Attached files
Exhibit 2.1
THE SECURITIES TO WHICH THIS SHARE EXCHANGE AGREEMENT RELATES HAVE NOT BEEN
REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE, AND WILL BE ISSUED IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
1933 ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.
SHARE EXCHANGE AGREEMENT
THIS SHARE EXCHANGE AGREEMENT is made effective as of December 23, 2010
AMONG:
NETFONE INC., a publicly held Nevada corporation
("NETFONE")
AND:
ORANGE CAPITAL CORP., a British Columbia Company
("ORANGE")
AND:
ITP OIL & GAS INTERNATIONAL S.A., a privately held corporation
existing under the laws of Luxembourg
("ITP-LUX" or "SELLING SHAREHOLDER")
WHEREAS, the parties hereto wish to enter this Share Exchange Agreement whereby
Netfone will issue to ITP-Lux 34,000,000 shares of common stock in the capital
of Netfone representing 94% of Netfone's common stock, in exchange for all of
the issued and outstanding shares of ITP IMPIANTI E TECNOLOGIE DI PROCESSO
S.p.A., a corporation existing under the laws of Italy ("ITP").
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of covenants and
agreements set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree each with the other as follows:
1. DEFINITIONS
1.1 DEFINITIONS. The following terms have the following meanings, unless the
context indicates otherwise:
(a) "AGREEMENT" means this Agreement, and all the exhibits, schedules and
other documents attached to or referred to in this Agreement, and all
amendments and supplements, if any, to this Agreement;
(b) "APPLICABLE SECURITIES LEGISLATION" means all applicable securities
legislation in all jurisdictions relevant to the issuance of the
Netfone Shares to ITP-Lux;
(c) "CLOSING" means the completion of the Transaction, in accordance with
Section 0 hereof, at which time the Closing Documents will be
exchanged by the parties, except for those documents or other items
specifically required to be exchanged at a later time;
(d) "CLOSING DATE" means March 31, 2011, or such a earlier or later date
mutually agreed upon by the parties hereto, but which shall be no
later than March 31, 2011;
(e) "CLOSING DOCUMENTS" means the papers, instruments and documents
required to be executed and delivered at the Closing pursuant to this
Agreement;
(f) "CLOSING SHARE CAPITAL" means 36,107,500 shares of common stock and no
shares of preferred stock, issued and outstanding in Netfone after and
upon consummation of the Closing, as set out on Schedule 11 attached
hereto;
(g) "GAAP" means generally accepted accounting principles of the United
States.
(h) "GOVERNMENTAL BODY" means any (i) multinational, federal, provincial,
state, municipal, local or other governmental or public department,
court, commission, board, bureau, agency or instrumentality, domestic
or foreign; (ii) any subdivision or authority of any of the foregoing;
(iii) any quasi-governmental, self-regulatory organization or private
body exercising any regulatory, expropriation or taxing authority
under or for the account of its members or any of the above; or any
arbitrator exercising jurisdiction over the affairs of the applicable
Person, asset, obligation or other matter;
(i) "ITP" has the meaning ascribed to it in the recitals to this
Agreement;
(j) "ITP COMMON STOCK" has the meaning ascribed to it in Section 0 herein;
(k) "ITP FINANCIAL STATEMENTS" means the audited financial statements of
ITP prepared in accordance with GAAP and audited by Deloitte for two
years to December 31, 2009 and a draft of the unaudited financial
statements of ITP prepared in accordance with GAAP for the nine month
period ended September 30, 2010;
(l) "ITP SHARES" means the 50,000 shares of ITP Common Stock held by
ITP-Lux, being all of the issued and outstanding common shares of ITP
beneficially held, either directly or indirectly, by ITP-Lux;
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(m) "KNOWLEDGE" with respect to ITP-Lux means the actual knowledge of Mr.
Manfredi Mazziotti di Celso without inquiry and with respect to
Netfone means the actual knowledge of Orange without inquiry and with
respect to Orange means the actual knowledge of Orange without
inquiry;
(n) "LIENS" means any lien, security interests, pledge, options, rights of
first refusal, claims, charges, security arrangements, right of
interest of a third party, or any other similar encumbrances and other
restrictions or limitations on use of personal property or
irregularities in title thereto, or any other right or interest of a
third party;
(o) "LOSS" means any and all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs, and expenses,
including without limitation, interest, penalties, fines and
reasonable attorneys, accountants and other professional fees and
expenses, but excluding any indirect, consequential or punitive
damages suffered by Orange or ITP-Lux including damages for lost
profits or lost business opportunities;
(p) "NETFONE" has the meaning ascribed to it in the preamble to this
Agreement;
(q) "NETFONE SHARES" means those 34,000,000 fully paid and non-assessable
common shares of Netfone representing 94% of Netfone's common stock,
to be issued in exchange for the ITP Shares to ITP-Lux on the Closing
Date;
(r) "PERSON" includes any individual, corporation, limited partnership,
general partnership, joint stock company or association, joint venture
association, company, trust, bank, trust company, land trust,
investment trust, society or other entity, organization, syndicate,
whether incorporated or not, trustee, executor or other legal personal
representative, and governments and agencies and political
subdivisions thereof;
(s) "SEC" means the United States Securities and Exchange Commission;
(t) "SELLING SHAREHOLDER" has the meaning ascribed to it in the preamble
to this Agreement;
(u) "TRANSACTION" means the exchange of the ITP Shares and the Netfone
Shares as described in Section 2 of this Agreement;
(v) "1933 ACT" means the United States Securities Act of 1933, as amended;
(w) "1934 ACT" means the United States Securities Exchange Act of 1934, as
amended; and,
(x) "SEC REPORTS" means the periodic and current reports filed by Netfone
with the SEC pursuant to the 1934 Act.
(y) SCHEDULES. The following schedules are attached to and form part of
this Agreement:
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Schedule 2 - Directors and Officers of ITP
Schedule 3 - Directors and Officers of Netfone
Schedule 4.4 - Netfone Shareholders' Ledger
Schedule 10 - Financial Statements
Schedule 11 - Anticipated Share Capital Post Closing
1.2 CURRENCY. All dollar amounts referred to in this Agreement are in United
States currency, unless expressly stated otherwise.
2. AGREEMENT OF EXCHANGE OF SHARES
2.1 AGREEMENT OF EXCHANGE OF SHARES. Subject to the terms and conditions of this
Agreement, ITP-Lux hereby covenants and agrees to sell, assign and transfer to
Netfone, and Netfone hereby covenants and agrees to purchase from ITP-Lux all of
the ITP Shares held by ITP-Lux free and clear of any Liens, except for rights
and obligations arising under this Agreement.
2.2 CONSIDERATION. As consideration for the sale of the ITP Shares by ITP-Lux
and the other obligations of Netfone and of Orange hereunder, on the Closing
Date Netfone will allot and issue to ITP-Lux the Netfone Shares, free and clear
of any Liens, except for rights and obligations arising under this Agreement.
ITP-Lux acknowledges and agrees that the Netfone Shares are being issued
pursuant to a safe harbor from the prospectus and registration requirements of
the 1933 Act. ITP-Lux agrees to abide by all applicable resale restrictions and
hold periods imposed by Applicable Securities Legislation. All certificates
representing the Netfone Shares issued on Closing will be endorsed with
restrictive legends substantially in the same form as the following legend
pursuant to the 1933 Act, in order to reflect the fact that these are restricted
securities and will be issued to ITP-Lux pursuant to a safe harbor from the
registration requirements of the 1933 Act:
"NONE OF THE SECURITIES REPRESENTED HEREBY HAVE BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY U.S. STATE SECURITIES LAWS, AND, UNLESS SO
REGISTERED, MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY,
IN THE UNITED STATES (AS DEFINED HEREIN) OR TO U.S. PERSONS
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S UNDER
THE ACT, PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
ACT AND IN EACH CASE ONLY IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS. "UNITED STATES" AND "U.S. PERSON" ARE AS DEFINED
BY REGULATION S UNDER THE ACT."
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2.3 SHARE EXCHANGE PROCEDURE. On Closing, ITP-Lux will exchange its certificate
representing the ITP Shares by delivering such certificate to Netfone duly
executed and endorsed in the name of Netfone (or accompanied by duly executed
stock powers duly endorsed in the name of Netfone), in each case in proper form
for transfer and, if applicable, with all stock transfer and any other required
documentary stamps. On Closing, Netfone shall execute and deliver to ITP-Lux one
or more certificates representing the Netfone Shares and shall issue
instructions to Netfone's stock transfer agent for the purpose of duly recording
the issuance of the Netfone Shares to ITP-Lux on the Netfone stock ledger.
2.4 RESTRICTED SHARES AND RULE 144 TRANSACTIONS. ITP-Lux acknowledges that the
Netfone Shares issued pursuant to the terms and conditions set forth in this
Agreement will have such hold periods as are required under Applicable
Securities Legislation and as a result may not be sold, transferred or otherwise
disposed of, except pursuant to an effective registration statement under the
1933 Act, or pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the 1933 Act and in each case only in
accordance with all Applicable Securities Legislation. ITP-Lux agrees that it
has been given an opportunity to seek and obtain independent legal advice as to
the resale restrictions applicable in their jurisdiction of residence, and under
U.S. or other Applicable Securities Legislation generally. Netfone has not
undertaken, and will have no obligation, to register the Netfone Shares under
the 1933 Act.
2.5 EXEMPTIONS. ITP-Lux acknowledges that Netfone has advised such Selling
Shareholder that Netfone is relying on an exemption from the prospectus and
registration requirements of the Applicable Securities Legislation.
3. REPRESENTATIONS WARRANTIES AND COVENANTS OF ITP-LUX
Except as disclosed in the ITP Financial Statements, ITP-Lux represents,
warrants and covenants to Orange, and acknowledges that Orange is relying upon
such representations and warranties, in connection with the execution, delivery
and performance of this Agreement, notwithstanding any investigation made by or
on behalf of Orange, as follows:
3.1 ORGANIZATION AND GOOD STANDING. ITP is a corporation duly organized, validly
existing and in good standing under the laws of Italy and has the requisite
corporate power and authority to own, lease and to carry on its business as now
being conducted.
3.2 AUTHORITY. ITP-Lux has all requisite corporate power and authority to
execute and deliver this Agreement and any other document contemplated by this
Agreement (collectively, the "ITP DOCUMENTS") to which ITP-Lux is a party, and
to perform its respective obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby. The execution and delivery of
the ITP Documents by ITP-Lux to which it is a party, and the consummation by
ITP-Lux of the transactions contemplated hereby and thereby have been duly
authorized by ITP-Lux's board of directors. No other corporate or shareholder
proceedings on the part of ITP-Lux is necessary to authorize such documents or
to consummate the transactions contemplated hereby and by the ITP Documents.
This Agreement has been, and the other ITP Documents when executed and delivered
by ITP-Lux, as the case may be, will be, duly executed and delivered by ITP-Lux,
as applicable, and this Agreement is, and the other ITP Documents when executed
and delivered by ITP-Lux as contemplated hereby will be, valid and binding
obligations of ITP-Lux enforceable in accordance with their respective terms
except:
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(a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting
enforcement of creditors' rights generally;
(b) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies; and,
(c) as limited by public policy.
3.3 CAPITALIZATION OF ITP. The entire authorized capital stock and other equity
securities of ITP consists of 50,000 shares of common stock with a par value of
100 Euros each (the "ITP COMMON STOCK"). There are 50,000 shares of ITP Common
Stock issued and outstanding as of the date of this Agreement. All of the issued
and outstanding shares of ITP Common Stock have been duly authorized, are
validly issued, were not issued in violation of any pre-emptive rights and are
fully paid and non-assessable, are not subject to pre-emptive rights and were
issued in full compliance with the general corporate laws of Italy and its
articles and bylaws, and free of restrictions on transfer and any Lien other
than restrictions on transfer under the Transaction Documents or any applicable
state and federal securities laws. There are no agreements to which ITP or
ITP-Lux is a party purporting to restrict the transfer of the ITP Common Stock,
no voting agreements, shareholder agreements, voting trusts, or other
arrangements restricting or affecting the voting of the ITP Common Stock.
3.4 SHAREHOLDER OF ITP COMMON STOCK. ITP-Lux is the sole registered holder and
beneficial owner of the ITP Shares. ITP-Lux has no interest, legal or
beneficial, direct or indirect, in any other shares of, assets or business, of
ITP and the ITP Shares represent all of the issued and outstanding ITP Common
Stock.
3.5 DIRECTORS AND OFFICERS OF ITP. The duly elected or appointed directors and
officers of ITP are as set out in Schedule 2 to this Agreement.
3.6 SUBSIDIARIES. Except as set out in the ITP Financial Statements, ITP has no
subsidiaries.
3.7 NON-CONTRAVENTION. Neither the execution, delivery and performance of this
Agreement, nor the consummation of the Transaction, will:
(a) conflict with, result in a violation of, cause a default under (with
or without notice, lapse of time or both) or give rise to a right of
termination, amendment, cancellation or acceleration of any obligation
contained in or the loss of any material benefit under, or result in
the creation of any lien, security interest, charge or encumbrance
upon any of the material properties or assets of ITP under any term,
condition or provision of any loan or credit agreement, note,
debenture, bond, mortgage, indenture, lease or other agreement,
instrument, permit, license, judgment, order, decree, statute, law,
ordinance, rule or regulation applicable to ITP, or any of its
material property or assets, which would cause a ITP Material Adverse
Effect (as defined below);
(b) violate any provision of the articles or bylaws of ITP; or
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(c) violate any order, writ, injunction, decree, statute, rule, or
regulation of any court or governmental or regulatory authority
applicable to ITP or any of its material property or assets.
3.8 ACTIONS AND PROCEEDINGS. To the knowledge of ITP-Lux, there is no action,
suit, judgment, claim, demand or proceeding outstanding or pending, or
threatened against ITP or its subsidiaries that, in ITP-Lux's judgement acting
reasonably, if adversely resolved or determined, would have a material adverse
effect on the business, operations, assets, or properties, of ITP taken as a
whole (a "ITP MATERIAL ADVERSE EFFECT").
3.9 FILINGS, CONSENTS AND APPROVALS. To the knowledge of ITP-Lux, no filing or
registration with, no notice to and no permit, authorization, consent, or
approval of any public or governmental body or authority or other person or
entity is necessary for the consummation by ITP-Lux of the Transaction
contemplated by this Agreement or to enable ITP to continue to conduct its
business after the Closing Date in a manner which is consistent with that in
which the business is presently conducted.
3.10 FINANCIAL STATEMENTS. ITP-Lux has delivered to Netfone and Orange the ITP
Financial Statements as attached in Schedule 10 hereto, and at Closing will
deliver audited financial statements by Deloitte of ITP prepared in accordance
with GAAP for the year ending December 31, 2009. The ITP Financial Statements
have been prepared in accordance with GAAP, except that the draft of the
unaudited Financial Statements covering the period from January 1, 2010 to
September 30, 2010 may not contain all footnotes required by GAAP. The ITP
Financial Statements fairly present in all material respects the financial
condition and operating results of ITP as of the dates, and for the periods,
indicated therein, subject in the case of the unaudited ITP Financial Statements
to normal year-end audit adjustments. Except as set forth in the ITP Financial
Statements, ITP has no material liabilities, other than (i) liabilities incurred
in the ordinary course of business subsequent to September 30, 2010, (ii)
obligations under contracts and commitments incurred in the ordinary course of
business and (iii) liabilities of a type or nature not required under GAAP to be
reflected in the ITP Financial Statements which in all cases, in the aggregate,
would not have an ITP Material Adverse Effect.
For purposes of this Agreement, the term "LIABILITIES" includes, any direct or
indirect indebtedness, guaranty, endorsement, claim, loss, damage, deficiency,
cost, expense, obligation or responsibility, fixed or unfixed, asserted choate
or inchoate, liquidated or unliquidated, secured or unsecured.
3.11 NO BROKERS. Neither ITP nor ITP-Lux has incurred any obligation or
liability to any party for any brokerage fees, agent's commissions, or finder's
fees in connection with the Transaction, other than as set out in this
Agreement.
3.12 COMPLETENESS OF DISCLOSURE. No representation or warranty by ITP-Lux in
this Agreement nor any certificate, schedule, statement, document or instrument
furnished or to be furnished to Netfone pursuant hereto contains or will contain
any untrue statement of a material fact or to, ITP's knowledge, omits to state a
material fact necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances under which they were made.
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3.13 SECURITIES LAWS. ITP-Lux:
(i) is knowledgeable of, or has been independently advised as to, the
applicable securities laws of the securities regulators having
application in the jurisdiction in which ITP-Lux is resident (the
"INTERNATIONAL JURISDICTION") which would apply to the acquisition of
the Netfone Shares and the disposition of the ITP Shares,
(ii) ITP-Lux is purchasing the Netfone Shares and disposing of the ITP
Shares pursuant to exemptions from prospectus or equivalent
requirements under applicable securities laws or, if such is not
applicable, ITP-Lux is permitted to purchase the Netfone Shares and
dispose of the ITP Shares under the applicable securities laws of the
securities regulators in the International Jurisdiction without the
need to rely on any exemptions,
(iii)the applicable securities laws of the authorities in the
International Jurisdiction do not require Netfone to make any filings
or seek any approvals of any kind whatsoever from any securities
regulator of any kind whatsoever in the International Jurisdiction in
connection with the issue and sale or resale of any of the Netfone
Shares or the disposition of the ITP Shares, and
(iv) the purchase of the Netfone Shares and the disposition of the ITP
Shares by ITP-Lux does not trigger:
A. any obligation to prepare and file a prospectus or similar
document, or any other report with respect to such purchase in
the International Jurisdiction, or
B. any continuous disclosure reporting obligation of Netfone in the
International Jurisdiction.
3.12 ITP-Lux acknowledges that the Netfone Shares to be issued in accordance
with this Agreement will be "restricted securities" within the meaning of the
1933 Act and will be issued in accordance with Regulation S of the 1933 Act.
3.13 ITP-Lux agrees not to engage in hedging transactions with regard to the
Netfone Shares to be issued to ITP-Lux unless in compliance with or permitted by
the 1933 Act.
3.14 ITP-Lux agrees that Netfone will refuse to register any transfer of the
Netfone Shares to be issued to ITP-Lux not made in accordance with the
provisions of Regulation S of the 1933 Act, pursuant to registration under the
1933 Act or pursuant to an available exemption from registration or in a
transaction otherwise not covered by the 1933 Act.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF NETFONE
Netfone represents, warrants and covenants to ITP-Lux and acknowledges that
ITP-Lux is relying upon such representations and warranties in connection with
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the execution, delivery and performance of this Agreement, notwithstanding any
investigation made by or on behalf of ITP-Lux, as follows:
4.1 ORGANIZATION AND GOOD STANDING. Netfone is duly incorporated, organized,
validly existing and in good standing under the laws of the State of Nevada, and
has all requisite corporate power and authority to own, lease and to carry on
its business as now being conducted.
4.2 AUTHORITY. Netfone does not require approval from its respective
shareholders to execute and deliver the Transaction Documents to which Netfone
is a party, and to perform its respective obligations under any of the
Transaction Documents to which it is a party to. Netfone has all requisite
corporate power and authority to execute and deliver this Agreement and any
other Transaction Document to which it is a party and to perform its respective
obligations hereunder and thereunder and to consummate the Transaction
contemplated hereby and thereby. The execution and delivery of each of the
Transaction Documents by Netfone to which it is a party, and the consummation by
Netfone of the Transaction contemplated hereby and thereby have been duly
authorized by Netfone's board of directors and no other corporate or shareholder
proceedings on the part of Netfone is necessary to authorize such documents or
to consummate the Transaction contemplated hereby. This Agreement has been, and
the other Transaction Documents to which Netfone is a party, when executed and
delivered by Netfone will be, duly executed and delivered by Netfone, as
applicable, and this Agreement is, and the other Transaction Documents to which
Netfone is a party, when executed and delivered by Netfone, as contemplated
hereby will be, valid and binding obligations of Netfone enforceable in
accordance with their respective terms, except:
(a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting
enforcement of creditors' rights generally;
(b) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies; and,
(c) as limited by public policy.
4.3 REORGANIZATION. Prior to or concurrent with the closing of this Agreement,
Netfone will conduct a reorganization of its share capital whereby it will carry
out a reverse stock split on approximately a 1 for 2.4 basis, will increase its
authorized capital to 1,000,000,000 common shares, will reduce its restricted
shares to 3,266,670 and then cancel approximately 3,166,670 restricted common
shares in the capital of Netfone and perform such other actions and do such
other things as necessary to carry out the transactions contemplated under this
Agreement and will concurrently carry out a name change from "Netfone Inc." to
such name as ITP may agree and if required by ITP will change its corporate
domicile into, and continue its corporate existence pursuant to, the laws of the
State of Delaware.
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4.4 CAPITALIZATION OF NETFONE. The entire authorized capital stock and other
equity securities of Netfone currently consist of 100,000,000 shares of common
stock with a par value of $0.001 (the "NETFONE COMMON STOCK") and 20,000,000
shares of preferred stock with a par value of $0.001. As of the date of this
Agreement, there are 12,658,000 shares of Netfone Common Stock issued and
outstanding and no shares of preferred stock issued and outstanding. Neither
Netfone nor any of its representatives have received any formal or informal
notification from FINRA or other official party or representative that that
Netfone common stock is not authorized (with or without the passage of time) for
continued trading on the OTC Bulletin Board. Attached hereto as Schedule 4.4 is
a true copy of the official shareholder ledger maintained by Netfone's transfer
agent as of the date hereof. The capitalization of Netfone as of the Closing
Date shall be as set forth on Schedule 11 hereto.
4.5 All of the issued and outstanding shares of Netfone Common Stock have been
duly authorized, are validly issued, were not issued in violation of any
pre-emptive rights and are fully paid and non-assessable, are not subject to
pre-emptive rights and were issued in full compliance with all federal, state,
and local laws, rules and regulations. Other than the share and warrant
issuances contemplated by this Agreement, there are no outstanding options,
warrants, subscriptions, phantom shares, conversion rights, or other rights,
agreements, or commitments obligating Netfone to issue any additional shares of
Netfone Common Stock, or any other securities convertible into, exchangeable
for, or evidencing the right to subscribe for or acquire from Netfone any shares
of Netfone Common Stock as of the date of this Agreement. There are no
agreements purporting to restrict the transfer of the Netfone Common Stock, no
voting agreements, voting trusts, or other arrangements restricting or affecting
the voting of the Netfone Common Stock.
4.6 DIRECTORS AND OFFICERS OF NETFONE. The duly elected or appointed directors
and the duly appointed officers of Netfone are as listed on Schedule 3 to this
Agreement.
4.7 CORPORATE RECORDS OF NETFONE. The corporate records of Netfone, as required
to be maintained by it pursuant to the Nevada Corporations Code, are accurate,
complete and current in all material respects, and the minute book of Netfone
is, in all material respects, correct and contains all material records required
by the laws of the State of Nevada in regards to all proceedings, consents,
actions and meetings of the shareholder and the board of directors of Netfone.
4.8 NON-CONTRAVENTION. Neither the execution, delivery and performance of this
Agreement, nor the consummation of this Transaction will:
(a) conflict with, result in a violation of, cause a default under (with
or without notice, lapse of time or both) any instrument, permit,
license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Netfone;
(b) violate any provision of the applicable incorporation or charter
documents of Netfone; or
(c) violate any order, writ, injunction, decree, statute, rule, or
regulation of any court or governmental or regulatory authority
applicable to Netfone or any of its material property or assets.
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4.9 VALIDITY OF NETFONE SHARES. The Netfone Shares to be issued to ITP-Lux upon
consummation of the Transaction in accordance with this Agreement will, upon
issuance, have been duly and validly authorized and, when so issued and
delivered in accordance with the terms and consideration set forth in this
Agreement, will have been duly and validly issued and delivered, fully paid and
non-assessable and free of restrictions on transfer and any Lien other than
restrictions on transfer under the Transaction Documents or any applicable state
and federal securities laws.
4.10 ACTIONS AND PROCEEDINGS. To the knowledge of Netfone, there is no claim,
charge, arbitration, grievance, action, suit, investigation or proceeding by or
before any court, arbiter, administrative agency or other governmental authority
now pending or, threatened against Netfone.
4.11 FILINGS, CONSENTS AND APPROVALS. Netfone will conduct or obtain any filing,
registration, permit or authorization from any public or governmental body or
authority or other Person that is necessary for the consummation by Netfone of
the Transaction contemplated by this Agreement.
4.12 SEC FILINGS. Netfone has furnished or made available to ITP and ITP-Lux a
true and complete copy of each report, schedule, registration statement and
proxy statement filed by Netfone with the SEC (collectively, and as such
documents have since the time of their filing been amended, the "NETFONE SEC
DOCUMENTS"). Netfone has filed all SEC Reports required by it to be filed with
the SEC and such reports filed in the 36-month period prior to the Closing Date
have been filed timely or within any period of extension for filing allowed
under applicable rules. As of their respective dates, the Netfone SEC Documents
complied in all material respects as to form and with the applicable
requirements and regulations of the 1933 Act or the 1934 Act, as applicable, and
the rules and regulations of the SEC thereunder applicable to such Netfone SEC
Documents. All filings by Netfone with the SEC have contained information which
is true, complete and correct in all material respects, and did not contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein complete or not misleading. Netfone is in
compliance in all material respects with applicable requirements of the
Sarbanes-Oxley Act of 2002 and the regulations adopted thereunder.
4.13 ABSENCE OF UNDISCLOSED LIABILITIES. Netfone does not have any material
liabilities or obligations either direct or indirect, matured or unmatured,
absolute, contingent or otherwise that could in the aggregate exceed $25,000,
which have not heretofore been paid or discharged.
4.14 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as and to the extent disclosed
in the Netfone SEC Documents, there has not been any material change by Netfone
in its accounting methods, principles or practices.
4.15 NO SUBSIDIARIES. Netfone does not have any subsidiaries or agreements of
any nature to acquire any
subsidiary or to acquire or lease any other business operations.
4.16 NO BROKERS. Neither Netfone nor Orange have incurred any obligation or
liability to any party for any brokerage fees, agent's commissions, or finder's
fees in connection with the Transaction contemplated by this Agreement.
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4.17 CERTAIN TRANSACTIONS. Netfone is not a guarantor or indemnitor of any
indebtedness of any third party, including any person, firm or corporation.
4.18 COMPLETENESS OF DISCLOSURE. No representation or warranty by Netfone in
this Agreement nor any certificate, schedule, statement, document or instrument
furnished or to be furnished to ITP-Lux pursuant hereto contains or will contain
any untrue statement of a material fact or omits or will omit to state a
material fact required to be stated herein or therein or necessary to make any
statement herein or therein not misleading in light of the circumstances under
which they were made.
4.19 SEC COMMENTS. Except as provided to ITP-Lux, Netfone has received no
material comments from SEC with respect to its SEC Reports filed with the SEC.
The comments received from the SEC, if any, have been disclosed to ITP-Lux.
4.20 SHELL COMPANY. Netfone is a "shell company" as defined by Rule 12d-2 of the
1934 Act.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF ORANGE
Orange represents, warrants and covenants to ITP-Lux and acknowledges that
ITP-Lux is relying upon such representations and warranties in connection with
the execution, delivery and performance of this Agreement, notwithstanding any
investigation made by or on behalf of ITP-Lux, as follows:
5.1 AUTHORITY. Orange does not require approval from its respective shareholders
to execute and deliver the Transaction Documents to which Orange is a party, and
to perform its respective obligations under any of the Transaction Documents to
which it is a party to. Orange has all requisite corporate power and authority
to execute and deliver this Agreement and any other Transaction Document to
which it is a party and to perform its respective obligations hereunder and
thereunder and to consummate the Transaction contemplated hereby and thereby.
The execution and delivery of each of the Transaction Documents by Orange to
which it is a party, and the consummation by Orange of the Transaction
contemplated hereby and thereby have been duly authorized by Orange's board of
directors and no other corporate or shareholder proceedings on the part of
Orange is necessary to authorize such documents or to consummate the Transaction
contemplated hereby. This Agreement has been, and the other Transaction
Documents to which Orange is a party, when executed and delivered by Orange, as
the case may be, will be, duly executed and delivered by Orange, as applicable,
and this Agreement is, and the other Transaction Documents to which Orange is a
party, when executed and delivered by Orange, as contemplated hereby will be,
valid and binding obligations of Orange enforceable in accordance with their
respective terms, except:
(a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and other laws of general application affecting
enforcement of creditors' rights generally;
(b) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies; and,
(c) as limited by public policy.
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5.2 NON-CONTRAVENTION. Neither the execution, delivery and performance of this
Agreement, nor the consummation of this Transaction will:
(a) conflict with, result in a violation of, cause a default under (with
or without notice, lapse of time or both) any instrument, permit,
license, judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Orange;
(b) violate any provision of the applicable incorporation or charter
documents of Orange; or
(c) violate any order, writ, injunction, decree, statute, rule, or
regulation of any court or governmental or regulatory authority
applicable to Orange or any of its material property or assets.
5.3 FILINGS. To Orange's knowledge the representations and warranties of Netfone
are true, correct and complete.
6. CLOSING CONDITIONS
6.1 CONDITIONS PRECEDENT TO CLOSING BY NETFONE. The obligation of Netfone to
consummate the Transaction is subject to the satisfaction or waiver of the
conditions set forth below on or before the Closing Date or such earlier date as
hereinafter specified. Unless otherwise agreed to in writing, the Closing of the
Transaction contemplated by this Agreement will be deemed to mean the
satisfaction or waiver of all conditions to Closing. These conditions of closing
are for the benefit of Netfone and may be waived by Netfone in its sole
discretion.
(a) Representations and Warranties. The representations and warranties of
ITP-Lux set forth in this Agreement will be true, correct and complete
in all respects as of the Closing Date, as though made on and as of
the Closing Date (or if made as of a specific date, will be true,
correct and complete in all respects as of such specific date) and
ITP-Lux will have delivered to Netfone a certificate dated as of the
Closing Date, to the effect that the representations and warranties
made by ITP-Lux in this Agreement are true and correct.
(b) Performance. All of the covenants and obligations that ITP-Lux is
required to perform or to comply with pursuant to this Agreement at or
prior to the Closing must have been performed and complied with in all
material respects.
(c) Transaction Documents. This Agreement, the ITP Documents and all other
documents necessary or reasonably required to consummate the
Transaction, all in form and substance reasonably satisfactory to
Netfone, will have been executed and delivered to Netfone by ITP-Lux,
as applicable.
(d) Officer's Certificate - ITP-Lux. ITP-Lux will have delivered to
Netfone a certificate from an officer of ITP-Lux attaching:
(i) a copy of ITP-Lux's articles, bylaws and all other incorporation
documents, as amended through the Closing Date, and,
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(ii) copies of resolutions duly adopted by the board of directors of
ITP-Lux approving the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein.
(e) Third Party Consents. ITP-Lux will have delivered to Netfone duly
executed copies of all third party consents and approvals to be
provided by ITP-Lux contemplated by this Agreement, if any, in form
and substance reasonably satisfactory to Orange.
(f) Regulatory Approvals and Consents. ITP-Lux will have obtained all
necessary approvals and consents applicable to ITP-Lux to carry out
the Transaction, if any, in form and substance reasonably satisfactory
to Netfone.
(g) No Material Adverse Change. No ITP Material Adverse Effect will have
occurred since the date of this Agreement.
(h) No Action. No suit, action, or proceeding will be pending or
threatened which would:
(i) prevent the consummation of any of the transactions contemplated
by this Agreement, or
(ii) cause the Transaction to be rescinded following consummation.
6.2 CONDITIONS PRECEDENT TO CLOSING BY ITP-LUX. The obligation of ITP-Lux to
consummate the Transaction is subject to the satisfaction or waiver of the
conditions set forth below on or before the Closing Date or such earlier date as
hereinafter specified. Unless otherwise agreed to in writing, the Closing of the
Transaction will be deemed to mean the satisfaction or waiver of all conditions
to Closing. These conditions precedent are for the benefit of ITP-Lux and may be
waived by ITP-Lux in its discretion.
(a) Representations and Warranties. The representations and warranties of
Netfone and Orange set forth in this Agreement will be true, correct
and complete in all respects as of the Closing Date, as though made on
and as of the Closing Date (or if made as of a specific date, will be
true, correct and complete in all respects as of such specific date)
and Netfone and Orange will have delivered to ITP-Lux a certificate
dated the Closing Date, each with respect to itself only, to the
effect that the representations and warranties made by Netfone and
Orange in this Agreement are true and correct.
(b) Performance. All of the covenants and obligations that Netfone is
required to perform or to comply with pursuant to this Agreement at or
prior to the Closing must have been performed and complied with in all
material respects.
(c) Compliance. Upon the closing of this Agreement, Netfone will be in
compliance with its reporting requirements under the 1934 Act.
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(d) Transaction Documents. This Agreement, the Transaction Documents and
all other documents necessary or reasonably required to consummate the
Transaction, all in form and substance reasonably satisfactory to
ITP-Lux, will have been executed and delivered to ITP-Lux by Netfone
and Orange, as applicable.
(e) Secretary's Certificate - Netfone and Orange. Netfone and Orange, each
with respect to itself only, will have delivered to ITP-Lux a
certificate from their respective Secretary attaching:
(i) a copy of Netfone's and Orange's, as applicable, articles, bylaws
and all other incorporation documents, as amended through the
Closing Date, and
(ii) copies of resolutions duly adopted by the board of directors of
Netfone and Orange, as applicable, approving the execution and
delivery of this Agreement and the consummation of the
transactions contemplated herein.
(f) No Action. No suit, action, or proceeding will be pending or
threatened before any governmental or regulatory authority wherein an
unfavorable judgment, order, decree, stipulation, injunction or charge
would:
(i) prevent the consummation of any of the transactions contemplated
by this Agreement, or
(ii) cause the Transaction to be rescinded following consummation.
(g) Regulatory Approvals and Consents. Netfone will have obtained all
necessary approvals and consents applicable to such party to carry out
the Transaction, in form and substance reasonably satisfactory to
ITP-Lux.
(h) Public Market. On the Closing Date, the shares of Netfone Common Stock
will continue to be quoted on the OTC Bulletin Board.
(i) Amendment to Certificate of Incorporation. Immediately prior to the
Closing of the Transaction, Netfone shall have filed an amendment to
its certificate of incorporation whereby it will carry out a reverse
stock split on an approximately 1 for 2.4 basis, will increase its
authorized capital to 1,000,000,000 common shares, will cancel all but
100,000 post reverse stock split restricted common shares in the
capital of Netfone and perform such other actions and do such other
things as set forth on Schedule 11 hereto, will concurrently carry out
a name change from "Netfone Inc." to such name as ITP may agree and if
required by ITP will change its corporate domicile into, and continue
its corporate existence pursuant to, the laws of the State of
Delaware.
15
(j) Notification of Financial Liabilities. ITP shall not have received any
advice or notification from its independent certified public accounts
that ITP has used any improper accounting practice that would have the
effect of not reflecting or incorrectly reflecting in the books,
records, and accounts of ITP, any properties, assets, liabilities,
revenues, or expenses.
(k) As of the Closing, the authorized size of the Board of Directors shall
consist of five members, who shall be appointed by ITP-Lux. ITP-Lux
shall have received a copy of duly executed letters of resignations,
providing for standard releases for the benefit of Netfone, from each
individual resigning from the Board of Directors.
7. CERTAIN COVENANTS
7.1 ACCESS AND INVESTIGATION. Between the date of this Agreement and the Closing
Date, ITP-Lux shall have caused ITP, on the one hand, and Netfone on the other
hand, will, and will cause each of their respective representatives to:
(a) afford the other and its representatives full and free access to its
personnel, properties, assets, contracts, books and records, and other
documents and data;
(b) furnish the other and its representatives with copies of all such
contracts, books and records, and other existing documents and data as
required by this Agreement and as the other may otherwise reasonably
request; and,
(c) furnish the other and its representatives with such additional
financial, operating, and other data and information as the other may
reasonably request.
All of such access, investigation and communication by a party and its
representatives will be conducted during normal business hours and in a manner
designed not to interfere unduly with the normal business operations of the
other party. Each party will instruct its auditors to co-operate with the other
party and its representatives in connection with such investigations.
16
7.2 CONFIDENTIALITY.
(a) All information regarding the business of ITP including, without
limitation, financial information that ITP provided to Netfone and
Orange will be kept in strict confidence by Netfone and Orange and
will not be given to any other Person or party or used (except in
connection with due diligence and except as required to file a news
release and 8-K disclosure regarding the Transaction to the public
after the Closing), dealt with, exploited or commercialized by Netfone
or Orange or disclosed to any third party (other than Netfone's or
Orange's professional accounting and legal advisors) without the prior
written consent of ITP-Lux. If the Transaction contemplated by this
Agreement does not proceed for any reason, then upon receipt of a
written request from ITP-Lux, each of Netfone and Orange will
immediately return to ITP-Lux (or as directed by ITP-Lux) any
information received regarding ITP's business, including copies
thereof. Likewise, all information regarding the business of Netfone
including, without limitation, financial information that Netfone
provides to ITP-Lux during its due diligence investigation of Netfone
will be kept in strict confidence by ITP-Lux and will not be used
(except in connection with due diligence), dealt with, exploited or
commercialized by ITP-Lux or disclosed to any third party (other than
ITP-Lux's professional accounting and legal advisors) without
Netfone's prior written consent; provided that ITP-Lux shall have the
right to disclose to third parties (on ITP's website or otherwise) the
terms of the transactions contemplated herein (including the identity
of the parties herein). If the Transaction contemplated by this
Agreement does not proceed for any reason, then upon receipt of a
written request from Netfone, ITP-Lux will immediately return to
Netfone (or as directed by Netfone) any information received regarding
Netfone's business. Each party will provide an affidavit to the other
that all documents were returned.
(b) Each of Netfone, Orange and ITP-Lux (and ITP-Lux shall cause ITP to)
acknowledge and agree, subject to disclosure obligations under
Applicable Securities Legislation or other laws or regulations, that
neither party will make any public pronouncements concerning the terms
of this Agreement without the express written consent of the other
party, such consent will not be unreasonably withheld.
(c) ITP-Lux acknowledges and agrees to neither trade nor allow any of its
employees or agents to trade in the securities of Netfone while in
possession of material information about Netfone that has not been
publicly disclosed.
(d) Netfone acknowledges and agrees that it has previously executed a
non-disclosure agreement with ITP and that it will continue to be
obligated by the terms of that non-disclosure agreement.
17
7.3 NOTIFICATION. Between the date of this Agreement and the Closing Date, each
of the parties to this Agreement will promptly notify the other parties in
writing if it becomes aware of any fact or condition that causes or constitutes
a material breach of any of its representations and warranties as of the date of
this Agreement, if it becomes aware of the occurrence after the date of this
Agreement of any fact or condition that would cause or constitute a material
breach of any such representation or warranty had such representation or
warranty been made as of the time of occurrence or discovery of such fact or
condition. Should any such fact or condition require any change in the Schedules
relating to such party, such party will promptly deliver to the other parties a
supplement to the Schedules specifying such change. During the same period, each
party will promptly notify the other parties of the occurrence of any material
breach of any of its covenant in this Agreement or of the occurrence of any
event that may make the satisfaction of such conditions impossible or unlikely.
7.4 EXCLUSIVITY. Until such time, if any, as this Agreement is terminated
pursuant to this Agreement, but in no event later than March 31, 2011, ITP-Lux
(and ITP-Lux will cause ITP not to), Orange and Netfone will not, directly or
indirectly solicit, initiate, entertain or accept any inquiries or proposals
from, discuss or negotiate with, provide any non-public information to, or
consider the merits of any unsolicited inquiries or proposals from, any person
or entity relating to any transaction involving the sale of the business or
assets (other than in the ordinary course of business), or any of the capital
stock of ITP or Netfone, as applicable, or any merger, consolidation, business
combination, or similar transaction other than as contemplated by this
Agreement.
7.5 CONDUCT OF ITP AND NETFONE BUSINESS PRIOR TO CLOSING. Except as expressly
contemplated by this Agreement or for purposes in furtherance of this Agreement,
from the date of this Agreement to the Closing Date, and except to the extent
that Netfone otherwise consents in writing, ITP will cause ITP-Lux to operate
its business substantially as presently operated and only in the ordinary course
and in compliance with all applicable laws. Likewise, from the date of this
Agreement to the Closing Date, and except to the extent that ITP-Lux otherwise
consents in writing, Netfone will continue to be operated as a "shell company"
substantially as presently operated and in compliance with all applicable laws.
7.6 FULL DISCLOSURE REQUIREMENT. ITP-Lux acknowledges that Netfone is required
to file with the SEC upon Closing a prospectus level disclosure document which
includes discussion of all aspects of its business, financial affairs, risks and
its management. ITP-Lux will, and ITP-Lux will cause ITP to, cooperate fully in
providing Netfone with all information and documentation reasonably requested.
7.7 POST CLOSING - NETFONE. Netfone acknowledges that ITP-Lux may require legal
opinions on the removal of the restrictive legends on the share certificates
pursuant to Rule 144 of the 1933 Act in order to sell its Netfone Shares in the
future. When ITP-Lux reasonably requests it of Netfone, Netfone will pay for an
attorney of Netfone's choice to supply the legal opinion to ITP-Lux and will
cooperate fully in providing ITP-Lux with all information and documentation
reasonably requested.
7.8 CERTAIN ACTS PROHIBITED - ITP. Except as expressly contemplated by this
Agreement or for purposes in furtherance of this Agreement, between the date of
this Agreement and the Closing Date, ITP-Lux will not permit ITP to, without the
prior written consent of Netfone:
18
(a) amend its articles, bylaws or other incorporation documents;
(b) incur any liability or obligation other than in the ordinary course of
business or encumber or permit the encumbrance of any properties or
assets of ITP except in the ordinary course of business;
(c) dispose of or contract to dispose of any ITP property or assets,
except in the ordinary course of business consistent with past
practice;
(d) issue, deliver, sell, pledge or otherwise encumber or subject to any
Lien any shares of the ITP Common Stock, or any rights, warrants or
options to acquire, any such shares, voting securities or convertible
securities;
(e) declare, set aside or pay any dividends on, or make any other
distributions in respect of the ITP Common Stock;
(f) split, combine or reclassify any ITP Common Stock or issue or
authorize the issuance of any other securities in respect of, in lieu
of or in substitution for shares of ITP Common Stock; or,
(g) materially increase benefits or compensation expenses of ITP, other
than as contemplated by the terms of any employment agreement in
existence on the date of this Agreement, increase the cash
compensation of any director, executive officer or other key employee
or pay any benefit or amount not required by a plan or arrangement as
in effect on the date of this Agreement to any such person.
Orange and Netfone acknowledge and agree that, between the date of
this Agreement and Closing, ITP-Lux and ITP may carry out certain
matters which may constitute or result in one or more of the
prohibited activities above, which matters are as follows: (i) the
merger of Benelli Oil & Gas in ITP resolved on October 25, 2010; (ii)
the establishment of the company SEC, wholly owned by ITP, to which
will be contributed a certain lot of land located in Monte Cremasco;
and (iii) the establishment of the company Cassina de' Pecchi, wholly
owned by ITP, to which will be contributed a certain lot of land
located in Cassina de' Pecchi. The parties expressly agree that the
carrying out of such matters and activities by ITP-Lux and ITP are
permitted, and not in violation of this Section 7.8 or other provision
of this Agreement.
7.9 CERTAIN ACTS PROHIBITED - NETFONE. Except as expressly contemplated by this
Agreement or for purposes in furtherance of this Agreement, between the date of
this Agreement and the Closing Date, Netfone will not, without the prior written
consent of ITP-Lux:
(a) amend its articles, bylaws or other incorporation documents;
(b) incur any liability or obligation or encumber or permit the
encumbrance of any properties or assets of Netfone except in the
ordinary course of business consistent with past practice as a "shell
company" or otherwise in order to carry out the Transaction, it being
understood that no liabilities in excess of $25,000 will be present at
Closing;
19
(c) dispose of or contract to dispose of any Netfone property or assets
except in the ordinary course of business consistent with past
practice as a "shell company";
(d) agree to make any payment for benefits or employment compensation
expenses of Netfone, agree to pay or make any compensation of any
director, executive officer or other employee or pay any benefit or
amount to any such person; or
(d) issue, deliver, sell, pledge or otherwise encumber or subject to any
Lien any shares of the Netfone Common Stock, or any rights, warrants
or options to acquire, any such shares, voting securities or
convertible securities.
7.10 PUBLIC ANNOUNCEMENTS. Until the Closing Date, Orange, Netfone and ITP-Lux
(and ITP-Lux shall cause ITP to agree) each agree that they will inform one
another with respect to any releases, reports or statements or any public
announcements relating to this Agreement or the Transaction contemplated herein
(it being understood that ITP-Lux shall have the right to disclose to third
parties (on ITP's website or otherwise) the terms of the transactions
contemplated herein (including the identity of the parties herein), except as
may be required upon written advice of counsel to comply with applicable laws or
regulatory requirements after consulting with the other party hereto and seeking
their reasonable consent to such announcement. ITP-Lux acknowledges that Netfone
must comply with Applicable Securities Legislation requiring full disclosure of
material facts and agreements in which it is involved, and will co-operate to
assist Netfone in meeting its obligations.
8. CLOSING
8.1 CLOSING. The Closing will take place on the Closing Date remotely via the
exchange of documents and signatures or at such other location as agreed to by
the parties. Notwithstanding the location of the Closing, each party agrees that
the Closing may be completed by the exchange of undertakings between the
respective legal counsel for ITP-Lux, Orange and Netfone, provided such
undertakings are satisfactory to each party's respective legal counsel.
8.2 CLOSING DELIVERIES OF ITP-LUX. At Closing, ITP-Lux will deliver or cause to
be delivered the following, fully executed and in the form and substance
reasonably satisfactory to Netfone:
(a) copies of all resolutions and/or consent actions adopted by or on
behalf of the board of directors of ITP-Lux evidencing approval of
this Agreement and the Transaction;
(b) share certificates representing the ITP Shares as required by Section
0 of this Agreement;
(c) all certificates and other documents required by Section 0 of this
Agreement;
(d) a certificate of an officer of ITP-Lux, dated as of Closing,
certifying that:
(i) each respective covenant and obligation of ITP-Lux has been
complied with, and
20
(ii) each respective representation and warranty of ITP-Lux is true
and correct at the Closing as if made on and as of the Closing
(or if made as of a specific date, will be true, correct and
complete in all respects as of such specific date); and
(e) the ITP Documents and any other necessary documents, each duly
executed by ITP-Lux, as required to give effect to the Transaction.
8.3 CLOSING DELIVERIES OF NETFONE. At Closing, Netfone will deliver or cause to
be delivered the following, fully executed and in the form and substance
reasonably satisfactory to ITP-Lux:
(a) copies of all resolutions and/or consent actions adopted by or on
behalf of the board of directors of Netfone and Orange evidencing
approval of this Agreement and the Transaction;
(b) share certificates representing the Netfone Shares;
(c) all certificates and other documents required by Section 0 of this
Agreement;
(d) a certificate of an officer of Netfone and Orange, as applicable and
each with respect to itself only, dated as of Closing, certifying
that:
(i) each covenant and obligation of Netfone and Organe has been
complied with, and
(ii) each representation and warranty of Netfone and Orange is true
and correct at the Closing as if made on and as of the Closing
(or if made as of a specific date, will be true, correct and
complete in all respects as of such specific date); and
(e) the Netfone Documents and any other necessary documents, each duly
executed by Netfone, as required to give effect to the Transaction.
8.4 WARRANT ISSUANCE ON CLOSING. Netfone will issue to Orange or its assigns at
or before the time of Closing the following warrants each exercisable for one
common share which will be non-cancellable and will be exercisable for a period
of 4 years from Closing:
(a) One point five (1.5%) percent of the Closing Share Capital amount
exercisable at a price which equals seventy five million US dollars
($75,000,000) divided by the Closing Share Capital; (estimated to be
541,613 warrants with an exercise price of $2.08) and
(b) One point five (1.5%) percent of the Closing Share Capital amount
exercisable at a price which equals one hundred million US dollars
($100,000,000) divided by the Closing Share Capital (estimated to be
541,613 warrants with an exercise price of $2.77).
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9. TERMINATION
9.1 TERMINATION. This Agreement may be terminated at any time prior to the
Closing Date contemplated hereby by:
(a) mutual agreement of Netfone and ITP-Lux;
(b) Netfone, if there has been a material breach by ITP-Lux of any
material representation, warranty, covenant or agreement set forth in
this Agreement on the part of ITP-Lux that is not cured, to the
reasonable satisfaction of Netfone, within ten business days after
notice of such breach is given by Netfone (except that no cure period
will be provided for a breach by ITP-Lux that by its nature cannot be
cured);
(c) ITP-Lux, if there has been a material breach by Orange of any material
representation, warranty, covenant or agreement of Orange set forth in
this Agreement, or if there has been a material breach by Netfone of
any material covenant or agreement of Netfone, that is not cured, to
the reasonable satisfaction of ITP-Lux, within ten business days after
notice of such breach is given by ITP-Lux (except that no cure period
will be provided for a breach by Netfone that by its nature cannot be
cured);
(d) Netfone or ITP-Lux, if the Transaction contemplated by this Agreement
has not been consummated prior to March 31, 2011, unless Netfone and
ITP-Lux agree to extend such date in writing; or
(e) Netfone or ITP-Lux, if any injunction or other order of a governmental
entity of competent authority prevents the consummation of the
Transaction contemplated by this Agreement.
9.2 EFFECT OF TERMINATION. In the event of the termination of this Agreement as
provided in Section 0 hereto, this Agreement will be of no further force or
effect, provided, however, that no termination of this Agreement will relieve
any party of liability for any breaches of this Agreement that are based on a
wrongful refusal or failure to perform any obligations.
10. INDEMNIFICATION, REMEDIES, SURVIVAL
10.1 CERTAIN DEFINITIONS. For the purposes of this Section 0, the terms "LOSS"
and "LOSSES" mean any and all demands, claims, actions or causes of action,
assessments, losses, damages, liabilities, costs, and expenses, including
without limitation, interest, penalties, fines and reasonable attorneys,
accountants and other professional fees and expenses of an amount not less than
$50,000 but no more than $1,000,000, but excluding any indirect, consequential
or punitive damages suffered by Orange or ITP-Lux including damages for lost
profits or lost business opportunities.
10.2 ITP-LUX INDEMNITY. ITP-Lux will indemnify, defend, and hold harmless Orange
and its shareholders from, against, and in respect of any and all Losses
asserted against, relating to, imposed upon, or incurred by Orange by reason of,
resulting from, based upon or arising out of:
22
(a) any breach of a representation or warranty of ITP-Lux contained in or
made pursuant to this Agreement, any ITP Document or any certificate
or other instrument delivered pursuant to this Agreement; and
(b) the breach by ITP-Lux of any covenant or agreement of ITP-Lux made in
or pursuant to this Agreement, any ITP Document or any certificate or
other instrument delivered pursuant to this Agreement.
10.3 ORANGE INDEMNITY. Orange will indemnify, defend, and hold harmless ITP-Lux
and its shareholders from, against, for, and in respect of any and all Losses
asserted against, relating to, imposed upon, or incurred by ITP-Lux by reason
of, resulting from, based upon or arising out of:
(a) any breach of a representation or warranty of Orange contained in or
made pursuant to this Agreement, any Transaction Document or any
certificate or other instrument delivered pursuant to this Agreement;
or
(b) the breach by Orange of any covenant or agreement of such party made
in or pursuant to this Agreement, any Transaction Document or any
certificate or other instrument delivered pursuant to this Agreement.
10.4 NETFONE INDEMNITY. Netfone will indemnify, defend, and hold harmless
ITP-Lux and its shareholders from, against, for, and in respect of any and all
Losses asserted against, relating to, imposed upon, or incurred by ITP-Lux by
reason of, resulting from, based upon or arising out of:
(a) any breach of a representation or warranty of Netfone contained in or
made pursuant to this Agreement, any Transaction Document or any
certificate or other instrument delivered pursuant to this Agreement;
or
(b) the breach by Netfone of any covenant or agreement of such party made
in or pursuant to this Agreement, any Transaction Document or any
certificate or other instrument delivered pursuant to this Agreement.
11. GENERAL
11.1 EFFECTIVENESS OF REPRESENTATIONS; SURVIVAL. Each party is entitled to rely
on the representations, warranties, indemnifications and agreements of each of
the other parties and all such representation, warranties and agreement will be
effective regardless of any investigation that any party has undertaken or
failed to undertake. The representations, warranties and agreements will survive
the Closing Date and continue in full force and effect until one year after the
Closing Date.
11.2 FURTHER ASSURANCES AND PROVISION OF INFORMATION. Each of the parties hereto
will co-operate with the others and execute and deliver to the other parties
hereto such other instruments and documents and take such other actions as may
be reasonably requested from time to time by any other party hereto as necessary
to carry out, evidence, and confirm the intended purposes of this Agreement.
23
11.3 AMENDMENT. This Agreement may not be amended except by an instrument in
writing signed by each of the parties.
11.4 EXPENSES. Each of ITP-Lux, Orange and Netfone will pay its own legal and
other costs of the transactions contemplated by this Agreement. ITP-Lux shall
pay the costs of the audit of ITP and Netfone shall pay its costs of complying
with applicable US laws and stock exchange regulations and of the carrying out
all activities required to be conducted by Netfone prior to Closing.
11.5 ENTIRE AGREEMENT. This Agreement, the schedules attached hereto and the
other documents in connection with this transaction contain the entire agreement
between the parties with respect to the subject matter hereof and supersede all
prior arrangements and understandings, both written and oral, expressed or
implied, with respect thereto. Any preceding correspondence or offers are
expressly superseded and terminated by this Agreement.
11.6 NOTICES. All notices and other communications required or permitted under
to this Agreement must be in writing and will be deemed given if sent by
personal delivery, faxed with electronic confirmation of delivery,
internationally-recognized express courier or registered or certified mail
(return receipt requested), postage prepaid, to the parties at the addresses
specified by a party to the others from time to time for notice purposes. All
such notices and other communications will be deemed to have been received:
(a) in the case of personal delivery, on the date of such delivery;
(b) in the case of a fax, when the party sending such fax has received
electronic confirmation of its delivery;
(c) in the case of delivery by internationally-recognized express courier,
on the business day following dispatch; and
(d) in the case of mailing, on the fifth business day following mailing.
11.7 HEADINGS. The headings contained in this Agreement are for convenience
purposes only and will not affect in any way the meaning or interpretation of
this Agreement.
11.8 BENEFITS. This Agreement is and will only be construed as for the benefit
of or enforceable by those persons party to this Agreement.
11.9 ASSIGNMENT. This Agreement may not be assigned (except by operation of law)
by any party without the express, written approval of the other parties to this
Agreement, such approval will not be unreasonably withheld by any of the parties
to this Agreement.
11.10 FORCE MAJEURE. The obligations of the parties and the timeframes
established pursuant to this Agreement will be suspended to the extent and for
the period that performance hereunder is prevented by factors beyond any of the
parties' reasonable control, whether foreseeable or unforeseeable, including,
without limitation, labour disputes, acts of god, laws, regulations, orders,
proclamations or requests of any governmental or regulatory authority, inability
to obtain on reasonable terms required permits, licenses or other
authorizations, or any other matter similar to the above.
24
11.11 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed therein and the courts thereof will have non-exclusive
jurisdiction over any disputes relating hereto.
11.12 GENDER. All references to any party will be read with such changes in
number and gender as the context or reference requires.
11.13 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
all of which will be considered one and the same agreement and will become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that all parties need
not sign the same counterpart.
11.14 FACSIMILE EXECUTION. This Agreement may be executed by delivery of
executed signature pages by fax or other electronic transmission and such fax or
electronic execution will be effective for all purposes.
11.15 INDEPENDENT LEGAL ADVICE. All parties confirm that they have been given an
opportunity to seek and obtain independent legal advice prior to execution of
this Agreement and cannot and do not rely on the representations of any party or
its advisors with respect the legal effects of this Agreement.
11.16 SCHEDULES AND EXHIBITS. The schedules and exhibits that are attached to
this Agreement are incorporated herein. Each party shall have the right to
supplement such schedules and exhibits, including the disclosures, until the
Closing Date.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the day
and year first above written.
NETFONE INC.
Per: /s/ Charles El Moussa
---------------------------------
Authorized Signatory
Name:
Title:
ITP OIL & GAS INTERNATIONAL S.A.
Per: /s/ Manfredi Mazziotti
---------------------------------
Authorized Signatory
Name:
Title:
ORANGE CAPITAL CORP.
Per: /s/ Hani Zabaneh
---------------------------------
Authorized Signatory
Name:
Title:
25
SCHEDULE 2
TO THE SHARE EXCHANGE AGREEMENT DATED DECEMBER 23, 2010 AMONG
NETFONE, ORANGE AND ITP-LUX
DIRECTORS AND OFFICERS OF ITP
Name and Positions held
Manlio Mazziotti di Celso, Director and President of the Board of
DirectorsSimona Spreca, Director and Chief Executive Officer
Gianfranco Turrini, Director and Vice-President of the Board of Directors
Massimo Manzo, Regular Auditor and President of the Board of Auditors
Anna Maria Restante, Regular Auditor
Fabio Casasoli, Regular Auditor
Alessia Bastiani, Alternate Auditor
Fabio Nuzzo, Alternate Auditor
Lorena Conti Auditor (Revisore dei Conti)
SCHEDULE 3
TO THE SHARE EXCHANGE AGREEMENT DATED DECEMBER 23, 2010 AMONG
NETFONE, ORANGE AND ITP-LUX P
DIRECTORS AND OFFICERS OF NETFONE
Name and Positions held
Charles El-Moussa, President, Secretary, Treasurer and director
SCHEDULE 4.4. TO THE SHARE EXCHANGE AGREEMENT DATED DECEMBER 23, 2010 AMONG
NETFONE, ORANGE AND ITP-LUX
NETFONE SHAREHOLDERS' LEDGER
SCHEDULE 10
TO THE SHARE EXCHANGE AGREEMENT DATED DECEMBER 23, 2010 AMONG
NETFONE, ORANGE AND ITP-LUX
FINANCIAL STATEMENTS
SCHEDULE 11
TO THE SHARE EXCHANGE AGREEMENT DATED DECEMBER 23, 2010 AMONG
NETFONE, ORANGE AND ITP-LUX
SHARE CAPITAL PRE-CLOSING
Authorized shares: 100,000,000 common shares par value $0.001
20,000,000 preferred shares par value $0.001
Shares outstanding: 12,658,000 (7,840,000 restricted shares).
No preferred shares outstanding.
CLOSING TRANSACTIONS
Reverse Stock Split: 1 for 2.4 current common shares
Increase of Authorized Capital to 1,000,000,000 common shares.
Restricted Shares reduced from 7,840,000 to 3,266,670
Cancellation of 3,166,670 of remaining restricted shares leaving 100,000
restricted shares.
Issuance of 34,000,000 common shares for ITP
SHARE CAPITAL POST CLOSING
Authorized shares: 1,000,000,000 common shares par value $0.001
20,000,000 preferred shares par value $0.001
Non restricted shares outstanding 2,007,500.
Affiliate restricted shares remaining outstanding 100,000.
Shares issued to ITP Oil & Gas 34,000,000 (94%).
Total outstanding common shares 36,107,500.
No preferred shares outstanding.
"Closing Share Capital" means 36,107,500 common shares.
Outstanding Warrants to Orange Capital Corp: 541,613 with an exercise price of
$2.08 and 541,613 with an exercise price of $2.77
