EXHIBIT 2.6
PLAN OF REORGANIZATION AND ACQUISITION
BY WHICH
XXXXXXXXX WIRELESS
(A NEVADA CORPORATION)
SHALL ACQUIRE
LATIN AMERICAN INDEPENDENT NETWORK INTERNATIONAL
(A FLORIDA CORPORATION)
This PLAN OF REORGANIZATION AND ACQUISITION ("Agreement") is made and dated this
_______ day of January 2003 by and between the above referenced corporations,
and shall become effective on "the Closing Date" as defined herein.
I. THE INTERESTED PARTIES
A. THE PARTIES TO THIS AGREEMENT
1. Xxxxxxxxx Wireless, a Nevada corporation ("Xxxxxxxxx").
2. Latin American Independent Network International, a Florida
corporation, including its wholly-owned subsidiary, Tele Anuncio, Inc.,
a Florida corporation (collectively referred to as "LAIN").
3. Xxxxx Xxxx, an individual and Xxxxx Xxxxxxxx Xxxx, an individual,
owners of 100% of the outstanding stock of LAIN ("Shareholder").
4. Kanakaris, LAIN, and the Shareholder may be referred to collectively
herein as the "Parties."
II. RECITALS
A. THE CAPITAL OF XXXXXXXXX AND LAIN
1. The capital of Xxxxxxxxx consists of 250,000,000 shares of common stock,
$.001 par value, authorized, of which 32,401,971 are issued and outstanding as
of the date of this Agreement, and 10,000,000 shares of preferred stock, $.001
par value, authorized, of which 1,000,000 are issued and outstanding as of the
date of this Agreement.
2. The capital of LAIN consists of 1,000 shares of common stock, no par value,
authorized, of which all 1,000 shares are issued to Shareholder.
B. THE BACKGROUND FOR THE ACQUISITION
Xxxxxxxxx desires to acquire LAIN and the directors and Shareholder desire to
sell LAIN to Xxxxxxxxx.
III. CONDITIONS PRECEDENT TO REORGANIZATION
A. DIRECTOR APPROVAL
The Board of Directors of the Parties respectively shall have determined that it
is advisable and in the best interests of each of them and both of them to
proceed with the acquisition by Kanakaris of LAIN.
B. SHAREHOLDER APPROVAL
If required by law, the shareholders of the Parties shall have approved the
acquisition and this Agreement.
C. EFFECTIVE DATE
This Plan of Reorganization and Acquisition shall become effective upon
execution of this Agreement by the Parties hereto and shall be designated
hereinafter as the "Closing Date"; provided that the following conditions
precedent shall have been met, or waived in writing by the Parties:
1. At the Closing, Xxxxxxxxx shall deliver its check to Shareholder in the
amount of $25,000.00 and a Promissory Note in the amount of $225,000.00 with
interest at 8% PER ANNUM payable on or before July 15, 2003.
2. Xxxxxxxxx further agrees to issue $250,000 of Kanakaris common stock to
Shareholder on July 15, 2003 at a price per share based upon the average bid
price of a share of Xxxxxxxxx common stock on the OTC:BB for a twenty-day period
prior to July 15, 2003.
3. Each Party shall have furnished to the other Party all corporate and
financial information which is customary and reasonable, to conduct its
respective due diligence, normal for this kind of transaction. If any Party
determines that there is a reason not to complete this Plan of Reorganization
and Acquisition as a result of their due diligence examination, then they must
give written notice to the other Parties prior to the expiration of the due
diligence examination period. The Due Diligence period, for purposes of this
paragraph, shall expire on a date determined by the Parties, which shall be no
later than thirty days after the Closing Date.
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4. This Plan of Reorganization and Acquisition shall have been approved by the
holders of more than one-half of the common shares of the Parties, if required
by law.
5. The rights of all dissenting shareholders, if any, of each Party shall have
been satisfied and the Board of Directors of each Party shall have determined to
proceed with this Plan of Reorganization and Acquisition.
6. All of the terms, covenants and conditions of this Plan of Reorganization and
Acquisition to be complied with or performed by each Party for Closing shall
have been complied with, performed or waived in writing.
7. The representations and warranties of the Parties, contained in this Plan of
Reorganization and Acquisition, as herein contemplated, except as amended,
altered or waived by the Parties in writing, shall be true and correct in all
material respects at the Closing Date with the same force and effect as if such
representations and warranties are made at and as of such time; and each Party
shall provide the other with a corporate certificate, of a director of each
Party, dated the Closing Date, to the effect, that all conditions precedent have
been met, and that all representations and warranties of such Party are true and
correct as of that date. The form and substance of each Party's certification
shall be in form reasonably satisfactory to the other.
D. TERMINATION
This Plan of Reorganization and Acquisition may be terminated at any time prior
to the Closing Date, whether before or after approval by the shareholders of the
Parties: (i) by mutual consent of the Parties; or (ii) by any Party if any other
Party is unable to meet the specific conditions precedent applicable to its
performance within a reasonable time. In the event that termination of this Plan
of Reorganization and Acquisition occurs, as provided above, this Plan of
Reorganization and Acquisition shall forthwith become void and there shall be no
liability on the part of any Party or its respective officers and directors.
IV. PLAN OF ACQUISITION
A. REORGANIZATION AND ACQUISITION
Xxxxxxxxx and LAIN are hereby reorganized, such that Xxxxxxxxx shall acquire all
the capital stock of LAIN with all of its current assets, liabilities and
businesses, and LAIN shall become a wholly owned subsidiary of Xxxxxxxxx.
B. SURVIVING CORPORATION
Both Xxxxxxxxx and LAIN shall survive the Reorganization herein contemplated and
shall continue to be governed by the laws of their respective jurisdiction. The
resulting parent corporation is the entity responsible for the rights of
dissenting shareholders.
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C. SURVIVING ARTICLES OF INCORPORATION
The Articles of Incorporation of both Kanakaris and LAIN shall remain in full
force and effect, unchanged.
D. SURVIVING BYLAWS
The Bylaws of both Kanakaris and LAIN shall remain in full force and effect,
unchanged.
E. ISSUANCE OF STOCK AND PROMISSORY NOTE
At Closing, Xxxxxxxxx shall issue and deliver a Promissory Note in the amount of
$225,000 with interest at 8% PER ANNUM, payable on or before July 15, 2003.
Also at the Closing, LAIN shall issue and deliver a stock certificate to
Kanakaris representing a total of 100% of the issued and outstanding capital
stock of LAIN.
F. OTHER CONDITIONS OF ACQUISITIONS
1. LAIN shall own all of the assets it currently owns except as may be sold or
transferred in the ordinary course of business.
2. Employment agreements will be in place for all key employees of LAIN.
3. LAIN shall provide Xxxxxxxxx with the financial records necessary for
accountants to audit LAIN and its wholly-owned subsidiary, Tele Anuncio, Inc.
for the years ending June 30, 2001 and June 30, 2002.
G. FURTHER ASSURANCE, GOOD FAITH AND FAIR DEALING
The Directors of each Party shall and will execute and deliver any and all
necessary documents, acknowledgments and assurances and do all things proper to
confirm or acknowledge any and all rights, titles and interests created or
confirmed herein; and all Parties covenant hereby to deal fairly and in good
faith with each other and each others shareholders.
V. GENERAL MUTUAL REPRESENTATIONS AND WARRANTIES
The purpose and general import of the Mutual Representations and Warranties are
that each Party has made appropriate full disclosure to the others, that no
material information has been withheld, and that the information exchanged is
accurate, true and correct.
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A. ORGANIZATION AND QUALIFICATION
Each Party warrants and represents that it is duly organized and in good
standing, and is duly qualified to conduct any business it may be conducting, as
required by law or local ordinance.
B. CORPORATE AUTHORITY
Each Party warrants and represents that it has corporate authority, under the
laws of its jurisdiction and its constituent documents, to do each and every
element of performance to which it has agreed, and which is reasonably
necessary, appropriate and lawful, to carry out this Agreement in good faith.
C. OWNERSHIP OF ASSETS AND PROPERTY
Each Party warrants and represents that it has lawful title and ownership of its
property as reported to the other, and as disclosed in its financial statements.
D. ABSENCE OF CERTAIN CHANGES OR EVENTS
Each Party warrants and represents that there are no material changes of
circumstances or events which have not been fully disclosed to the other Party,
and which, if different than previously disclosed in writing, have been
disclosed in writing as currently as is reasonably practicable.
E. ABSENCE OF UNDISCLOSED LIABILITIES
Each Party warrants and represents specifically that it has, and has no reason
to anticipate having, any material liabilities which have not been disclosed to
the other, in the financial statements, reports filed by Xxxxxxxxx with the
Securities and Exchange Commission, or otherwise in writing.
F. LEGAL PROCEEDINGS
Each Party warrants and represents that there are no legal proceedings,
administrative or regulatory proceeding, pending or suspected, which have not
been fully disclosed in writing to the other.
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G. NO BREACH OF OTHER AGREEMENTS
Each Party warrants and represents that this Agreement, and the faithful
performance of this Agreement, will not cause any breach of any other existing
agreement, or any covenant, consent decree, or undertaking by either, not
disclosed to the other.
H. CAPITAL STOCK
Each Party warrants and represents that the issued and outstanding shares and
all shares of capital stock of each Party, is as detailed herein, that all such
shares are in fact issued and outstanding, duly and validly issued, were issued
as and are fully paid and non-assessable shares, and that, other than as
represented in writing, there are no other securities, options, warrants or
rights outstanding, to acquire further shares of such Party, except as has been
disclosed to the other Party.
I. BROKERS' OR FINDER'S FEES
Other than as described herein, each Party warrants and represents that it is
aware of no claims for brokers' fees, or finders' fees, or other commissions or
fees, by any person not disclosed to the other, which would become, if valid, an
obligation of either Party.
VI. INDEMNIFICATION
Both parties shall, and from and after the Closing Date, indemnify, defend and
hold harmless each person who is now, or has been at any time prior to the date
hereof or who becomes prior to the Closing Date, an officer or director of
either party (the "Indemnified Parties") against all losses, claims, damages,
costs, expenses (including reasonable attorneys' fees and expenses), liabilities
or judgments or amounts that are paid in settlement with the approval of the
indemnifying party of or in connection with any threatened or actual claim,
action, suit, proceeding or investigation based on or arising out of the fact
that such person is or was a director or officer of either party whether
pertaining to any matter existing or occurring at or prior to the Closing Date
and whether asserted or claimed prior to, or at or after, the Closing Date
("Indemnified Liabilities"), including all Indemnified Liabilities based on, or
arising out of, or pertaining to this Agreement or the transactions contemplated
hereby, in each case, to the full extent a corporation is permitted under the
Nevada law to indemnify directors or officers.
Without limiting the foregoing, in the event any such claim, action, suit,
proceeding or investigation is brought against any Indemnified Parties (whether
arising before or after the Closing Date), (i) the Indemnified Parties may
retain counsel satisfactory to them and the Parties shall pay all fees and
expenses of such counsel for the Indemnified Parties promptly as statements
therefore are received; and (ii) each party shall use all reasonable efforts to
assist in the vigorous defense of any such matter, provided that each party
shall not be liable for any settlement effected without its prior written
consent. Any Indemnified Party wishing to claim indemnification under this
section, upon learning of any such claim, action, suit, proceeding or
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investigation, shall notify the Parties (but the failure so to notify shall not
relieve a party from any liability which it may have under this section except
to the extent such failure prejudices such party). The Indemnified Parties as a
group may retain only one law firm to represent them with respect to each such
matter unless there is, under applicable standards of professional conduct, a
conflict on any significant issue between the positions of any two or more
Indemnified Parties. The Parties agree that all rights to indemnification,
including provisions relating to advances of expenses incurred in defense of any
action or suit, existing in favor of the Indemnified Parties with respect to
matters occurring through the Closing Date, shall survive the reverse
acquisition and shall continue in full force and effect for a period of not less
than seven years from the Closing Date; provided, however, that all rights to
indemnification in respect of any Indemnified Liabilities asserted or made
within such period shall continue until the disposition of such Indemnified
Liabilities.
The provisions of this section are intended to be for the benefit of, and shall
be enforceable by, each Indemnified Party, his or her heirs and his or her
personal representatives and shall be binding upon all successors and assigns of
both Parties.
VII. DEFAULT, AMENDMENT AND WAIVER
A. DEFAULT
Upon a breach or default under this Agreement by any of the Parties (following
the cure period provided herein), the non-defaulting party shall have all rights
and remedies given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise. Notwithstanding the foregoing, in the event of a breach
or default by any Party hereto in the observance or in the timely performance of
any of its obligations hereunder which is not waived by the non-defaulting
Party, such defaulting Party shall have the right to cure such default within 15
days after receipt of notice in writing of such breach or default.
B. WAIVER AND AMENDMENT
Any term, provision, covenant, representation, warranty, or condition of this
Agreement may be waived, but only by a written instrument signed by the Party
entitled to the benefits thereof. The failure or delay of any party at any time
or times to require performance of any provision hereof or to exercise its
rights with respect to any provision hereof shall in no manner operate as a
waiver of or affect such party's right at a later time to enforce the same. No
waiver by any Party of any condition, or of the breach of any term, provision,
covenant, representation, or warranty contained in this Agreement, in any one or
more instances, shall be deemed to be or construed as a further or continuing
waiver of any such condition or breach or waiver of any other condition or of
the breach of any other term, provision, covenant, representation, or warranty.
No modification or amendment of this Agreement shall be valid and binding unless
it be in writing and signed by all Parties hereto.
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VIII. MISCELLANEOUS
A. EXPENSES
Whether or not the transactions contemplated hereby are consummated, each of the
Parties hereto shall bear all taxes of any nature (including, without
limitation, income, franchise, transfer, and sales taxes) and all fees and
expenses relating to or arising from its compliance with the various provisions
of this Agreement and such Party's covenants to be performed hereunder, and
except as otherwise specifically provided for herein, each of the Parties hereto
agrees to pay all of its own expenses (including, without limitation, attorneys
and accountants' fees, and printing expenses) incurred in connection with this
Agreement, the transactions contemplated hereby, the negotiations leading to the
same and the preparations made for carrying the same into effect, and all such
taxes, fees, and expenses of the Parties hereto shall be paid prior to Closing.
B. NOTICES
Any notice, request, instruction, or other document required by the terms of
this Agreement, or deemed by any of the Parties hereto to be desirable, to be
given to any other party hereto shall be in writing and shall be given by
facsimile, personal delivery, overnight delivery, or mailed by registered or
certified mail, postage prepaid, with return receipt requested, to the following
addresses:
TO XXXXXXXXX:
Xxxxxxxxx Wireless
000 Xxxxx Xxxxxx, Xxxxx X0-000
Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
FAX: (000) 000-0000
TO LAIN AND/OR THE SHAREHOLDER:
Latin American Independent Network International
Attn: Xxxxx Xxxx, President
000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
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The persons and addresses set forth above may be changed from time to time by a
notice sent as aforesaid. If notice is given by facsimile, personal delivery, or
overnight delivery in accordance with the provisions of this Section, said
notice shall be conclusively deemed given seven days after deposit hereof in the
Unites States mail.
C. ENTIRE AGREEMENT
This Agreement, together with any schedules and exhibits hereto, sets
forth the entire agreement and understanding of the Parties hereto with respect
to the transactions contemplated hereby, and supersedes all prior agreements,
arrangements and understandings related to the subject matter hereof. No
understanding, promise, inducement, statement of intention, representation,
warranty, covenant, or condition, written or oral, express or implied, whether
by statute or otherwise, has been made by any party hereto which is not embodied
in this Agreement, or in the schedules or exhibits hereto or the written
statements, certificates, or other documents delivered pursuant hereto or in
connection with the transactions contemplated hereby, and no party hereto shall
be bound by or liable for any alleged understanding, promise, inducement,
statement, representation, warranty, covenant, or condition not so set forth.
D. SURVIVIAL OF REPRESENTATIONS
All statements of fact (including financial statements) contained in
the schedules, the exhibits, the certificates, or any other instrument delivered
by or on behalf of the Parties hereto, or in connection with the transactions
contemplated hereby, shall be deemed representations and warranties by the
respective Party hereunder. All representations, warranties, agreements, and
covenants hereunder shall survive the Closing and remain effective regardless of
any investigation or audit at any time made by or on behalf of the Parties or of
any information a party may have in respect hereto. Consummation of the
transactions contemplated hereby shall not be deemed or construed to be a waiver
of any right or remedy possessed by any party hereto, notwithstanding that such
party knew or should have known at the time of Closing that such right or remedy
existed.
E. INCORPORATION BY REFERENCE
The schedules, exhibits, and all documents (including, without
limitation, all financial statements) delivered as part hereof or incident
hereto are incorporated as a part of this Agreement by reference.
F. REMEDIES CUMULATIVE
No remedy herein conferred upon the Parties is intended to be exclusive
of any other remedy and each and every such remedy shall be cumulative and shall
be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise.
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G. EXECUTION OF ADDITIONAL DOCUMENTS
Each Party hereto shall make, execute, acknowledge, and deliver such
other instruments and documents, and take all such other actions as may be
reasonably required in order to effectuate the purposes of this Agreement and to
consummate the transactions contemplated hereby.
H. GOVERNING LAW
This Agreement has been negotiated and executed in the State of
California and shall be construed and enforced in accordance with the laws of
such state.
I. FORUM
Each of the Parties hereto agrees that any action or suit which may be
brought by any party hereto against any other party hereto in connection with
this Agreement or the transactions contemplated hereby may be brought only in a
federal or state court in Orange County, California.
J. PROFESSIONAL FEES
In the event any Party hereto shall commence legal proceedings against
the other to enforce the terms hereof, or to declare rights hereunder, as the
result of a breach of any covenant or condition of this Agreement, the
prevailing party in any such proceeding shall be entitled to recover from the
losing party its costs of suit, including reasonable attorneys' fees,
accountants' fees, and experts' fees.
K. BINDING EFFECT AND ASSIGNMENT
This Agreement shall inure to the benefit of and be binding upon the
Parties hereto and their respective heirs, executors, administrators, legal
representatives, and assigns.
L. COUNTERPARTS; FACSIMILE SIGNATURES
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. The Parties agree that
facsimile signatures of this Agreement shall be deemed a valid and binding
execution of this Agreement.
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THIS PLAN OF REORGANIZATION AND ACQUISITION is executed on behalf of
each Party by its duly authorized representatives, and attested to, pursuant to
the laws of its respective place of incorporation and in accordance with its
constituent documents as of the date first written above.
XXXXXXXXX WIRELESS
/s/ Xxxx Xxxxxxxxx
---------------------------------
BY: Xxxx Xxxxxxxxx
ITS: President
LATIN AMERICAN INDEPENDENT NETWORK INTERNATIONAL
/s/ Xxxxx Xxxx
---------------------------------
BY: Xxxxx Xxxx
ITS: President
SHAREHOLDER
/s/ Xxxxx Xxxx
---------------------------------
BY: Xxxxx Xxxx
/s/ Xxxxx Xxxxxxx Xxxx
---------------------------------
BY: Xxxxx Xxxxxxxx Xxxx
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