be executed in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. The validity, interpretation of terms, and performance of this
agreement shall be governed by and construed under the laws of the State of
Nevada.
IN WITNESS WHEREOF, the parties hereto have respectively executed this
agreement and plan of reorganization as of the day and year first above written.
Date of Signature:
Buyer: VPN COMMUNICATIONS CORPORATION
By /s/ E. G. Marchi
-------------------
E. G. Marchi, President
Seller: OMNETRIX INTERNATIONAL INC.
By /s/ Xxxxxxx X. Xxx Xxxxx
---------------------------
Xxxxxxx X. Xxx Xxxxx, President
