Exhibit 2.2
AGREEMENT AND PLAN OF REORGANIZATION
This Agreement and Plan of Reorganization is entered into on this _ day
of April, 2004, by and between China Voice Corp., a Nevada corporation,
(hereinafter "CVC") and its undersigned shareholders (hereinafter
"Stockholders"); and Surf Franchise, Inc., a New York corporation whose address
is 00 Xxxx Xxxxxx, Xxxx Xxxxxxx, XX 00000 (hereinafter "SFI" or the "company").
RECITALS:
WHEREAS, Stockholders own beneficially and of record 100% of the shares
of voting common stock of CVC; and
WHEREAS, SFI desires to acquire 100% of the issued and outstanding
common stock of CVC, thus making CVC a wholly-owned subsidiary of the Company,
and CVC Stockholders desire to make a tax-free exchange of their shares in CVC
solely for shares of SFI common voting stock;
NOW, THEREFORE, in consideration of the premises, mutual covenants,
representations and warranties contained herein, the parties hereto agree as
follows:
Section 1
AGREEMENT
1.1 Plan of Reorganization. SFI, CVC and Stockholders hereby agree that 100% of
the issued and outstanding common stock of CVC shall be acquired by SFI in
exchange solely for SFI voting common stock in a transaction qualifying as a
tax-free, stock-for-stock exchange pursuant to Section 368 (a)(1)(B) of the
Internal Revenue Code of 1986, as amended.
1.2 Exchange of Stock. SFI, CVC and Stockholders agree that all issued and
outstanding shares of common stock of CVC, equal to one hundred percent, shall
be exchanged for fifty million (50,000,000) Rule 144 restricted SFI shares. A
list of the shareholders of CVC and the number of SFI shares to be issued to
them is attached hereto as Exhibit `A' and by this reference is incorporated
herein.
1.3 Delivery of Shares. On or before the Closing, certificates representing
100(degree)/a of the outstanding shares of CVC will be delivered duly endorsed
so as to make SF1 the sole holder thereof, free and clear of all claims and
encumbrances.
1.4 Capital Structure of CVC. As of March 25, 2004, CVC had authorized ninety
thousand (90,000) shares of common stock, no par value per share, and ten
thousand (10,000) shares of preferred stock, no par value per share, of which
one thousand (1,000) shares of common stock were issued and outstanding and no
shares of preferred stock were issued and outstanding. There are no securities,
rights, options, or warrants outstanding to purchase securities of CVC.
1.5 Present Capital Structure of SFI. SFI is a non-reporting, non-trading New
York corporation that was originally formed as a subsidiary of Sun & Surf, Inc.,
a publicly-traded New York corporation. All SFI shares were paid out as a
dividend to Sun & Surf, Inc. shareholders of record as of the close of business
September 8, 2003. The authorized capital stock of SFI consists of one hundred
million (100,000,000) shares of common stock, $.001 par value per share and ten
million (10,000,000) preferred shares, $.001 par value, with forty nine million
six hundred twelve thousand and five hundred (49,612,500) common shares issued
and outstanding held by approximately thirty three (33) shareholders and no
preferred shares issued and outstanding as of March 25, 2004. SFI has no
outstanding options, warrants or rights to acquire its common shares and no
outstanding securities convertible into its common stock.
1.6 Capital Structure and Status of SFI at the Time of Closing. SFI shall have
six million five hundred ninety thousand (6,590,000) shares of common stock
issued and outstanding at the time of Closing, and no options or other
securities outstanding convertible into its common stock that would result in an
increase in the number of issued and outstanding shares. SFI shall have no
shares of preferred stock issued and outstanding at the time of closing. All of
the liabilities of SFI shall be satisfied in full prior to or at the Closing.
Necessary Corporate resolutions and actions as required shall be adopted prior
to the Closing in accordance with New York law, to ratify and approve the
following actions and amendments to the certificate of incorporation:
(a) Approve this Agreement and Plan of Reorganization.
(b) Approve the cancellation of previously issued and outstanding
restricted common shares in the amount of forty three million twelve
thousand five hundred (43,012,500) shares so that the number of issued and
outstanding shares at the time of Closing is six million five hundred
ninety thousand (6,590,000) shares, held by at least 28 individual
shareholders, of which none shall bear a Rule 144 restrictive legend.
(c) Approve the issuance of fifty million (50,000,OO0) Rule 144
restricted SFI Common Shares to CVC shareholders as listed in the attached
Exhibit W.
(d) Approve and initiate a change in the name of the corporation to
"China Voice Corp."
(e) Approve the resignations of current SFI management and directors
and appoint CVC designees as the new management and Board of Directors.
1.7 Changes in Capitalization of SFI. SFI, between the date of this Agreement
and the Closing, shall not make any changes to its capital structure except as
required under Section 1.6 herein above.
1.8 Capital Structure after Closing. After issuance of the SFI shares pursuant
to Section 1.6 above, the capital structure of the merged company will be as
follows:
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Shareholders SFI Shares %
------------ ---------- ------
CVC Shareholders (Rule 144 shares) 50,000,000 83.5
Current SFI Shareholders 6,590,000 11.65
----------- ------
Total 56,950,000 100.00
Section 2
Closing, Effective Date, and Pre-Closing Actions
2.1 Closing. The Closing of the transaction contemplated herein shall be held on
April 15, 2004 or on such other later date as the parties hereto may mutually
agree, and shall be held at a location or under conditions as may be mutually
agreed by the parties hereto. In the event of a courier/telephonic closing,
Xxxxxx X. Xxxxxxx, Attorney at Law and Capital Bankers Group, Ltd. shall serve
as agents to the parties to this transaction in holding and redistributing
original documents and copies among the various parties following the closings.
It is further agreed that parties shall endeavor to perform their obligations
hereunder such that the Closing could be consummated as early as April 5, 2004
and SFI does hereby grant CVC the option to schedule said Closing for any
business day between April 5, 2004 and April 15, 2004, upon CVC providing notice
3 business days in advance.
2.2 Required of SFI at Closing. At or prior to the Closing, SFI shall provide
the following:
(a) a tiled copy of the amended articles of incorporation as required
by the State of New York concerning the changes as detailed under paragraph
1.6 above;
(b) all books and records of SFI including all filed tax returns and
Company records supporting filings made and required to be made to
regulatory agencies through March 31, 2004;
(c) resignations of previous management and appointments of new
management chosen by CVC;
(d) a current shareholders list certified by SFI's stock transfer
agent;
(e) corporate minute book containing all corporate minutes of
directors and stockholders;
(f) officer and directors certificate and indemnification notice;
(g) unaudited financial statements for the period ended October 31,
2003;
(h) an original copy of the auditors report containing audited
financial statements for the period ending March 31, 2004;
(i) a current and certified lien and judgment search free of any
adverse items;
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(j) a release of any or all current real estate and personal property
leases to which SFI is or may be subject;
(k) a clean copy of the letter written and signed by Xxxxxx X.
Xxxxxxx, Esq., on August 27, 2003 to the National Association of Securities
Dealers concerning the dividend of SFI shares to Sun & Surf, Inc.
shareholders;
(l) a clean copy of the letter written and signed by Xxxxxx X. Xxxxxxx
Esq. on October 8, 2003 to American Registrar & Transfer Co. providing an
opinion as to the tradability of SFI shares issued to non-affiliates;
(m) an opinion of counsel, based on examination of articles of
incorporation, minutes, bylaws, documents related to this transaction and
such other matters as counsel deems necessary, to establish that (i) SFI is
a corporation duly formed, validly existing and in good standing under the
laws of the State of New York and has all requisite power, authority,
licenses, permits, patents, copyrights and trademarks material to the
ownership and operation of its properties and to the carrying on of its
business; (ii) SFI has all requisite corporate power and authority and the
legal right to enter into this Agreement and to carry out its obligations
hereunder; (iii) no consent, approval or authorization of, registration
with or declaration to any tribunal or any person or approval by the
shareholders of SFI is required in connection with the execution and
delivery of this Agreement or in connection with the performance of any
covenant or agreement contained herein; (iv) counsel has no knowledge of
any legal or administrative proceedings pending or threatened against or
affecting SFI except as otherwise specifically disclosed; and (v) this
Agreement does not violate, conflict with, result in the breach of, or
constitute a default under the provisions of the articles of incorporation,
as amended, or the bylaws as amended, of SFI or any laws or, to the best of
counsel's knowledge, any contract to which SFI is a party.
2.3 Effective Date. For accounting purposes, the effective date of this
reorganization shall be April 1, 2004.
Section 3
Representations and Warranties of SFI
SFI and Xxxxxxx X. Xxxxxxxx (who agrees that his execution of this Agreement on
behalf of SFI is also an execution on his behalf individually) represent and
warrant to, and covenant with, the Stockholders as follows:
3.1 Corporate Status. SFI warrants and represents to CVC that it is in good
standing in the state of New York, with approximately 33 stockholders of record
and beneficially.
3.2 Capital Structure of SFI. The authorized capital stock of SFI consists of
one hundred million (100,000,000) shares of common stock, $.001 par value per
share, and ten million (10,000,000) preferred shares, $.001 par value per share,
with forty nine million six hundred twelve thousand five hundred (49,612,500)
common shares issued and outstanding just prior to the date first above written,
which shall be reduced at the time of the Closing to six million five hundred
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ninety thousand (6,590,000) shares issued and outstanding and no preferred
shares issued and outstanding. SFI, at time of Closing, shall have no
outstanding options, rights or warrants to acquire its common shares and no
other securities outstanding convertible or exchangeable into its common stock
that would result in an increase to the number of issued and outstanding shares.
3.3 Financial Statements. The financial statements of SFI furnished to CVC,
consisting of unaudited financial statements dated October 31, 2003, for the
period then ended and the audited financial statements dated March 31, 2004 for
the period then ended (both attached hereto as Exhibit `B'), are true, correct
and fairly present the financial condition of SFI at such dates and for the
periods involved; such statements were prepared in accordance with generally
accepted accounting principles consistently applied.
3.4 No Current Business Operations. At March 31, 2004 SFI has divested of its
business operations and has no liabilities of any nature whatsoever as of the
Closing hereunder, whether accrued, absolute, contingent or otherwise, and
including, without limitation, tax liabilities and interest due or to become
due.
3.5 Regulatory Compliance and Listings. SFI is a non-reporting, non-trading New
York corporation. SFI is in full compliance with, and not in violation of, any
state or federal securities laws. All outstanding shares of common stock of SFI
have been duly authorized and are validly issued, fully paid, and non-assessable
and free of preemptive rights, and there are no registration rights existing or
granted to any holders of restricted common stock of SFI. There has been no stop
order issued by any regulatory authority including but not limited to NASD, SEC,
or any State regulatory authority and furthermore SFI has not received any
notice of any investigation which might result in any stop order.
3.6 Title to Property. SFI has good and marketable title to all properties and
assets, real and personal, reflected in the Balance Sheet of SFI, and the
properties and assets of SFI are subject to no mortgage, pledge, lien or
encumbrances, except for liens shown therein, with respect to which no default
exists.
3.7 Litigation. There is no litigation or proceeding pending, or to the
knowledge of SFI, threatened, against or relating to SFI, its properties or
business.
3.8 Books and Records. Prior to or at the Closing, SFI will provide to CVC or
their representative(s) any and all relevant documents regarding securities
filings, shareholder records, NASD notifications, offering memorandums, and
information concerning the properties and affairs of SFI and give full access
during normal business hours to all of its offices, books, records, contracts
and other corporate documents and properties so that CVC may inspect and audit
them.
3.9 Tax Returns. Prior to the Closing, SFI will have filed all federal and state
income or franchise tax returns required to be filed at the time of Closing
except for returns for the tax year ended March 31, 2004, which will be filed
timely as required by law with confirmation provided to CVC and associated
expenses and any amounts due to be paid by Xxxxxxx X. Xxxxxxxx.
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3.10 Confidentiality. Until the Closing (and thereafter if there is no Closing),
SIFT and its representatives will keep confidential any information which they
obtain from CVC concerning the properties, assets and business of CVC. If the
transactions contemplated by this Agreement are not consummated by April 15,
2004 or such other date as the parties may mutually agree, SFI will return to
CVC all written matter with respect to CVC obtained by SFI in connection with
the negotiation or consummation of this Agreement.
3.11 Investment Intent. SFI is acquiring the CVC shares to be transferred to it
under this Agreement for investment and not with a view to the sale or
distribution thereof, and SFI has no commitment or present intention to
liquidate CVC or to sell or otherwise dispose of shares of its stock.
3.12 Corporate Authority. SFI has full corporate power and authority to enter
into this Agreement, to carry out its obligations hereunder and will deliver to
CVC at the Closing a certified copy of resolutions of its Board of Directors
authorizing execution of this Agreement by its officers and performance
thereunder and shall also contain approvals of all of the conditions as set
forth in Section 1.6 above.
3.13 Due Authorization. Execution of this Agreement and performance by SFI
hereunder has been duly authorized by all requisite corporate action on the part
of SFI, and this Agreement constitutes a valid and binding obligation of SFI and
performance hereunder will not violate any provision of the Articles of
Incorporation, Bylaws, agreements, mortgages or other commitments of SFI. All
matters described in Section 1.6 will have been duly and properly approved as
required under the laws of the State of New York.
Section 4
Representations, Warranties and Covenants of CVC and Stockholders
CVC and Stockholders represent, warrant to, and covenant with, SFI as
follows:
4.1 Corporate Status. CVC is a corporation duly organized, validly existing and
in good standing under the laws of the State of Nevada.
4.2 CVC Shares. The Stockholders executing this Agreement shall hold full right,
title and interest in one hundred percent (100%) of the CVC shares, free and
clear of adverse claims of third parties.
4.3 Capitalization. CVC has authorized capital stock of ninety thousand (90,000)
shares of common stock, no par value per share, and ten thousand (10,000) shares
of preferred stock, no par value per share, of which one thousand (1,000) shares
of common stock were issued and outstanding held by two shareholders and zero
(-0-) shares of preferred stock were issued and outstanding. There are no other
securities, rights, options, or warrants outstanding to purchase securities of
CVC.
4.4 Financial Statements of CVC. The financial statements of CVC furnished to
SFI, consisting of audited financial statements of VOIUM TECHNOLOGIES, LTD.
("VTL") for the fiscal year ending November 30, 2003, are attached hereto as
Exhibit `C'. As of March 31, 2004, VTL is the sole asset of CVC and the
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financial statements of VTL exactly mirror the assets, liabilities and equity of
CVC. The Exhibit `C' financial statements are true, correct and fairly present
the financial condition of VTL at such date and for the periods involved; such
statements were prepared in accordance with the Companies Act and Singapore
Statements of Accounting Standards; and no material change has occurred in the
financial condition of VTL since November 30, 2003 except as in the normal
course of operations and as disclosed in paragraph 4.6 below.
4.5 Undisclosed Liabilities. CVC and VTL had no liabilities at November 30, 2003
except to the extent reflected or reserved against in the Balance Sheet as of
that date and no material changes have occurred except for liabilities that may
have been incurred in the normal course of business operations.
4.6 Interim Changes. In the quarter ending March 31, 2004, VTL acquired a 30%
interest in Global Network Unlimited Pte Ltd. ("GNU"). GNU is a registered IT
and E-Commerce provider headquartered in Singapore and recorded an approximate
$80,000,00 profit in the eight month period ended November 30, 2003. The
acquisition price paid to GNU was approximately $313,000.00 and the VTL funding
was substantially provided in the form of a capital contribution from a VTL
shareholder. Other than the GNU acquisition transaction, there have been no
other material changes in the financial condition, assets, and liabilities of
CVC/VTL except as incurred in the normal course of business; nor any material
increase(s) in compensation or other benefits to employees.
4.7 Title to Property. CVC and/or VTL has good and marketable title to all
properties and assets, real and personal, reflected in the Balance Sheet of
CVC/VTL, and the properties and assets are subject to no mortgage, pledge, lien
or encumbrances, except for liens shown therein, with respect to which no
default exists, except as otherwise detailed and set forth in letter form,
signed and certified by the President of CVC and delivered to SFI or its
representative.
4.8 Litigation. There is no litigation or proceeding, pending, or to the
knowledge of CVC, threatened against or relating to the property or business of
CVC or VTL, except as set forth in a list certified by the President of CVC and
delivered to SO or its representative.
4.9 Tax Returns. CVC and VTL have filed all tax returns required to be filed or
have received currently effective extensions of the required filing dates.
4.10 Books and Records. From the date of this Agreement to the Closing, CVC
shall give SFI or its representative full access during normal business hours to
all of its offices, books, records, contracts and other corporate documents and
properties so that SFI may inspect and audit them, and furnish such information
concerning the properties and affairs of CVC as SFI may reasonably request.
4.11 Confidentiality. Until the Closing (and thereafter if there is no Closing),
CVC and its representatives will keep confidential any information which they
obtain from SFI concerning the properties, assets and business of SFI. If the
transactions contemplated by this Agreement are not consummated by April 15,
2004, or such other date as the parties hereto may mutually agree, CVC will
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return to SFI all written matter with respect to SFI obtained by CVC in
connection with the negotiation or consummation of this Agreement.
4.12 Investment Intent. CVC Stockholders are acquiring the shares to be
delivered to them under this Agreement for investment and not with a view to the
sale or distribution thereof, and have no commitment or present intention to
liquidate the Company or to sell or otherwise dispose of the SFI stock. CVC
Stockholders shall execute and deliver to SFI at the Closing an. Investment
Letter in the form attached hereto as Exhibit `D' for the shares received by
them under this Agreement.
4.13 Corporate Authority. CVC has full corporate power and authority to enter
into this Agreement, to carry out its obligations hereunder and will deliver to
SFI at the closing a certified copy of resolutions of its Board of Directors
authorizing execution of this Agreement by its officers and performance
thereunder.
4.14 Due Authorization. Execution of this Agreement and performance hereunder
has been duly authorized by all requisite corporate action on the part of CVC,
and this Agreement constitutes a valid and binding obligation of CVC and
performance hereunder will not violate any provision of the Articles of
Incorporation, Bylaws, agreements, or other commitments of CVC.
Section 5
Termination
This Agreement may be terminated (1) by mutual consent in writing; or (2) by
either the Board of Directors of SFI or by the Board of Directors of CVC if
there has been a material misrepresentation or material breach of any warranty
or covenant by the other party hereto.
Section 6
General Provisions
6.1 Further Assurances. At any time, and from time to time, after the Closing,
each party will execute such additional instruments and take such action as may
be reasonably requested by the other party to confirm or perfect title to any
property transferred hereunder or otherwise to cant' out the intent and purposes
of this Agreement. Any failure on the part of any party hereto to comply with
any of its obligations, agreements or conditions hereunder may be waived in
writing by the party to whom such compliance is owed.
6.2 Expenses. Each party shall bear its own expenses in regard to this
transaction. PIC shall pay: the legal fees of its securities counsel; its
auditing firm; costs of the initial press release; cost of issuing stock
certificates; and duplication and mailing costs of the shareholders letter. SFI
shall pay the following costs: its securities counsel; auditors, including the
cost of the audit for the fiscal period ending March 31, 2004; for other legal
opinions required to consummate this transaction; New York franchise fees and
filing fees (to complete changes called for in Section 1.6 hereto); the cost of
preparation of board minutes and resolutions of SFI; shareholder meetings and/or
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consent resolutions; and articles of amendment to the articles of incorporation
of SFI.
6.3 Brokers. Except as otherwise specifically stated herein, each party
represents to the other party hereunder that no consultants, advisors, brokers
or finders have acted for it in connection with this Agreement, and agree to
indemnify and hold harmless the other party against any fee, loss or expense
arising out of claims by consultants, advisors, brokers or finders employed or
alleged to have been employed by it.
6.4 Notices. All notices and other communications hereunder shall be in writing
and shall be deemed to have been given if delivered in person or sent by prepaid
first-class registered or certified mail, return receipt requested, as follows:
CVC SFI
----------------------------------- ------------------------------
D. Xxxxxx Xxxxx, President Xxxxxxx X. Xxxxxxxx, President
China Voice Corp. Surf Franchise, Inc.
00000 X. Xxxxxx Xxxxxxx, Xxxxx 0000 00 Xxxx Xxxxxx
Xxxxxx, XX 00000 Xxxx Xxxxxxx, XX 00000
6.5 Entire Agreement. This Agreement constitutes the entire agreement between
the parties related to the transaction contemplated herein.
6.6 Headings. The section and subsection headings in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.7 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York.
6.8 Assignment. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto, and their successors and assigns provided, however,
that any assignment by either party of its rights under this Agreement without
the written consent of the other party shall be void.
6.9 Counterparts. This Agreement may be executed simultaneously in two or more
counterparts via facsimile, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. The Parties
hereto further agree to exchange original signature documents of this Agreement
prior to or at the Closing.
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IN WITNESS WHEREOF, the parties have executed tins Agreement and Plan of
Reorganization as of the dare first above written..
SURF FRANCHISE, INC.
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx, President
CHINA VOICE CORP.
/s/ D. Xxxxxx Xxxxx
---------------------------------------
D. Xxxxxx Xxxxx, President
SHAREHOLDERS OF CVC
Integrated Performance Systems, Inc.
By:/s/ D. Xxxxxx Xxxxx
------------------------------------
Associates Funding Group, Inc., Trustee
By:/s/ D. Xxxxxx Xxxxx
------------------------------------
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EXHIBIT `A'
-----------
China Voice Corp. (Nevada) / China Voice Corp. (New York)
formerly Surf Franchise, Inc.
Rule 000 Xxxxxxxxxx Xxxxxx Shares to be Issued to Shareholders of
China Voice Corp. (Nevada)
Shareholder Name & Address # Shares
-------------------------- --------
Integrated Performance Systems, Inc. 42,016,800
00000 X. Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Associates Funding Group, Inc., Trustee 7,983,200
00000 X. Xxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
----------
TOTAL 50,000,000
EXHIBIT `B'
-----------
China Voice Corp. (Nevada) / China Voice Corp. (New York)
formerly Surf Franchise, Inc.
o Unaudited Financial Statements of Surf Franchise, Inc. at October 31, 2003
o Audited Financial Statements of Surf Franchise, Inc. at March 31, 2004
EXHIBIT `C'
-----------
China Voice Corp. (Nevada) / China Voice Corp. (New York)
formerly Surf Franchise, Inc.
o Audited Financial Statements of VOIUM TECHNOLOGIES, LTD. for the fiscal
year ended November 30, 2003
EXHIBIT `D'
-----------
China Voice Corp. (Nevada) / China Voice Corp. (New York)
formerly Surf Franchise, Inc.
o Form of the Investment Letter to be signed by the Shareholders of China
Voice Corp. (Nevada) pursuant to the 50,000,000 restricted shares to be
issued to them.
